The impact of the EU on UK Constitutional Law and Constitutional Statutes
Brexit and the UK Constitution:
The UK’s sovereign authority being impacted by EU membership is raised as an issue in two regards:
EU member states are represented collectively in bodies, such as the World Trade Organisation. This
curtails aspects of the states’ external sovereignty (how they act within international law).
Moreover, in agreeing collective rules in areas of competence they have transferred to the EU, restrict
internal sovereignty (the freedom of actions of the executive, legislature, and judiciary).
The European Union:
Supranational body responsible for law-making across the 27 member states. The Treaties of the EU created a
number of institutions: Council of Ministers and the European Parliament: responsible for day-to-day EU law-
making, European Council: provides overall strategic direction of the EU, European Commissions: ensures EU
policies are carried into effect, The Court of Justice: the final arbiter on whether EU member states are fulfilling
their treaty obligations.
Laws made under the EU Treaties can have legal effects within the domestic legal systems of the UK.
The Development of the EU:
States agree to become international organisation members, such as in the United Nations, the International
Labour Organisation, and the World Trade Organisation, and in doing so they agree to act in accordance with
their rules.
Member states have transferred broad law-making powers to EU institutions, but this has only occurred due to
member states agreeing, by treaty, to transfer these competences, and they continue to have a voice
regarding how the EU legal order operates. This is set out in the Treaty of the European Union (TEU), Art, 5.2:
‘Under the principal of conferral, the Union shall act only within the limits of the competences
conferred upon it by the Member States in the Treaties to attain the objectives set out therein.
Competences not conferred upon the Union in the Treaties remain with the Member States’.
However, the difference between ‘international’ and ‘supranational’ invites controversy, with Shaw describing
the EU as ‘some sort of ambiguous non-state polity’ J. Shaw, ‘Europe’s Constitutional Future [2005] PL 132,
133.
A Brief History of the EU:
Beginning as the European Coal and Steel Community (ECSC) began with 6 member states, it allowed the
pooling of coal and steel – the raw ingredients of industrial economies. Plus, war could be prevented, as it
provided ‘the basis for a broader and deeper community among peoples long divided by bloody conflicts,’
Treaty Establishing the European Coal and Steel Community (Paris 18 April 1951), preamble.
Seeking further economic growth with greater free trade of goods, services, labour, and capital, the ECSC
expanded, with the ‘Benelux countries’ (Belgium, the Netherlands, Luxembourg), Italy, France, and the Federal
Republic of Germany all joining to create the European Economic Community. Thus, in the EEC formed in 1957
through these countries’ ascension via the Treaty of Rome 1957. Membership grew over the decades, with the
UK joined in 1973, alongside Ireland and Denmark.
The EEC’s institutions worked to reduce barriers to trade, with this establishing the single market, via the
Single European Act 1986. Beyond the factors of production, the member states, in 1992, decided to transfer
further law-making competence to the EEC, though the Maastricht Treaty 1992. This allowed the citizens to
move freely across member states’ borders without a visa, regardless of if the citizen was a work or not. During
this time, the EEC was renamed as the European Union, indicating the shift of focus from economic co-
operation to political integration.
,Growing membership gave rise to problems for the EU to exercise its law-making competence, after the
integration of eastern European states, such as Latvia, Lithuania, and Estonia who were once part of the USSR.
This was solved with the Amsterdam Treaty 1997, Treaty of Nice 2001, and the Treaty of Lisbon 2007, which
transformed the EU’s law-making process, whereby new EU legislation can come into effect even if some
states object, a process known as qualified majority voting.
Treaties from the 1980s onwards developed the EU’s competences, with the ‘Police and Judicial Co-operation
(common criminal justice measures and institutions) and ‘Foreign and Security Policy’ (external relations of the
EU, such as trade policies with non-EU member states) are examples of competences that the EU is carrying
out which normally would have been done by the individual member states.
With thoughts of a European constitutional treaty were rejected by a series of referendums across Europe in
2005, the Lisbon Treaty was agreed in 2007. The most important aspect of this Treaty was to enhance the role
of the European Parliament, to also enhance the EU’s direct accountability.
The UK’s Accession to the EU:
Dismantling the Empire, alongside the greater importance of trade with the USA and Commonwealth nations,
meant the UK was content to remain on the periphery of the EEC on the European Free Trade Area (N.
