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If a piece of domestic
legislation conflicts with EC law, then EC law prevails |
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Can the UK withdraw from the EU? |
Yes. Not only can Parliament legislate
on any matter how it thinks fit, no Parliament can bind its successor.
In other words while the 1972 act clearly implements all EU jurisprudence
a future Parliament can repeal the 1972 act.
Furthermore, the 1972 act itself is not bound by the its own provisions
because of s 2(4). |
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European Communities Act 1972 s.2 (4) |
"any
enactment passed or to be passed shall be construed and have effect
subject to the foregoing provisions of this section."
This obscurely worded section of the European Communities Act appears to
require the UK to ensure that all law including legislation that has been
passed or will be passed is to be interpreted as being in accordance with
Community law.
But by excluding the very section making this requirement it means that
the 1972 act can be repealed without contravening itself. |
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Felixstowe Dock Railway Co v British Transport Docks Board [1976] |
Lord
Denning MR:
"It
seems to me that once the Bill is passed by Parliament and becomes a
statute that will dispose of all discussion about the Treaty. These
courts will have to abide by the Statute without regard to the Treaty."
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But in
Macarthys v Smith [1979] Lord Denning, using
constructionist approach, stated: |
"In
construing our statute, we are entitled to look to the Treaty as an aid
to its construction, and even more, not
only as an aid but as an overriding force. If…our legislation is
deficient - or inconsistent with Community law…then it is our bounden
duty to give priority to Community law."
This
dispensed with the notion of implied repeal.
Nevertheless,
Parliament could use express words to indicate its intention of acting
inconsistently with Treaty. |
|
Garland v British Rail Engineering Ltd [1983] |
Again the constructionist
approach used; Sex Discrimination Act interpreted to be consistent with
EEC Treaty. |
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Pickstone v Freemans plc [1989] |
And again the constructionist
approach used, interpreting the Equal Pay Act and amending regulations in
accordance with EC Law. |
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R v Secretary of State for Transport, ex parte Factortame [1990] |
Involved
a challenge to
Merchant Shipping Act 1988 and Regulations thereunder.
Divisional Court referred to ECJ question of compatibility of Member State
Act with EC law and grant an injunction.
The
injunction was appealed to CofA who reverse it saying that a statute could
not be disapplied
On
appeal to HL who refer the question to ECJ
Held: By the
ECJ Member State Act should
be suspended (disapplied) until compatibility issue determined:
"The full effectiveness of Community law would be impaired if a rule of
national law could prevent a court seized of a dispute governed by
Community law from granting interim relief in order to ensure the full
effectiveness of the judicial decision to be given on the existence of
rights claimed under Community law."
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R v SS for Transport, ex p Factortame (No 2) [1991] |
In response HL granted the
injunction and disapplied the 1988 Act. Lord Bridge expressed acceptance
of the supremacy of Community law. |
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R v SS for Transport, ex p
Factortame (No 3) [1991] |
ECJ
ruled on Divisional Court's original reference and held that Art 52 had
been infringed by nationality and residence requirements of a Member State
which should be disapplied.
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Since
Factortame UK courts will not apply an Act if it conflicts with Community
law. |
