Introduction

This paper evaluates how the United Kingdom’s (UK) membership of the European Union (EU) is significant in the current context. The paper evaluates the legal consequences that arise from the UK being part of the EU and how this affects the legal regime of the UK. The paper evaluates how being part of the EU has brought treaty obligations on the UK which it hitherto did not have. Further, the paper considers the effect of the judgements of the European Court of Human Rights and their effect on the legal system in UK.

Entering the European Union

The European Community was established in 1967 and was comprised of three organs which include the European Coal and Steel Community, European Atomic Energy Community and the European Economic Community. Later, in 1993, the Maastrict Treaty renamed the European Economic Community to be the European Union. The Maastrict treaty was signed by fifteen Member States including UK, Netherlands, Luxembourg (the Benelux countries) Belgium, France, Germany, Greece, Ireland, Spain,Italy, Portugal, Denmark, Austria, Finland and Sweden. The European Union was established as a means of arriving at political and economic consensus to affect the member States of the Union. Member States negotiate on the decisions which affect them politically and economically. The institutions that comprise the European Union include the European Commission, Council of the European Union, European Council, European Parliament, European Central Bank and the European Court of Auditors. The EU is comprised of 28 Member States, which work together to achieve economic stability in the region. The States permit goods and people to move from one Member State to another without restrictions, allowing better trade. The States act as if they were one single country in which people and goods can move without restrictions, enabling faster economic progress.

The EU is comprised of various law making bodies and institutions, the laws of which are binding on all Member States. The political and executive decision making is carried out by the European Council which meets bi-annually. The Heads of State and Foreign Ministers of Member States participate in these proceedings. The European Commission carries out the functions that are required in the routine activities concerning the EU. Running the activities of the EU is carried out by the Commission which proposes all policies and legislation which is to be applied in the Member States and carries out the monitoring of the implementation of these laws and policies.

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Treaty obligations of the United Kingdom

The UK is a dualist state which causes it to require any treaty obligation that it has acceded to to be formulated into law of the country through enacting legislation in that regard. The treaty obligations that are taken on by the country must be enacted into law to be binding on the people of the UK. This requires the law to be formulated in the UK parliament and signed by the Queen as being law of the UK. Unless the treaty obligations are thus enacted by legislation in the UK, the courts in UK are not bound by the law and are not required to impose legal obligations based on such law. This resulted in neither the government nor an individual being bound by the treaties that are ratified by the UK.

In the EU, treaties form the primary source of law as all law that governs and provides for the law in the EU is set out in the form of a treaty. Among the treaties that thus set out the law, the Treaty of Rome of 1957, Single European Act 1986 and the Treaty of the European Union 1992(Maastrict Treaty) form the most prominent of treaties in the EU. The content of these treaties and the legal obligations that they impose had to be applied in UK. However, given the dualist nature of the UK, this provided to be a challenge to the imposition of EU laws in UK.

To counter this situation and the arising consequences, the UK enacted the European Communities Act in 1972 to counter this situation. The Parliament in UK took a step towards voluntarily giving effect to the obligations that the UK has agreed to be bound by under the law in the EU.  This includes both obligations that arise under the European Communities and EU treaties to which UK has become party.

Section 2(1) of the European Communities Act provides as follows:

“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; and the expression “enforceable EU right” and similar expressions shall be read as referring to one to which this sub-section applies.”

This section causes the provisions that are contained in various legal obligations to which UK is a party to are to directly apply and have effect in UK. Accordingly, certain Regulations adopted by the EU and EU treaties automatically form a part of the law in the UK. Therefore, the requirement of enacting legislation to enact the Regulation or treaty obligation into law is not required. The citizens of UK are therefore capable of enjoying the rights that are given to them through Regulations and treaties without the enactment of legislation in the UK with regard to the subject matter.

Furthermore, it may be said that the EU law forms a source of UK law, given the application of EU law in the law in UK. According to section 2(2) of the European communities Act, power has been granted to the Parliament in UK to implement obligations entailing on it from the EU in the form of secondary legislation. This further emphasises the effect of section 2 of the European Communities Act, which is that is must be construed as being a valid source of the law in UK.

Accordingly, the dualist nature of the UK legal system is overcome by the European Communities Act which puts in place the aforesaid provision. This prevents the UK from denying the rights of people. The impediment posed by the dualist nature of UK’s legal system is overcome by the Act and enables the people to enjoy the rights they are afforded under the EU treaties and Regulations.

The Human Rights Act of 1998 (HRA) is a good example of treaty obligations of the EU being enacted into national legislation in UK. The HRA provides for the application of the European Convention on Human Rights (ECHR) which is the primary Convention in the EU which governs the human rights of citizens of all Member States. The HRA sought to allow the incorporation of the EU law on human rights into the UK and enabled a citizen of UK to seek judicial remedies from the European Court of Human Rights (ECtHR) in the event of a breach by the UK of the rights provided for in the Convention. The HRA caused the treaty obligations of UK to be enforceable and rendered the violation of rights to be actionable before the court of law of the EU. The HRA prevented UK from interpreting legislation in UK in a manner that contravened the ECHR and permitted judges in the courts in UK to strike down legislation which contravened the laws of the Community.

