Relationship between EC and Domestic Law

“… EC Law Has Paramountcy Over National Law Because Parliament In Passing The 1972 Act Intended This … If A Future Parliament Were To Provide Otherwise, The UK Courts Would Be Obliged To Give Effect To National Law.”

Ann Lyon: Constitutional History Of The United Kingdom (Cavendish 2003)

Consider The Extent To Which This Statement Is An Accurate Description Of The Relationship Between EC Law And ‘Domestic’ Law Within The UK. Explain The Position According To Both English And EC Law, Referring To Case-Law Of The European Court Of Justice.

Introduction:

This analysis seeks to assess arguments surrounding whether Lyon’s statement is a precise reflection of the relationship between EC and domestic law in the UK. Therefore, in order to assess whether her statement is an accurate interpretation, it is necessary to analyse it in order to understand the nature of the arguments that it is trying to convey. It is also important to evaluate how the 1972 Act has affected Parliamentary sovereignty and how the law of the UK and EU as interpreted and applied, respectively, by UK Courts and the European Court of Justice (ECJ). This will allow a better understanding of the nature of the relationship which exists currently between EC and UK law.

In the final section of this paper, through reference to the conclusions of the analyses undertaken in the previous sections of this paper, it will be argued that even if Parliament would wish for its national provision to be given primacy, the Treaty provision will prevail and the national provision will be declared invalid.

European Communities Act 1972

The UK’s membership of the EU is of particular significance with regards to the constitutional principle of Parliamentary sovereignty. With the absence of a written constitution, the European Communities Act 1972 (ECA) made EC law part of UK law. This in itself is problematic due to the fact that a current parliament cannot bind its successors; although it is unlikely a future parliament could repeal this Act as easily as any other.

Section 2(1) of the ECA gives present and future EC law legal force in the UK and section 2(2) provides for the implementation of EC law by means of secondary legislation. However, the Act does not specifically prohibit Parliament from enacting conflicting legislation. If however, such conflicting legislation was ineffective insofar as it was inconsistent with Community law, the Parliament’s power to legislate as it liked would be limited accordingly.

Section 2 (4) of the Act indicates that any legislation ‘passed or to be passed…shall be construed and take effect subject to’ the enforcement in the United Kingdom of directly effective rules of Community Law.’ This provision suggests that the courts should give such rules precedence over inconsistent UK legislation, even if it has been enacted after the 1972 Act. Section 3 follows on to propose a duty for the courts to determine questions of EC law accordance with the principles laid down by the case law of the ECJ. It states that the ECJ should be accepted as the final arbiter concerning the meaning of EC law.

Therefore it can be said that EC Treaty has created a new form of legal order in UK in which the ECJ has asserted the supremacy of EC law over national. This created a challenge or a conflict to the traditional idea of Parliamentary supremacy, as it directly challenges the obligations of court to follow the legislation passed by Parliament.

Analysis Of Lyon’s Quote

The statement provided by Lyon (2003), is a direct reference to the dictum of Lord Bridge in the case of R v Secretary of State for the Environment ex parte Factortame (No. 2). The main issue which fell for determination in this case was whether or not national legislative provisions (in that case, a provision of the Merchant Shipping Act 1988) should be declared invalid and set aside by the Courts, in cases where the claimant has satisfied the Court that the provision or provisions in question contravene EC law, in this case a provision of the Treaty of the European Union. The Court held that such national provisions should be deemed invalid and that they should be immediately set aside so that the claimant can recover compensation for the State’s breach of EC law, not because European law is supreme per se, but rather because Parliament enacted the 1972 Act conferring supremacy on EC law and the Courts are bound to give effect to Parliamentary intention.

When understood in this context, it becomes clear what Lord Bridge was arguing in the excerpt provided at the top of this paper; namely, he was stating that the supremacy of European law will only remain so long as the UK legislature decides that it wishes to keep that principle in operation: “…if a future Parliament were to provide otherwise, the UK courts would be obliged to give effect to national law.”

Relationship Which Exists Currently Between EC And UK Law

The question of whether or not the UK legislature has the ability to terminate the operation of the principle of the supremacy of European law, is one which has plagued the academic literature ever since the Factortame case; authors, such as Wade (1996), Allen (1997) and Craig (1991), at the time, argued that this decision was ‘revolutionary’ in that it affirmed the irrevocable supremacy of European law, while others such as Forsyth in Administrative Law refused to accept this proposition, instead seeing the case as affirming the supremacy of national Parliamentary intention. The rationale behind this latter argument is that if the legitimacy of European law in the UK comes from a law passed by the UK legislative, then it would lose its legitimacy if that legislative passed a law renouncing the supremacy of EC law.

However, some authors and leading members of the UK judiciary feel that this right to withdraw has now become merely theoretical in nature, and will remain that way while the UK remains a member of the European Union. Therefore, it is clear that if the UK Parliament did decide to withdraw the country from the European Union and amend the 1972 Act, then the Courts would be bound to disregard EC law when formulating their judgements. Nevertheless, because Britain’s membership of the European Union is now relatively non-contentious, it is highly unlikely that this would ever happen in practice. The question which therefore falls for determination is as follows: Even though the UK legislative retains a theoretical right to withdraw from membership of the European Union, unless and until it invokes that right, can it be argued that it has surrendered its sovereignty to European law?

