FACULTY OF LAWS, UCL

LL.B.

PUBLIC LAW 2017-18

EU LAW AND the UK Constitution

Introduction

The purpose of these lectures is to examine the extent to which the UK’s membership
of the EU (formerly the EC) has challenged the doctrine of Parliamentary sovereignty,
by examining the EU doctrines of direct effect and primacy of EU law, and analysing
whether these are compatible with the legal sovereignty of Parliament. We shall also
examine whether the consequence of EU membership constitutes a constitutional and
legal revolution, and whether that revolution may be temporary only. There will be a
subsequent lecture on the consequences of Brexit.

As you will study in detail next year, EU law is very different from other forms of
international law.

The key differences are that, according to the EU legal order:

-EU Law is often directly effective within national legal systems. That means that
individuals can enforce their EU law rights in national courts (rather than having to
take a complaint to an international body).
-EU Law has primacy over national law. This means that when there is a clash
between EU law and national law, EU law ought to prevail.

1. A reminder of the orthodox legal doctrine of Parliamentary Sovereignty:

A.V. Dicey, An Introduction to the Study of the Law of the Constitution, 10th Ed,
(1967) Macmillan, pp.39-85, but esp.39-40. It is important to note that this doctrine is
the basic constitutional “grundnorm” (Kelsen) or “rule of recognition” (Hart) by
which the courts are able to determine the hierarchy of legal norms within our legal
system. As such, it is (or has been) the most fundamental principle of the UK
constitution for the past 300 years at least, and was the judicial recognition of the
transfer of political power from the Crown to Parliament in the 17th century, following
the Civil War and the Glorious Revolution, embodied in the Bill of Rights, 1689.

Five rules:

a. Parliament can make or unmake any Act it pleases, on any subject it pleases, i.e. it
has absolute and unfettered legislative power – Madzimbamuto v Lardner-Burke
[1969] 1 AC 645

b. An Act of Parliament is the highest form of law in the UK, which UK Courts are
bound to apply – Cheney v Conn (Inspector of Taxes) [1968] 1 All ER 779
c. No court or person outside Parliament can challenge or question the validity of an
Act of Parliament – Pickin v British Railways Board [1974] AC 765

d. Parliament cannot bind its successors – British Coal Corpn v R [1935] AC 500

e. Where two Acts of Parliament are inconsistent, the later Act impliedly repeals the
earlier Act, to the extent of that inconsistency – Ellen St Estates v Minister of Health
[1934] 1 KB 590

2. EU Law and National Law: Direct Effect and Primacy

a. the Treaties:

Treaty of Rome 1957, Single European Act 1986, Maastricht Treaty 1992, Nice
Treaty 2001, Lisbon Treaty 2007. EEC, EAC, ECSC, later the European
Communities, then the European Community (EC).

Now the Treaty on European Union, (TEU) and the Treaty on the Functioning of the
European Union (TFEU). These are the treaties of Maastricht and Rome respectively,
as re-written by the Treaty of Lisbon. The EC and EC law no longer exists, only the
EU and EU law.

b. the EU Institutions:

The European Council

The Council of Ministers
The Commission
The Court of Justice of the EU
The Parliament

c. the doctrines of EU law: the new legal order demands uniformity of application in
all member states, plus effectiveness, enforceability and efficiency, hence the
development by the ECJ (now the CJEU) of the distinct but related concepts/legal
doctrines of:

i. direct effect – treaties, regulations and some directives:

Van Gend en Loos v Nederlandse Administratie der Berlastingen [1963] ECR 1

In this key case the Court of Justice ruled that the EEC as it then was, was not merely
a treaty but a “new legal order” that created rights that were enforceable in national
courts. It is this key distinction between a Treaty and a legal order that has
underpinned the constitutional relationship between EU law and national legal
systems. Note, the case was decided before the UK joined the EEC.

Van Duyn v Home Office [1974] ECR 1337; [1975] Ch 358

ii. primacy of EU law-

Costa v ENEL [1964] ECR 585
Internationale Handelsgesellschaft [1970] ECR 1125
Amministrazione delle Finanze dello Stato v Simmenthal [1978] ECR 629

This caselaw, which largely predated the UK’s accession to the Union established that
EU law was enforceable by individuals before national courts and had primacy over
any conflicting national law.

This caselaw had also established ways of interpreting EU law (purposive

construction, the need for effectiveness, the duty of loyal co-operation and the duty of
interpretation of all legislation in the light of the objectives of EU law) that

Joining an organisation with these characteristics was likely to be challenging for a

legal system such as the UK. For example, how could the need to ensure that EU law
had primacy over UK law be reconciled with parliamentary sovereignty and the “flat”
constitutional landscape of the UK under which there was no codified constitution and
no Parliament could bind its successors?

3. UK’s Accession to the EC

European Communities Act 1972

S.2(1) – directly applicable Community law to be recognised and enforced in law in

UK.

S.2(4) - any enactment passed or to be passed shall be construed and have effect
subject to the foregoing provisions of this section" (the 'foregoing provisions' include
section 2(1)).

S.3(1) – all questions as to the meaning or effect of Community law to be determined

in accordance with the principles laid down by and any relevant decision of the ECJ.

Note the magnitude of these changes. Section 2(1) recognises a new source of law
that is applicable and enforceable within the UK, thus ending Parliament’s legislative
monopoly.

Section 2(4) laid down an approach to interpreting future statutes, thus, potentially
binding successor parliaments.

Section 3(1) recognises a new body, the European Court of Justice, as the supreme
interpreter of this law thus ending the monopoly of the UK courts in relation to
interpretation of law.