Section 3(1) of the European Communities Act provides as follows:

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 treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court).

This section gives effect to the doctrine of supremacy of the law which emanates from the EU. The law that emanates from the EU is deemed to have supremacy over the laws in UK or its national law. The provision indirectly provides that in the event of a doubt as to whether the EU law applies or must be given superior status over the UK law, the matter must be referred to the European Court of Justice (ECJ). According to section 2(4) of the European Communities Act, the primary legislation which is enacted by the Parliament of UK must be interpreted in the light of the EU law if such primary legislation was enacted after 1 January 1973.  The inconsistencies between UK and EU law are to be reconciled by interpreting the law as found in the EU law. This requires interpretation of the law to be given a construction that enables the EU law to be applied, and to prevent the application of a law which is inconsistent with EU law.

This was evident in the Factortame v Secretary of State for Transport case, where the courts found that Part II of the Merchant Shipping Act, which formed part of the national law of the UK, was not consistent with the EU law, and that it had to therefore not be applied. This case was a turning point in recognizing that changes must be made to the UK law if it is to be consistent with the laws in the EU. This led to changes being implemented in the UK law to give effect the EU law and to ensure that there is no incongruence between UK and EU law. such changes were brought into effect through the Shipping Act (Amendment) Order 1989 SI No.2006 and the Merchant Shipping (Registration ) Act 1993.

Similarly, in R v Secretary of State for Transport, ex parte Equal Opportunities Commission, the House of Lords found that the Employee Protection (Consolidated) Act of 1978 could not be applied due to its inconsistency with the law in the EU. In both these instances, the court did not give application to the will of the Parliament of UK which caused the erosion of the doctrine of the supremacy of Parliament. In 2002, in Thoburn v Sunderland City Council it was argued that the binding effect of the EU law comes into application due to the supremacy of the EU law that is recognized. The court found that EU law was independent of the national laws of the Member States and that the national law can be superseded by EU law. The courts in UK followed the decision of the ECJ in cases such as Costa v ENEL where it was held that the laws which emanate from a treaty cannot be overridden by national or domestic laws merely due to its special or original nature. The domestic provisions being given effect to causes the EU law to be overridden without there being a legal basis upon which the EU law is called into question to be overridden by domestic law. The rationale for this decision lies in the fact that the Member States gave up their sovereign rights when they joined the EU. This resulted in a limitation of the sovereign rights which they enjoy. Accordingly, a unilateral act by the Member State to override the EU law is incompatible with the idea of having a single sovereign community.  The ability of the EU to prevail as a single community arises from the fact that the community will cease to have any form of sovereignty if the domestic laws are to prevail over its own laws.

Further, it has been held that the European Communities Act is a ‘constitutional’ Act and that it cannot be impliedly repealed by subsequent statutes. Justice Laws explained that the common law was comprised of two distinct types of Acts, namely, constitutional and ordinary statutes. The constitutional statutes were deemed to be inclusive of characteristics such as conditioning the legal relationship that exists between the State and its citizens or which has the capacity to enlarge or diminish the ambit of what is regarded as constitutional rights. Statutes which embody such characteristics are given the status of constitutional statutes and are given a special status. According to this judgement, the European Communities Act forms a constitutional statute wherein it provides for the entire rights and obligations that pertain to the EU law and its machinery. Accordingly, as a constitutional statute, it has a bearing on the national laws in UK, in that it contains a stronger force than the ordinary statutes in UK. Accordingly, ordinary statutes can be overridden by the provisions of the European Communities Act. Given this status of the European Communities Act, it cannot be impliedly repealed as it would cause a fundamental right to be abrogated if the Act was to be impliedly repealed.

Accordingly, it is evident that the treaty obligations of UK that arise from being a member of the EU must be applied regardless of the existence of national legislation which contravenes EU law. The European Communities Act was a step taken towards ensuring that treaty obligations of the UK are carried out.

Implications of judgements of the European Court of Human Rights

The ECtHR was instituted in 1959 and is an international court. It forms the forum for instituting action against a Member State or individual for the violation of human rights including civil and political rights of the citizens of Member States. The decisions of the ECtHR are binding on the Member States and they are required to take action towards altering the legislation and the administrative actions of the State to be in compliance with the requirements under the EU law. The court strives to give effect to the doctrine of rule of law and ensure that democracy is guaranteed in the Member States.

