Public law 1: joining and leaving the EU

What are the 2 legal principles which distinguish the EU as a supranational (having power or influence that transcends national boundaries/ governments)?

• The principle of direct effect means that people can enforce certain EU rights/ obligations directly before their national courts

• the supremacy of EU law means that any inconsistency between domestic and EU law would be resolved in favour of EU law. The national courts would so have an obligation to disapply domestic legislation which conflicts with EU law

These two principles determine situations where a litigant appearing in a Uk court can claim that certain rights/ obligations are created directly by EU law itself (without the need for any national implementing legislation

Case of Case 26/62 NV Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, 12

This case helped to form the idea of direct effect and supremacy. It involved a dutch haulage company. The case raised the legal question of whether the rules in the treaty of Rome would create rights on which indiciuals/ companys could rely on before a domestic court. The case was decided in favour of the company and so the ECJ delivered a landmark decision that pronounced on the nature of the European Legal order and on its relationships with member states as well as individuals - which is regulated by the principle of direct effect.

The case of Case 6/64 Flaminio Costa v ENEL [1964] ECR 585, 593–4

This established the supremacy, primacy or precedence of EU law over national law. Costa involved a challenge to the legality of an electricity bill issued by the newly nationalised Italian state electricity authority. The court echoed its rulling in van Gend en Loos but went a step further. ie the court claimed that “the law stemming from the treaty …. could not, because of its special and original nature, be overridden by domestic legal provisions … without being deprived of its character as community law and without the legal basis of the community itself being called into question

What if EU law collided with fundamental principles or rights that are protected by national constitutional law?

Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125 - the ECJ held that the legal status of a conflicting national measure was not relevant to the question of whether EU law should take precedent - ie not even a fundamental rule of national constitutional law can be invoked to assess the validity of EU law

How has the UKs withdrawal from the EU made the relationship more complex?

There is the issue of the principle of supremacy of EU law ie on the face ot it, the principle does not apply to enactment or rule of law passed or made after exit day of the EU Withdrawal Act 2018, but this principle still applies where a conflict arises between pre-exit UK law and retained EU law.

• a retained EU regulation will override inconsistent pre-exit domestic legislation

• UK courts must interpret pre-exit domestic law, as far as possible to do so with EU law

• under s.5(3) of the EU withdrawal act 2018 the principle of supremacy will continue to apply to pre-exit law that is amended on or after exit day

What does Article 4 of the withdrawal act do?

Article 4 requires that the provisions of the withdrawal agreement and the provisions of the EU law made applicable by the agreement produce the same legal effects in the UK as those which they produce in the EU and its member states ie it allows private parties to invoke EU rights under the withdrawal agreement before national courts and instructs the UK to ensure compliance with obligations by requiring UK courts to disapply domestic legislation which is incompatible with EU law

What was the process of the UK joining the EU community?

The UK and Ireland joined the European Economic Community (EEC) - trading group - on the 1st Jan 1973. The UK needed to overcome several political and psychological obstacles

What was the European Communities Act 1972 s.2? - the whole act itself brought the UK into the EU

This gave legal effect in the UK, the rights, powers, obligations etc under the treaties

How did section 2 of the European Communities Act 1972 work and contradict the key principles of UK constitutional law?

• as no guarantee could be given that Parliament would not in the future legislate in a manner contrary to community law, s.2(4) was drafted to avoid the possibility of conflict between Community law and existing UK statutes

• but the European Communities Act 1972 did conflict with key principles of EU constitutional law ie section 2(1) contradicted the negative limb of Dicey’s parliamentary supremacy which stated that no person or body may override an act of parliament and section 2(4) contradicted the claims that Parliament could not bind its successors

• But these ideas could be rebutted as parliament was still free to make or unmake any law whatsoever - ie by repealing the European Communities Act 1972. Dicey’s positive limb remained untouched

How did the UK courts deal with the clashes between the European Communities Act 1972 and parliamentary supremacy?

The courts first dealt with this issue with statutory interpretation. The construction approach allowed the court to interpret national law by:

• examining relevant principles in the treaty that are directly applicable

• taking into account any directive that may be directly applicable

• looking at relevant national legislation and giving it full faith and credit if it applies with Treaty obligations

Case of R v Secretary of State for Transport, ex parte Factortame Ltd and ors (No. 1) [1990] 2 AC 85.

The background is that the common fisheries policy which divided fishing quotas on national lines and the introduction of the act of accession of spain to the EEC which restricted the number of spanish vessels allowed to fish in the community waters. To circumvent these restrictions, Spanish fish companies started quota hopping ie registering their boats as British and fishing under British Quotas.

