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Sources - Sovereignty, supremacy of EC law achieved by constructionist approach

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If a piece of domestic legislation conflicts with EC law, then EC law prevails

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).

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But by excluding the very section making this requirement it means that the 1972 act can be repealed without contravening itself.

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."

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.

Pickstone v Freemans plc [1989] 

And again the constructionist approach used, interpreting the Equal Pay Act and amending regulations in accordance with EC Law.

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."

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.

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.

 

Since Factortame UK courts will not apply an Act if it conflicts with Community law.

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