The EU and Parliamentary Sovereignty PDF

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Summary

The EU and Parliamentary SovereigntyECJ/CJEU  European Court of Justice/Court of Justice of the EU  Created by treaties  Preliminary ruling procedure – national courts can/must ask ECJ for interpretation of EU law.  Based in LuxembourgDirect Effect & Supremacy of EU Law Direct Effect: 2...

Description

Public Law The EU and Parliamentary Sovereignty ECJ/CJEU  European Court of Justice/Court of Justice of the EU  Created by treaties  Preliminary ruling procedure – national courts can/must ask ECJ for interpretation of EU law.  Based in Luxembourg Direct Effect & Supremacy of EU Law Direct Effect: 26/62 Van Gen den Loos [1963] National courts are obliged to enforce EU Law that is directly effective ECJ faced a request for a preliminary ruling – can individuals directly derive rights? EU creates rights/obligations for individuals, enforceable by domestic courts in EU member states. ECJ held, in 1964, that EU law cannot be overridden by domestic law. 

Supremacy: 6/64 Costa v ENEL [1964] EU Law takes precedence over inconsistent national law (including constitutional norms: 11/70 Internationale Handelsgesellschaft [1970]) EU law takes precedence over constitutional norms, according to ECJ. 

Conc: By early 1960s, ECJ (supranational court) have held that courts of EU member states were required to give direct effect to EU law, and they must set aside national legislation. EU law should trump national constitutional law as well. (Nb. Contrast ECHR in Sem 2, Strasbourg based Human Rights court (ECtHR) has not established such principles) Dicey on Parliamentary Sovereignty The positive side ‘Parliament can legally legislate on any topic whatever’ - Parliament can legislate to provide EU law to be enforceable in UK courts. -

The negative side ‘no person or body of persons… can, under the English constitution, make rules which override or derogate from an Act of Parliament…’ - It would seem that UK courts not acting upon AoP which breach EU law would be against Parliamentary sovereignty. = DIRECT TENSION WITH EU LAW SUPREMACY

ECA 1972 Key provisions addressed:  Direct effect: s2(1) - “All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties… are without further enactment to be given legal effect… in the United Kingdom.” - Directly effective provision of EU law shall be legally effective in the UK. - Manifestation of Parliamentary sovereignty – give effect to source of law being made by EU, principle of direct effect.

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Delegated law-making: s2(2) Supremacy: s2(4) - “… any enactment passed or to be passed… shall be construed and have effect subject to the foregoing provisions of this section…” - AoP will be construed and be effect subject to the provisions of the sections of EU law. - Tension with Parliamentary sovereignty. Authority of ECJ rulings: s3(1) (meaning & effect of EU measures = questions of law to be determined in accordance with ECJ rulings)

Conflict avoidance via interpretation

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Macarthys v Smith [1979] CA Mrs smith had been appointed to Stockroom keeper, £50 a week. She was actually being paid £10 less than a male predecessor. Equal Pay Act 1970. The PA 1972 would not cover a situation of successive employment – you could not make a claim that equal pay has been violated. Lord Denning felt that the provisions of the EU treaties was actually clear on equal pay for equal work for both men and women. Construing treaty and statute – no conflict between EPA and EU treaty.

Conflict avoiding purposive construction employed by HoL in:  Pickstone v Freemans [1989] ACHL Limits of interpretation & Factortame British fisherman were unhappy at Spanish fisherman were using boats, registered as British, to gain British fishing quota (quota hopping). 

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Merchant Shipping Act 1988 imposed stringent nationality, residence & domicile requirements for registering vessels as British. - Vessels already registered as British, under prior rules, would have to be reregistered. - Operators of failed vessels brought proceedings, in courts, to challenge the fact that they have not been registered as British vessels. Particular tension with Article 49 TFEU (concerning freedom of establishment) Judicial review proceedings commenced in High Court (appealed to Court of Appeal, then ACHL) - High court exceeded and disapplied the Merchant Shipping Act 1988 and held that the Transport secretary should be restrained from enforcing legislation in respect to relevant people. - No such power to grant interim relief.