In 1988 the UK passed the Merchant Shipping Act 1988 and the Merchant Shipping Regulations 1988 which intended to put an end to the quota hopping. The act created a new register for all British vessels

Officials were aware of the discriminatory nature of their policy and that their legislation could breach EC law

The UK was successfully challenged at Community level by the Commission, which brough infringement proceedings against the UK for a declaration that s14 of the 1988 act breached the right of freedom of establishment

The UK was also challenged at national level, it was found that 95 fishing vessels that had been registered as British under the Merchant Shipping Act 1894 did not satisfy the some conditions laid down in the Merchant Shipping act 1988. The Spanish fishermen applied for judicial review over the decision not to register their trawlers to fish in UK waters under the Merchant Shipping Act 1988. Their lawyers knew this would take months so they wanted an interim injunction to prevent the minister from deregistering their vessels until the outcome of the case was known

The courts refused to pass an injunction as they claimed that they had no power to do so as this would fall foul of s.12 (2) of the Crown Proceedings Act 1947. After a referral to the ECJ, the court held that community law requires the granting of interim relief so the crown proceedings act had to be set aside

This is an example of a case where the construction approach reached its limits as it was no longer possible to construe the Merchant Shipping Act 1988 in accordance with community law

Why did the doctrine of implied repeal not apply to give priority to the Merchant Shipping Act 1988 - there are 2 contrasting points?

1) Lord Bridge argued that the UK knew what kind of legal system it was going into to so Parliament was accepting the limitations on its supremacy. Unless Parliament passes a statute with the intention of overriding the community law, the courts should start from the assumption that national law complies with EU law ie the courts should purposively construct national law to give effect to UK law. The construction approach satisfies the ECJ’s supremacy doctrine, while preserving Dicey’s positive limb ie Parliament can make or unmake any law it wants

2) professor Wade differs in his assessment. He claims that the role of the UK courts has been restricted to the recognition of parliamentary supremacy as a political fact as a political fact which the legitimacy of all law comes from. So when the UK prioritised the European Communities Act 1972 over the Merchant Shipping Act, they changed the political fact and so the meaning of legislative supremacy. They did this by flouting (disregarding) the rule of recognition ie the ultimate constitution rule which validates other rules

The case of R (HS2 Action Alliance Ltd) v The Secretary of State for Transport [2014] UKSC 3, [2014] 2 All ER 109

This case raised issues regarding the constitution itself as well as the legal relationship between the UK and the EU

The background of the case concerned the governments plans to construct a high speed railway and the procedure where Parliament approves of projects like this is through hybrid bills. One of the claimants arguments was that the use of the hybrid bill procedure prevented effective public participation as required by Directive 2011/92/EU art 6(4) - the supreme court rejected this argument as the procedure for the hybrid bill is the same as that for a public bill, with the addition of a select committee stage after the second reading of each house. On the one hand, its true that the scope and meaning of UK constitutional law should be interpreted and determined by domestic courts and not by the ECJ. But on the other hand, the facts of HS2 do not give rise to an actual constitutional conflict.

The judges discussed in obiter a hypothetical scenario in which UK courts may refuse to apply EU law to the extent that it impinged upon constitutional law more fundamental than the European Communities Act. This hypothetical suggests an unknown hierachy between different constitutional laws, but also destablises the EU legal order in a way which the ECH warned against in Costa v ENEL. Disagreement with EU law should not be resolved by national parliaments unilaterally legislating contrary to EU law or by national courts not applying EU law.

What was the process of the referendum to leave the EU?

The conservative party was openly divided on the merits of continued EU membership. The conservatives so promised a referendum at the end of 2017 and so it was held on 23rd June 2016 - 51.89% said leave

What does article 50 of the Treaty on European Union require?

• a member state may decide to leave the EU

• a member state must serve notice under art 50(2) of intention to withdraw

• then a 2 year count down begins under Art. 50(3)

• unless agreement is reached sooner or time is extended by mutual agreement, the EU treat ceases to apply to the member state at the end of the 2 year period

What was the purpose of the European Union (Withdrawal) Act 2018?

• it aimed to provide a clean break with the EU by repealing the European Communities Act 1972, leaving the customs union and the internal market, putting an end to free movement of people etc

• but it also provided for continuity ie the act converts the entire corpus of EU law into domestic law which can then be repealed, amended or retained

What is retained EU law?