4. The Response of UK Courts

a. Clinging to Sovereignty: EC law to be used as guide to interpretation of statute;

statute to be applied if cannot reconcile inconsistency between EC law and statute:
McArthys v Smith [1981] QB 180 (CA) per Lord Denning (following reference to
ECJ) – Sex Discrimination Act to be interpreted consistently with EC law, even if that
requires stretching the meaning of the words of the legislation.

Garland v BREL [1983] 2 AC 751 (HL) - travel benefits conferred during

employment but continued after retirement, different for women from men, in
violation of EC law. Sex Discrimination Act exclusion of retirement benefits from
anti-discrimination law, to be interpreted so as not to apply to benefits conferred
during employment and continued into retirement, in accordance with ECJ ruling on
reference.

b. No implied repeal of “constitutional statutes” (including ECA 1972) merely by

inconsistency, express repeal necessary:

Thoburn v Sunderland CC [2003] QB 151, per Laws LJ. (though note that he also
stated that, in the case that EU law breached the fundamental liberties of the common
law, the presumption that Parliament intended EU law to have primacy may cease to
apply).

c. An irreconcilable conflict between EC law and subsequent Act of Parliament:

R v Secretary of State for Transport, ex parte Factortame (No.1) [1990] 2 AC 85(HL)

R v Secretary of State for Transport, ex parte Factortame (No.2) [1991] AC 603 (HL
& ECJ)

d. A legal revolution? Sovereignty overturned?

Thoburn (supra) – implied repeal no longer possible for constitutional statutes

Factortame (supra) – EU law is higher form of law than Act of Parliament, a Court
outside Parliament can disapply an Act of Parliament.

Jackson v AG [2005] UKHL 56 – a court of law has jurisdiction to determine the

validity of an Act of Parliament, where procedures for enactment have been defined
by statute.

Can Parliament repeal the ECA 1972, or has it bound its successors? Has it given
away its sovereignty or has it merely given it to the EU on temporary loan? See
Section 18, European Union Act 2011.

Wade, HWR, (1996) 112 LQR568

Allan, TRS, Parliamentary Sovereignty: Law, Politics and Revolution (1997) 113
LQR 443
e. Can Sovereignty be reclaimed?

Factortame (supra) per Lord Bridge – “whatever limitation of its sovereignty

Parliament accepted when it enacted the European Communities Act 1972 was
entirely voluntary.” The logical conclusion from this dictum is that such a voluntary
ceding of legislative power can be reclaimed, and that the ECA 1972 can be repealed
so as to restore full Parliamentary sovereignty.

European Union Act 2011:

Part I, requiring Parliamentary approval and referenda to amend EU treaties or to

make certain decisions under EU treaties.

Section 18, asserting status of EU law derives from Parliamentary authority only.

“18. Status of EU law dependent on continuing statutory basis

Directly applicable or directly effective EU law (that is, the rights, powers, liabilities,
obligations, restrictions, remedies and procedures referred to in section 2(1) of the
European Communities Act 1972) falls to be recognised and available in law in the
United Kingdom only by virtue of that Act or where it is required to be recognised
and available in law by virtue of any other Act.”

10th Report of the House of Commons EU Scrutiny Committee (HC 633 of

2010-11), The EU Bill and Parliamentary Sovereignty.
See, in particular, the Written Evidence given by Professor Adam Tomkins.

The limits of primacy:

R (on the application of HS2 Action Alliance Limited)(Appellant) v The Secretary of

State for Transport (Respondents) [2014] UKSC 3 –While the ECA 1972 is a
constitutional statute and while Parliament will be presumed not to have intended to
repeal a constitutional statute, the ECA is not the only constitutional statute.

Here the Court noted that there could have been a potential inconsistency (which on
the facts did not arise) between the primacy of EU law enshrined in the ECA 1972 and
Article 9 of the Bill of Rights.

On the facts, the Supreme Court held that, on the facts, there was no such clash but
they noted that, if there had been, they would not automatically accord primacy to EU
law and would need to hear full argument on which constitutional statute should
prevail.

Note, this leaves the UK, with its unwritten constitution and principle of
parliamentary sovereignty in a position substantially similar to that of Germany, with
its entrenched constitution. The German Constitutional Court has ruled (eg Gauweiler
Case) that while the German legal order generally accords primacy to EU law, it will
not do so according such primacy would conflict with the core constitutional identity
of Germany reflected in its status as a federal, democratic state.
“If the treaty law determines the competences of the European Union in a manner that
is fundamentally open to consent but if these competences may be further developed
beyond the possibilities offered by an interpretation of the principle of effet utile or by
an implicit filling of the lacunae in the competences which have been transferred, i.e.
if heads of competence are only provided with a clear content by special legal
instruments at Union level and if decision-making procedures can be autonomously
changed there, Germany may only participate in this if it is ensured at national level
that the constitutional requirements are complied with.” (German Federal
Constitutional Court, Gauweiler paragraph 242).

The UK constitution, though often described as following the opposite model to that
of judicial entrenchment, appears to operate in a strikingly similar way to
constitutions that embrace judicial review of legislation.

For comment, see M. Elliott, ‘Reflections on the HS2 case: a hierarchy of domestic
constitutional norms and the qualified primacy of EU law’, U.K. Const. L. Blog (23rd
January 2014) (available at http://ukconstitutionallaw.org).

Britain as a Detached Member: Brexit.

The debate on the limits of the primacy principle within the UK constitutional system
may, of course, become moot if Brexit takes place. We will consider the impact of
Brexit on the UK constitution next week.