Ferguson, Empire: How Britain Made the Modern World (Penguin, 2003) p. 361). French President Charles De
Gaulle blocked the UK’s entry requests, until 1972 the UK was accepted, and the UK Parliament passed the
European Communities Act 1972, with section 2 (1), amended, stating:
‘All such rights, power, 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.’
Thus, this provision allowed EU law to alter rights and obligations of the UK’s domestic law ‘without further
enactment’, and for EU law that existed before the UK joined and any subsequent laws. Parliament had
therefore created an exception to the operation of dualism within the UK Constitution. Lord Neuberger
described this in R (Miller) v Secretary of State for Exiting the European Union [2017].
Section 60: “Many statutes give effect to treaties by prescribing the content of domestic law in the
areas covered by them. The 1972 Act does this, but it does considerably more as well. It authorises a
dynamic process by which, without further primary legislation (and, in some cases, even without any
domestic legislation), EU law not only becomes a source of UK law, but actually takes precedence over
all domestic sources of UK law, including statutes. This may sound rather dry or technical to many
people, but in constitutional terms the effect of the 1972 Act was unprecedented. Indeed, it is fair to
say that the legal consequences of the United Kingdom’s accession to the EEC were not fully
appreciated by many lawyers until the Factortame litigation in the 1990s…”.
Lord Scarman recognised this constitutional shift at the time, stating that the new EU source of law was a
‘potent new source of English law’. Section 3(1) of the ECA1972 support this, as it stated authoritative
interpretation of the meaning of EU law would be provided by the Court of Justice, the EU’s judicial institution.
Lord Scarman also recognised this provision providing ‘a court uncontrolled by Parliament’.
‘For the purpose of all legal proceedings any question as to the meaning or effect of any of the
treaties or as to the validity, meaning or effect of any EU instrument… shall be for determination as
such in accordance with the principles laid down by… the European Court’.
Before the ECA1972, the Court of Justice had already established European law as an autonomous ‘legal
system’ in Flaminio Costa v ENEL [1964] ECR 585, 593. However, Pham v Secretary of State for the Home
Department [2015] UKSC 19; [2015] 1 WLR 1591, [80] Lord Mance held the view that ‘the United Kingdom as
independent, Parliament as sovereign and European law as part of domestic law because Parliament ahs so
willed’. During the Coalition government, Parliament passed the European Union Act 2011, which provided for
,a nationwide referendum ahead of any new treaties transferring power or competences to the EU (section 2),
and reaffirming the EU operates within the UK Constitution by virtue of Parliament permitting it to do so.
The Current Structure and Operation of the European Union
The EU’s Role under the Lisbon Treaty:
Lisbon Treaty of 2009 is comprised of: Treaty on European Union (TEU), which sets out principles on how EU is
based/institutions that form it, and the Treaty on the Functioning of the European Union (TFEU), which
enumerates the competences enjoyed by these institutions. Lisbon Treaty reorganised its institutions to enable
it to effectively implement its powers after 20 years of expansion. Article 1 of TEU states ‘an ever-close union
among the peoples of Europe’ are the EU’s core aim. Thus, post-EEC’s common economic marketplace, and
since the Maastricht Treaty 1992, the EU has extended into other areas of life, with Article 2 TEU stating, the
Union if founded on ‘respect for human dignity, the rule of law and respect for human rights, including the
rights of persons belonging to minorities’. The original European Project seems anachronistic, as an integration
into complex EU institutions-web has occurred.
European Union Institutions:
Article 12 TEU outlines 7 EU institutions: The European Council, The Council of the European Union, The
European Parliament, The European Commission, The Court of Justice of the European Union, The European
Central Bank, and The Court of Auditors.
(1) The European Council:
Its key roles are strategic control of the European Union (Article 15(1) TEU) and appointment of key EU
Officials (Article 15(5) and Article 17(7). The President of the European Council has the administrative position
of chairing the meeting every 6 months, and strategically setting the agenda.
(2) The Council of the European Union (Council of Ministers):
Its key roles are the creation of legislation and coordination of the EU budget (Article 16(1) TEU). This council
is responsible for implementing the vision of The European Council. With the European Parliament, both
bodies are the legislative centre of the EU, with democratic accountability for member states in The Council.
Law making sees either a unanimous vote from all 27-members (controversial topics), or by Qualified Majority
Voting (QMV), preventing individual state vetoes (Article 16(4) TEU) through a double majority.
