Public Law I – Lecture 17 – Part I

Supremacy of EU law: the national vision from UK Courts

• Previous lecture: EU law supremacy from ECJ perspective…

• Today: EU Law supremacy claim from the point of view of national legal
systems and national courts

• Learning outcomes

• (i) Identify the key provisions in the European Communities Act 1972

• (ii) Identify the key adjustments brought by UK courts

• (iii) Identify the key policy debates in respect of the constitutional

relationship between the UK and the EU

(i) The European Communities Act 1972

The Context

• Adopted in 1972, (post van Gend, Costa, Internationale)

• ‘there is no question of any erosion of essential national sovereignty; what

is proposed is a sharing and an enlargement of individual national
sovereignties in the general interest’ (1971 Gvt White Paper ‘The UK and
the European Communities’: para 29)

• The government back then was adamant that joining the EC was
not going to have any impact on national sovereignty

• Tory Government

The process

• Need for an Act of Parliament

• UK being a dualist system and of course from the pov of the british
constitution, there’s PS

• So basically the pivotal ingredient in the uk membership of the EC is an

act of parliament

‘Even though the Treaty of Rome has been signed, it has no effect, so far as
these Courts are concerned, until it is made an Act of Parliament. Once it is
implemented by an Act of Parliament, these Courts must go by the Act of
Parliament’ (McWhirter v Attorney General, [1972] CMLR 886, Lord Denning MR)

• 1975 ex post Referendum – a political choice

The Content

dealing with
 • Direct Effect

• Implementation of EC Law

• How do you go about implementing them, particularly things like

directives which are technically not directly applicable

• Enforcement of ECJ judgements

• Supremacy of EC Law

• The EC act contains fairly detailed provisions on how all of these

points have to be dealt with domestically

Direct Effect – s. 2(1) ECA 1972

‘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, as in
accordance with the Treaties are without further enactment to be given legal
effect or used in the United Kingdom shall be recognised and available in law,
and be enforced, allowed and followed accordingly; and the expression
“enforceable Community right” and similar expressions shall be read as referring
to one to which this subsection applies’

Direct Effect – s. 2(1) ECA 1972

Notice

• Primary and secondary EC law

• Past and future EC law

• ‘…Any rights or obligations created by the Treaty are to be given legal

effect… without more ado’ (Bulmer v Bolinger [1974], Lord Denning)

• So in a rather controversial way particularly s 2(1) deals with direct

effect of the treaty and secondary legislation

Implementation

• s. 2(2) ‘…Her Majesty may by Order in Council, and any designated

Minister or department may by regulations, make provision’

• allows the government to implement where necessary community

legal acts by means of regulations. It’s not/hasn’t been the case in
most member states though now most are shifting towards this.
(i.e. implementation of com directives by secondary legislation
rather than acts of parliament)

• Pros and cons

• Efficiently implemented but no direct debate in parliament

 • There is a qualification of s2(2) seen below

• S. 2(4) ‘The provision that may be made under subsection (2) above
includes, subject to Schedule 2 to this Act, any such provision (of any such
extent) as might be made by Act of Parliament’

• The EC act allows the government to implement by means of

regulation all community law except community law that falls under
specific areas contained in schedule 2 of the act.

• Sch. 2, para 1. ‘…shall not include power—

(a) to make any provision imposing or increasing taxation;

(b) to make any provision taking effect from a date earlier than that of the
making of the instrument containing the provision; or

(c) to confer any power to legislate by means of orders, rules, regulations or

other subordinate instrument, other than rules of procedure for any court or
tribunal; or

(d) to create any new criminal offence punishable with imprisonment for more
than two years…

• i.e. these would require a new Act of Parliament

Enforcement of judgements

European Communities (enforcement of Community Judgments) Order 1972

• Enforced as ordinary judgements

Supremacy

• s. 2(1) ‘All such rights …created or arising by or under the Treaties …are
without further enactment to be given legal effect or used in the United
Kingdom …;

• Note: DE and supremacy are related so there is an acceptance of EC

law in this provision which reads as above. It is of course about DE
but to some extent converys the idea that EC law is supreme. What
is even more evident are the passages in the below 2 paras.

• S. 2(4) ‘any enactment passed or to be passed, … shall be construed and

have effect subject to the foregoing provisions of this section’

• s. 3(1) ‘… any question as to the meaning or effect of any of the Treaties,

… shall be treated as a question of law (and… be for determination as
such in accordance with the principles laid down by and any relevant
decision of the European Court)’.
 • It’s almost a carte blanche you might say and in 1972 it’s more than
that. It’s an acceptance that all priory produced EC documents have
to be accepted into the UK legal syste.

• Supremacy was one such principle.

(ii) key adjustments brought by UK courts

3 main areas of tension b/w domestic law before 1972 and EC law as it was
before and also after 1972

a) EC supremacy and Parliamentary sovereignty

- the potential tension b/w these and in particular we’ll see how this led to

– The end of the doctrine of implied repeal

b) Indirect effect and the interpretative obligations

c) Judicial review (briefly)

– The emergence of proportionality

– The strengthening of notion of legitimate expectations

a) EC supremacy and Parliamentary sovereignty

• No doubt ECA 1972 is effective as regards UK acts (or regs.) passed prior
to its entry into force

• Lord Hailsham in The Siskina ‘it is the duty of the courts … to give effect to
Community law … in preference to the law of their own country over which
ex hypothesi EC law prevails’

• Acceptance that EC law prevails over at least certainly previously

enacted national law. Didn’t create tension with the traditional
notion of PS. However some degree of tension arises...

