WS 3 - Parliamentary Supremacy (European Limitations) Flashcards
s.2(1) ECA 1972
Recognises that EU law can be directly applicable; gives legal effect in UK to ‘directly effective’ EU law. Covers provisions contained in those treaties referred to above.
s.2(2) ECA 1972
this enables UK Government to make delegated legislation to implement EU law within UK (e.g. to implement EU directives)
s.2(4) ECA 1972
deals with conflicts between directly effective EU law and domestic legislation. It requires any enactment passed or to be passed to be ‘construed and have effect’ subject to EU law.
s.3(1) ECA 1972
Requires UK courts to apply EU law in accordance with principles laid down by the ECJ (i.e. ECJ decisions are in effect binding)
Two limbs to s.2(4) ECA 1972
1) Rule of Construction as courts must read UK legislation in such a way as to make it compliant with EU law (indirect effect)
2) The doctrine of implied repeal - ‘shall take effect’
Indirect effect limb of s.2(4) ECA: Cases:
Pickstone v Freemans [1989] - The House of Lords held that he purpose of the 1983 regulations had been to give effect to EU law. A strict reading of the Regulations failed to achieve this, and so the House of Lords adopted a ‘purposive’ interpretation in which it departed from strict literal interpretation and implied words into the regulations in order to comply with EU law
Litster v Forth Dry Dock: HoL added words into the Transfer of Undertakings regulations in order to comply
Webb v EMO Cargo: A strict reading of the Sex Discrimination Act failed to achieve this, and so the House of Lords held that the relevant sections of the Act were to be construed in accordance with the ruling from the ECJ.
Doctrine of Implied repeal weakened under second limb of s.2(4) ECA?
s. 2(4) ECA 1972 – acts of Parliament “shall have effect…”: Where EU law and UK statute contravene each other, directly effective EC law will take precedence over conflicting national law, which will be disapplied (see Factortame v Secretary of State for Transport II – Injunction granted effectively suspending the operation of the Merchant Shipping Act. ECJ found it incompatible.)
i. The national law will be disapplied even where the act is a constitutional provision (Costa v ENEL)
European Union Act 2011
Attempt to place on a statutory footing the common law principle of parliamentary supremacy. Provides that directly applicable or directly effective EU Law (i.e. that referred to in s.2(1) ECA) falls to be recognised and available in law in the UK only by virtue of an Act of Parliament. Consider degree to which this is significant, or political posturing.
Also, significant EU treaties must be approved by a referendum as well as Parliament.
How has the doctrine of implied repeal been weakened by ECA?
i. This doctrine is further weakened by the ECA, and will not apply where post 1972 legislation contravenes the ECA (Factortame)
But could Parliament legally and expressly repeal ECA?
Garland v British Rail Engineering [1983] (Diplock: duty of courts to follow) and McCarthy v Smith [1979] (Denning: would be duty of the courts to follow): Parliament may legally and expressly repeal the ECA 1972, which is merely a self-imposed limit (indeed, the Lisbon Treaty set out a route by which a member state may withdraw from EU)
However, the vast size and extent of political, economic and social obstacles to express repeal of the ECA effectively make it impossible.
Why was a weak method of incorporation chosen for HRA?
The Act was intended to preserve Parliamentary supremacy. White Paper: Rights Brought Home: intended to provide a new basis for judicial interpretation of all legislation not a basis for striking down any part of it
s.3 HRA
So far as is possible Primary and secondary legislation must be interpreted in accordance with Convention rights.
s.4 HRA
Where a court cannot interpret legislation in a manner that makes the legislation compliant with Convention rights, the courts may make a declaration of incompatibility.
Case showing courts have been very willing to implement ECHR, reading national legislation beyond its literal meaning
Ghaidan v Godin-Mendoza – rights of same sex couples to inherit tenancy. The issue on appeal was whether this extended to the survivor of a same-sex couple who had been living together. Read ordinary meaning, the legislation treated survivors of homos less favourably. HoL used its power under s.3 HRA to read the housing legislation as extending to same-sex partners
s.4 HRA - What effect has it had?
Merely a legal statement of the courts opinion, but there is enormous political pressure for the government to alter legislation. New constitutional convention that govt will amend legislation deemed incompatible?