(3) The European Parliament:
Its key roles are approval of legislation (Article 14(1) TEU, after passing through the Council of Ministers),
oversight of the commission (Article 14(1) TEU, by approving the Council’s choice for President of the
Commission and nominations for Commissioners, and can censure the commission through Article 314 TFEU),
approval of the budget (Article 314 TFEU), establishing enquiries and instigating litigation (Article 226 TFEU,
and can bring other institutions to the Court of Justice under Article 263 TFEU). The Parliament cannot initiate
legislation themselves, however, as that is for the European Commission. If enough national legislatures issue a
’reasoned opinion’ over a Commission approval that infringes the principle of subsidiarity, then the
Commission is subject to a ‘yellow card’ obliging commissioners to give a reason for their decision. More than
half of the legislatures mean an ‘orange card’ is issue that requires a European Parliament/Council of Ministers
vote.
(4) The European Commission:
Its key roles are management of the EU (Article 17(1) TEU), legislative proposals (Article 17(2) TEU),
commission enforcement proceedings (Article 258 TFEU, institute enforcement proceedings before the Court
of Justice to member states who fail to fully implement EU law).
(5) The Court of Justice of the European Union:
, Its key roles are to be the guardian of treaties (Article 19(1) TEU), and the court hears three types of case:
enforcement proceedings against the Commission (Article 258 TFEU) or member states (Article 259 TFEU),
judicial review (Articles 263 and 265 TFEU), preliminary rulings (Article 267 TFEU) for national tribunal dealing
with a case that requests an authoritative ruling. This Court is comprised of the European Court of Justice (ECJ)
and the European General Court (EGC).
European Union Legislation:
When a member, to change the EU competences to the UK would require an update to the ECA 1972. The
Council of Ministers and the European Parliament’s legislation give effect to the treaties’ aspirations, in what is
known as the acquis communautaire. Two important EU legislation forms:
(1) Regulations:
Under Article 288 TFEU, each regulation is ‘binding in its entirety and directly applicable in all Member States’.
This direct applicability makes it binding within domestic law of a member state, as if the national legislature
had produced it, and this can range all the way to pet movements (Regulation (EC) No 2003/998)
(2) Directives:
Fulfil a specific role, operating to set goals in areas of areas of mixed competences. Article 288 TFEU states
directives which apply to a member state are binding but are different to regulations as these measures allow
the national authority the ‘choice of form and methods’ to bring it into national law. The UK brought an EU
directive into law to do with professional qualifications and set out the aptitude tests it would specifically
require through a statutory instrument. This leads to substantive directive operation differences across the EU,
due to directives being frameworks, which enhance the flexibility of EU law. The ‘indirect effect’ allows
challenges by the Court of Justice where a national solution ahs inadequately transposed the directive into
domestic law, first outlined in the von Colson [1984] case, where Article 4(3) TEU was drawn upon.
The European Legal Order:
(1) UK Judges as EU Judges:
UK Courts being an extension of the Court of Justice prompted a shift in the court’s approach to the
interpretation of legislation. Lord Denning addressed the significance of EU law as a new autonomous source
of law in the Bulmer [1974) case, in that an EU Treaty is like an ‘incoming tide… it cannot be held back’.
However, in Factortame held that for so long as the UK remained within the EU, Acts of Parliament could be
disapplied where conflicting with EU law.
(2) Diversity amid Harmonisation:
Harmonisation of rules outside the EU’s remit began to occur in the latter part of the 20 th century, a natural
impact of the ‘European Project’. The European Commission proposed ‘European Private law’ of harmonised
rules. However, with each legal system in Europe with its own distinct common law and civil law systems, the
legal ethos is too different for harmonisation. The ‘legal mentalities’ mean that legal systems ‘are not
converging and will not be converging’ (P. Legrand. ‘European Systems are not Converging’ (1996) 45 ICLQ 52,
61-2). Piecemeal harmonisation will not have the knock-on consequences, so directives allow the states to
avoid uniformity but keep the same ends. Friction with the EU commission and member states on
harmonisation of competences sees each member state’s domestic courts mitigate these tensions under the
ultimate oversight of the Court of Justice.
Brexit: The UK’s Withdrawal from the European Union
The Brexit Referendum:
The Leave campaign’s ‘Take back control’ has multiple legal-constitutional aspects. Firstly, it’s concerned with
how the EU’s expansion of powers had not been approved in the UK since the 1975 referendum, amounting to
a loss of national sovereignty. PM Cameron’s renegotiation before the 2016 referendum was on the basis that:
Brexit and the UK Constitution:
The UK’s sovereign authority being impacted by EU membership is raised as an issue in two regards:
EU member states are represented collectively in bodies, such as the World Trade Organisation. This
curtails aspects of the states’ external sovereignty (how they act within international law).
