EU and Brexit - 17

What 3 impacts has entering the EU on the UK?

1. disturbed Parliament’s status as supreme lawmaker by recognising a new law-making (the EU legislature) which created an (almost invariably) overriding, source of law (EU law) that is enforced by UK courts

2. disturbed the status of the UK courts as the institution with the final power of interpreting UK law by recognising a court (ECtHR) that is empowered to give rulings that bind the UK courts on a part of UK law (EU law)

3. EU law also disturbed the balance between the courts and parliament in the UK by empowering the courts to disapply Acts of Parliament that conflict with EU law.

Historical development of the EU

1. These are the founding legal documents of the European Union in which the Member States confer certain powers on what was initially the European Economic Community (EEC)

2. EEC was initially focused on economic matters (the creation of a single market in Europe with free movement of goods, services and people)

3. Formation of the EU - notion of ‘ever closer union’

4. Creation of new treaties - Treaty of Rome 1957, Single European Act 1986 and onwards…

   • Each of these treaties gave new powers to the European Union, so that the EU gained powers in areas such as employment, justice and home affairs and environmental policy.

Difference between EU and other international bodies?

• The law made by EU bodies has what is known as ‘direct effect’ that is, it can be enforced by national judges in national courts. This makes EU law part of every-day life in a way that, for example, World Trade Organisation law is not.

What is ‘qualified majority vote’?

EU legislation needs to be agreed by all Member States in the Council but in many areas (and each treaty has expanded the number of areas in this category)

legislation can be passed by a “Qualified Majority Vote”, that is 55% of the states representing 65% of the population of the EU.

Van Gend en Loos v Nederlandse Administratie der Berlastingen

Recognised the direct effect of European law

Costa v ENEL

Outlined that EU law has primacy over national law

Amministrazione delle Finanze dello Stato v Simmenthal

outlined any national court is empowered to set aside national law that conflicts with EU law even if, under national law, the court lacks the power to strike down legislation.

5 Challenges with the EU legal order in relation to the UK Constitutional System

1. EU institutions’ ability to pass law that would be directly applied in UK courts posed a challenge to the monopoly of Parliament on law-making

2. The primacy of EU law over national law conflicts with the idea that Parliament enacts is the supreme source of law.

3. Parliament cannot tie the hands of future Parliaments and the doctrine of implied repeal, as it would mean that legislation passed by Parliament that conflicted with EU law would be set aside.

4. The status of the Court of Justice as the supreme interpreter of EU law was in tension with the status of the UK courts as supreme interpreters of the law.

5. The duty on national judges to disapply national law that violates EU law was in tension with the approach of the UK constitution that judges cannot strike down acts of Parliament.

Laws LJ in Thoburn v Sunderland CC

Laws LJ developed the idea of constitutional statutes to allow him to presume that Parliament had not intended to legislate contrary to its EU law obligations even when incompatible with EU law.

Lord Bridge in Factortame

“limitation of its sovereignty Parliament was accepted when it enacted the European Communities Act 1972, was entirely voluntary.”

Miller I case

The notion that the ECA had changed the rule of recognition was also rejected by the Supreme Court in Miller I

R (on the application of HS2 Action Alliance Limited) (Appellant) v The Secretary of State for Transport (Respondents) on Primacy of EU law

the Supreme Court held that if there had been a clash, they would not automatically accord primacy to EU law and would need to hear full argument on which constitutional statute should prevail.

What is the referendum results for Brexit?

In 2016, UK voters voted by 52% to 48% to leave the EU.

How is the UK’s relationship with the EU governed?

1. 2019 Withdrawal Act

2. 2020 Future Relationship Agreement