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15 Cards in this Set
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Jackson and others v A-G (2005) |
In this case validity of Hunting Act 2004 was challenged. As this Act had been passed under Parliament Act 1949, appellants argued that 1949 Act was, in reality, delegated legislation. There were protracted debates over proposals to ban hunting with dogs in Hunting Act 2004. Many members of HL were bitterly opposed to changes which were promoted by MPs who had strong popular support. most radical element of legal challenge was creative argument that the Parliament Act 1949 should be treated as delegated legislation because it had not passed all the stages of parliamentary procedures. As delegated legislation, it would be subject to judicial review. case eventually reached CA and then HL, where importance of matters discussed was reflected in fact that nine Law Lords heard the case. HL rejected appeal and confirmed validity of Hunting Act 2004, as well as Parliament Act 1949. 1911 Parliament Act had created a new means of enacting primary legislation. |
Hunting with dogs |
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R v Secretary of State for Transport, ex p Factortame Ltd (No 1) (1990) |
Merchant Shipping Act 1988 was passed. This Act intended to prevent non-British fishing boat owners from taking advantage of fishing quotas that had been allocated to UK. Many Spanish fishermen had taken advantage of UK quotas by registering their boats as British. Merchant Shipping Act 1988 blatantly discriminated against non-British fishermen by expressly stating that fishing boats could only be registered if the boat was British owned and managed from United Kingdom. Spanish fishermen sought a judicial review of Act. ECJ granted an interim injunction to applicants and, crucially, set aside s.21 of Crown Proceedings Act 1947 which, under UK national law, had prevented an injunction applying against Crown. When case came back to HL in R v Secretary of State for Transport, ex p Factor-tame Ltd (No 2) (1991), Lord Bridge spelled out position very clearly: Under 1972 Act [European Communities Act 1972] it has always been clear that it was duty of a UK court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. => The political implications of these judgments were significant as they brought home to MPs and many members of public the limitations under which Parliament now operates, restricting it from reflecting wishes of UK voters if they wished to defy EU law. => Disapplication approach as response of UK courts to conflict between parliamentary supremacy and doctrine of direct effect |
Fishing quotas to Spanish boats |
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Thoburn v Sunderland City Council (2002) EWHC 195 Admin (QB) |
This is a UK constitutional and administrative law case, concerning the interaction of EU law and an Act of Parliament. It is important for its recognition of the supremacy of EU law and the basis for that recognition. Though the earlier Factortame had also referred to Parliament's voluntary acceptance of the supremacy of EU law, Thoburn put less stress on the jurisprudence of the ECJ and more on the domestic acceptance of such supremacy; Lord Justice Laws suggested there was a hierarchy of "constitutional statutes" that Parliament could only expressly repeal, and so were immune from implied repeal. |
Metric Martyrs case |
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What is direct effect? |
Direct effect: Individuals are able to enforce EU righty’s and obligations directly before their national courts (Van Gend en Loos) 1. Vertical direct effect: Individuals can invoke a European provision in relation to state. 2. Horizontal direct effect: Individual can invoke a European provision in relation to another individual Conditions for direct effect laid down by ECJ: Primary legislation (ie treaties) must be precise and clear, unconditional and not require any further measures, either European or national (Van Gend en Loos 1963) |
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Key principles guiding national courts in relation to EU law |
1. Direct effect (Van Gend en Loos 1963) 2. Supremacy/Precedence of EU law (Costa v Enel 1964) |
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Conditions for direct effect: |
Primary legislation (ie treaties) must be: 1. precise and clear 2. unconditional 3. not require any further measures, either European or national (Van Gend en Loos 1963, ECJ) |
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Is a Directive has not been implemented by a MS by the date of its deadline, will an individual be able to enforce a right under the Directive? |
Yes, but only vertical direct effect is available. That means the right can only be enforced against the state, not against the individual. (Van Gend en Loos) |
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What is Precedence/Supremacy of EU Law? |
ECJ or Court of Justice of the EU (CJEU) declared in the Costa v Enel case (1964) that the laws issued by EU institutions are to be integrated into the legal systems of MS, who are obliged to comply with them. European law therefore has precedence over national laws. This is a fundamental principle of European law. As with the direct effect principle, it is not inscribed in the Treaties, but has been enshrined by ECJ. The precedence principle applies to all European acts with binding force. Therefore, MS may not apply a national rule which contradicts EU law. If a national rule is contrary to an EU provision, MS authorities must apply EU provision. National law is neither rescinded nor repealed, but it’s binding force is suspended. It is rendered inapplicable. National courts must disapply (set aside) national law which is in conflict with EU law. ECJ later clarified that precedence of EU law is to be applied to all national acts, whether they were adopted before it after the European act in question. Thus principle applied by Italian Constitutional Court lex posterior derogat legi anteriori (where two statutes conflict the later law prevails) did not apply where the first law is an EU law. Rationale? With European law becoming superior to national law, principle of precedence therefore ensures that citizens are uniformly protected by a European law assured across all EU territories. |