• this performs a 2 fold constitutional function: it allows former EU law to continue to apply in the UK legal system after the UK left the EU - this helped to prevent the UK being thrown into a black hole ie financial certainty etc, the European Union (withdrawal) act 2018 froze the existing body of EU law and preserved it as retained EU law

• on the other hand, the conversion of former EU law into domestic law allows parliament to amend, repeal or keep the body of law as it seems fit

What is the status of retained EU law?

It consists of 3 elements in the EU withdrawal act 2018:

1) section 2 provides that all existing domestic legislation relating to EU matters which implements EU law obligations is preserved upon exit day

2) section 3 deals with the 5000 EU regulations which are directly applicable in all member states - section 3 ensures that direct EU legislation ie EU regulations are converted into domestic law so it continues to have legal effect in the UK

3) section 4 of the act deals with the remaining EU rights that are directly effective and were given domestic effect by the European Communities Act but were not covered by the previous 2 sections.

What does section 12 of the EU withdrawal act 2018 do?

It empowers UK ministers unilaterally to specify in regulations ie by statutory instrument those parts of retained EU law that the UK gov wishes to protect from alteration by devolved legislatures. ie it allows UK ministers to limit devolved competence without the consent of the scottish parliament

What is the scottish continuity bill reference?

The scottish parliament voted 93 to 30 to withhold legislative consent for the withdrawal bill. They did not agree to the UK govs amendments on the competences of the scottish parliament and government

The Scottish government then introduced into the scottish parliament the UK withdrawal from the EU (legal continuity) (scotland) bill (own version of the withdrawal act), there was overlap between these measures

In December 2018 the UK supreme court gave judgement in relation to the scottish continuity bill on whether they acted in the legal powers conferred by the Scotland Act 1998, they found in favour of scotland

But the supreme court did then judge individual provisions ie they deemed section 17 to be outside the legislative competence of the parliament as it contravened the scotland act 1998

The protocol on Northern Ireland/ Ireland?

The most controversial issue out of the UKs decision to withdraw from the EU relates to the irish boarder, ie it arises out of clash between international legal realities and domestic political commitments. The EUs economic union consists of a customs union and internal market

Due to the UKs decision to withdraw from the internal market and customs union, the boarder between Northern Ireland and Ireland became an external frontier of the EU, but they did not want a hard border between the 2 ie having lots of checks and controls as would be disruptive to the highly interconnected economies of Ireland and Northern Ireland as well as the mobility of the people. But without a hard boarder, goods arriving in Northern Ireland from any country would be able to enter the EU via Ireland, which so would bypass EU customs and trade rules.

How did the UK government deal with the issue between the boarders of Ireland?

Theresa May agreed a withdrawal agreement that secured avoiding the creation of a hard boarder and avoided the creation of a border in the irish sea but failed the aim of leaving the EUs internal market and customs union.

Boris Johnson then renegotiated the agreement, the price of the withdrawal agreement was the creation of a boarder down the irish sea which meant custom checks etc on goods crossing into Northern Ireland from mainland GB - created issues as harnesses 2 inconsistent objectives ie said Northern Ireland remains part of the UK customs territory and have uniterrupted access to the UKs internal market but then it also states that Northern Ireland will remain aligned to a vast body of EU rules

What is the internal market act 2020?

After the leaving of the EU, the UK gov faced tension in an unfamiliar context of having to regulate trading relationships across the UK for the first time. The internal market act 2020 articulates the UK govs policy of managing cross-border trade and gaining a new internal market framework amongst the 4 constituent regions which are no longer subject to EU law

This is not just about the law of cross-boarder trade but also about the politics of the territorial constitution and the manner in which the UK gov develops a wide policy

The issues with the Internal Market Act 2020?

• the act was designed to create a level playing field across the UK by preventing barriers to trade. But powers to key policy areas are also repatriated from the EU to the devolved administrations so if constitutional parts of mainland GB make different rules, the repatriation and allocation of powers could result in regulatory divergence and so internal barriers to trade

• issue of mutual recognition and non discrimination means that all 4 regions will have to accept goods and services that comply with the regulations of the other territories, but this idea conflicts with the purpose of devolution, which allows the regions to develop their own policy preferences

What are the approaches that could be used to ensure consistency in policy/ practice between the 4 regions?

• an apporach for ensuring consistency may lie in developing common frameworks ie a consensual approach to the development

• other approach would be to apply the internal market act 2020 to enable the functioning of the joint market across england, scotland, wales and northern ireland. But problems could occur if their was centralised regulation and decentralised distrust in the UK