Moreover, in agreeing collective rules in areas of competence they have transferred to the EU, restrict
internal sovereignty (the freedom of actions of the executive, legislature, and judiciary).
The European Union:
Supranational body responsible for law-making across the 27 member states. The Treaties of the EU created a
number of institutions: Council of Ministers and the European Parliament: responsible for day-to-day EU law-
making, European Council: provides overall strategic direction of the EU, European Commissions: ensures EU
policies are carried into effect, The Court of Justice: the final arbiter on whether EU member states are fulfilling
their treaty obligations.
Laws made under the EU Treaties can have legal effects within the domestic legal systems of the UK.
The Development of the EU:
States agree to become international organisation members, such as in the United Nations, the International
Labour Organisation, and the World Trade Organisation, and in doing so they agree to act in accordance with
their rules.
Member states have transferred broad law-making powers to EU institutions, but this has only occurred due to
member states agreeing, by treaty, to transfer these competences, and they continue to have a voice
regarding how the EU legal order operates. This is set out in the Treaty of the European Union (TEU), Art, 5.2:
‘Under the principal of conferral, the Union shall act only within the limits of the competences
conferred upon it by the Member States in the Treaties to attain the objectives set out therein.
Competences not conferred upon the Union in the Treaties remain with the Member States’.
However, the difference between ‘international’ and ‘supranational’ invites controversy, with Shaw describing
the EU as ‘some sort of ambiguous non-state polity’ J. Shaw, ‘Europe’s Constitutional Future [2005] PL 132,
133.
A Brief History of the EU:
Beginning as the European Coal and Steel Community (ECSC) began with 6 member states, it allowed the
pooling of coal and steel – the raw ingredients of industrial economies. Plus, war could be prevented, as it
provided ‘the basis for a broader and deeper community among peoples long divided by bloody conflicts,’
Treaty Establishing the European Coal and Steel Community (Paris 18 April 1951), preamble.
Seeking further economic growth with greater free trade of goods, services, labour, and capital, the ECSC
expanded, with the ‘Benelux countries’ (Belgium, the Netherlands, Luxembourg), Italy, France, and the Federal
Republic of Germany all joining to create the European Economic Community. Thus, in the EEC formed in 1957
through these countries’ ascension via the Treaty of Rome 1957. Membership grew over the decades, with the
UK joined in 1973, alongside Ireland and Denmark.
The EEC’s institutions worked to reduce barriers to trade, with this establishing the single market, via the
Single European Act 1986. Beyond the factors of production, the member states, in 1992, decided to transfer
further law-making competence to the EEC, though the Maastricht Treaty 1992. This allowed the citizens to
move freely across member states’ borders without a visa, regardless of if the citizen was a work or not. During
this time, the EEC was renamed as the European Union, indicating the shift of focus from economic co-
operation to political integration.
,Growing membership gave rise to problems for the EU to exercise its law-making competence, after the
integration of eastern European states, such as Latvia, Lithuania, and Estonia who were once part of the USSR.
This was solved with the Amsterdam Treaty 1997, Treaty of Nice 2001, and the Treaty of Lisbon 2007, which
transformed the EU’s law-making process, whereby new EU legislation can come into effect even if some
states object, a process known as qualified majority voting.
Treaties from the 1980s onwards developed the EU’s competences, with the ‘Police and Judicial Co-operation
(common criminal justice measures and institutions) and ‘Foreign and Security Policy’ (external relations of the
EU, such as trade policies with non-EU member states) are examples of competences that the EU is carrying
out which normally would have been done by the individual member states.
With thoughts of a European constitutional treaty were rejected by a series of referendums across Europe in
2005, the Lisbon Treaty was agreed in 2007. The most important aspect of this Treaty was to enhance the role
of the European Parliament, to also enhance the EU’s direct accountability.
The UK’s Accession to the EU:
Dismantling the Empire, alongside the greater importance of trade with the USA and Commonwealth nations,
meant the UK was content to remain on the periphery of the EEC on the European Free Trade Area (N.
