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The incorporation of EU law into the UK's legal systems

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on 11 November 2013

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Transcript of The incorporation of EU law into the UK's legal systems

The UK's legal system
The UK has no written constitution.

Our law derives from:
Case law
Parliamentary conventions

The incorporation of EU law into the UK system
There are 5 main examples of how EU law has been integrated and become enforceable in the UK
The emergence of Eu law and Parliamentary scrutiny.
The incorporation of EU law into the UK's legal systems

1. The UK's legal system.
2. The emergence of EU law and UK Parliamentary scrutiny.
3. The incorporation of EU law into the UK system.
4. The implications.

The implications
There are 2 main themes when looking at the implications of incorporating EU law into our legal systems.
Parliamentary sovereignty:
-Parliament can pass any Act it wishes and it becomes law.
-This enables the UK constitution to be more flexible
European Scrutiny Committee
European Standing Committee
Debate in the House of Commons
Comments on the political and legal significance of each piece of legislation.
Produces Explanatory Memoranda about the effects of the legislation.
3 European Standing Committees
Each relevant committee will compile a detailed report on the issues.
The evaluation can either support or counter the government minister.
Either way, the Committee is independant.
House of Lords Select Committee.
Parliamentary input
Treaty of Rome > Greater national input
The Commission must send each proposal to the national Parliament at the same time as other EU bodies.
Each Parliament has two votes.
If there are 2/3 against, the Commission must review the proposal.
European Communities Act 1972
This act made provision for EU law to be incorporated into UK law
s. 2(2) enables Parliament to incorporate EU law by making changes to UK law in accordance with EU directives etc.
s. 2(4) states that UK law has effect "subject to" relevant EU law. (Factortame)
Lord Bridge interpreted s. 2(4) of the European Communities Act to mean that any UK statutes did not apply if they were in conflict with EU law.
When the UK Parliament agreed to be part of the EU and signed the ECA, it knew that supremacy lay within the ECJ.
If the community was to be successful, its law would need to override that of the Member Nations.
Highly influential. Solidified the ECA, in favour of incorporating EU law.
Equal Opportunities Commission case
Solidified Factortame.
The unfair dismissal and redundancy pay law that was incompatible with EU law was repealed.
The power to review UK primary legislation for incompatibility now lay in all courts.
The ECA was declared a constitutional statute which cannot be repealed.
The concept of implied repeal (the Weights and Measures (1985) act in favour of s. 2(2) ECA (1972)) no longer applies to clashes between EU and UK law.
Direct Effect
The concept that individuals can invoke EU law in the national or EU courts.
Provides a platform for the private enforcement of EU law.
Treaty articles have full (horizontal and vertical) direct effect.
Clear, precise and unconditional.
Regulations also have full direct effect.
Directives in theory have only horizontal effect. However the area has become increasingly blurred as the ECJ has awarded 'incidental direct effect' to cases involving 2 private individuals.
Recomendations have no direct effect.
4 Themes
Loss of Parliamentary sovereignty
The European Communities Act requires that any UK law that is in conflict with EU law should be repealed.
If parliament wishes to go against this principle, it must do so EXPRESSLY and UNEQUIVOCALLY.
Thoburn removed the doctrine of implied repeal from EU law.
HOWEVER: The wording of s. 2(2) is ambiguous and open to interpretation.
Arguably the national courts will still hold supremacy.
Supremacy of EU law
The ECA, Factortame, the Equal Opportunities Commission and Thoburn have all solidified the idea of supremacy of EU law.
The doctrine of direct effect reinforces it further:
>Individuals can use EU law in their national courts.
>National courts become EU courts by extension.
>EU law is directly enforceable in the courts of all Member States and is supreme over national law which conflicts with it.
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