PUBLIC LAW L4 - Parliamentary Sovereignty 2 - IMPACT OF EU MEMBERSHIP

Question 1

Is the UK constitution monist or dualist? (1)

Answer 1

Dualist.

Question 2

What is the difference between a monist state and a dualist state? (2)

Answer 2

Monist - domestic and international law obligations operate on the same plane.
Dualist - international agreements must be enacted in domestic legislation before they can take effect in domestic law as there is a distinction between the two sources of law.

Question 3

Describe the importance of Mortensen V Peters. (2)

Answer 3

It showed how domestic law has a higher status in the UK legal system as it is created by the sovereign parliament. Therefore if it wants international legal systems to be enforced it must incorporate this body of external law into the UK legal system by passing a statute to that effect.

Question 4

What did the signing of the Treaty of Accession mean? (2)

Answer 4

In 1972 the UK signed meaning they would become a full member of the European Communities from 1 January 1973.

Question 5

What was the purpose of the incorporation of the treaty of rome 1957? (1)

Answer 5

Treaties have no effect in English law so parliament passed ECA 1972 in order to incorporate Treaty of Rome 1957 into domestic law.

Question 6

What happened via the ECA 1972? (2)

Answer 6

European Union law was effectively incorporated into domestic law and given supremacy. A number of treaties modified and amended the original treaty including the Maastricht treaty which first established the EU.

Question 7

What is known as EU law? (1)

Answer 7

The body of law created by both the European Communities and the EU.

Question 8

How many key provisions were there in the ECA in relation to sovereignty? (1)

Answer 8

Three.

Question 9

What did section 2(1) of the ECA state. (1)

Answer 9

Gave effect to EU law within the UK - all such rights, power, liabilities, obligations and restrictions arising by or under the treaties and all such remedies and procedures as in accordance with the treaties are without further enactment to be given legal effect or used in the UK.

Question 10

What did section3(1) of the ECA provide? (1)

Answer 10

That questions of law relating to the EU should be determined according to principles laid down by the European Court of Justice ECJ.

Question 11

What did section 2(4) of the ECA state? (1)

Answer 11

Its sought to accommodate the primacy of EU law more specifically, any enactment passed or to be passed shall be construed and have effect subject to Eu law.

Question 12

Describe the importance of the case of Costa V E.N.E.L 1964. (3)

Answer 12

It established primacy of EU law. It stipulates that EU law cannot be overridden by national law of the Member states, in the event that the two are in conflict EU law must prevail.

Question 13

What is the purpose of implied repeal in terms of EU law? (3)

Answer 13

It operated to ensure any pre-1972 statutes that were incompatible with EU law, would be overridden by the ECA itself, thereby satisfying both the demands of Eu law and those of parliamentary sovereignty.

Question 14

What tension arose due to section 2(4) of ECA? (2)

Answer 14

It appeared to run counter to the principle in Vauxhall and Ellen Street Estates that parliament cannot bind itself so as to prevent a later statute from impliedly repealing an earlier statute.

Question 15

What presumption did UK court begin to apply? (2)

Answer 15

Whenever it passed legislation, parliament was intending to comply with EU law and any inconsistency could be put down to oversight by the draftsman.

Question 16

What was the decisions in Macarthys Ltd V Smith 1979? (2)

Answer 16

The Court of Appeal accepted that EU law would take precedence over the relevant statute, if it proved to be inconsistent with that statute.

Question 17

Describe the case of Factortame. (5)

Answer 17

It made it clear that EU law could override or ‘disapply’ conflicting UK statutes enacted after 1972.
It involved a dispute between secretary of state for transport and a number of companies headed by Factortame Ltd over the application of restrictive provisions in the Merchant Shipping Act 1988.
This legislation was introduced to cut back on ‘quota shipping’, which was seen as damaging the UK’s national fishing industry as it allowed foreign-based ships to take advantage of UK fish quotas if the company was registered in the UK.
The UK courts found themselves unable to construe the meaning of statute (MSA) purposively to make it conform to Eu law and referred to the matter of ECJ for a ruling.
Having sought advice from ECJ, the house of lords in Factortame dis-applied the MSA to the extent that it conflicted with the higher force of EU law.

Question 18

What did Lord Bridge state in accordance to ECA 1972? (1)

Answer 18

That parliament had ‘voluntarily signed up to a limitation on its own sovereignty.’

Question 19

Describe the case of Thoburn V Sunderland City Council 2002? (7)

Answer 19

A number of market traders were convicted for using imperial measures contrary to legislation enacted to implement a European directive.
They alleged in their appeal that the ECA 1972 was incompatible with the later Weights and Measures Act 1985, which allowed for use of metric and imperial measurements.
Their point was that the 195 act impliedly repealed the relevant aspect of the ECA 1972.
Law LJ’s found no incompatibility but did make influential points in the modern debate over sovereignty in obiter.
It was said that the Diceyan doctrine of implied repeal no longer seemed to operate in relation to case of factortame.
It was concluded that EU Law was able to prevail over incompatible domestic statutes because an exception has been created to the doctrine of implied repeal.
It was seen to be a reflection of the existence of a hierarchy of statutes.

Question 20

What did the fact that the courts enforced principles of Eu law over domestic statutes illustrate? (1)

Answer 20

That it is possible for one parliament to have bound future parliaments.

Question 21

What does the UK’s departure from the Eu and the repeal of the ECA 1972 show? (2)

Answer 21

Even though UK parliaments after 1972 were bound by their predecessor, ultimately it was still possible for parliament to remove the limitations that has been applied.