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EU law and UK constitutional law Introduction In this chapter we will begin by examining two key principles which guide

e national courts in dealing with EU law: o direct effect and o supremacy. We will then consider the contradictions between the doctrine of parliamentary sovereignty and EU law, before reviewing the ways in which the U courts have attempted to reconcile them.

12.1 Key principles guiding national courts in relation to EU law !hrough its case law, the European Court of Justice has established two ey principles: o direct effect and o supremacy.

"#."." $irect effect !he principle of direct effect means, in essence, that individuals are able to enforce EU rights and obligations directly before their national courts.

%c!ivi!y !istinguish between vertical direct effect and hori"ontal direct effect. o #ertical direct effect means that individuals can invo e a European provision in relation to the state. o $ori"ontal direct effect means that an individual can invo e a European provision in relation to another individual. Which conditions did the European Court of Justice lay down for the operation of direct effect in #an %end en &oos &"'()*+ o 'rimary legislation (i.e. the treaties) must be* precise and clear unconditional and not re+uire any further measures, either European or national

If a !irective has not been implemented by a member state by the date of its deadline, will an individual be able to enforce a right under the $irective: against another individual or against the national state, o In these circumstances only vertical direct effect is available and the right can only be enforced against the state, not against the individual.

"#.".# ,upremacy of EU law over national law !his means that any national law in conflict with EU law is rendered inapplicable. % UK court has an obligation to -disapply- (set aside) national law which is in conflict with EU law. !his principle is also described as the precedence of EU law.

%c!ivi!y %ccording to the summary, what was the effect on national law of Costa v E.E& (1/01), o .ational law was not rescinded or repealed2 but was simply suspended. What advantage does the principle give to EU citi-ens+ o Citi"ens are uniformly protected by a European law assured across all EU territories.

12.2 Contradictions between parliamentary sovereignty and EU law %t this stage, it is helpful to recall some of the basic principles of parliamentary sovereignty which we considered in .hapter ). !hese principles clash with the EU law, particularly the principles of direct effect and supremacy2 in the following ways. o !irect effect and supremacy contradict !icey-s view of parliamentary supremacy because they provide for a body other than 'arliament to override or set aside legislation. o !he restrictions of the European Communities 3ct 1/42, which prevent subse+uent 'arliaments from legislating against EU law, are a ma5or limit on legislative freedom.

o UK courts cannot annul an 3ct of 'arliament, but are e6pected to -disapply- statutes that are in conflict with EU law. 12.7 8esponses of UK courts to the conflict between parliamentary supremacy and the doctrine of direct effect !he UK courts have ta en three approaches to the dilemmas these conflicting principles have given rise to.

"#.)." %pplying later statute and overriding EU law/ ignore the EU supremacy !his was the initial approach taken by the courts in the "'01s, notably by &ord !enning in 9eli6stowe !oc s 8ailway Co v :ritish ;ransport !oc s :oard &"'0(* where an 3ct of 'arliament conflicted with what is now 3rticle 1<2 of the ;reaty on the 9unctioning of the European Union (;9EU). 2ord $enning held that the article was now to be treated as 3part of English law3 and therefore: o ...once the :ill is passed by 'arliament and becomes a statute, that will dispose of all this discussion about the ;reaty. o ;hese courts will then have to abide by the statute without regard to the treaty at all.

!his straightforward approach ignored the implications of the supremacy of EU law, or the principle of direct effect. "#.).# Using the construction approach !his approach evolved following &ord !enning-s dissenting 5udgment in =acarthy-s v >mith (1/4/) which concerned a claim of discrimination by a woman who argued that she should be paid the same as a man who had previously held her 4ob. !he argument concerned whether s."&#* of the E5ual 6ay %ct "'01 could be interpreted in the light of %rticle "70 of the !8EU. &ord !enning-s 5udgment2 which subse+uently proved to be influential, held that in cases such as this the court should interpret national law by: o examining directly applicable principles in the treaty

o taking into account any directly applicable $irectives o giving 3full faith and credit3 to national legislation, assuming that it complies with EU law. Ultimately2 the construction approach is summarised as follows. o ?hen statutes are interpreted, 'arliament is presumed not to have intended statutes to conflict with EU law. o Inconsistencies between UK statutes and EU law are to be resolved in favour of EU law, unless there is a subse+uent 3ct e6pressly stating that EU law is to be overridden.

