The Relationship between European Union Law and UK Domestic Law - Essay Example

The United Kingdom has become a member of the European Union due to the European Communities Act of 1972. This act ensures the domination of the European Community Law over the national law. On quite a few occasions the UK courts were put to considerable trouble, while adopting the EU law, due to the lack of fundamental laws. The UK Parliament is averse to relinquishing its supremacy, but the fact is that such sovereignty is inconsistent with being a member of the European Union. Despite, having such misgivings, the UK Parliament ratified the Single European Act of 1986 and the Maastricht Treaty of 1992. Whenever it is possible to do so, the present Labour Government does not comply with the EU (Watkins, 1996. p. 19). Since, the ECJ relies on the national courts to refer cases to it, the latter are in a position to offer indirect resistance to the former’s authority. The principle of subsidiarity states that the EU will intervene if the objectives of a proposed action are not being achieved sufficiently by the Member States and if the same can be better achieved by it (The subsidiarity principle and the role of national parliaments). Since, the 1992 Maastricht Treaty, this principle has assumed great importance. The importance of the ECJ cannot be underestimated and its opponents have vehemently opposed its forays into “new and sensitive policy areas, such as foreign and defense policy or the area of freedom, security and justice. The ECJ is an absolutely crucial part of the Community method of governance and all that it implies for integration and national sovereignty.” (Tsoukalis, 2003. P. 32 – 33). The Factortame Case, disputed the the sovereignty of the Crown in parliament (R v. Secretary of State for Transport, ex p. Factortame Ltd, 1990) , and challenged parliament’s right to “enact whatever it likes, and the courts have no power to ignore, forbid or object to it.” (Fishing case tests parliement's power – Factortame puts at stake fundamental rule of British law, 1991). In this case Spanish fishermen questioned the validity of the 1988 Merchant Shipping Act, which restricted their commercial activities in UK waters. The ECJ decided that the freedom of establishment allows citizens of Member States to commence and continue undertakings as self – employed individuals in any Member State, with the same rights as are enjoyed by the nationals of that particular Member State (Case C-221/89 Factortame , 1991). On the other hand the stance of the UK Parliament had always been that the sovereignty of the Crown in parliament, which connotes that parliament, can legislate in an unencumbered manner without the intervention of the judiciary (Fishing case tests parliement's power – Factortame puts at stake fundamental rule of British law, 1991). With the decision in the Factortame case, the ECJ terminated the breach of the Single European Act by the United Kingdom and made it clear that the EU law was to prevail over domestic law. This principle is demonstrated in the following cases. In the Marshall case, the court held that the age of retirement from service had to be the same for men and women as per the provisions of the European Commission's Equal Treatment Directive (Marshall v. Southampton and SW Hants Health (No1), 1986). In the Foster case, the court included some private services under the public sector and held that the national courts had to decide in a manner that would not violate the European Union law (Foster v. British Gas Plc, 1991). In Francovich (Joined cases C-6/90 and C- 9/90 Andrea Francovich and others, Danila Bonifaci and others v. Italian Republic, 1991), von Colson (von Colson , 1984) and Marleasing (Marleasing SA v. La Comercial Internacional, 1992) the ECJ decided that compensation could be claimed, from the Member States, by individuals who had suffered a loss due to the non – implementation of the EC Directives. An outstanding decision is that of P v S and Cornwall County Council 1996 in which an employee who had undergone a gender change operation had been dismissed. In this case the ECJ held that such a dismissal infringed the Equal Treatment Directive. The most prominent example is that of the judgement by the European Court of Human Rights in P v S and Cornwall County Council 1996. In this case the European Court of Justice held that the dismissal of an employee who had undergone a gender change operation constituted a breach of the Equal Treatment Directive (P v. S and Cornwall County Council, 1996). The doctrine of supremacy states that if the EU and UK laws are at a variance then the EU law has to be implemented. Accordingly, the Factortame case revealed that a UK court can consider the UK law to be invalid if it contradicts the EU law. The potential conflict between the UK Parliament and the ECJ has been mitigated to a certain extent by the adoption of the preliminary reference system (Maher). In another instance, the Equal Opportunities Commission or EOC filed a case against the Secretary of State, alleging an infringement of the EU law, in respect of the unfair dismissal of part-time workers as per the provisions of the Employment Protection Act 1978. The High Court upheld this dismissal and the appellate court confirmed this decision. The House of Lords decided that the Employment Protection Act infringed the EU Law (R v. Secretary of State for Employment, ex p. Equal Opportunities Commission, 1994).   