Constitutional Administrative Law in the UK - Essay Example

Constitutional Administrative Introduction The European court of justice (ECJ) tremendously plays a vital role in the promulgation and making of community law. It has risen from comparative obscurity and taken an influential portion within the European Union (EU). Ensuring EU treaties uniform interpretation is the ECJ’s responsibilities. The ECJ has progressively become powerful and considerably wields more authority than several international courts. According to (Bradley and Ewing 1997, p. 271), the ECJ is an active court that enhances constitutionalising of treaties in community law, and disseminating its powers to extend remitting law for European integration. This supranational policy has greatly affected the sovereignty of member states. The attainment of the United Kingdom (UK) to the European Communities (EC) membership forces it to effect community law in the country. This paper will critically analyse and evaluate how the United Kingdom courts have initiated the community law effectiveness over principles of domestic law, parliamentary sovereignty inclusive. Evaluation of the UK Courts achievements Chief sources of community law emanate from the secondary and primary legislations, which bind the member nations onto the law’s subject. Primary legislation comprises of amendments treaties, accession treaties and original treaties. Secondary legislation is composed of laws formed in treaties accordance. Sovereignty is unrestrained political powers that enacts and makes laws in national parliaments that are neither suspended nor overridden by any other body of institution. The EC Act in 1972 stipulated that the UK had novel sources of law as from the 1st of January 1973(Steiner & Woods 2006, p.72). As highlighted earlier, these sources are the treaties or primary laws of the European communities and the secondary laws legislations. ECJ rulings have a greater implication on the English law. European community is concerned with laws from various sources such as; education, health, consumer policy, competition, companies, fishing and agriculture, free movement of goods and workers, and environment. However, it has no competencies in social and economic areas of the United Kingdom. UK courts have apprehended community law over principles underlying national laws including sovereignty of the parliament by enacting the principle of supremacy and direct effect which have greatly affected the legal system of Britain (Beatson 1998, p. 47). As highlighted by Turpin (2007, p. 41), the UK’s establishment of sovereignty is derived from the convention of British constitution. These sovereign factors include; a future parliament cannot be connected by the existing one, the parliament can legislate on matters concerning its choosing such as retrospective legislation, the parliament can create any law and no court can impede such laws. In general terms, it means that the parliament can choose or cancel any law, and courts within UK must enforce them. Being a member of EC, such principles are compromised (MacCormick 1999, p.29). In 1957, the treaty of Rome set up EEC. This treaty made up the primary laws constituted in the EEC constitution. According to Bra & Malanczuk (1997, p. 65), the Rome Treaty is superior to all national or domestic laws. In case there exists a conflict between the treaty of Rome and the parliament, the first one will prevail i.e. the treaty of Rome. Therefore, the constitutional convention that sovereignty is attained by the parliament is contradicted. As asserted by Hunt (1998, p. 109), under some circumstances, a judge fails to apply English statute provisions in the treaty of Rome. The 1972 European Communities Act under section two presents that all legislations of the parliament passed either after or before the EU act must be applied and construed in agreement with the community law (Borchardt 1991, p. 76). English law must be well interpreted more so, have effect subject to European Community law is supreme principle. Solely, the EC law takes precedence over all sources of domestic law. According to proclaims that UK courts must apply the laws of the European communities because they are directly effective despite the fact that they conflict with the English laws (Hartley 1999, p.23). The European Act 1972 has had a philosophical effect on citizen’s rights in the UK. This is particularly on the employees rights of female workers (Garrett & Weingast 1993, p. 98). The ex Parte Commission of Equal Opportunities on Employment in conjunction with the House of Lords discovered that the Consolidation Act 1978 on Employment protection, was inconsistent with EC law on female and male employees equal treatment. The act gave more rights to full time workers who were male and fewer rights to part time workers who were female. This was held to be a discriminatory process based on sex. The United Kingdom Government took the responsibility to revolutionize the law, which to the highest degree, improved the part-time workers’ rights. This law was in accordance to the EC Treaty that requires every member to applicably maintain the principle that male and female workers should receive the same pay for the same work done. As proclaimed by Cini (2003, p. 27), the UK courts used EC treaties to create obligations and rights under the English statute. This is due to the direct effect. Provisions of a treaty are precise, clear and unconditional as compared to the obligations and rights it creates. Therefore, the member states are left with no discretion on employing it, thus, used by folks in their own domestic courts as it is established by a statute approved by the state government. A principle of direct effect takes the platform (Dinan 1999, p. 304). According to Barnett (2005, p.45), the secondary legislations have been enacted by the United Kingdom courts through regulations. Regulations are part of an English parliamentary act