This document provides a clear explanation of the impact of European Law on parliamentary sovereignty in the UK. It also provides the sources of law for the European Law. This document also explains the legal and political problems surrounding the debate between parliamentary sovereignty and sovere...
CHAPTER 3 – SOVEREIGNTY AND SOURCES OF LAW
The UK Referendum
- Vote took place: 23rd June 2016
o It was voted that the UK would leave the EU.
- The withdrawal process is governed by Article 50 EU which provides the only formal and
legal route through which the UK can leave the EU.
- The opportunity for a referendum to be held on the UK’s membership of the EU as a
commitment within the 2015 Conservative Party election manifesto.
o It was proposed that the referendum would be held after the UK had sought to
‘renegotiate’ its relationship with the EU, in order to bring certain decision-making
powers back to the UK.
In its renegotiation with the EU the UK sought changes in a number of policy
areas, the two most important ones were specific commitment that the UK
would be excluded from the process of creating ‘an ever-close union’, and
reducing the number of EU citizens from coming to the UK as well as limiting
their access to social welfare benefits.
Following the renegotiation, which was concluded at the February
2016 European Council, the Prime Minister, David Cameron,
recommended the deal to Parliament and the Prime Minister led the
campaign in favour of a vote for the UK to remain in the EU.
- UK voters decided by a 52% to 48% margin to leave the EU.
o It was not clear what the precise reasons were for the UK citizens voting in the way
the way they did, but it appeared that uncontrolled migration from the EU was a key
factor, as was the view that the UK Parliament could no longer make its own laws.
Thus, the concern over the loss of parliamentary sovereignty and the limits
this placed on the UK Parliament to make its own laws can be considered as
a general reason for the outcome of the vote.
However, the question of sovereignty is one which has been an issue
in many MS and concerns about the effect of EU law on national law
has not been exclusive to the UK.
EU law in the UK
- Parliamentary sovereignty is the obstacle between the supremacy of EU law and the UK.
- Section 2(1) of the European Communities Act 1972 holds, in summary, that the UK must
enforce EU law – and holds that there is no need for a fresh act of incorporation to make it
part of UK law.
o Effect:
All provisions of Community law which are intended to be directly effective
in the UK are given the force of law in UK courts and tribunals. This applies
to Community law made both before and after the coming into force of the
Act.
The Community institutions may therefore legislate for the UK as they do for
all the MS.
While the UK remains a member of the EU, the Westminster Parliament is
not the sole body with legislative power to make law for the UK.
, - Section 2(2) EC Act 1972: provides a general power for further implementation of
Community obligations by means of secondary legislation.
- Section 2(4) EC Act 1972: gives legal effect tp the primacy of EU law over UK legislation= it is
presumed that Parliament will not override EU law in future legislation.
- The overall effect of Section 2:
o European law must be considered to be a valid and binding source of UK law.
o Where European law exists on a particular subject, it can overrise any inconsistent
UK law – including Acts of Parliament.
- KEY CASE: R v Secretary of State for Transport, ex parte Factortame LTD
o This holds the leading decision on the relationship between EU and UK law
o Outcome: ‘rights under Community law could not be truly effective if those who
relied on them were prejudiced by the operation of the allegedly conflicting
legislation while the issue was being resolved.’’
o Interim protection: ensures that the time needed to establish the existence of the
right does not in the end have the effect of irremediably depriving the right of
substance= effectiveness of judicial protection.
- R v Secretary of State for Transport, ex parte Factortame LTD (n.2)
o The CJEU confirmed that: ‘the full effectiveness of Community law would be just as
much impaired if a rule of national law could prevent a court from granting interim
relief. It follows that a court which in those circumstances would grant interim relief,
if it were not for a rule of national law, is obliged to set aside that rule.’
- The EU Act 2011:
o The Queen announced in her speech on 25 May 2010 that her government would
introduce legislation to ensure that in future, Parliament and the British people will
have their say on any proposed transfer of powers from the UK to the EU.
o It received Royal Assent on the 19th July 2011.
o What is the Act?
It gives people more control over decision made by the Government on the
EU in their name
For the Government this will help rebuild trust and reconnect people to
these EU decisions.
It ensures that if there is a change to the EU Treaties that moves a power or
an area of policy from the UK to the EU, then the Government will have to
get the British people’s consent in a national referendum before it can be
agreed.
Sovereignty
- Notes on parliamentary sovereignty can be found in my constitutional and administrative
law folder
- The European Court of Justice (ECJ) stated in its judgement in Case 6/64 Costa v ENEL [1964]
ECR 585 that all MS have a legal obligation to ensure that the rights within the Treaty are
equally available in all the MS and that no national rules can restrict EU law rights.
- The judgement in Factortame (a series of cases starting with R v Secretary of State for
Transport, ex p Factortame Ltd (Case C-213/89) [1990] ECR I-2433), demonstrate how the UK
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