The status of the European Union Law branches off from the European Communities Act,
‘All rights, powers, liabilities, obligations and restrictions created or arising under the Treaties and all such remedies and procedures provided by or under the Treaties are without further enactment to be given legal effect in the UK.’
Further reading into the Act indicates strongly that any reasons which may arise for the possible break down of the Act are likely to be disengaged almost immediately. Reasons to uphold the Act include points such as,
1) Once the European Economic Community was joined a new order had been created. In this same order was the point that Parliament is not the supreme body and cannot make or break laws by itself as it wishes and previously had done.
2) ‘That by assigning rights and powers to the community in accordance with the Treaty provisions member states have limited their Sovereign rights in such a way as to make it impossible to withdraw unilaterally.’
3) That the ultimate decision on whether legislation is valid or not depends on the judges.
‘The present norm of validity recognises the latest statutory intention of Parliament. It has been suggested that this norm had altered and that the courts will recognise as valid only legislation which has been passed by both houses and given the Royal assent, has not been repealed expressly or by implication and which accords with our obligations under community law.’
Looking at the European Communities Act 1972 it becomes obvious that it is so firmly entrenched now that it cannot be repealed. Therefore any new legislation enacted now must give effect to this and any other English legislation must be read in light of European Union Law. Suggesting that European Union Law has eroded Parliamentary Sovereignty as English Law is no longer part of the chain.
Another area where Parliament may in practice limit its own Sovereignty is in relation to the Human Rights Act 1988, where the intention is set to incorporate the European Court of Human Rights into the United Kingdom law. However the intention to incorporate cannot be misinterpreted as giving the European Court of Human Rights a higher status than any other laws.
‘Legislation must be given effect to in a way which is compatible with the convention rights.’
It has now become necessary for the United Kingdom Judges to interpret legislation in a ‘convention complaint’ manner, even in places where these decisions contradict those made by Parliament.
The European Court of justice plays a part as a central figure. It must ensure that Community institutions and Member States comply with the rule of law.
‘The principle of Parliamentary Sovereignty means neither more nor less, this, that Parliament thus defined has, under the English Constitution the right to make or unmake law whatever; and further, that no person or body is recognised by the law of England as having the right to set aside the legislation of parliament.’
According to Dicey in theory ‘Parliament has total power’ going on to centralise specific basic rules based around Parliamentary Sovereignty which included,
1) That the laws passed by Parliament cannot be challenged by the courts.
2) Parliament can pass laws on any subject.
3) Only the laws held by Parliament can control the activities of anyone, anywhere.
4) ‘Parliament cannot bind its successors as to the content, manner and form of subsequent legislation.’
However dicey’s view on Parliamentary Sovereignty were not shared by all, at points he became highly criticised.
‘Creature of common law Parliamentary Sovereignty because the judges acknowledge its legal and political supremacy.’
Issues which did seem to cause a care for concern and added to policy limitations were aimed in areas such as the point of successors and how they would not be able to bond in practice, for example the independence of colonies and the creation of the federal system.
At points it has been argued that since the British membership of the European Union a legal limitation has been imposed on Parliament.
‘Parliament’s freedom of action would be limited in that it would have to refrain from passing legislation inconsistent with community law and would be under an obligation in certain instances to legislate to give effect to out community.’
The aim of the European Communities Act is directed towards giving any future community law legal force in the United Kingdom.
‘Limitation has occurred as Parliaments authority to legislate has become integrated with E.C. legislative policy.’
An overview of the subject indicates the points that there is no legal limit to Parliaments competence, in many ways there is no higher authority then Parliament therefore its Acts cannot be questioned by the courts including the fact that the only thing Parliament cannot do id bind its own legislative competence. With the conclusion being that perhaps the greatest challenge to the doctrine of Parliamentary Sovereignty is membership of the European Union.
Looking over the act closely the point of supremacy given to Community law is highlighted repeatedly. Taking into consideration the fact of domestic law, the point that if there is conflict between the two then it shall be resolved to ‘give effect to our community obligations.’ The initial view of the English Courts was that both English law and Community law were equal, that there was no hierarchy system between them. The escape of this, was to avoid the situation arising altogether, here the leading authority was that of Garland v B.R Engineering Co.
However at times when the courts did indicate that priority should be given to Community law, the English courts were quick to jump in to highlight the tradition on sovereignty, Lord Denning making the point that,
‘Community law is not supplanting English law. It is part of our law which overrides any other part which is inconsistent with.’
With reference to the above it can be concluded that some states such as Belgium, managed the doctrine of supremacy of European Law with relative ease. Other states including the United kingdom, France and Italy have seemed to take a considerable amount of time to adjust, taking it gradually after a long process.
In regard to the United Kingdom its biggest defect has been Sovereignty of Parliament. As a result, for most of the period of British membership of the community, the courts have made it their right to apply Community law itself; here the leading authority is that of Macarthys Ltd v Smith. Showing that the courts have treated the European Communities Act as a permission by Parliament to apply community law. With the greatest impact being the problem of absolute conflict of Community and British law, and trying largely to avoid it.
Administrative Law, Petre Leyland and Terry Woods 4th edition
Section 2 sub section 1 European Communities Act
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