Forms of European Legalisation and Impact of EU Membership on English Legal System - Essay Example

Forms of European Legalisation and Impact of EU Membership on English Legal System Introduction National pride is protected by certain legal stipulations enshrined in the constitution of nearly all countries, particularly emphasised in a clear sovereignty section of the constitution. Under no circumstances will bending rules on this topic be welcome without comprehensive consensus. Europe has participated in such debates regarding the national and regional legal frameworks and the application of the provisions of each set of laws, which attracts all the supremacy controversies as could be imagined. This is particularly the case since Europe is largely founded on democratic format of governance which is keen on the sovereignty of the people under a particular determination. Incorporation of the European Union legal framework into the main legal structure embraced by European states is a delicate issue that touches on the sovereignty dogma held by nationalists. Perhaps the most challenging question that unionism minded activists have had to deal with at the state level before embracing the EU membership has principally been issues of the process and impact of legalisation and delegalisation of the coinciding laws (Armstrong, 2011, p3). The process of legalisation and interpretations at the helm of national legal structures must pass through the satisfactory scrutiny that such debate attracts. Legalisation of EU legal framework takes certain defined procedures which can be adopted by member states as illustrated in the following segment of this discourse. Besides the legalisation procedures, there are impacts that can be identified with certain conditions of legal processes on the English legal system as contained on the final section of the article. Forms of European Legalisation In international law, legalisation represents a sensitive topic that crosses lines with the sovereignty of a people with defined self determination. Ratification of cross-boarder legal frameworks such as the EU legal regime to recognise and be in consistency with the national laws must be conducted under the watch of certain provisions to avoid clashing provisions and inconsistencies. The structure of the EU legal framework cannot adequately handle the numerous member states’ legal systems bearing in mind the diversity that the number occasions to the process of harmonisation of the laws across the board. It follows that there is a chance of congruence in some legal regimes while yet others have capacity to be incongruent with the standardised EU legal provision. To eliminate grave intrusion of international or regional law on the internal integrity of legal framework, soft and hard laws must be incorporated into the internal legal system (Armstrong 2011, p5). In terms of application, international law could face incongruence from internal systems to such an extent that serious compromise needs to be made on the internal law to accommodate the incongruence. In other levels of congruence measure, legal structures may necessitate slight modifications or additions to allow a reflection of the introduced international legal agreements. One of the conditions that are considered in the determination of the priorities in making the EU or internal laws superiority aspect come into effect is handled by the EU Treaty (lawteacher.com, 2011, p1). The question of the more superior law in the interpretation process particularly when there is a clashing opinion between the laws is tackled by the member state. Generally, the court systems in the state being under which the consideration is made usually decides the priority of the two legal systems. The guiding principle in the determination is the interpretation must therefore answer the fundamental question of incorporation. The judiciary therefore plays an integral role in the interpretation an implementation of the international legal regime. However, the role of the legislature is equally important since the missing detail in the elaboration of the law after determination is facilitated through legislative procedures. In case the member state under consideration is monist in terms of embracing the EU legal framework, little resistance is met in the implementation of the EU legal structure. In such an arrangement, the formal approval of the EU membership quashes all contradictory legal positions and automatically places all supremacy in the EU regime. Characteristically, there is no need to modify the internal legal system in order to accommodate the new incorporation since the monist arrangement allows the priority of implementation of the EU legal framework at the expense of the internal legal system up to the extent of its inconsistency (Aziz, 2004, p16). This arrangement is one of the easiest membership procedures that the member states undergo in order to become fully compliant in terms of the legal requirements of the regional union. An example of countries with such an implementation system is France whose EU membership approval and ratification presented a phase of EU constitution implementation supremacy over the internal legal preference with little modification requirements. Alternatively, there is a different approach in the case of a dualist state regarding the incorporation of international legal regimes into the mainstream legal systems. Under the arrangement followed by such systems, approval of the membership into EU block does not present automatic legal incorporation (Richardson, 1996, p177). This implies that some aspects of the EU legal system need extra modification in order to capture internal legal intricacies. Interpretation of the domestic law is an integral process in the incorporation procedure which is done cautiously in order to avoid inconsistency. Generally, incorporation into the EU legal system is a lengthy procedure that identifies the inconsistencies and controversial areas and sets out the implementation agenda from the inconsistencies. Initially, the identification of the inconsistencies is carried out to assist in the formulation of legal procedure. This identification is performed by