Pre-Integration:
Charles de Gaulle, on behalf of France, vetoed the UK’s application to join the EU twice. He thought that France’s voice in world affairs would be weakened by the UK’s close ties to the USA and that the British government were not sufficiently committed to EU integration.
The UK also retained the view that its legal and political system was superior to its continental counterparts – a perspective retained from its former colonial power. [1]
There were concerns about the UK surrendering some of its sovereignty, powers and judicial independence. [2] The UK government presented EU membership as an economic necessity to downplay the constitutional ramifications.
‘No country was constitutionally as ill-prepared for what was to comes as the UK’. [3]
Integration:
Treaty of Accession:
Effective as of 1 Jan 1973, the UK committed, as a matter of international law, to follow EU law. However, at this point EU law couldn’t change domestic law.
European Communities Act 1972:
The ECA 1972 gave effect of EU law in UK law.
This effectively bound Parliament’s successors and created a duty for the UK Parliament to not legislate contrary to EU law. However, Parliament was still free to ‘make or unmake any law whatsoever’, so it could still repeal the ECA 1972 and keep its sovereignty.
s2(1) - ‘All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties … are without further enactment to be given legal effect or used in the United Kingdom’.
s2(4) - ‘any enactment passed or to be passed … shall be construed and have effect subject to the foregoing provisions of this section’
Judicial Interpretation:
The courts have to reconcile the doctrines of direct effect and supremacy with parliamentary sovereignty.
In Factortame (No 2), the Merchant Shipping Act was enacted to protect the British fishing industry by preventing foreign nationals from exploiting fish stock in British waters.
The House of Lords noted that they could not set aside primary legislation because of parliamentary sovereignty, but that EU law must prevail.
‘Under the terms of the 1972 Act, it has always been clear that it was the duty of a United Kingdom 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.’ Judiciary essentially setting aside a statute.
Authority of EU Law:
The European Court of Justice held EU law to be authoritative because the EU treaties said so. [4]
The UK courts have held EU law to be authoritative because the European Communities Act 1972 said so. [5] The 1972 Parliament had essentially successfully bound its successors by ensuring that subsequent UK law complied with EU law, [6] undermining parliamentary sovereignty.
Limits:
The ECJ may claim that EU law is superior to even member state’s constitutional law, but that doesn’t necessarily mean that member states will agree with this claim.
In Internationale Handelsgesellschaft, the ECJ ruled that EU law has supremacy and cannot be challenged, even if it conflicts with national law.
In Solange II, the German courts stated that they will not unconditionally accept the supremacy of international law.
‘If there is conflict between a constitutional principle, such as that embodied in article 9 of the Bill of Rights, and EU law, that conflict has to be resolved by our courts as an issue arising under the constitutional law of the United Kingdom’. [7]
Referendum:
In 1975, 67% of people voted to stay in the EU in the first national referendum.
References:
[1] Andrew P. Le Sueur, Jo Eric Murkens, and Maurice Sunkin, Public Law: Text, Cases and Materials (4th edn, Oxford University Press 2019) 800 [2] Public Records Office (PRO), FO 371/150369 [3] J Cornford, ‘On writing a constitution’ (1991) 44 Parliamentary Affairs 558 [4] R v Secretary of State for Transport Ex Parte Factortame (No 2) (1991) 1 AC 603 (Bridge LJ) [4] See Van Gend and Costa [5] See Factortame and Thoburn [6] Sir William Wade, ‘Sovereignty: Revolution or Evolution?’ (1996) 112 LQR 568, 571 [7] R (on the application of HS2 Action Alliance Ltd) v Transport Secretary [2014] UKSC 3
Cases Mentioned:
R v Secretary of State for Transport Ex Parte Factortame (No 2) (1991) 1 AC 603
Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (1970) Case 11/70
Re Wünsche Handelsgesellschaft (22 October 1986) BVerfGE 73, 339, [1987] 3 CMLR 225 ('Solange II')
Comments