• How about statutes passed after ECA 1972? What if AP passed after 1973
conflicts with EC law?

• Remember, one of the tenants of the traditional notion of PS is that

a parliament cannot bind its successor

• S. 2(1) ‘…rights, powers, liabilities, obligations and restrictions from time

to time created …’ – an attempt by the UK Parliament to bind its
successors (contrary to fundamental tenet of PS)?

• Is this an attempt by the parliament then to bind its successors?

Lord Denning in Macarthys Ltd v Smith [1979]

‘If the time should come when our Parliament deliberately passes an Act with
the intention of repudiating the Treaty or any provision in it or intentionally of
 acting inconsistently with it and says so in express terms then … it would be
the duty of our courts to follow … Parliament’

‘EC law is now part of our law: and, whenever there is any inconsistency, EC
law has priority. It is not supplanting English Law. It is part of our law which
overrides any other part inconsistent with it’

– Denning probably got it right here even before we explored the actual
issues in the Factortame Saga
– So the default pos is that com law is just as strong as dom law and for
dom law to override com law it will have to expressly seek to do so.
– Denning is saying don’t treat com law as a foreign body, it’s here cause
parliament wants it to be here.

Factortame 1991 (No 2)

(this particular litigation as about whether a civil court could give interim relief
against the crown when that remedy didn’t exist in domestic law and give it in
lieu of an act which was enacted after the ECA)

• Conflict between Merchant Shipping Act 1988 and (EC Treaty articles and
ECJ ruling effective under) ECA 1972

• ‘supremacy … was certainly well established in the jurisprudence … long

before the United Kingdom joined’ (Craig’s ‘contractarian’ argument)

• We knew what we accepted 10 years ago so we have to stick to it.

• ‘Under the terms of the Act of 1972 … it was the duty of a United Kingdom
court… to override any rule of national law found to be in conflict with any
directly enforceable rule of Community law’.

• Second argument is the textual argument. The HL says well the

reason we have to do it is because the act says we have to do it. All
that stuff about time to time enacted doesn’t mean just stuff before
1972 but also stuff after 1972.

The Thoburn case (the metric martyrs case)

(some salespersons in spite of an obvious obligation and a community directive

to display quantities of goods they were selling in metric amounts, they were still
exclusively displaying goods in imperial units. So they were sticking to imperial
ones and saying they could do this under the weights and measures act 1985.
First of all, the domestic court said they were not interpreting the measures act
correctly but it’s also interesting to say what they said obiter)

• Implied repeal by Weights and Measures Act 1985?

• ECA 1972 is a ‘constitutional statute’, only subject to ‘express repeal’

• It’s like the magna carta or what we’d consider the HRA to be today
b) Indirect effect and the interpretative obligation

• Most cases will be solved by reconciling national statutes with (prior or

posterior) EC law .

But how far should national courts go?

• Literal interpretation?

• Lord Denning in Bulmer v Bollinger ‘broad’ view

– ‘No longer must [we] examine the words in meticulous detail. No

longer must [we] argue about the precise grammatical sense… [We]
must divine the spirit of the Treaty…’

• Duke v Reliance [1988]

– ‘no authority for the proposition that a court … must distort the
meaning of a domestic statute as to conform to EC law which is not
directly applicable

• Pickstone v Freemans [1989] and purposive rule

– ‘not so much doing violence to the language of [the law] as filling a

gap by an implication which arises … from the manifest purpose of
the Act and the mischief it was intended to remedy’

• The primary point from these cases is a duty of purposive interpretation

what we call the mischief rule domestically

c) Judicial Review

• From Wednesbury ‘unreasonableness’ to ‘proportionality’ (ex p

International Trader’s Ferry [1999])

• (pa behaving unreasonably only if it’s to such an extent that no

reasonable PA would have taken that decision. That’s what it still is
in all areas except competency of com law and HR law) for the other
2, it was held that the wendsbury test is too strict, it’s too high a
burden for someone who wants to bring a claim and instead the
proportionality principle should be used. I.e. you’re not going to
check if the body behaved in a rational way, you’re going to check if
they acted proportionally

• Legitimate expectations: from a right to be heard to a right to have your

expectations satisfied (ex p Coughlan [2001]

(iii) key policy debates

• ‘should I stay or should I go?’

– How much competence are we giving the EU? With every treaty,
more and more powers are conferred so there are more and more
 powers of domestic law not regulated by westminister but CoM in
Strasbourg.

• Selective opt-outs

– Euro

– Key immigration policies

– A possibility which require treaty modifications. It needs prior

negotiations it’s not that simple.

• Entrenching referenda

– A ‘UK Parliamentary Sovereignty Bill’? ‘No Minister of the Crown

shall sign, ratify or implement any treaty or law, which … increases
the functions of the European Union affecting the United Kingdom
without requiring it to be approved in a referendum of the
electorate in the United Kingdom’.

– You get around some of the facets of the democratic deficit

question or you could get around or try to get around them by
entrenching a referenda. And that’s what the tories are trying to do
they’re proposing a bill (see moodle) Specially under point 2. Of
course even if this bill became the act a successive government
could repeal this act.