The emerging consensus seems to affirm this contention. For example, in the case of Stoke on Trent County Council v B&Q Plc (No. 2), Mr. Justice Hoffman opined, delivering the leading judgement, that:

“The EEC Treaty is the supreme law of this country, taking precedence over Acts of Parliament. Our entry into the European Economic Community meant that (subject to our undoubted but probably theoretical right to withdraw from the Community altogether) Parliament surrendered its sovereign right to legislate contrary to the provisions of the Treaty Parliament surrendered it sovereign right to legislate contrary to the provisions of the Treaty…”

It was always thought that an Act of Parliament was the supreme law; however Hoffman’s judgement indicates that the EEC Treaty hold supreme against Acts of Parliament, in this case the Shops Act 1950.

Further to this and more recently, in the case of Fleming (Bodycraft) v Revenue and Customs Commissioners and Conde Nast Publications Ltd v Customs and Excise Commissioners, the House of Lords declared regulation 29(1A) of the VAT Regulations 1995 to be incompatible with European law and therefore invalid in accordance with the Factortame principle.

These decisions undermine the idea that the only reason the Courts give effect to EC law over national law is because it is Parliament’s intention for them to do so, for in these cases it was clear from the offending legislative provisions in question that it was not Parliament’s intentions for them to be declared invalid. Lord Denning stated that, “[Once a bill] is passed by parliament and becomes a statute, that will dispose of all discussion about the Treaty.” Consequently, the House of Lords did not concur with this opinion in the Fleming and Conde Nast cases, nor in the Factortame case which, as Wade argues, did what was previously thought to be constitutionally impossible, it allowed the 1972 government to restrict the sovereignty of the 1988 government.

Contrasting View Of German Courts

Internationale Handelsgesellschaft GmbH v EVST takes the principle of EC law supremacy further. Its decision was that for as long as EC did not have regard for basic rights at high level as Grundgesetz had, it may be ignored by German Courts who reserved the right to refer secondary EC law to BVerfG in order that EC law may be constitutionally reviewed. This decision questions every aspect of Community sovereignty that is established in Van Gend en Loos and Costa v ENEL. It further states that EC law is neither national nor international law. It derives from a self-governing source. Both German and Community law are independent from one another and most importantly Community law is not a superior part of German law. German law will be recognised for as long as it does not interfere with the rights of German citizens. In contrast to the German Constitutional Court, English courts are more susceptible to the adoption of EC law in the UK.

Conclusion

In conclusion, based upon the analysis provided in the previous sections of this paper, there are two ways of approaching an answer to this enquiry: Firstly, one can approach this enquiry by asking whether or not the UK legislature has the power to amend or repeal the European Communities Act 1972, revoking Britain’s membership of the EU and, if so, whether or not the national Courts would be bound to disregard EC law from that moment forth when forming their judicial decisions. Secondly, one can approach the enquiry by asking whether or not the UK legislature has the power to expressly preclude the operation of one or more parts of the EU Treaty and whether or not, in such cases, the national Courts would be bound to give priority to the express intention of the UK Parliament to disregard those aspects of European law.

If one approaches the evaluation of Lyon’s statement from the former of these two perspectives, then it can be argued that she is correct in asserting that EC law has paramountcy over national law because Parliament in passing the 1972 Act intended this and that if a future Parliament were to provide otherwise, the UK courts would be obliged to give effect to national law. However, if one approaches the evaluation of Lyon’s statement from the latter of these two perspectives, then it must be argued that she is incorrect, for the UK Courts have made it clear, when faced with national legislation which conflicts with the EU Treaty, even if it is clear that Parliament would wish for its national provision to be given primacy, the Treaty provision will prevail and the national provision will be declared invalid.

Bibliography

Cases

• Conde Nast Publications Ltd v Customs and Excise Commissioners [2007] 2 C.M.L.R. 35
• Costa v Ente Nazionale per l’Energia Elettrica (ENEL) [1964] C.M.L.R. 425
• Felixstowe Dock & Railway Co v British Transport Docks Board [1976] 2 C.M.L.R. 655
• Fleming (Bodycraft) v Customs and Excise Commissioners [2008] UKHL 2
• Internationale Handelsgesellschaft GmbH v EVST [1970] ECR 1125
• NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen [1963] C.M.L.R. 105
• R v Secretary of State for the Environment ex parte Factortame (No. 2) [1991] 1 AC 603.
• Stoke on Trent County Council v B&Q Plc [1993] 2 A.C. 730.

Books

• Bradley, A & Ewing, K – Constitutional and Administrative Law (Longman, 2008)
• Lyon, Anne – Constitutional History of the United Kingdom (Routledge, 2003)
• Turpin, Colin & Tomkins, Adam – British Government and the Constitution (Cambridge University Press, 2000)

Journals

• Allan, T – ‘Parliamentary Sovereignty: Law, Politics and Revolution,’ in The Law Quarterly Review 1997, 113(Jul), 443-452
• Wade, W – ‘Sovereignty: Revolution or Evolution?’ in The Law Quarterly Review 1996, 112(Oct), p. 568-575

Statutes

• The European Communities Act 1972
• The Merchant Shipping Act 1988
• The VAT Regulations 1995