Until Maastricht, the EC could remain an economic association of sovereign States, since (1992) Maastricht, and even more so since (1997) Amsterdam, there can be no argument that we are heading toward a political, monetary and economic union, or the birth of a state called EUROPE. EU law, including regulations made by un-elected bureaucrats of the EU Commission, now take precedence to the twin legal systems of Britain, the tried and tested institutions of both Common and Statute law, undermining our own Parliament, Courts and Customs. EU convention insists that member States pass ‘necessary and appropriate measures (legislation) to bring their own criminal law into line with EU law.
We have also seen such ludicrous rulings as; Carrots being defined as FRUIT when applied to Jam, laws on incorrect curvature of imported bananas and proposals for law reform on the noise made by lawnmowers. All UK firms have had to comply with single market legislation, even if they had no intention of exporting goods, (only 30% of our output is sold abroad, under half of this exported to the EU) This legislation part of a harmonisation programme that entailed 1368 directives that our own Parliament HAD TO legislate upon. The implementation of Corpus Duris would appear to threaten our institution still further. It will eradicate Trial by Jury, introduce Double Jeopardy, allow Imprisonment WITHOUT charge and replace the Innocent until proven Guilty concept with Guilty until proven Innocent. Indeed, since Amsterdam, we are now facing the very real comprehension of what being part of the EU has in store for us. New policy areas include, Employment, Equal Opportunities, Research and Development, Public Health, Social Policy and Transport. We are now signed up to a European Union that has a Parliament, a Flag and an Anthem, a Union that wants a single Currency, Army and Foreign Policy. So what of the UK? One could argue that Britain has kept its sovereignty with the fact that it could pass an Act to “ .. renounce the Treaty – or would that be an illegal act of rebellion?.. “ (Norman Tebbit Nov. 1998)
We have already seen that Britain’s entry into the European Treaty’s has invoked huge reform. (British) Parliament must now legislate in conjunction with EU law, Acts and Laws already in existence must be interpreted to conform to EU Law and the State has to ensure that all EU law is transposed and implemented accurately. This puts a huge strain on the Courts whilst ruling, thus making a mockery of Precedent as any case incorporating EU legislation can only be considered using the purposive approach, in order that EU directive can be met. So then, has Britain reserved its sovereignty as promised? To understand this concept, we need first to acknowledge the unwritten code of the constitution and its efforts to ensure that Parliament is the executive law producing body of the land. As such, any Act of Parliaments will shall be all exacting and adhered to directly by the nations courts. In the case of Factortame, (R v Secretary of State for Transport, ex parte Factortame (No. 3) [1996]) we can clearly see the ingratiating manoeuvres of The House of Lords as it bows to EU supremacy.
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’. This too has led to difficulty. As Regulations are automatically binding, they should, in theory, become part of domestic law without the need for UK legislation, in practice however, some give rise to significant secondary legislation or require repeal or amendment of existing Acts. Any consequential legislation must follow what the EU intended. Failure to legislate or transpose correctly can give rise to a case against the State. (Marshall v Southampton Health Authority [1986]) The case having vertical effect under the directive as M. was employed directly by the Government and not a separate organisation.
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 would appear, as disclosed in the damning words of (The late) Lord Denning, 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 antediluvian and 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.
In conclusion, there is an alternative, and I would leave you pondering the words of (perhaps) the enlightened Lord Gardiner LC, who conveyed his view thus:
“Under the British constitutional doctrine of Parliamentary sovereignty, no Parliament can preclude its successors from changing the Law . . . There is in theory no constitutional means available to us to make it certain that no future Parliament would enact legislation in conflict with Community Law.”
(Words – 1475)
