Impact of EU Law on the English Constitution, Human Rights and Sovereignty

Introduction

This essay will analyse the impact of EU law on the English constitution. Which mention: how the EU law applies to UK; Judicial review referring to Human Rights; The UK constitution and the sovereignty;

“Membership of the European Union and the Council of Europe has undermined the UK Constitution to such an extent that the UK Parliament is no longer sovereign. It will be good to return to the traditional means of overseeing the work of government.”

UK Constitution

A constitution is the rules and practices exercised by the functions of the organs of the state and UK is unwritten constitution which it consists of act of parliaments diversified documents.

The law come from the parliament who make statutes plus the Delegated Legislature and their departments of ministers. Written law are in addition to the common law and equity (ex: case- Earl of oxford’s 1615) and the European community law.

The parliament main job is to legislate.  After careful consideration via debates, laws are enacted which are considered for the betterment of the country. And they have a process which consist in pass the law both in the House of Commons and the House of Lords (they both must agree), and the monarch (the queen) signs and becomes an act of parliament.

The public law concerns with the functions of the body part of central and local government. The rule of law is very important concept for the constitution according to which the government has no arbitrary authority over the citizen, signifying that the law is supreme.[1]

EU law

By the European Communities Act 1972, the EU law applies to UK now (in 1972) and in the future Before 1972 the UK was sovereign, but the UK Parliament decided to give away some of that power (like the other countries did and they called European Community). That means that on some issues, the EU institutions in Brussels and not MPs in Westminster, will have the authoritative statement, so EU legislations are automatically binding UK law. [2]

EU legislation is passed through the co-decision process, in which the Commission drafts a proposal, then both Parliament and Council discuss, amend and vote on the proposal through the processes of two readings. The end of the procedures, both Council and Parliament must reach an agreement on the final proposal, which then come law on publication in the EU’s ‘Official Journal[3]‘

The EU’s standard decision-making is proceeded by the directly elected European Parliament and must approve EU legislation together with the Council (the governments of the 28 EU countries).

The European Commission also consults interested parties such as non-governmental organizations, local authorities and civil society. Experts give guidance on technical issues. In this way, the Commission guarantees that legislative proposals correspond to the needs of the citizens. [4]

European Community example: Case-Laws LJ in Thoburn v Sunderland City Council [2002] EWHC 195, paras 62-64[5]

Impact of Parliamentary Sovereignty

Parliament Sovereignty make legislative competence (ability or suitability) of parliament is unlimited (absolute). Theoretically only parliament can make or unmake any law[6]; No one can question the act of parliament and the current parliament is free to overrule any previous parliament act. But in practice parliament does not assume unlimited authority, the legislative must be recognized by international law to be within its competence.[7]

For example: R v Secretary of State for Transport, ex parte Factortame (No 2) [1991] 1 AC 603 “The applicants were companies with Spanish interests who had previously enjoyed fishing rights entitling them to fish against UK quotas under the Common Fisheries Policy. Under the 1988 Act, which made registration of such rights compulsory, F and O were no longer eligible because of their Spanish connections (s.14(1)). F and O applied for judicial review to challenge the validity of certain provisions of the 1988 Act because they contravened European law. The House of Lords held that the Queen’s Bench Division had exceeded its powers in granting interim relief against S, as there was no jurisdiction in existence to enable the making of such an order against the Crown. The House of Lords then referred a question to the European Court of Justice about the relative status of English and European law. The European Court ruled that in cases concerning community law, where the only barrier preventing a national court from granting interim relief was the existence of a national rule, then the national court must set aside that rule[8].”

Impact of Judicial Review

Parliament confers power to the public bodies (anybody or corporate that performs is duties and exercises its powers for the public benefit, as opposed to private gain for example: the local authorities, commissioners…) and the courts supervises to make sure that they are in accordance with the doctrine of ultra vires.

Like in the case of Council of Civil Service Unions v Minister for the Civil Service 1985 AC 374 HL also known as the GCHQ, where the administrative decision of banning trade union was questioned before the Court and the administrative body had to explain their rational behind the decision. The traditional grounds to use judicial review are: illegality, irrationality and procedural impropriety.[9]

Judicial review also can be used to challenge public authorities that are incompatible with the European convention on human rights for example: R (on the application of CG) v The Commissioner of the Police of the Metropolis 2011 UKSC 21, 1 WLR 1230[10].

