Case Law Essay
Membership of United Kingdom with European Communities intended that the Community Law becomes valid in the United Kingdom which affected the legal system of the country plus the English law system. In 1972, the European Communities Act offered that from January 1973, UK would apply new sources of the legal system including the treaties of the European Communities (Primary Laws) and rules made by the EEC (Secondary Laws). The law compromises all the areas in which European Community is concerned such as fishing, rivalry, organizations, education and health. (Gerry O’Reilly, 2000)
1 1.1 Primary Law
According to British structure, the government constitution is independent which means that the law generated by the European government gives priority over the laws generated by other sources. However, there are four factors that affect the legislative system of the United Kingdom: 1) The authority of European government is the highest which means that only government can make new laws, 2) there is no limit for European government on any legislate matter, 3) the courts of United Kingdom cannot restrict laws developed by the legislature and lastly 4) no legislative system can unite with the European legislative system. Hence, only European legislative can make or cancel
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However, the most important and primary European law that affects directly on United Kingdom is the Treaty of Rome which was established in 1957. Though, the Treaty of Rome represents a number of constitutional problems but it is the superior from all the domestic laws which deny that the European legislative system is independent. Following the Section 2 of the European Communities Act 1972, all the legislative system whether they are passed the European Communities Act should apply the laws according to the Treaty of Rome with the Community law which resulted into the direct effect on the rights of the people. The EC Act 1972 had also an intense effect on the people’s right such the right of employee’s particularly female employees. Such as in the case of R v Secretary of State for Employment ex parte Equal Opportunities Commission (1994) in which the Employment Protection Act of 1978 were not compatible with the EC laws for the equal management of female and male employees. As many of the part time workers were females and the priority given to the workers who were full timers resulted into changing the law of UK which greatly perked up the rights of part time employees.
Treaties in EC law play a role of the highest source which involuntarily becomes the part of the domestic law. The rules and regulations included in the treaties are the direct applicable law which means that they became part of the law without any intervention. It is not necessary for government of UK to sign a treaty therefore it eventually becomes a law. Although, the treaties in the British courts which are directly set up by the European Communities can rely for generating civil rights. Though, it also creates obligations for example in the case of Van Gend en Loos v Nederlandse Administratie der Belastingen (1963). Such a law is known to have a direct effect. The direct effect is divided into two categories, vertical and horizontal. Vertical direct effects means that an entity can use a part of European Union law in opposition to the army, police officials etc. and the horizontal direct effect provides rights for the individuals against the organisations or other people of the country. In Macarthys v Smith (1979) case, the Article 119 of the EEC treaty offered to give rights to the woman who claimed that she should be paid same wages like males though at that time she did not had any right under the UK legislative system. Though, the horizontal direct effect of the treaty was considered by the European Court of Justice while taking decisions for the case like Defrenne v Sabena (1976) and Warave and Koch v Union Cycliste Internationale (1974). (Ricardo Gomez, Martin Burch, Simon Bulmer, Patricia Hogwood, Caitriona Carter & Andrew Scott, 2003)
1.2 Secondary Law
The Secondary Legislation comes under the category of regulations, Decisions and Directives. Regulations are community laws that are same like English Act of Parliament. According to European Union, the regulations should be applied even if the country has passed the laws even if they are different from them. In Leonesio v Italian Ministry of Agriculture (1973) case, regulation to support the production of reduced dairy claimed that a cash premium must be paid to the workers who butchered the animals plus did not agreed to produce milk for maximum five years. As a result, Leonesio carried out the requirements of his workers but he was not paid by the Italian statute which required legislation to approve expenditure of the government. At this point, the ECJ asserted that the Italian government cannot employ their own laws to block Leonesio rights.
On the other hand, Directives are also integrated within the national law to have an effect on the state. Though, directives are not directly related but are further required to enact by the state member before it can achieve the objective into its domestic law. Members of the state do not have any kind of judgement in regards to the achievement of the object by the execution of the directive but they can judge about how the objective should be achieved. In the United Kingdom, the execution of directive can acquire the form of primary legislative system though European directives are applied directly even if the member of the state has not legislated for it. Directives are only effectual when they are vertically applied.
