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Lecture 17(1)

Lecture 17(1)

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Published by: manavmelwani on May 12, 2010
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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 legalsystems 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 constitutionalrelationship 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 nationalsovereignties in the general interest’ 
(1971 Gvt White Paper ‘The UK andthe European Communities’: para 29)
 The government back then was adamant that joining the EC wasnot 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 britishconstitution, there’s PS
So basically the pivotal ingredient in the uk membership of the EC is anact of parliament‘Even though the Treaty of Rome has been signed, it has no effect, so far asthese Courts are concerned, until it is made an Act of Parliament. Once it isimplemented 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 likedirectives 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 thesepoints have to be dealt with domesticallyDirect Effect – s. 2(1) ECA 1972‘All such rights, powers, liabilities, obligations and restrictions from time to timecreated or arising by or under the Treaties, and all such remedies andprocedures from time to time provided for by or under the Treaties, as inaccordance with the Treaties are without further enactment to be given legaleffect 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 referringto one to which this subsection applies’Direct Effect – s. 2(1) ECA 1972Notice
Primary and secondary EC law
Past and future EC law
‘…Any rights or obligations created by the Treaty are to be given legaleffect… without more ado’ (
Bulmer 
v
Bolinger 
[1974], Lord Denning)
So in a rather controversial way particularly s 2(1) deals with directeffect of the treaty and secondary legislationImplementation
s. 2(2) ‘…Her Majesty may by Order in Council, and any designatedMinister or department may by regulat ions , make provision’
allows the government to implement where necessary communitylegal acts by means of regulations. It’s not/hasn’t been the case inmost member states though now most are shifting towards this.(i.e. implementation of com directives by secondary legislationrather 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) aboveincludes, subject to Schedule 2 to this Act, any such provision (of any suchextent) 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 underspecific 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 themaking of the instrument containing the provision; or(c) to confer any power to legislate by means of orders, rules, regulations orother subordinate instrument, other than rules of procedure for any court ortribunal; or(d) to create any new criminal offence punishable with imprisonment for morethan two years…
i.e. these would require a new Act of ParliamentEnforcement of judgementsEuropean Communities (enforcement of Community Judgments) Order 1972
Enforced as ordinary judgementsSupremacy
s. 2(1) ‘All such rights …created or arising by or under the Treaties …arewithout further enactment to be given legal effect or used in the UnitedKingdom …;
Note: DE and supremacy are related so there is an acceptance of EClaw in this provision which reads as above. It is of course about DEbut to some extent converys the idea that EC law is supreme. Whatis even more evident are the passages in the below 2 paras.
S. 2(4) ‘any enactment passed or to be passed, … shall be construed andhave 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 assuch in accordance with the principles laid down by and any relevantdecision of the European Court)’.

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