LSM Assignment.

Q ‘Explain the different meaning of the term common law’ and discuss how the common law
established the supremacy of European Union law over UK law?

Ans.

English legal system is based on common law. It is a body of unwritten laws based on legal
precedents established by the courts. Common law influences the decision-making process in
unusual cases where the outcome cannot be determined based on existing statutes or written
rules of law. Common law originally developed under the inquisitorial system in England during
the 12th and 13th centuries, as the collective judicial decisions that were based in tradition,
custom and precedent Equity is designed from the English law system and its role as a common
law. Common law is rooted in centuries of English history. It emphasizes the centrality of the
judge in the gradual development of law and the idea that law is found in the distillation and
continual restatement of legal doctrine through the decision of the courts.

Most law is generated, however, from the state and federal legislatures and common law is
subjugated to federal and state legislative enactments. Common law can be overruled by
legislative law (e.g. state legislatures can declare fornication between unmarried couples as legal
even though the state's common law states that is illegal. Once the state passes the law, it
vacates the history of the common law. However, a new common law tradition could be created
around the enforcement of new legislative laws as they are enforced and brought to the
attention of the court.

Since the UK joined the EU in 1973 law emanating from the European Parliament European
Council and European commission governs certain activates and practices in the UK. European
Union is a unique economic and political union between 28 EU countries that together cover
much of the continent. The predecessor of the EU was created in the aftermath of the Second
World War. The European Union is set up with the aim of ending the frequent and wars between
neighbors, which culminated in the Second World War. As of 1950, the European Coal and Steel
Community begin to unite European countries economically and politically in order to secure
lasting peace. EU law is generally categorized into three categories namely; primary law,
secondary law and supplementary law.
Primary law is the supreme source of law in the EU. It comes mainly from the founding treaties,
notably the Treaty of Rome which evolved in the Treaty of the Functioning of the European
Union and the Treaty of Maastricht which evolved in the Treaty on European Union. Secondary
legislation – which includes regulations, directives and decisions – are derived from the
principles and objectives set out in the treaties. Supplementary law designates the unwritten
sources of EU law as opposed to the primary and secondary sources. These sources are
essentially used by the CJEU as rules of law in cases where the primary and secondary legislation
do not settle the issue.

The enactment of the European Communities Act 1972 European law takes precedence over
domestic law. If there is a conflict between English domestic law and European law for example
in the field of equal pay the English court must apply European law. Matters concerning the
interpretation and implementation of European law are dealt with by the court of justice of the
European Union CJEU which sits in Luxembourg. European community act 1972 provides that
English law is to be interpreted and have effect subject to the principle that European law takes
precedence over all sources of domestic law.

This has been evident since the case Van Gend en Loos in 1963 where the ECJ clearly stated that
the Community constitutes a new legal order in international law, for whose benefit the States
have limited their sovereign rights, albeit within limited field’. New legal procedures are
demanded by the new legal order to protect the new legal benefit it created. The supremacy of
Community law had no formal basis in the European Community Treaty, but was developed by
the ECJ on the basis of its conception of the ‘new legal order’. Even though the main emphasis
of the judgment links to the terminology of direct applicability and direct effect, it is also
significant because, by referring to the ‘new legal order’, the ECJ asserted that the Community
was not just a ‘normal’ international law organization. In detail, the Community had a more
independent status as well as greater impact on the national legal systems of the Member
States.

The European union Withdrawal Act received Royal assent on 26 June 2018.The effect of this act
is to end the authority of EU law by converting all its provision in UK law while at the same time
repealing the European Community Act 1972 and the sovereignty of EU law on the day the UK
leaves the EU. The intention is that Parliament would then be able to decide whether to retain
amend or repeal aspects of EU in the future.
In the conclusion to some extent common law gave the supremacy to the European Union law
over UK law as the evidence above supports this opinion. It can be against their will or not but
as they were becoming the part of EU which was the only way to make peace so they have to
follow there Law as other countries were doing. After which Brexit amend the previous decision
and convert most of the EU Law into domestic law in the UK as ‘Retained EU law’. More details
about how this will work only become clear over time.