Parliamentary sovereignty and the EU
Is parliament still sovereign
What are the challenges to parliamentary sovereignty?
EU membership
Referendums
Devolution
HRA
Common law ‘exceptional circumstances’ review.
European union
Idea was to create a common body of law to allow free travel through the EU and allow a
single EU market.
Supranational Association of Nation States.
27 member states (was 28)
Based on EU Treaties (‘TEU’ and ‘TFEU’)
Relationship between EU Law and National Law?
Case (6/64) Costa v. ENEL [1964] E.C.R 585
‘Creating a community [now European Union of unlimited duration, having its own
institutions, its own personality and its own capacity in law…’
which has ‘real powers resulting from a limitation of competence or a transfer of
powers from the States to the Community [now Union]…’
‘the member-States, albeit within limited spheres, have restricted their sovereign
rights’
‘.... [T]he rights created by the Treaty, by virtue of their specific original nature,
cannot be judicially contradicted by an internal law… without undermining the legal
basis of the Community.’
o The rightd set out in the EU (what the ERU is baes on =) cannot be
contradicted in the courts by national law because hat would undermine the
elgal basis of the EU.
So
Eu law is supreme over inconsistent national law.
Int. Handelsgesellschaft: even constitutional law subject to EU Law
Simmenthal: all national courts must enforce, even if no national power to do so
, European communities Act 1972
– s.2(1): ‘All such rights, powers, liabilities, obligations and restrictions from time to
time created or arising by or under the Treaties, and all such remedies and
procedures from time to time provided for by or under the Treaties, as in
accordance with the Treaties are without further enactment to be given legal
effect or used in the United Kingdom shall be recognised and available in law, and
be enforced, allowed and followed accordingly’
They identify the body of EU law that is relevant to us e.g treaties and brings that
EU law into the UK legal system without any further enactment.
s.2(4): ‘any enactment passed or to be passed... shall be construed and have effect subject to
the foregoing provisions of this section’
What does this mean?
ANY (domestic) legal enactment > must include an act of parliament
passed or to be passed > existing or in the future.
Has effect subject to s.2(1) – legal effects subject to EU Law.
Through Any legal enactment, including acts of parliament, past, present or future,
should be construed and have effect subject to section 2(1) of the European
communities act which is the provision that brings into effect the EU law rules and
treaties and other relevant provisions.
ECA 1972 gives effect to EU law in the UK and creates a clash between
Domestic supremacy of EU law
And
Sovereignty of UK parliament
Can EU supremacy and Parliamentary sovereignty be reconciled?
2
Is parliament still sovereign
What are the challenges to parliamentary sovereignty?
EU membership
Referendums
Devolution
HRA
Common law ‘exceptional circumstances’ review.
European union
Idea was to create a common body of law to allow free travel through the EU and allow a
single EU market.
Supranational Association of Nation States.
27 member states (was 28)
Based on EU Treaties (‘TEU’ and ‘TFEU’)
Relationship between EU Law and National Law?
Case (6/64) Costa v. ENEL [1964] E.C.R 585
‘Creating a community [now European Union of unlimited duration, having its own
institutions, its own personality and its own capacity in law…’
which has ‘real powers resulting from a limitation of competence or a transfer of
powers from the States to the Community [now Union]…’
‘the member-States, albeit within limited spheres, have restricted their sovereign
rights’
‘.... [T]he rights created by the Treaty, by virtue of their specific original nature,
cannot be judicially contradicted by an internal law… without undermining the legal
basis of the Community.’
o The rightd set out in the EU (what the ERU is baes on =) cannot be
contradicted in the courts by national law because hat would undermine the
elgal basis of the EU.
So
Eu law is supreme over inconsistent national law.
Int. Handelsgesellschaft: even constitutional law subject to EU Law
Simmenthal: all national courts must enforce, even if no national power to do so
, European communities Act 1972
– s.2(1): ‘All such rights, powers, liabilities, obligations and restrictions from time to
time created or arising by or under the Treaties, and all such remedies and
procedures from time to time provided for by or under the Treaties, as in
accordance with the Treaties are without further enactment to be given legal
effect or used in the United Kingdom shall be recognised and available in law, and
be enforced, allowed and followed accordingly’
They identify the body of EU law that is relevant to us e.g treaties and brings that
EU law into the UK legal system without any further enactment.
s.2(4): ‘any enactment passed or to be passed... shall be construed and have effect subject to
the foregoing provisions of this section’
What does this mean?
ANY (domestic) legal enactment > must include an act of parliament
passed or to be passed > existing or in the future.
Has effect subject to s.2(1) – legal effects subject to EU Law.
Through Any legal enactment, including acts of parliament, past, present or future,
should be construed and have effect subject to section 2(1) of the European
communities act which is the provision that brings into effect the EU law rules and
treaties and other relevant provisions.
ECA 1972 gives effect to EU law in the UK and creates a clash between
Domestic supremacy of EU law
And
Sovereignty of UK parliament
Can EU supremacy and Parliamentary sovereignty be reconciled?
2