Lord Hoffmann said: “In the great case of Golder v United Kingdom (1975) 1 EHRR 524 the Strasbourg court decided that the right to an independent and impartial tribunal for the determination of one’s civil rights did not mean only that if you could get yourself before a court, it had to be independent and impartial. It meant that if you claimed on arguable grounds to have a civil right, you had a right to have that question determined by a court. A right to the independence and impartiality of the judicial branch of government would not be worth much if the executive branch could stop you from getting to the court in the first place. The executive would in effect be deciding the case against you. That would contravene the rule of law and the principle of the separation of powers.”

Case of violation of Human Rights: Montgomery v Lanarkshire Health Board [2015] UKSC 11 (James Badenoch QC of 1COR appeared for the successful Appellant)

This was the case in which the Supreme Court reacted to the “changing paradigm of the doctor-patient relationship”. Montgomery was not only one of the seminal cases in the law of clinical negligence in thirty years, it also recognized the importance of patient autonomy and the “stimulus of human rights” in informing what a doctor must tell his or her patient about the risks inherent in a procedure.

Case: Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs Secretary of State for Foreign and Commonwealth Affairs v Janah

The secretary of state appealed against a declaration that the State Immunity Act 1978 s.4(2)(b) and s.16(1)(a) was incompatible with ECHR art.6. The respondents were Moroccan nationals who had been employed as domestic workers by the Sudanese and Libyan embassies in London. Both had been recruited overseas and only one had acquired permanent resident status in the UK. Both were dismissed from their employment and brought claims in the employment tribunal. Some of their claims were based on UK law, some on EU law. In each case, the employment tribunal dismissed all the claims on the basis that they were barred by s.4(2)(b) and s.16(1)(a) of the Act. The EAT upheld the dismissal of the domestic law claims but allowed the EU law claims to proceed. The Court of Appeal affirmed the EAT’s judgment, disapplying s.4(2)(b) and s.16(1)(a) so far as they applied to the EU law claims and declaring them to be incompatible with the right to access a court guaranteed by ECHR art.6.

These cases both where mention about in opposition of the human rights (like right to a fair trial) and the EU law, and some they were incompatible with the EU/UK law. And this assignment is about these keywords.

Conclusion

The statement above is talking about UK not having the EU law to follow as a good example, and my justification is that UK should not stop following the rules imposed by EU because they have 28 countries and expertise to help them to do fair laws, to all citizens. Having a good relationship with the other countries because they need each other for the trade (importing and exporting); the economy; to politics. And to have all the power (sovereignty power to the Westminster of UK) in just one parliament they will do want they want, and the EU law exist to not having unfairness and unlawfulness in the life we live in.

Bibliography

• D. Oliver, “Is the Ultra Vires Rule the Basis of Judicial Review? [I9871 P.L. 543;
• Paul Craig, “Ultra Vires and the Foundations of Judicial Review” [I9981 C.L.J. 63; Forsyth, “Of Fig Leaves and Fairy Tales: The ultra vires Doctrine, the Sovereignty of Parliament and Judicial Review” [I9961 C.L.J. 122;

---

[1] A dictionary of law (8th edn, 2015) pg 441-552

[2] Adam Tomkins, John Millar Professor of Public Law, University of Glasgow, « https://publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/633ii/633we02.htm»

[3]Joshua Rozenberg, legal comentador « http://www.bbc.co.uk/news/uk-politics-eu-referendum-35630757»

[4]   “EU law” « https://europa.eu/european-union/index_en» accessed 25/10/2017

[5] Westlaw, «https://login.westlaw.co.uk/maf/wluk/app/document?&srguid=i0ad69f8e0000015f5e2efc89a02c207b&docguid=ICF306110E42811DA8FC2A0F0355337E9&hitguid=ICF306110E42811DA8FC2A0F0355337E9&rank=1&spos=1&epos=1&td=226&crumb-action=append&context=15&resolvein=true»

[6] Dicey’s rule of law

[7] A dictionary of law (8th edn, 2015) pg 553-609

[8] R. v Secretary of State for Transport Ex p. Factortame Ltd (No.2), westlaw. « https://login.westlaw.co.uk/maf/wluk/app/document?docguid=I694671A0E42811DA8FC2A0F0355337E9&context=87&crumb-action=append»

[9] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, HL

[10] Maureen O’Brien, Thomson Reuters, judicial review, westlaw « https://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&context=100&crumb-action=replace&docguid=I03C85A30C9E211E2817BBE8A82975263»