Ferguson, Empire: How Britain Made the Modern World (Penguin, 2003) p. 361). French President Charles De
Gaulle blocked the UK’s entry requests, until 1972 the UK was accepted, and the UK Parliament passed the
European Communities Act 1972, with section 2 (1), amended, stating:
‘All such rights, power, 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.’
Thus, this provision allowed EU law to alter rights and obligations of the UK’s domestic law ‘without further
enactment’, and for EU law that existed before the UK joined and any subsequent laws. Parliament had
therefore created an exception to the operation of dualism within the UK Constitution. Lord Neuberger
described this in R (Miller) v Secretary of State for Exiting the European Union [2017].
Section 60: “Many statutes give effect to treaties by prescribing the content of domestic law in the
areas covered by them. The 1972 Act does this, but it does considerably more as well. It authorises a
dynamic process by which, without further primary legislation (and, in some cases, even without any
domestic legislation), EU law not only becomes a source of UK law, but actually takes precedence over
all domestic sources of UK law, including statutes. This may sound rather dry or technical to many
people, but in constitutional terms the effect of the 1972 Act was unprecedented. Indeed, it is fair to
say that the legal consequences of the United Kingdom’s accession to the EEC were not fully
appreciated by many lawyers until the Factortame litigation in the 1990s…”.
Lord Scarman recognised this constitutional shift at the time, stating that the new EU source of law was a
‘potent new source of English law’. Section 3(1) of the ECA1972 support this, as it stated authoritative
interpretation of the meaning of EU law would be provided by the Court of Justice, the EU’s judicial institution.
Lord Scarman also recognised this provision providing ‘a court uncontrolled by Parliament’.
‘For the purpose of all legal proceedings any question as to the meaning or effect of any of the
treaties or as to the validity, meaning or effect of any EU instrument… shall be for determination as
such in accordance with the principles laid down by… the European Court’.
Before the ECA1972, the Court of Justice had already established European law as an autonomous ‘legal
system’ in Flaminio Costa v ENEL [1964] ECR 585, 593. However, Pham v Secretary of State for the Home
Department [2015] UKSC 19; [2015] 1 WLR 1591, [80] Lord Mance held the view that ‘the United Kingdom as
independent, Parliament as sovereign and European law as part of domestic law because Parliament ahs so
willed’. During the Coalition government, Parliament passed the European Union Act 2011, which provided for
,a nationwide referendum ahead of any new treaties transferring power or competences to the EU (section 2),
and reaffirming the EU operates within the UK Constitution by virtue of Parliament permitting it to do so.
The Current Structure and Operation of the European Union
The EU’s Role under the Lisbon Treaty:
Lisbon Treaty of 2009 is comprised of: Treaty on European Union (TEU), which sets out principles on how EU is
based/institutions that form it, and the Treaty on the Functioning of the European Union (TFEU), which
enumerates the competences enjoyed by these institutions. Lisbon Treaty reorganised its institutions to enable
it to effectively implement its powers after 20 years of expansion. Article 1 of TEU states ‘an ever-close union
among the peoples of Europe’ are the EU’s core aim. Thus, post-EEC’s common economic marketplace, and
since the Maastricht Treaty 1992, the EU has extended into other areas of life, with Article 2 TEU stating, the
Union if founded on ‘respect for human dignity, the rule of law and respect for human rights, including the
rights of persons belonging to minorities’. The original European Project seems anachronistic, as an integration
into complex EU institutions-web has occurred.
European Union Institutions:
Article 12 TEU outlines 7 EU institutions: The European Council, The Council of the European Union, The
European Parliament, The European Commission, The Court of Justice of the European Union, The European
Central Bank, and The Court of Auditors.
(1) The European Council:
Its key roles are strategic control of the European Union (Article 15(1) TEU) and appointment of key EU
Officials (Article 15(5) and Article 17(7). The President of the European Council has the administrative position
of chairing the meeting every 6 months, and strategically setting the agenda.
(2) The Council of the European Union (Council of Ministers):
Its key roles are the creation of legislation and coordination of the EU budget (Article 16(1) TEU). This council
is responsible for implementing the vision of The European Council. With the European Parliament, both
bodies are the legislative centre of the EU, with democratic accountability for member states in The Council.
Law making sees either a unanimous vote from all 27-members (controversial topics), or by Qualified Majority
Voting (QMV), preventing individual state vetoes (Article 16(4) TEU) through a double majority.
