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Workshop 10.1 - Impact of EU membership - Coggle Diagram
Workshop 10.1 - Impact of EU membership
Context
The orthodox Diceyan theory on parliamentary sovereignty is based on the idea that the legal authority of the Westminster Parliament is unlimited.
However, over time Westminster has given away political authority to newly independent nations.
It is crucial to assess how EU membership had impacted the doctrine of parliamentary supremacy.
UK as a 'dualist state
Monist states mean that international and domestic laws operate on the same plane. The UK is a dualist state which means there is a distinction between the two sources.
As seen in cases such as
Mortensen v Peters
domestic law has a higher status in the UK legal system because it is created by the sovereign Parliament.
If Parliament wants international legal systems to be enforced, it needs firstly to incorporate this into the UK legal system by passing a statute to that effect. This was done with the HRA which incorporated the ECHR.
EC/EU Treaty obligations
The UK signed the Treaty of Accession in 1972 ad became a full member of the EC from 1973.
To incorporate the Treaty of Rome 1957 into domestic law, Parliament passed the ECA 1972.
Since then, a number of treaties have modified the original treaty (such as the Maastricht Treaty which first established the EU) these have also been incorporated into UK law by statute amending the ECA.
The ECA 1972
There are 3 key provisions in the ECA in relation to sovereignty:
Section 2(1) gave affect to EU law within the UK.
Section 3(1) provided that questions of law relating to the EU should be determined according to the principles laid down by the ECJ. This gave effect to the case law of that court. (recently known as the CJEU).
The most significant principle laid down by the ECJ was the supremacy of EU law over domestic law (known as the primacy of EU law). This principle was established in Costa v E.N.E.L which stipulates the EU law can't be overridden by national law of member states. In the event of a conflict, EU law must prevail.
Section 2 (4) sought to accommodate the primacy of EU law and provided that any enactment passed or to be passed shall be construed and have effect subject to EU law.
This was straightforwards in relation to any UK statutes enacted before the ECA 1972.
The doctrine of implied repeal worked to ensure that any pre-1972 statues, which were incompatible with EU law, would be overridden by the ECA. This satisfied both the demands of EU law and parliamentary sovereignty.
However, s 2(4) required that any statutes enacted after 1972 to have effect subject to EU law.
This created tension with parliamentary sovereignty as it went against the principle in vauxhall estates and Ellen Street Estates that Parliament cannot bind itself.
Early case law
The period between the UK joining the EC and the late 1980s showed no final resolution of these difficulties.
UK courts continued to show allegiance to traditional notions of parliamentary sovereignty but largely managed to resolve issues by applying a presumption that whenever the UK passed legislation it intended to comply with EU law.
Factortame (No 1)
This involved a dispute between the SoS for Transport and a number of companies headed by Factortame Ltd over the application of restrictive provisions in the Merchant Shipping Act 1988.
The UK govt introduced this Act to cut back on quota hopping which was seen as damaging to the UK's fishing industry as it allowed foreign-based ships to take advantage of UK fish quotas if the company was registered the in the UK.
Factortame Ltd, which was incorporated under UK law, owned 95 ships which were mainly owned and managed by Spanish nationals, but their ships were previously registered as British.
When the law was changed with the 1998 Act, these vessels had to be re-registered.
Factortame vessels failed to qualify under the new regime because they were largely managed and controlled from Spain.
Therefore, the companies wanted to challenge the legality of the relevant new statutory provisions on the ground that they were contrary to the provisions of the EEC Treaty and other aspects of EU law incorporated by the ECA 1972.
Here the UK and EU laws couldn't be harmonised because the new statute operated in direct contravention of key principles in EU law (notably freedom of establishment).
The matter was referred to the ECJ as the law lords didn't believe they had the jurisdiction to conclude it.
Factortame (No 2) - R v SoS for Transport, ex parte Factortame Ltd (no 2) [1991] 1 AC 603
After the ECJ's response, the law lords convened to give key judgment.
This case is one of the most important cases in constitutional law as it established that the courts could now suspend an Act of Parliament where they were required to do so by EU law.
Lord Bridge insisted that the principle of the supremacy of EU law was well established by the time that the UK had joined and that, in enacting the ECA 1972, Parliament had voluntarily signed up to a limitation on its own sovereignty.
Post-Factortame
Factortame put it beyond doubt that EU law would override or disapply conflicting UK statutes enacted after 1972
Subsequent cases went further by disapplying provisions within statutes that clearly conflicted with EU law, even without a reference to the ECJ. This was made clear in
R v SoS Employment, es parte Equal Opportunities Commission [1995] 1 AC 1
.
This case involved the rights of part-time workers under the Employment Protection (Consolidation) Act 1978.
Part-time workers were mostly women, so the EOC argued that the statute indirectly discriminated against women contrary to EU law.
The HoL agreed ad granted a declaration to that effect.
Thoburn v Sunderland City Council [2002] EWHC 195
This case involved market traders (self named Metric Martyrs) who were convicted for using imperial measures contrary to legislation enacted to implement a European directive.
They argued in their appeal that the ECA 1972 was incompatible with the later Weights and Measures Act 1985, which allowed for the use of both metric and imperial measurements.
Their point was that the 1985 impliedly repealed the relevant parts of the ECA 1972.
On the facts, the law lords disgareed.
However, they made the point that the doctrine of implied repeal did not apply to the ECA as it was seen as a constitutional statute and constitutional statutes may not be impliedly repealed.
Reflections on ECA and sovereignty
The fact that the courts enforced prinicple of EU law over domestic statutes shows that it is possible for one parliament to have bound future parliaments in a substantive way. However this binding effect only lasts as long as Parliament wishes to be bound for .
Ultimately, Parliament can impose limitations upon itself but the principle remains because it cannot prevent future parliaments removing those restrictions.