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Costa v Enel (1964) |
principle applied by Italian Constitutional Court lex posterior derogat legi anteriori (where two statutes conflict the later law prevails) to hold the Italian electricity nationalisation law of 1962 prevailing over the Treaty of Rome, which was incorporated into Italian law in 1958, did not apply where the first law is an EU law. ECJ Held: “By creating a community of unlimited duration, it’s own personality and it’s own capacity in law, apart from having international standing and real powers resulting from a limitation of competence or a transfer of powers from the States to the Community, the MS, albeit within limited spheres, have restricted their sovereign rights and created a body of law applicable both to their nationals and to themselves. It is impossible for a MS to give preference to a unilateral and subsequent measure against a legal order accepted by them in a basis of reciprocity. “ |
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Contradictions between parliamentary sovereignty and EU law |
1. Direct effect and supremacy contradict Dicey’s view of parliamentary supremacy because they provide for a body other than UK Parliament to override or set aside national legislation. 2. Restrictions of European Communities Act 1972, which prevent subsequent Parliaments from legislating against EU law (even though they did this with the Merchant Shipping Act 1988, now repealed), are a major limit on legislative freedom. (In the other hand you can argue it was the UK Parliament that passed the ECA 1972 to join the EC, thus it was their sovereign decision to give up some of their legislative freedom. It cannot be argued that the 2 fundamental principles of EU law (direct effect and supremacy/ precedence of EU law) was not known at the time because Van Gend en Loos and Costa v Enel was decided almost 10 years before - 1963&1964.) 3. UK courts cannot annul an Act of Parliament due to unique UK constitutional doctrine of parliamentary sovereignty, and are therefore expected to ‘disapply’ statutes that are in conflict with EU law. Compare this with other EU MS in continental Europe that have a civil law system such as Germany: the doctrine of parliamentary sovereignty does not exist there and there is a Federal Constitutional Court which can declare any law made by Parliament which is in conflict with EU law (or in conflict with the German constitution) as unconstitutional and therefore invalid. Article 23 of German constitution provides for sovereign powers to be transferred to the governing bodies of the EU by a law that was approved by the Federal Council (Bundesrat). |
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Contradictions between parliamentary sovereignty and EU law |
1. Direct effect and supremacy contradict Dicey’s view of parliamentary supremacy because they provide for a body other than UK Parliament to override or set aside national legislation. 2. Restrictions of European Communities Act 1972, which prevent subsequent Parliaments from legislating against EU law (even though they did this with the Merchant Shipping Act 1988, now repealed), are a major limit on legislative freedom. (In the other hand you can argue it was the UK Parliament that passed the ECA 1972 to join the EC, thus it was their sovereign decision to give up some of their legislative freedom. It cannot be argued that the 2 fundamental principles of EU law (direct effect and supremacy/ precedence of EU law) was not known at the time because Van Gend en Loos and Costa v Enel was decided almost 10 years before - 1963&1964.) 3. UK courts cannot annul an Act of Parliament due to unique UK constitutional doctrine of parliamentary sovereignty, and are therefore expected to ‘disapply’ statutes that are in conflict with EU law. Compare this with other EU MS in continental Europe that have a civil law system such as Germany: the doctrine of parliamentary sovereignty does not exist there and there is a Federal Constitutional Court which can declare any law made by Parliament which is in conflict with EU law (or in conflict with the German constitution) as unconstitutional and therefore invalid. Article 23 of German constitution provides for sovereign powers to be transferred to the governing bodies of the EU by a law that was approved by the Federal Council (Bundesrat). Also, the German Federal Parliament (Bundestag) shall have right to bring an action before the ECJ to challenge a legislative act of the EU for infringing the principle of subsidiarity. |
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Subsidiarity principle |
This principle is enshrined in Article 5 of the TEU and provides that in areas in which EU does not have exclusive competence, principle of subsidiarity seeks to safeguard ability of MS to take decisions and action and authorises intervention by EU when the objectives it an action cannot be sufficiently achieved by MS, but can be better achieved at Union level, by reason of scale and effects of the proposed action. Article 5(1) TEU: “The limits of Union competences are governed by principle of conferral. Use of Union competences is governed by principles of subsidiary and proportionality. Under principle of confederal, Union shall act only within limits of competences conferred upon it by MS in treaties to attain objectives set out therein. Competences not conferred upon Union in treaties remain with MS.” A reference to the subsidiarity principle is included in EU treaties to ensure that powers are exercised as close to citizen as possible, in accordance with proximity principle referred to in Article 10 of TEU. (Subsidiary: less important than but related or supplementary to something.) |