(3) The European Parliament:
Its key roles are approval of legislation (Article 14(1) TEU, after passing through the Council of Ministers),
oversight of the commission (Article 14(1) TEU, by approving the Council’s choice for President of the
Commission and nominations for Commissioners, and can censure the commission through Article 314 TFEU),
approval of the budget (Article 314 TFEU), establishing enquiries and instigating litigation (Article 226 TFEU,
and can bring other institutions to the Court of Justice under Article 263 TFEU). The Parliament cannot initiate
legislation themselves, however, as that is for the European Commission. If enough national legislatures issue a
’reasoned opinion’ over a Commission approval that infringes the principle of subsidiarity, then the
Commission is subject to a ‘yellow card’ obliging commissioners to give a reason for their decision. More than
half of the legislatures mean an ‘orange card’ is issue that requires a European Parliament/Council of Ministers
vote.
(4) The European Commission:
Its key roles are management of the EU (Article 17(1) TEU), legislative proposals (Article 17(2) TEU),
commission enforcement proceedings (Article 258 TFEU, institute enforcement proceedings before the Court
of Justice to member states who fail to fully implement EU law).
(5) The Court of Justice of the European Union:
, Its key roles are to be the guardian of treaties (Article 19(1) TEU), and the court hears three types of case:
enforcement proceedings against the Commission (Article 258 TFEU) or member states (Article 259 TFEU),
judicial review (Articles 263 and 265 TFEU), preliminary rulings (Article 267 TFEU) for national tribunal dealing
with a case that requests an authoritative ruling. This Court is comprised of the European Court of Justice (ECJ)
and the European General Court (EGC).
European Union Legislation:
When a member, to change the EU competences to the UK would require an update to the ECA 1972. The
Council of Ministers and the European Parliament’s legislation give effect to the treaties’ aspirations, in what is
known as the acquis communautaire. Two important EU legislation forms:
(1) Regulations:
Under Article 288 TFEU, each regulation is ‘binding in its entirety and directly applicable in all Member States’.
This direct applicability makes it binding within domestic law of a member state, as if the national legislature
had produced it, and this can range all the way to pet movements (Regulation (EC) No 2003/998)
(2) Directives:
Fulfil a specific role, operating to set goals in areas of areas of mixed competences. Article 288 TFEU states
directives which apply to a member state are binding but are different to regulations as these measures allow
the national authority the ‘choice of form and methods’ to bring it into national law. The UK brought an EU
directive into law to do with professional qualifications and set out the aptitude tests it would specifically
require through a statutory instrument. This leads to substantive directive operation differences across the EU,
due to directives being frameworks, which enhance the flexibility of EU law. The ‘indirect effect’ allows
challenges by the Court of Justice where a national solution ahs inadequately transposed the directive into
domestic law, first outlined in the von Colson [1984] case, where Article 4(3) TEU was drawn upon.
The European Legal Order:
(1) UK Judges as EU Judges:
UK Courts being an extension of the Court of Justice prompted a shift in the court’s approach to the
interpretation of legislation. Lord Denning addressed the significance of EU law as a new autonomous source
of law in the Bulmer [1974) case, in that an EU Treaty is like an ‘incoming tide… it cannot be held back’.
However, in Factortame held that for so long as the UK remained within the EU, Acts of Parliament could be
disapplied where conflicting with EU law.
(2) Diversity amid Harmonisation:
Harmonisation of rules outside the EU’s remit began to occur in the latter part of the 20 th century, a natural
impact of the ‘European Project’. The European Commission proposed ‘European Private law’ of harmonised
rules. However, with each legal system in Europe with its own distinct common law and civil law systems, the
legal ethos is too different for harmonisation. The ‘legal mentalities’ mean that legal systems ‘are not
converging and will not be converging’ (P. Legrand. ‘European Systems are not Converging’ (1996) 45 ICLQ 52,
61-2). Piecemeal harmonisation will not have the knock-on consequences, so directives allow the states to
avoid uniformity but keep the same ends. Friction with the EU commission and member states on
harmonisation of competences sees each member state’s domestic courts mitigate these tensions under the
ultimate oversight of the Court of Justice.
Brexit: The UK’s Withdrawal from the European Union
The Brexit Referendum:
The Leave campaign’s ‘Take back control’ has multiple legal-constitutional aspects. Firstly, it’s concerned with
how the EU’s expansion of powers had not been approved in the UK since the 1975 referendum, amounting to
a loss of national sovereignty. PM Cameron’s renegotiation before the 2016 referendum was on the basis that:
