The EU Law and Common Law Basis - Essay Example

of the of the of the Q The EU law has supremacy over national legislation. This is the fundamental principle of the EU. Although the UK courts have recognised this fact, they find it an onerous task to rescind their traditional outlook, while respecting the EU law and interpreting it in the context of their national legislation. They are still on the horns of a constitutional dilemma. In general, the UK courts favour parliamentary supremacy over the EU law and often state that the traditional orthodoxy still remains without being affected by the UK’s membership of the EU. The spirit of European integration is chiefly based on the incorporation of EU law into national legislation by the domestic courts. As such, the national courts are under an obligation to promote EU law. However, the English courts follow a dualist approach in dealing with cases of non – compliance. This practice has resulted in a number of barriers for the UK courts to integrate the EU law with their national legislation1. In order to interpret the EU law, the European Court of Justice mainly depends on three sources; namely, the EU Treaties, Articles of the Treaties and provisions of EU law. The ECJ deals with cases of breach of EU law by Member States if their national legislation fails to correctly interpret the EU law. The ECJ then examines the legal basis of the Acts enacted by the institutions of the EU to find out their legality and practicality. Member States refer cases of infringement of EU law to the ECJ for the proper interpretation of EU law2. In the context of European integration, the United Kingdom has retained its parliamentary sovereignty to a very limited extent, in several matters relating to the European Union. The UK cannot escape from being penalised for breach of EU law; and it cannot determine the scope and extent of the penalties imposed upon it. Furthermore, the United Kingdom cannot abstain from implementing any directives issued by the EC nor does it have the power to withhold parts of directives from being implemented. This was established in the case of Factortame in 19913. In that case the parliamentary sovereignty of the UK was completely ignored by the European Court of Justice. The House of Lords refused to implement the Merchant Shipping Act 1988 on the plea that the Act challenged and derogated from, parliamentary supremacy in the UK. In another case, namely, R v. Secretary of State for Employment4, the House of Lords held that the Employment Protection (Consolidation) Act 1978 was not in accordance with the EU Law. Their Lordships also held that the defendants could have taken the case before the ECJ, in order to institute a judicial review to interpret EU law and to rectify the breaching provisions of the Act, in order to make it compatible with the EU law5. According to Lord Bridge, the supremacy of EC law was accepted by the UK when it joined the EU in the year 1973. This was confirmed by the views of the ECJ in Factortame case. The UK had foregone its supremacy to the European Community. Therefore, the Parliament of the UK had to accept, without question, its limited powers in determining the application of EC law. Moreover, membership of the EU requires the national parliament of the Member States to accept a subservient position to the EU. However, the UK parliament had never passed any act that deliberately attempted to derogate from its obligations under the EC Treaty6. Treaty provisions and Regulations have direct effect, which means that they are directly applicable without incorporating them into national legislation. As such, EU law has supremacy over domestic law. This was established in R v. Secretary of State for Transport, ex parte Factortame7. The Merchant Shipping Act 1988 protected the interest of the British fishermen, at the cost of the Spanish fishermen. The Spanish fishermen challenged the legality of this Act before an English court, which referred the case to the ECJ. The ECJ held that the Act was in conflict with the EU law and should accordingly be rescinded. It was further established in Costa v. ENEL8, that national law cannot override EU law, and that national law does not have precedence over EU law. If there is a conflict between national legislation and EU law, then the latter will prevail. Q 2 There are three jurisdictions within the UK in respect of courts. The basic structure of the courts is apparently determined with respect to the issues and subject of the cases, rather than the applicable legal provisions. However, until the nineteenth century, the structure of the UK courts had been decided on the basis of the applicable legal sources for that particular case. This trend persists to a minor extent, despite the European integration. The European Communities Act 1972 had integrated the European Court of Justice with the English legal system. It was established by the ruling in the case of Young v Bristol Aeroplane Co, that the Court of Appeal can depart from its earlier rulings under certain specific circumstances, which had been noted in that case9. In civil cases, the Court of Appeal can depart from its previous rulings if it finds that it had made the previous ruling in error. Moreover, if there are conflicts and ambiguities in the previous decisions, then the Court can select a decision that is found to be most appropriate and thereby it can override the other conflicting decisions. Furthermore, if a decision is found to be contravening the subsequent decision made by the House of Lords, then the court need not rely on precedent. However, in criminal cases, the Criminal Division of the Court of Appeal is not necessarily bound by earlier decisions. This is because the chief consideration is to provide justice to the individual rather than the creation of legal certainty. This was clearly established in several criminal cases such as R v. R10. As such, the European Court of Justice can override all the decisions made by the domestic courts, in cases pertaining to EC law11. There are two principal branches of law in England and Wales, namely criminal law and civil law. Civil law regulates and governs the relationships of individuals and their daily transactions. Criminal law deal with the rules and duties, laid down by the state for individuals to comply with. Another branch of law is Administrative law. It is basically civil law, but with some significant differences. Administrative law deals with the relationships of citizens with the state. It supervises the decisions made by the state, which may affect individuals. Cases relating to administrative matters fall within the scope of Administrative law and are heard in administrative tribunals especially formed for that purpose. Other cases that relate to civil and criminal law are heard in the normal judicial court system. Criminal cases of less significance are called summary offences. These cases are resolved in the local magistrate courts. They are dealt with by a panel of lay magistrates with the assistance of legal experts. Some of such cases may also be heard by a trained district judge12. Magistrate courts contain family courts and youth courts for taking up proceedings relating to families or youth. Magistrate courts refer the most serious offences, such as indictable – only offences to the Crown Court for further proceedings. The Crown Court comprises of a judge and a jury. Some cases do not fall within any of these categories and they are called either – way cases. Such cases can be heard in any court. Moreover, Magistrate courts are not empowered to impose sentence on criminals for certain serious offences. They do not have the power to pass sentence over and above a certain level of severity. Hence, the magistrate courts refer such cases to Crown Court for passing sentence. Only the judges of the Crown Court are empowered to pass sentence after a verdict has been delivered by magistrate courts. In England and Wales there are seventy –eight Crown Courts. There are two hundred and eighteen county courts for hearing civil cases and most of the civil actions are determined by them. These county courts also deal with cases pertaining to family matters and bankruptcy issues. The courts deal with cases in a systematic manner, which corresponds to the time and cost expended on these cases; and the hearing of cases depends on the value of the claims13. The High Court is situated in London and the Royal Courts of Justice house the High Court in London. Some major court centres house the High Court in major cities throughout the UK. There are three divisions which handle the cases based on their subject – matter. First, the Chancery Division, which deals with equity, trusts, tax and bankruptcy cases. Second, the Queen’s Bench Division, which deals with contract, tort, and trade related matters. Third, Family Division for hearing cases of divorce, children and probate. The Divisional Court of the High Court, which is housed in the Family and Chancery Divisions, hears appeals referred to it by the magistrate courts and county courts. A wide range of judicial review issues are dealt with by the Administrative Court in the Queen’s Bench Division. The Royal Courts of Justice also house the Court of Appeal. The Criminal Division deals with the appeals referred by the Crown Court; whereas, the Civil Division deals with appeals referred by the High Court, tribunals and county courts, in some special cases14. The House of Lords is the apex court in England and Wales. It is the final resort for all sorts of cases and most of the cases are finalised by the House of Lords. Cases relating to the European law provisions are generally referred to the ECJ for its decision. However, the number of cases referred to the ECJ per year, is insignificant. The ECJ hears cases involving European jurisdiction. The House of Lords concerns itself with the legal provisions in the appeals that it receives. It does not take evidence, in each case, into consideration for its decision. The receiving authority in the House of Lords is the Appellate Committee. The Committee receives appeals from the courts in England, Wales and Northern Ireland. It also allows civil cases from Scotland. In addition, the Appellate Committee also acts as the Judicial Committee of the Privy Council. With that status it deals with appeals from the Commonwealth countries. However, such referring states must have a legal relationship with the UK legislation15. Q, 3 Judicial precedent is a doctrine adopted by the English courts. Under this concept the judgement delivered by a court previously in cases of similar facts and subject – matter will be taken as guidance for the courts, which have to rule in cases with the same set of facts. This will ensure legal certainty and legal authority. The common law was developed on this concept of precedent. An earlier court’s decision will be taken as the source by the present court for arriving at a decision. This is termed as stare decisis. Precedents have legal authority and are binding on subsequent case law. In general, judges establish the facts of the cases and apply the relevant law, which is most appropriate to apply in the facts of the case. Subsequently, they pronounce their judgement in that case. This is known as ratio decidendi, or the legal reasoning behind a judgement or the basis for arriving at such a decision. Such decisions have a binding nature on the rulings in subsequent cases, under the doctrine of judicial precedent16. Obiter dictum is another form of judicial practice. When a judge makes an observation on the legality of the subject matter of the case but when that issue does not require a decision, then such an observation is termed as an obiter dictum. A judge may provide a decision in a case on the basis of several reasons and options. However, those reasons cannot become obiter. This is because the judge may have provided some other reason for his judgment. Therefore, it is very difficult to differentiate between ratio decidendi and obiter dictum17. The House of Lords is the highest court in the UK. Therefore, all other courts are bound by its decisions. The House of Lords can depart from its earlier decisions. For instance, in the case of Murphy v. Brentwood District Council18, the House of Lords decided to override its previous decision in Anns v. London Borough of Merton19. These cases related to a local authority’s duties and liabilities for negligence with regard to the purchasers of property. However, the Civil Division of the Court of Appeal is bound by its earlier decisions. It cannot depart from its earlier decisions. Nevertheless, in Young v. Bristol Aeroplane Co Ltd it had departed from its previous decision20. All the same, it cannot disregard or ignore a decision emanating from the House of Lords. Divisional courts of the High Court have adopted the test set out in the Young’s case. Although the judges at first instance are not obliged to follow the rulings made by other judges of the High Court, they comply with this test, in order to maintain judicial certainty21. In order to become a precedent, a decision must be given for similar facts and similar question of law in the previous case. Similarly, if the preceding decision had been given by the same court or any other higher court than the one presently dealing with the case, then the present court must follow the precedent22. If stare decisis is applied strictly, it may lead to legal uncertainty and rigidity23. Judicial precedent can be called as judge – made law; and it can be overruled by legislation. If there is a conflict between judicial precedent and statute, the latter will take precedence24. Precedent is the common law basis, on which the courts rule, in order to guarantee certainty, stability and consistency in rulings. In general, no two cases are identical, therefore courts are frequently confronted with the fact that they cannot rely on precedent. As such, rigid employment of the principle of stare decisis could result in pedantry, whereas uncertainty emerges if the degree of flexibility is in excess of what is warranted. Works Cited Anns v. Merton London Borough Council [1978] A.C. 728 C-221/89 Factortame [1991] ECR I-3905 C-6/64 Flaminio Costa v. ENEL [1964] ECR 585 Gordon Anthony. UK Public Law and European Law: The Dynamics of Legal Integration. 2002, Hart Publishing. ISBN:1841131482. Page 100. Judicial Precedent. 27 May 2008. http://nuweb.northumbria.ac.uk/bedemo/Sources_of_English_Law/page_10.htm Murphy v Brentwood District Council [1990] 2 All ER 908 Precedent. (2005). In The Crystal Reference Encyclopedia. Retrieved May 27, 2008, from http://www.credoreference.com/entry/5750470precedent. (2005). In The Crystal Reference Encyclopedia. Retrieved May 27, 2008, from DISPLAYURL "precedent." The Crystal Reference Encyclopedia. 2005. CredoReference. 27 May 2008 . The Crystal Reference Encyclopedia, 2005, s.v. "precedent," DISPLAYURL (accessed May 27, 2008). http://www.credoreference.com/entry/5750470 Precedent 2. (1996). In Merriam-Websters Dictionary of Law. May 27, 2008, http://www.credoreference.com/entry/5178317precedent 2. (1996). In Merriam-Websters Dictionary of Law. Retrieved May 27, 2008, from DISPLAYURL "precedent 2." Merriam-Websters Dictionary of Law. 1996. CredoReference. 27 May 2008 . Merriam-Websters Dictionary of Law, 1996, s.v. "precedent 2," DISPLAYURL (accessed May 27, 2008). R v Secretary of State for Employment, Ex parte Equal Opportunities Commission [1995] 1 A.C. 1 Regina v Secretary of State for Transport, Ex parte Factortame Ltd and Others (No 5) 1990; [1991] 1 AC 603 R v R (1992) 1 AC 599, (1991) 4 All ER 481, House of Lords Stare decisis. (2006). In Britannica Concise Encyclopedia. Retrieved May 27, 2008, from http://www.credoreference.com/entry/6711462stare decisis. (2006). In Britannica Concise Encyclopedia. Retrieved May 27, 2008, from DISPLAYURL "stare decisis." Britannica Concise Encyclopedia. 2006. CredoReference. 27 May 2008 . Britannica Concise Encyclopedia, 2006, s.v. "stare decisis," DISPLAYURL (accessed May 27, 2008). http://www.credoreference.com/entry/6711462 Supremacy of EC law. Feb 23, 2006. 27 May 2008. http://www.kevinboone.com/lawglos_SupremacyOfECLaw.html The EU. 27 May 2008. http://members.lycos.co.uk/lawnet/EUROPE.HTM The Court System. 27 May 2008. http://www.leeds.ac.uk/law/hamlyn/courtsys.htm The Court Structure in England and Wales. 27 May 2008. http://www.dca.gov.uk/legalsys/structure.htm Wayne Ives, Civitas. 01/2006. 27 May 2008. http://www.civitas.org.uk/eufacts/download/OS.6.EU%20Law.pdf Young v Bristol Aeroplane Co (1944) 1 KB 718 Read More