Lastly, Decisions are effectives directly into the national law. Like directives, decisions are also effective when they are vertically applied however it can address an entity or a state and it is compulsory merely just on the addressee.
The Art. 177 Treaty of Rome 1957 might be employed by any of the national court in any one of the state members of the European Union, depending upon the problem that the courts are dealing with takes in the consideration regarding few aspect of the European Union. It permits the national court to ask questions from ECJ both regarding the interpretation and validity of EU law. As a result, the procedures in court are suspended until and unless the initial ruling point in the problem has been developed which can be extended for even two years. Finally, the national court in the end takes the analysis and continues the case to move forward. While in United Kingdom, domestic courts have to stay cautious about the approach of ECJ for ruling the issue of validity and interpretation because they don’t have such authority. It has to refer the case to the ECJ. EU regulations and directives are written in somewhat general terms which results into a huge amount of scope for uncertainties particularly when these regulations and directives are considered in the courts of the United Kingdom. Conversely, when the government of the United Kingdom applies directives by summarizing the Acts of Parliament results into fewer uncertainties and more definitions are generated. Though it can cause problems within, nevertheless, this may direct to a need for initial ruling point. (Gary Slapper & David Kelly, 2003)
However, there are many objections made by conservatives regarding the authority of ECJ. According to them, the ECJ chops off the sovereignty of the government. Norman Lamont believes that ECJ dose not only concludes the consistency of the purpose of law of EU but it also generates law which are superior to the law of United Kingdom. They have extended their ability to intervene between the dealings of the United Kingdom administration. Foreign secretary, Malcolm Rifkind in 1996 wanted to enforce the laws to the Treaty of Rome which can help to prevent the ECJ from the mistreatment its authorities. According to him, the courts should stop making the law and as an alternative it should merely interpret them only. Apart from the conservators, the supporters of EU claim about the irrelevancy of questions that evolves around EU in the modern world. They think that all the states are however surrendering their sovereignty plus they are also affected by the economic globalisation somewhat irrespective of the EU. Additionally, they argue that the independency is already in the hands of British government which has transferred some of it to the EC. (Francis Geoffrey Jacobs, 2007)
Beside the critics and supporters of the EU system, the British legal system should be managed in a static way. It is constantly taking actions for the modification in the society as a whole. To refuse the significance of European law would be wrong if the increasingly important factors are ignored in the purpose and creation of the law in the United Kingdom. Additionally, EC law is super national but it does not change the domestic law. Many people think that laws in the United Kingdom will originate from EU but in the case if the United Kingdom participates as a branch of a federal Europe. Therefore, the United Kingdom is not becoming a part of states federation which results for United Kingdom to legislate mainly for itself. Hence, United Kingdom will continue to be a long established nation country. The involvement of multi-speed Europe preserves the sovereignty of the United Kingdom which creates a difference amid all the state members of the EU. It would also help UK to convert into the so called second division position.
Gary Slapper & David Kelly. (2003) The English Legal System. Routledge.
Ricardo Gomez, Martin Burch, Simon Bulmer, Patricia Hogwood, Caitriona Carter & Andrew Scott. (2003) European Union Policy Making in the UK: A Brief History [Internet], Manchester Papers in Politics. Available from: <http://www.socialsciences.manchester.ac.uk/disciplines/politics/publications/workingpapers/documents/manchester_working_papers/MPP072003.pdf.> [Accessed 12 December 2008]
Francis Geoffrey Jacobs. (2007) The Sovereignty of Law: The European Way. Cambridge University Press.
Gerry O’Reilly. (2000) Gibraltar: Sovereignty Disputes and Territorial Waters [Internet], National University of Ireland. Available from: <http://www.hydrographicsociety.org/Articles/journal/2000/95-2.htm> [Accessed 12 December 2008]