From the ECJ decisions in the EOC and the Factortame cases it becomes evident that EC Law prevails over the domestic law. The Equal Opportunities Commission had filed a case against the Secretary of State, because the Employment Protection Act was in breach of the EU law, in respect of part – time workers. The House of Lords held that this increased the applicability of judicial review and acknowledged the EOC’s contention. They also stated that the EOC was justified in posing such a challenge that was akin to the contention of the Spanish fishermen in the Factortame case, which had challenged the legitimacy of the Merchant Shipping Act. Accordingly, the House of Lords declared that the Employment Protection Act was inconsistent with the EC Law. The EOC case provided the House of Lords to engender a sweeping constitutional change; however, it desisted from doing so and did not instruct the Secretary of State that his actions had violated the EU law. The House merely decided that the Employment Protection Act had violated the EC Law and it initiated a judicial review, without a prior reference, in order to effect such changes as would make this act conform to the EC law. The landmark cases in the history of EC Law are the EOC and the Factortame cases. They have witnessed the enlargement and growth of the EC Law. The stance of the House of Lords contradicts the doctrine of supremacy and this cannot be incorporated into the range of responsibilities that have been imposed on the national courts. However, it helps a lot in combining the two systems to create a workable legal system (Maher). Albert V. Dicey in his 1885 monumental work, Law of the Constitution, expounded that it was the prerogative of the Parliament to enact whatever legislation that it thought fit. This power of parliament originates from the collective will of the people, because its representatives bring about legislation in Parliament. In general, membership of the EU results in the impairment of parliamentary sovereignty. The court of appeal in Blackburn v. Attorney General 1971 held that the contention that becoming a member of the European Community would be an illegal surrender of sovereignty was incorrect as the parliament could enact, amend or repeal any legislation (Blackburn v. Attorney General , 1971). However, this view of the court proved to be untrue on several occasions. The effectiveness of parliamentary sovereignty can be appraised from the case of Factortame, wherein an important piece of legislation was suspended by the House of Lords, because it infringed the EU law. In addition, international treaty obligations, the European Convention on Human Rights and similar EU laws clearly demonstrate the fact that parliamentary supremacy is a mere myth. However, to a miniscule extent, parliamentary sovereignty exists, for example in the matter of imposing penalties for the infringement of EU law and the choice to refrain from implementing some portions of the EU directives. The purpose of the formation of the EU was to establish a single European Community with common laws; therefore, it is to be expected that parliamentary sovereignty will be drastically reduced. Reference List Blackburn v. Attorney General , 2 A11 E.R. 1380 (1971). Case C-221/89 Factortame , ECR I-3905, §21 (ECJ 1991). Fishing case tests parliement's power – Factortame puts at stake fundamental rule of British law. (1991). LLoyd's List International (c) 1991 of Lloyd's of London Press Limited . Foster v. British Gas Plc, C-188/89 ICR 84 (1991). Joined cases C-6/90 and C- 9/90 Andrea Francovich and others, Danila Bonifaci and others v. Italian Republic, ECR I-5357 (1991). Maher, I. (n.d.). The English Courts as Community Courts . Retrieved May 1, 2007, from http://www.ecsanet.org/conferences/ecsaworld2/maher.htm Marleasing SA v. La Comercial Internacional, C-106/89 (1992). Marshall v. Southampton and SW Hants Health (No1), Case 152/84, ECR 723 (1986). P v. S and Cornwall County Council, C-13/94 ICR 795 (1996). R v. Secretary of State for Employment, ex p. Equal Opportunities Commission, 1 All ER 910 (1994). R v. Secretary of State for Transport, ex p. Factortame Ltd, Case 213/89, 3CMLR 867 (1990). The subsidiarity principle and the role of national parliaments. (n.d.). Retrieved April 30, 2007, from Europa: http://europa.eu/scadplus/european_convention/subsidiarity_en.htm Tsoukalis, L. (2003. P. 32 – 33). What Kind of Europe? Oxford University Press. ISBN: 0199266662. von Colson , C 14/83 ECR 1891 (1984). Watkins, A. (1996. p. 19, June 2). Political Commentary – Just Suppose We Wanted To Leave, Could We Find The Door? Independent Newpapers (UK) Limited . Read More