Where the UK is concerned, a number of decisions of the ECtHR have had a significant effect on UK. Some of the decisions in this regard must therefore be evaluated. In Osman v UK the ECtHR established criteria which demonstrate that authorities failed to uphold the right to live of individuals. It was ascertained that the authorities in UK must follow the ‘Osman warnings’ in ensuring that authorities protect the right to life of people and carry out measures to counter risks to life of individuals. This principle was later applied in a number of other instances, revealing the impact of the ECtHR judgement on Member States. Further, the ECtHR has had an effect on the investigation and prosecution of deaths that occur when the deceased is in the care of  the State. Therefore, in Jordan v UK, the court found that the UK had failed to properly investigate the death of the man in the care of its authorities. The court found that the UK must ensure the independence and accountability of such an investigation to ensure that no prejudice occurs to the victim.

Accordingly, the decisions of the ECtHR are binding on the UK and the court can require a change in the executive and administrative action to be carried out to ensure compliance with the EU laws on human rights.

Conclusion

Following its entry into the EU, UK has been subjected to the laws and judicial pronouncements of the EU and its courts. The European Communities Act makes provision for the laws in the EU to be applied in UK without issues being raised regarding the doctrine of supremacy of parliament. Further, the ECtHR’s decisions are binding on UK and UK is required to take action towards remedying the contraventions of EU law by UK’s executive and administrative action.

References

Books

  1. Anthony (G.) UK Public Law and European Law, (2002, Hart Publishing) pp. 88-90
  2. Davis (H.)Beginning Human Rights Law (2014, Routledge) pp. 22-27
  3. Derbyshire (P.), Derbyshire on The English Legal System (11th ed., 2014, Sweet & Maxwell) pp. 139-180
  4. Slapper (G.) & Kelly (D.)The English Legal System: 2015-2016, (2015, Routledge) pp.184-187
  5. Stychin (C. F.) and Mulcahy (L.), Legal Method and Systems: Text and Materials (4th ed., 2010, Sweet & Maxwell) pp. 103-122

Case law

  • Factortame v Secretary of State for Transport (No. 1) [1991] 2 AC 85
  • R v Secretary of State for Transport, ex parte Equal Opportunities Commission [1995] 1 AC 1
  • Thoburn v Sunderland City Council [2002] EWHC 195
  • Costa v ENEL [1964] ECR 585 (6/64)
  • Osman v UK No. 23452/94 [GC], 28.10.1998
  • Kontrova v Slovakia, No. 7510/04, 31.5.2007
  • Dink v Turkey, No. 2668/07, 14.9.2010
  • Jordan v UK No. 24746/94, 4.5.2001
  • McKerr v UK, No. 28883/95, 4.5.2001
  • Finucane v UK, No. 29178/95, 1.7.2003
  • Shanaghan v UK, No. 37715/97, 4.5.2001
  • Kelly v UK, No. 30054/96, 4.5.2001
  • McShane v UK, No. 43290/98, 28.5.2002

Legislation and treaties

  • European Communities Act in 1972
  • European Convention on Human Rights
  • Human Rights Act of 1998
  • Single European Act 1986
  • Treaty of Rome of 1957

Treaty of the European Union 1992

  1. Stychin (C. F.) and Mulcahy (L.), Legal Method and Systems: Text and Materials (4th ed., 2010, Sweet & Maxwell) pp. 103
  2. Derbyshire (P.), Derbyshire on The English Legal System (11th ed., 2014, Sweet & Maxwell) pp. 139-40
  3. Stychin&Mulcahyop.citpp.120-22
  4. Derbyshireop.citpp. 177-80
  5. Davis (H.) Beginning Human Rights Law (2014, Routledge) pp. 25-27
  6. Slapper (G.) & Kelly (D.)The English Legal System: 2015-2016, (2015, Routledge) p.184
  7.  Slapper & Kelly op.citpp. 184-6
  8. Factortame v Secretary of State for Transport(No. 1) [1991] 2 AC 85
  9. R v Secretary of State for Transport, ex parte Equal Opportunities Commission [1995] 1 AC 1
  10. Thoburn v Sunderland City Council [2002] EWHC 195
  11. Costa v ENEL
  12. ThoburnLaws LJ 56-58
  13. Anthony (G.) UK Public Law and European Law, (2002, Hart Publishing) pp. 88-90
  14.  Davisop.cit p.22
  15. Osman v UKNo. 23452/94 [GC], 28.10.1998 ¶116
  16. Kontrova v Slovakia, No. 7510/04, 31.5.2007. See also Dink v Turkey, No. 2668/07, 14.9.2010
  17. Jordan v UKNo. 24746/94, 4.5.2001. See also McKerr v UK, No. 28883/95, 4.5.2001; Finucane v UK, No. 29178/95, 1.7.2003; Shanaghan v UK, No. 37715/97, 4.5.2001; Kelly v UK, No. 30054/96, 4.5.2001; McShane v UK, No. 43290/98, 28.5.2002