ACHL in Factortame I Factortame v SOS for Transport [1990] 2 AC 85 ‘If the applicants fail to establish the rights they claim before the [ECJ], the effect of the interim relief granted would be to have conferred on them rights directly contrary to Parliament’s sovereign will… as a matter of English law, the court has no power to make an order which has these consequences.’ (Lord Bridge) - HoL questioned what EU law required. ACHL sought ECJ preliminary ruling

Public Law

ECJ in Factortame I C-213/89 Factortame [1990], para 23: ‘[EU] Law must be interpreted as meaning that a national court which, in a case before it concerning [EU] law, considers that the sole obstacle which precludes it from granting interim relief is a rule of national law must set aside that rule.’ - Response from ECJ a year later. - National law must be set aside otherwise it would impair the full effect of EU law. Factortame II: ‘Disapplication’ ACHL response: Factortame II [1991] 1 AC 603 Injunction issued against Transport Secretary requiring suspension of application of requirements of British residence and domicile in MSA 1988 as against nationals of other EU Member States. Factortame II: Lord Bridge Some public comments, on the ECJ decision that firmed the jurisdiction of the member states’ courts to override national legislation, if necessary, to enable interim relief to be granted, have suggested that this was a novel and dangerous invasion by a EU institution of the sovereignty of the UK parliament.   

If EU Law supremacy not inherent in Treaties, certainly well-established, by the ECJ, by the time UK joined. Any limitation of sovereignty by Parliament through enactment of ECA 1972 was entirely voluntary Under the terms of the ECA 1972, it was always clear that UK courts must override national law conflicting with enforceable EU law, thus no novelty in according EU rules supremacy.

Commentary on Factortame II 

New rule of statutory construction: Sir John Laws [1995] Public Law 72 - What we are seeing in Factortame is as if section 2(4) of ECA 1972 is treated as establishing a rule of construction for later statutes. - These have to be read as compatible with the rights accorded by the EU. - Parliament possesses the power to repeal the ECA 1972 in whole or in parts as well as leave the EU – Parliament is still sovereign.

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Constitutional revolution: Sir William Wade (1996) 112 Law Quarterly Review 568 - Parliament cannot be precluded from legislating against something in a certain manner. - Traditional theory of parliamentary sovereignty has been abandoned and changed by the judiciary.

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No constitutional revolution, a change to common law rule of obedience to statutes: Prof Trevor Allan (1997) 113 Law Quarterly Review 443 - No unauthorised change to UK’s legal system

Thoburn [2002] & Constitutional Statutes

Public Law Case involved street traders prosecuted for using exclusively imperial measures rather than metric measures as required under EU law rules. Weights and Measures Act 1985 permitted imperial or metric measures. Case was resolved by rejecting this argument. Laws LJ:  Parliament cannot bind successor by stipulating against repeal (implied/express) or manner & form - Conditions of parliamentary sovereignty remains in UK’s hands, but the traditional doctrine has been modified by the common law.  ECJ cannot touch or qualify Parliament’s legislative supremacy BUT  Common law recognises a category of constitutional statutes – ECA 1972 is one – which cannot be impliedly repealed. - Courts decide this. EU Act 2011 (s18) Product of the Conservative party coming back to power. 18 Status of EU law dependent on continuing statutory basis  Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the UK only by virtue of that Act… (Nb. EU Act 2011 repealed by the European Union (Withdrawal) Act 2018) HS2 [2014] UKSC 3 

Challenge to parliamentary procedure for consent for HS2 rail link – on ground would not facilitate public participation required by EU Law – rejected. - Environmental impact assessment - There was no clash with EU law – supreme court. - However, they referred to the Thoburn case – clash between ECA 1972 and an ordinary statute. With this case, only involved ECA 1972 and BoRA 1689. - Dicta: UK is not accepting unqualified EU law supremacy doctrine.

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Lords Neuberger & Mance: ‘there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which Parliament when it enacted the ECA 1972 did not either contemplate or authorise the abrogation.’ Laws LJ offered ‘important insights’ & ‘penetrating discussion’ in Thoburn [2002] EWHC 195

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Miller [2017] UKSC 5 ‘The primacy of EU law means that… EU Law cannot be implicitly displaced by the mere enactment of legislation which is inconsistent with it. That is clear from… s2(4) [ECA 1972] … and Factortame… The issue was informatively discussed by Laws LJ in Thoburn… The 1972 Act accordingly has a constitutional character, as discussed by Laws LJ… Parliamentary sovereignty… is… fundamental to the UK’s constitutional arrangements, and EU law can only enjoy a status in domestic law which that principle allows.’ -

In the wake of leaving the EU LJ laws attempt to reconcile Parliamentary sovereignty with EU supremacy.

Public Law Leaving the EU 

UK left EU 31/01/2020 - Taking back control of British laws and Parliament that cannot be overridden by any other laws (EU law) - Implementation period

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Diceyan parliamentary sovereignty orthodoxy restored? - Accept parliamentary sovereignty orthodoxy was affected by membership and Courts can implement this in legislation with intention. - Wade = not consistent with orthodox PS for courts to disapply future legislation for incompatibility with requirements of an earlier statute. – Accepted this: Factortame....