The issue of direct effect has also come around with membership of the EU. The two types of direct effect are vertical (where one is suing the government) and horizontal (where one is not suing the government). In the case of Van Duyn v. The Home Office, The European Court decided that where the purpose of a Directive was to grant rights to the individuals and the Directive was sufficiently clear it would be directly enforceable by an individual against the member state, even thought that state had not implemented the Directive by the set date.
Vertical direct effect has evolved over the years of EU influence to a point where it is relatively easy for an individual to take a state to court and win. In the case of Marshall v. Southampton Area Health Authority. Mrs. Marshall wanted to work till she was 65 like her male counterparts, but she was made to retire at 62 because of the lower retirement age for women. She took Southampton A.H.A (a distant arm of the state) to court and won under the Article six of the Equal Treatment Directive (76/207) which was found to have direct effect over the case. She only won because her employers were an arm of the state. This also has Euro sceptics up in arms as to the supremacy of the English Parliament.
Directives that have not been implemented do not, however, give any individual rights against other people. So, in Duke v. GEC Reliance (1988), Mrs. Duke was unable to rely on the Equal Treatment Directive 76/207 as her employer was a private company. Therefore, it is said that Directives do not have horizontal effect. This can also be seen in the Italian case of Paola Faccini Dori v. Recreb Srl, (1994).
Surely giving any citizen the rights to challenge the State can only be met with approval, and in the case of Frankovich v Italy [1992] this was indeed the case. Failure on behalf of the Member State to incorporate a Directive within the allotted time scale meant that a claim could proceed against the Italian Government for compensation, obscuring the distinction between horizontal and vertical effect. But the cost of challenge is great, tying up lengthy periods of Court time and vast sums of money. These rights are not always maintained, the UK, for example, refers fewer cases than the other member states to the European Court of Justice since the lower Courts are allowed to exercise discretion on referral. The EU giveth, the Government taketh away.
It can be thought that the increased introduction of direct effect is a good thing as it allows for more injustices to be rectified, or not caused at all. Direct effect will also have repercussions upon English judges as they may feel that their rulings are more vulnerable to being challenged by the EU.
UK supremacy was confronted by the EU in the case of Factortame (R v Secretary of State for Transport, ex parte Factortame (No. 3) [1996]) (1991) in which the EU directly overruled the UK in a fishing quotas dispute. With the joining of the EU some think that England should have secured it’s own supremacy. They would say that England should be able to rule and govern it’s in any way it pleases, and that the de-centralisation of Britain’s parliamentary and governmental powers was a bad idea as it allows people who were not voted for or selected by us to represent us on a international scale let alone produce laws and regulations by which we have to live.
It could be argued, however, that as EU directives and regulations are drafted in quite general terms, allowing room for ambiguity, what Parliament has in fact done is delegated the responsibility for new legislation, allowing room for itself to ‘fill in the gaps’. Skeletal legislation is another thing that has become more popular since the joining of the EU. It entails the writing of much ‘looser’ legislation, which is much more open to interpretation by judges, it lets them ‘fill in the gaps’ so to speak. This helps in as much as it allows the legislation to be applied to each case more individually, in theory tailoring the legislation to fit the case. Skeletal legislation is a good idea as it allows for the legislation to fit the situation, but this idea only holds up if the judge who is implementing the legislation is knowledgeable enough to harness the power given to him in the form of the open (skeletal) legislation.
The notion of preliminary opinion in the manufacturing of law is on the whole a good one. It allows the European Court of Justice to give their opinion upon any aspect of the law. This helps, in giving the state trying to put the law in place, an idea about where the EU will stand on the law if it ever came to question in either the court of first instance or the European Court of Justice. This is a good idea as it is an independent look at legislation, which will point out any problems that could arise as a result of badly written or unreasonable legislation.
English law making has been affected by membership of the EU four fold; one way is that the sovereignty of English law has (to a certain extent) been removed. The second is the legislation that is written has become much more basic and skeletal, it only outlines what is wanted unlike legislation of the past that stated everything in detail. Thirdly an independent watchdog has been put into place over parliament (preliminary opinion in the E.C.J) And lastly when English legislation is written it is becoming more and more Eurocentric to stay in line with the rest of Europe, this is controversial and can be thought of as not a very good idea. It could be said that we are losing our heritage and becoming less British and more European.
It would appear that we are looking at total entrenchment of all of Britain’s institutional customary Law. It would also seem that, with the continuing developments of the EU, the acceptance of the Treaty of Nice 2001 and the inauguration of a possible 12 extra States, that the need for further legislation will be necessary. Legislation upon legislation, and all needing to be interpreted, implemented and ruled upon in unison with what (Europe) intends. I think instead of using the term ‘crippling’, I would sooner consider Europe’s invasion of Britain’s Law methodology as ‘modernising’. Perhaps the UK’s methods of case law, derived from religion and precedent are ineffectual and certainly with the proposal of a Human Rights Bill, could be seen to detract from what the impending Act could offer. But, there must surely come a time when there is so much Law, when we are so encompassed by Rules and Regulations, that any Human Rights Act would be immaterial. Indeed, as we are slowly, but surely forced to become Europeans, The will, and Law of Europe seems destined to overthrow Britain’s domestic system of the Law entirely, compelling us to adopt a Monist approach as apposed to Dualist.
