To What Extent Has the UK Ceded Sovereignty to the EU as a result of the European Communities Act - Essay Example

Law Assignment - To what extent has the United Kingdom ceded sovereignty to the European Union as a result of the European Communities Act 1972? Introduction With the evolution and formation of countries, the political setups also evolved, with countries governed by different political setups including democracy, monarchy, Theocracy, Despotism, etc. This evolution and establishment of many countries with different political setups have necessitated the formation of an overseeing or conglomerate organization. The role of ‘conglomerate’ organization is manifold as it provides a forum to discuss as well as solve many important issues apart from aiding unison of countries. This paper will focus on one such organization, European Union and United Kingdom’s equation with it, discussing to what extent the United Kingdom has ceded its sovereignty to the European Union as a result of the European Communities Act 1972 and some other legal issues like Factortame case. UK and European Union United Kingdom is regarded as one of the most dominant countries in the world history as it strengthened its sovereignty as well as spread its influence all over the world in the earlier centuries. But, in recent times or in recent decades that supremacy and importantly sovereignty is being challenged by external issues or organizations, with which UK is voluntarily associated. That is, some actions of external bodies like European Union (UK holds membership of it) and its court is undermining the powers as well as the laws issued by the UK Parliament, thereby UK’s sovereignty. When UK signed the Treaty of Accession with the formative European Economic Community of six nations at Brussels in 1972, and then ratified that treaty in 1973, it entered the phase of subdue ness to the European Union’s laws. The European Economic Community was established when the Treaty of Rome was signed in 1957. So, it was the Treaty of Rome which set off the movement for more unison between the European countries. It can be considered as the founding treaty of the European Economic Community and the EU as well. Even though, UK did not sign or associate with the Treaty of Rome, it got associated with the resultant European Economic Community. Then, by also signing various other treaties, ratifying and accepting its new laws and constitution (except, treaties related to the common currency), it started to undermine its Parliament and thereby sovereignty. “Since 1972 The Queen has illegally signed five of the six EU Treaties… The five treaties define and build the EU as an unelected dictatorship... The sixth EU treaty will complete the abolition of Britain as a nation.” (eutruth.org). So, new treaties brought in new laws that brought in new problems, which most of the times ended in the favour of the European Union, thereby undermining the UK sovereignty further. That is, only after the UK became the member of the European Union that the European Court of Justice (ECJ) situated at Luxemburg started to assert its power over the United Kingdom’s judiciary as well as over the Parliament. UK because of becoming a member of European Union only, passed the European Communities Act of 1972 (EC Act 1972). But, that law overrode many of the laws enacted by the UK Parliament, as ECJ annulled any UK law which is inconsistent with the EC Treaties, thereby proving that the European Union’s laws and its constitution is supreme than the parliament of the United Kingdom. EC Act 1972 EC Act passed in 1972 at the time of England’s entry into the European Union reduced the supremacy of the UK Parliament and sovereignty by paving the path for the incorporation of EU laws into the UK’s domestic legal order. That is, when UK became a member of the European Community, it involuntarily accepted that it will limit its Parliament’s sovereignty and power, and became a part of a bigger community with common powers and “pooled sovereignty”. “The European Communities Act 1972 gave the force of law in the United Kingdom to existing Community legislation and obliged the UK Government to incorporate into domestic law future legislative acts of the Communities” (parliament.uk). By passing this law, it accepted that whenever a domestic law contravenes with the European law, the parliament should amend the law in line with the European law. Also, when new laws are passed, parliament according to this act had to take care that it does not breach or infringe on the European laws. “From the 1st day of January, 1973, the treaties governing the European Communities and the existing and future acts adopted by the institutions of those Communities shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those treaties.” (bailii.org 1972). So, here again, Parliament’s power in formulating laws got limited or is being limited. That is, EC Act 1972 by asking the already passed acts to be amended in a pro-European way, and also by asking for the introduction of new acts in the same pro-European way, belittles or minimizes the role of UK Parliament and thereby UK’s sovereignty. “The UK in its entirety has been a part of the European Community (EC) since 1973. All EC Treaties were incorporated into the UK by the European Communities Act 1972 ("EC Act"), whereby EC law became directly applicable to the UK. EC law may be effective either directly or indirectly. The principle of direct effect provides for "enforceability of Community Rights" in full force by the UK courts. Regulations have direct effect, as well as some directives.” (europa.eu 2006). And, along with the legal cases, Factortame vs. Secretary of State for Transport (1989), Van Gend en Loos vs. Netherlands Inland Revenue Administration (1963), Macmahon v Department of Education and Science (1982) and Marshall v Southampton Health Authority (1986), this act only gives prominence to the European Union and laws, by undermining the sovereignty of the UK Parliament. Primary and secondary EU law The EU law is differentiated into 2 laws, Primary law, Secondary law and Supplementary law. The primary is regarded as the supreme source of law in the European Union and the European Community. It consists mainly of treaties and protocols associated to those treaties including the Treaties establishing the Communities and the European Union; the major Treaties amending provisions governing the various Communities and the Union; the protocols annexed to those treaties, such as Protocol No 2 annexed to the Treaty of Amsterdam, integrating the Schengen rules into the Community; additional treaties making changes to specific sections of the founding Treaties; the Treaties of accession of new Member