Analyze the Doctrine of Supremacy of European Law - Essay Example

Analyze the Doctrine of Supremacy of European Law and discuss its impact on the United Kingdom Sources of European law The European law is the law that operates amongst the member states of the European Union, in addition to the national laws that are established by such countries. There are various sources of the European law, which are based on the type of laws in question. The first type of European law is the primary law, whose source is the treaties establishing the European union that have been enacted by the member states who are state parties to the European Union (Allan, 1997:445). Thus, the primary law of the European law is binding to the member states of the Union, and as such, has to be operational under the terms that the member states agreed when they ratified their membership to the European Union. Therefore, as opposed to the other types of European law, the primary law has a direct influence on a country that is a member state to the Union, since it can be enforced by the court of laws of the member states (Lyon, 2003:27). The second type of European law is the secondary law, which includes the regulations and directives issued by the legislature of the European Union, derived from the treaties that established the European Union (Craig & de Búrca, 2011:287). The secondary laws are established in form of directives or regulations, which are then issued to the member countries as binding laws meant enable the member states pursue the objectives that are set out by the treaties establishing the European Union (Allan, 1997:448). Where a member state fails to adhere to the directives or regulations of the European law issued as secondary, the European Commission is the body mandated to take a proceeding against such member states, as opposed to the internal courts of law within the member states, which enforces the primary law (Lyon, 2003:27). Finally, the third type of European law is the supplementary law, which refers to the other laws derived from international laws, laws of precedence of the Court of Justice of the European Union, as well as other general guidelines ad principles that are the customs of the European Union (Wade, 1996:112). The Doctrine of Supremacy of European Law The relationship between EU and UK law derives from the Doctrine of Supremacy of European Law, which provides that; where the laws of the member states of the European Union provides for lesser rights for the citizens of the country, then, the European Law should be applied instead (Turpin, & Tomkins, 2000:44). Thus, under the doctrine of the supremacy of the European Law, the European Law takes precedence over the domestic laws of the member states, under a situation where the two laws conflict in the provision of rights for the citizens, and the European Law happens to offer more rights. Moreover, the supremacy of the European Law is not only felt where the European Law provides more rights than the domestic laws of the nations that are member states to the European Union, but also under any circumstances where the domestic and the European Law happens to collide (ONeill, 2011:279). The other aspect of the supremacy of the European Law is that; while ratifying the membership to the European Union, the member states are put under the obligations to ensure that their domestic laws are enacted and formulated in a manner and form that is consistent with the European Laws (Lyon, 2003:35).This being the case, the European Law dominates the domestic laws, which are supposed to be changed and enacted in a manner that adheres to the European Laws. Further, the doctrine of the supremacy of the European Law extends to the rights of the citizens to require that the domestic courts should enforce the European Laws, under circumstances where a citizen of a country that is a member state to the European Union feels that the application of the European Laws will grant them more reprieve, as opposed to the application of the domestic laws (Bradley & Ewing, 2008:63). This principle has also come to be referred to as he principle of ‘direct effect’, which then means that the European Law has a direct effect over the domestic laws and the domestic courts, since it can be applied by the citizens of the countries that are member states, as if it were domestic law. In such a case, the domestic courts will directly enforce the European Law, in total disregard of the provisions of the domestic laws. The relationship between EU and UK law Unlike the other member states to the European Union, the United Kingdom has a significant relationship with the European Union, considering that the UK is a duality state, as opposed to other member states, which are monist states (ONeill, 2011:282). In this case, the UK‘s dualist state serves to mean that it differentiates laws in two tiers, where there are internally enacted laws and the externally enacted laws. While the monist state incorporates the externally enacted laws that has been adopted by their government as part and parcel of the domestic laws, the duality state keeps the laws separate, such that the externally enacted laws that have been enacted by the government do not alter the internal laws (ONeill, 2011:281). In this respect, the UK keeps the laws that have been ratified by the government externally separate from the internally enacted laws, a situation that serves to create confusion in relation to which of the laws between the European Laws and the domestic UK law are superior (Allan, 1997:447). Considering that the duality nature of the UK legal system means that the externally adapted treaties and laws, including those of the European Union cannot alter the domestic law, conflict situations have arisen where the European Laws ought to take supremacy, but then the domestic laws of the UK remain adamant that they ought not be altered by such external laws. Nevertheless, despite the supreme nature of the UK laws in the face of any other externally enacted and government ratified laws, the European Union Laws are superior to the UK laws, considering that under the European Communities Act 1972, specifically in section 2, the law has stipulated that the rights, liabilities, powers and obligations , as well as the restrictions that may be enacted from time to time by the Treaties of the European Union shall be used and given legal effect in the United Kingdom (Lyon, 2003:42). This being the case therefore, all the treaties that have been entered by the United Kingdom under the umbrella of the European Union shall have a legal effect, meaning that they shall apply as laws, while the obligations