the judiciary and passed on to parliament to ensure that the incorporation is finalised in form of converting the EU legal provisions into the domestic legal system. Due to the stringency attached to such processes, the legislature must therefore turn the EU provisions into the main legal regime through specific statutes. Legislation procedures are generally lengthy and make this cluster of member states indirectly involved in the domestication of the European framework. Examples of countries under this implementation system include the UK, Belgium, Germany and Italy (lawteacher.com, 2011, p1). For more specific implementation of the European legal system into the mainstream legal regimes, there are two legal procedures that are involved, depending on the internal legal frameworks. After approval of membership into the EU, further legal procedures that lie on the way of implementation of new EU laws are determined by the nature of the states’ acceptance of regulations and directives. Under regulations, countries have easy acceptance of EU legislations coming into force in their jurisdiction. The British form of legal system does not allow such a direct incorporation of legislation from the EU into its internal legal system. Alternatively, new legal provisions emanating from the EU are subjected to conditional approval into the domestic legal system through statutory procedures. In such an arrangement, the supremacy of the legislature in determination of the incorporation process is exercised on a high level of stringency checks. On the other hand, the EU may deliver laws in form of directives which apply in a more flexible measure across the member states. Directives form of laws allows the EU member states to deliberate on the means of implementation but sets out the standard target across the EU. One of the stipulated standards outlined in such an arrangement is in the form of clearly set out timelines that bind the states to act within the set limits. In terms of implementation, directives favour member states such as Britain which would subject any other arrangement to a rigorous procedure anyway (Kelly and Slapper, 2011, p83). Failure to abide with the requirements of directives due to their open ended approach usually attracts certain enforcement forces such as fines. In certain cases, the directives could be turned into binding laws for non-compliant member states if it happens within the stipulated timeline. Impact of EU Membership on the English Legal System The general status of the English legal status has not gravely been compromised by the EU membership. According to Burridge, (n.d, p1) the English legal system has a rich representation of the international law fabric in several respects. According to the author, the origin of common law which forms a deep foundation of the English legal system can be traced from Western Europe cultural practices. It follows that the legacy of European culture is passed on as an integral heritage for Europe and indeed the entire world through law, with English legal system being richly founded on the same heritage. It therefore implies that one of the oldest European practices are manifested in the English legal system that is second to none in terms of this perspective of richness. It can therefore be said that English legal system is among the custodians of not only the European cultural heritage but to a greater extent the entire world (Aziz, 2004, p16). In light of the responsibility that Europe has in protecting its heritage, huge borrowing from the English legal system has been relied on by the EU legal system. This creates few incongruence issues between the two forms of legal regimes since a nearly perfect match exists. Due to the magnitude of the English legal system as the custodian of this cultural heritage, it is admissible for the conservative approach with which the British states embrace the EU legal regime. Burridge, (n.d, p4) reckons that the flexibility with which the English legal system has is manifested on its origin that can also be traced from an international dependency. In that respect, it can be said that the European context is well taken care of in the English legal regime. The institution of parliament in the UK is perhaps a very strong factor that determines the course of developments in English legal processes. The fact that the English legislation strictly follows the procedures that any forces of modification subject to its cultural heritage makes the institution a very instrumental role player in context. It is clear that the incorporation into the EU is a lengthy procedure in England and other British states which makes it a unique case of implementation of the EU legal regime. Despite this strong position of the English legal system amid the EU force that has swept the entire European continent, there have been changes that the legal regime in England has had to put up with. As observed earlier, the EU laws are given in form of regulations or directives depending on the nature of implementation procedure. In the long run, the adoption of the European system takes effect across Europe however at different rates as occasioned by political processes taking place (Kelly and Slapper, 2009, p600). With time, the English legal system may find massive changes taking place due to the potent changes advocated by the political and economic forces that propel the European dream. References “The Problem of Priorities,” n.d. [online] Available from [accessed 19 July 2011] Armstrong, K. A. (2011) Law after Lisbon: Legalisation and Delegalisation of European Governance. [online] Available from [accessed 19 July 2011] Aziz, M. (2004) The impact of European rights on national legal cultures. Portland, OR: Hart Publishing Burridge, R. (n.d) The Three Most Important Characteristics of the UK Legal System. [online] Available from [accessed 19 July 2011] Kelly, D. & Slapper, G. (2009) The English legal system: 2009-2010 (10th edn) New York, NY: Taylor and Francis Kelly, D. & Slapper, G. (2011) The English legal system: 2011-2012 (12th edn). New York, NY: Taylor and Francis Richardson, J. (1996) European Union: power and policy-making. London, UK: Routledge Publishers Read More