States to the European Communities and the European Union. (europa.eu) On the other hand, Secondary law mainly includes the unilateral acts and the agreements, with unilateral acts divided into two categories. those listed in Article 249 of the Treaty establishing the European Community: regulations, directives, decisions, opinions and recommendations; those not listed in Article 249 of the Treaty establishing the European Community, i.e. "atypical" acts such as communications and recommendations, and white and green papers. While the Agreements comprises international agreements, signed by the Community or the European Union and a country or outside organisation; agreements between Member States; and interinstitutional agreements, i.e. agreements between the institutions of the European Unio (europa.eu) Legal Cases The Factortame vs. Secretary of State for Transport (1989), mainly initiated because of UK being the member state of European Union, is a legal case involving the UK Parliament and the European Court of Justice, and which in a way only confirmed the supremacy of European Union laws over the English laws. The case involved Factortame, a Spanish fishing company and its directors, who appealed in the UK courts, for the removal certain restrictions imposed by the UK government on the bases of the Merchant Shipping Act 1988. That is, a section of the Shipping Act prevented the Factortame from using the foreign ships, which are actually registered as British ships, for the fishing purpose in UK waters. In the court, Factortame argued that they should be allowed to fish under the law of the European Economic Community (EEC). When the case came to the High court, the court ruled in favour of Factortame against the Merchant Shipping Act, thereby challenging the UK parliament and sovereignty. But, when the judgment was petitioned in the Court of Appeal, the Court protected the parliament by overturning the High court’s ruling. But, Factortame took the case to the European Court of Justice (ECJ), which in June 1990, ruled that national courts could dis-apply legislation that contravened EU law. Consequently, the House of Lords this time ruled in support of Factortame, which meant that the Merchant Shipping Act, 1988 passed by the UK parliament was struck down in favour of a foreign company. This clearly undermined the UK sovereignty, as European court prevented the operation of a crucial law passed by the Parliament. Likewise the legal case of Van Gend en Loos vs. Netherlands Inland Revenue Administration (1963) also strengthened EU’s position in relation to the member countries. Even though, UK was not involved in the case, as the case involved a West German company, Van Gend en Loos and Netherlands, the judgement in favour of Van Gend en Loos against Netherlands’ domestic laws indirectly affected UK’s sovereignty, particularly during the Factortame case. Also, the case, Macmahon v Department of Education and Science (1982) negatively affected UK’s sovereignty. In the case, Macmahon, an Irish national asked a grant at home rate for his education in UK. The local educational authority refused to pay the grant because apart from being a Irish citizen, he had not been UK resident for three years. But, Macmahon claimed that these regulations are not binding on him, as it discriminated against a national of a Member State of the EU. Even though, UK court favoured the educational authority, European court of Justice opposed the ruling and ruled in favour of the Irish citizen by stating that the action of UK educational authority was in direct conflict with the articles 48, 49 and 59 of the EEC Treaty, which provides the freedom of movement for workers within the community. In the case, Marshall v Southampton Health Authority (1986), Miss Marshall, a senior dietician, was compulsorily retired by her employer South Hampton Area Health authority at the age of 60, even though her male colleagues were allowed to continue till the age of 65. When she approached the Industrial Tribunal, it ruled in her favour by citing the Sex Discrimination act 1972, but when her employer approached the Employment Appeals Tribunal, it ruled against Marshall. This is when ECJ came into the picture and favoured Marshall by judging that the Marshalls dismissal was illegal. This case also undermined UKs sovereignty with the ECJ playing the major role Influence of EU on employment law, employment contract UK’s EU membership has a significant impact on UK employment law and employee rights. That is, many employee centric directives were forced on UK, without giving any leverage to it. For example, UK had control of working time directive, controlling of hours, etc, but EU forced its own rules regarding these aspects. That is, the Working time directive 93/104 requires Member States to set their own limits on the length of the working week and working day, and also the provision to introduce a right to a minimum amount of paid annual leave. Likewise, the equality legislation provides equal opportunities to all irrespective of genders in workplaces. UK Employers have effectively circumvented this constraint on working conditions, but all that came to end with EU’s undermining of UK’s employee centric laws. (Nairns 2002, 90). Conclusion So from this analysis it is clear that mainly due to its status of member state of European Union, UK has faced and is also facing a lot of challenges. That is, because of its EU membership only, UK has to formulate and pass an unbeneficial act like EC Act 1972 and also its position got further weakened because Factortame vs. Secretary of State for Transport (1989), Van Gend en Loos vs. Netherlands Inland Revenue Administration (1963), Macmahon v Department of Education and Science (1982), Marshall v Southampton Health Authority (1986)etc. These issues along with the membership issues are not only threatening the supremacy of the parliament and sovereignty but also having a negative influence on the employment laws and the employment contract. Bibliography bailii.org, 1972, European Communities Act, 1972, accessed November 25, 2008 http://www.bailii.org/ie/legis/num_act/1972/0027.html europa.eu, 2006, Benchmarking of existing national legal e-business practices, accessed November 25, 2008 http://ec.europa.eu/enterprise/ict/policy/legal/2006-bm-cr/uk.pdf. europa.eu, Sources of European Union law, accessed November 26, 2008 http://europa.eu/scadplus/leg/en/lvb/l14534.htm eutruth.org. Do you know the truth about the EU? accessed November 24, 2008 http://eutruth.org.uk/ Nairns, J, 2002, Employment Law for Business Students, Longman parliament.uk, EU Legislation and Scrutiny Procedures, accessed November 25, 2008 www.parliament.uk/documents/upload/l11.pdf Read More