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Responses of UK courts to conflict between parliamentary sovereignty and doctrine of Direct Effect (and supremacy/precedence of EU law) |
1. Applying later statute and overriding EU law => British transport Docks Board (1976) This was initial approach taken by courts in the 70s (shortly after ECA 1972), notably by Lord Denning. He argued that the later statute will override the Treaty and then the courts will have to abide by the statute without regard to treaty at all. ‘This approach ignored implications of supremacy of EU law and principle of direct effect and went against the treaties. 2. Using the construction approach => Macarthy’s v Smith (1979) Lord Denning’s dissenting judgement which held that s.1(2) of Equal Pay Act 1970 could be interpreted in light of Article 157 of TFEU providing for equal pay between men and women: In such cases court should interpret national law by: Examining directly applicable principles in treaty Taking into account an directly applicable directly applicable directives (ie now regulations) Giving ‘full faith and credit’ to national legislation, assuming that it complies with EU law In summary construction approach entails: A) when statutes are interpreted, Parliament is presumed not to have intended statutes to conflict with EU law B) inconsistencies between UK statutes and EU law are to be resolved in favour of EU law, unless there is a subsequent Act expressly stating that EU law is to be overridden. Lord Denning stated that the courts won’t be able to do anything then due to the principle of parliamentary sovereignty. 3. Disapplication approach => Factortame Ltd No 1 (1990); Factortame Ltd No 2 (1991) Construction approach only worked as long as Parliament did not intend a statute to conflict with EU law. When Parliament decided to enact a statute which directly conflicted with EU law (Article 26 TFEU (free movement of goods, services, persons and capital)) in the form of Merchant Shipping Act 1988 (now repealed), HL has to disapply or set aside the MSA 1988 as it applied in the Factortame case. HL could not declare the Act invalid as the highest constitutional court in some other EU countries can do. |
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Responses of UK courts to conflict between parliamentary sovereignty and doctrine of Direct Effect (and supremacy/precedence of EU law) |
1. Applying later statute and overriding EU law => British transport Docks Board (1976) This was initial approach taken by courts in the 70s (shortly after ECA 1972), notably by Lord Denning. He argued that the later statute will override the Treaty and then the courts will have to abide by the statute without regard to treaty at all. ‘This approach ignored implications of supremacy of EU law and principle of direct effect and went against the treaties. 2. Using the construction approach => Macarthy’s v Smith (1979) Lord Denning’s dissenting judgement which held that s.1(2) of Equal Pay Act 1970 could be interpreted in light of Article 157 of TFEU providing for equal pay between men and women: In such cases court should interpret national law by: Examining directly applicable principles in treaty Taking into account an directly applicable directly applicable directives (ie now regulations) Giving ‘full faith and credit’ to national legislation, assuming that it complies with EU law In summary construction approach entails: A) when statutes are interpreted, Parliament is presumed not to have intended statutes to conflict with EU law B) inconsistencies between UK statutes and EU law are to be resolved in favour of EU law, unless there is a subsequent Act expressly stating that EU law is to be overridden. Lord Denning stated that the courts won’t be able to do anything then due to the principle of parliamentary sovereignty. 3. Disapplication approach => Factortame Ltd No 1 (1990); Factortame Ltd No 2 (1991) Construction approach only worked as long as Parliament did not intend a statute to conflict with EU law. When Parliament decided to enact a statute which directly conflicted with EU law (Article 26 TFEU (free movement of goods, services, persons and capital)) in the form of Merchant Shipping Act 1988 (now repealed), HL has to disapply or set aside the MSA 1988 as it applied in the Factortame case. HL could not declare the Act invalid as the highest constitutional court in some other EU countries can do. |
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R v Secretary of State for Transport, ex p Factortame Ltd No 1 (1990) R v Secretary of State for Transport, ex p Factortame Ltd No 2 (1991) |
Spanish fishermen sough judicial review of Merchant Shipping Act 1988. ECJ grantee an interim injunction to applications and crucially, set aside s.21 of Crown Proceedings Act 1947 which had prevented an injunction applying against Crown. When case came back to HL in No 2, Lord Bridge spelled out position very clearly: “Under 1972 ECA it has always been clear that it was duty of UK court, when delivering final judgement, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law.” => political implications of these judgements were significant as they brought home to MPs and citizens limitations under which Parliament now operates, restricting it from reflecting wishes of UK voters if they wished to defy EU law. |
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