known as community law policies. European regulation is efficient in national law. As the EC Treaty under article 189, provides directly applicable regulations to all member states. Even if the member states have passed conflicting legislations, they are to apply regulations. Regulations have effective either vertically or horizontally. European Court of Justice (ECJ) has directives that are to be integrated within the domestic law to cause effect. They are not directly applicable since they require additional enactment by an affiliate state before they take effect in domestic law. The associate states have no diplomacy as regards the purpose to be accomplished by the directive implementation. Only that these member nations hold discretion towards achieving the intended purpose of the directive. The United Kingdom courts have achieved implementing these directives appropriately through delegated or primary legislation (Hartley 1999, p.29). Directives take effective only in a vertical form. The interpretation of the EC law is done by the European court for it is the supreme tribunal to deal with such matters. This is in accordance with the treaty of Rome as stated under Article 177. Questions regarding effect, validity or meaning of community legislations with reference to 1972 EC Act under section three are to be affirmed in agreement with the laid down principles of the European Court. As stated by Lord Denning (1990), English courts ought to follow a similar approach as to that of the European court when deducing the European law (Cini 2003, p. 23). The 1957 treaty of Rome under Article 177 may be utilised by any of the 15 constituent states’ courts. This is when the decree that the nation courts are handling requires various aspects of the European law. It consents to the domestic courts to get clarification through asking questions to the ECJ concerning legitimacy of EU law or its interpretation. All proceedings within the national court are then suspended following this action until a preliminary verdict on the object in question has reached conclusion. Preliminary ruling can take more than two years to be established. After this establishment, the national court receives the interpretation and proceeds with the case basing on facts within the interpretation (Hunt 1998, p. 123). While most domestic courts in the UK posses discretion over the validity or interpretation of matter by the ECJ, such discretions are not within the House of Lords. If it has a case that elevates such concern, it is referred to the ECJ for preliminary ruling. The need for preliminary rulings are common since EU regulations and directives are written in universal terms with less definitions which are considered ambiguous in UK courts and may call for interpretation. Following the implementations of directives by the UK parliament through outlining parliamentary Acts, an effort is attained to lessen the language’s ambiguity that can cause problems in it and, therefore, leading to the need for preliminary ruling (Tomkins 2003, p.120). As asserted by (Wade 2000, p.28), the ECJ becomes an instrument of cohesion and a guardian of legality within the community. Its supremacy should take effect in all member states. European court of Justice (ECJ) has always from the beginning been a strapping position to identify the community law status and provide precedence whenever conflict with national legal system arises of some member states. It certainly became patent in the UK concerning a ruling of a popular Factortame litigation in the year 1990 on the interim relief question against a national law provision, which seemed to clash with one of the community law. The case facts were that the merchant shipping of the United Kingdom in the Act 1988 manoeuvred to rule out its registration for the reason of fishing permit 95 in the Spanish national vessels (Dinan 1999, p. 308). The Spanish nationals challenged the action basing on the fact that there was EC treaty breaching i.e. national discrimination. The UK court involved the ECJ to provide a preliminary ruling. Interim relief was approved in the meantime then raised on the basis that there was no remedy in the English law that lied against its peak. ECJ confirmed that, interim relief ought to be offered and it was an obligation overriding domestic law principles confliction. The domestic law was to be set aside by the national court if the obligation would have barred the endowment of interim relief providing effect to European Community law (Beatson 1998, p. 88). Conclusion The reception of the community law supremacy has certainly been problematic. It is difficult to talk about amending due to the largely unwritten British constitution. The acceptance obstacle of European Communities supremacy law in the United Kingdom clearly propagates from sovereignty of Parliament constitutional principle. No one declared that the legal system of Britain is static. Rather, it is responding continuously to modification taking place within the social order as a whole. Denying English legal system the significance of European law, would not be only unconfirmed but also wrong by the fact that it has progressively ignored an imperative factor in the determination and formation of the United Kingdom laws. UK’s partisanship of the EC, has wrought important dynamics on the UK’s conventional political alignments constantly since accession was touted to be the policy required in the 1960’s early year, conservative and labour groups have been accommodated by a fissure of ideology that shows no closing signs. Controversies of this kind have been aggravated by the seen readiness of the courts of UK to quit the mainstream principles of sovereignty of the parliament so as to implement EC laws to assure their non-frustrations via inconsistent domestic law. References Barnett, H 2005, Constitutional and administrative law (5th ed), Cavendish, London. 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