"#.).) $isapplication approach 9ne of the key aspects of the construction approach was the comforting legal -presumption- that 'arliament did not intend a statute to conflict with EU law. !he difficulty came in practice when 'arliament decided to enact a statute which could not2 by any stretch of 5udicial imagination2 be seen to reflect an intention to comply with EU law. !his particular problem became apparent when the =erchant >hipping 3ct 1/@@ was passed. !his %ct was intended to prevent non/ :ritish fishing boat owners from taking advantage of fishing 5uotas that had been allocated to the United ingdom. ;any ,panish fishermen had taken advantage of U 5uotas by registering their boats as :ritish.

!he ;erchant ,hipping %ct "'<< blatantly discriminated against non/ :ritish fishermen by expressly stating that fishing boats could only be registered if the boat was :ritish owned and managed from the United ingdom. !he ,panish fishermen sought a 4udicial review of the %ct in = v ,ecretary of ,tate for !ransport, e6p 9actortame &td and others (.o 1) &"''1*. !he European .ourt of >ustice granted an interim in4unction to the applicants and, crucially, set aside s.#" of the .rown 6roceedings %ct "'?0 which, under U national law, had prevented an in4unction applying against the .rown.

When the case came back to the @ouse of 2ords in = v ,ecretary of ,tate for !ransport, e6 pa 9actortame &td (.o 2) &"''"*, 2ord :ridge spelled out the position very clearly: o Under the 1/42 3ct AEuropean .ommunities %ct "'0#B it has always been clear that it was the duty of a United Kingdom court, when delivering final 4udgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. !he political implications of these 5udgments were significant as they brought home to ;6s and many members of the public the limitations under which 'arliament now operates2 restricting it from reflecting the wishes of UK voters if they wished to defy EU law.

%c!ivi!y What was the estimate of the li ely total compensation payable+ o A1<< million. If you were the ;inister of %griculture, how would you explain to the :ritish fishermen the reason for the decision+ o !he easy politician3s answer is simply to blame the European courts. % more truthful explanation would be to point out that 'arliament passing legislation in defiance of clear European law is li ely to prove very e6pensive to ta6payers, however popular it might be in the short term.

%c!ivi!y What conclusions did the committee draw from &aws &J 5udgment in ;horburn v >underland City Council &#11#*+ o !he argument of >underland City Council that EU law was -entrenched- was not strong. o %s a decision of the $ivisional .ourt, ;horburn could be overturned by the .ourt of %ppeal or ,upreme .ourt, although this was unli ely as it was well reasoned.

!id the Committee thin that the EU :ill would be able to bind future parliaments, o .o. It +uoted 'rofessor $artley A!Bhe :ill2 assuming it becomes law2 will be an 3ct of 'arliament. We now that 'arliament cannot bind future 'arliaments, so a future 6arliament could always change it. It could repeal it B totally repeal it B or amend it2 or repeal it in part. I don3t think that this :ill limits the powers of 6arliament, any more than the European .ommunities %ct "'0# does / the original one.

12.1 >ummary !he principle of direct effect means that individuals can enforce their rights under EU law in national courts. o ;he rights must be* precise and clear2 unconditional and not re+uire any further measures* Can Dend en 2oos &"'()*. !he doctrine of supremacy or the precedence of EU law means that any national law in conflict with EU law is rendered inapplicable.

UK courts have ta en three basic approaches to dealing with the conflict between parliamentary sovereignty and the EU principles of direct effect and supremacy: o applying the later statute and overriding EU law o the construction approach with an underlying presumption of interpretation that 'arliament intended the statute not to conflict with EU law

o under the disapplication approach, where an 3ct could not be presumed to have been passed by 6arliament with any intention of complying with EU law, the 3ct could be -disapplied-. o !his happened with the ;erchant ,hipping %ct "'<< and the 9actortame litigation. o !he $ouse of Commons remained convinced that the parliamentary supremacy will be preserved and did not thin that EU law was -entrenched-.