and restrictions therein shall also be applicable. Additionally, the moment a nation ratifies the treaties of the European Union; it becomes obligated to apply the laws of the European Union as superior to the domestic laws, meaning that the European Union Laws still remains superior to the United Kingdom laws (Turpin, & Tomkins, 2000:51). Further, under Article 4(3) of the European Communities Act, it is required that the member states, in the fulfillment of their obligation to the ratified treaty, shall act in mutual respect to assist in the realization of the objectives of the treaty of the European Union (Bradley & Ewing, 2008:67). The article also provides that none of the member states to the European Union shall do anything that shall jeopardize the achievement of the objectives set by the treaties establishing the European Union. Thus, this being the case, once a member state has ratified the treaty of the European Union, the members becomes subordinate to the European Union Laws, which is the case for all the member states, the UK inclusive (ONeill, 2011:282). Despite the fact that under the provisions of the European Communities Act 1972, the United Kingdom is bound by the doctrine of the supremacy of the European Union Laws, there has always risen a conflict between the principle of supremacy of the British parliament and the Supremacy of the European Union laws. The constitutional principle of Parliamentary sovereignty in the UK has provided that the British parliament is superior, and thus not even the judiciary or the monarchy can veto the powers of the British parliament (Craig & de Búrca, 2011:288). This being the case, the British Parliament is not bound by the past laws enacted by a preceding parliament, and equally the future parliament is not bound by the laws that have been enacted by the current parliament. In this respect, it is upon a current or a future British parliament to review the laws enacted previously, in the manner that the parliament deems necessary (Wade, 1996:117). Therefore, the current parliament can either opt to repeal the provisions of the European Communities Act 1972 which binds the UK or simply leave it operational as it is. In this case, there arises a conflict in relation to the supremacy of the British Parliament and that of the European Parliament, considering that the British parliament can easily enact laws that override the provisions of the European Union Laws, thus rendering them inferior, even when the UK is still a member state (Bradley & Ewing, 2008:72). However, this notion was disapproved in the case Thoburn v Sunderland City Council, where it was argued that the supremacy of the European Union Laws does not only derive from the ratification of the EC act 1972, but from the golden rule that the European Union is Superior regardless of whichever domestic law. A further complication in the relationship between EU and UK law emanates from the fact that, under section 2(1) of the European Communities Act 1972, it is provided that it is not only the past enactments of the European Union Laws that are binding to the member states of the European Union, but also the future enactments that the European Union will subsequently make (Turpin, & Tomkins, 2000:84). The complexity arising from this provision is that; any subsequent legislation that are made by the European Parliament and the European Council will still be binding to the member states, as was the European Communities Act 1972. This is yet another principle that serves to jeopardize the supremacy of the British Parliament, since it is not only affected by the laws that has already been enacted by the EU, but also by the subsequent laws that will be enacted in the future, seeking to enforce or to realize the objectives of the treaty establishing the European Union. This principle can be demonstrated under the case Factortame v. Sec. of State for Transport, where the UK was found to have violated the provisions of the European Laws in relation to the fishing rights, and consequently the British parliament was forced to formally change the law, through a statute. This case serves to demonstrate that, the provisions of the European Union Laws are superior to the laws enacted by the British Parliament, and thus the principle of the supremacy of the parliament does not hold, in relation to the European Union laws (Wade, 1996:272). Further, the supremacy of the British Parliament was completely underrated under the provisions of the ruling in the case Costa v ENEL, where the European Court of Justice provided that; any law stemming from the treaty establishing the European Union, which is an independent law, could not be overridden by domestic law provisions, owing to its original nature of jurisdiction (Craig & de Búrca, 2011:287). The court found that overriding any provisions of the treaty by a provision of the internally enacted laws within a member state will call the character and the legal basis of the European Union into question. Therefore, according to the European Court of Justice, the transfer of internal legislations into the European Union jurisdiction by the a member state during the ratification of the European Union treaty meant that the member states was ready to limit their sovereignty (Lyon, 2003:38). In this respect, the member state presented its domestic legislation to a permanent limitation of rights, and in so doing subjected the subsequent unilateral legislations, which could be inconsistent with the objectives of the European Union, to a state where they can no longer prevail (Bradley & Ewing, 2008:97). Simply put therefore, the relationship between the EU and UK law is in the form of dominant nature of the EU law, and subordinate nature of the UK law. References Allan, T (1997). ‘Parliamentary Sovereignty: Law, Politics and Revolution. The Law Quarterly Review 113, 443-452 Bradley, A & Ewing, K (2008). Constitutional and Administrative Law. Longman. Costa v ENEL [1964] ECR 585. Craig, P. & de Búrca, G. (2011). EU Law: Text, Cases and Materials (5th edn) Oxford University Press. 287-288 Factortame v. Sec. of State for Transport (No.1) [1989] 2 W.L.R. 997 (HL) Lyon, A. (2003). Constitutional History of the United Kingdom. Routledge. ONeill, A. (2011). EU Law for UK Lawyers. Hart. 279-286 R v Secretary of State for Transport, ex p. Equal Opportunities Commission [1995] 1 AC 1 The European Communities Act 1972 Thoburn v Sunderland City Council [2002] EWHC 195 Turpin, C. & Tomkins, A. (2000). British Government and the Constitution. Cambridge University Press. Wade, W. (1996). Sovereignty - Evolution or Revolution” Law Quarterly Review 112: 574. Read More