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Sovereignty and EU Harmonization

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Sovereignty and

EU Harmonization

After rigorous resistance by France, the United Kingdom was finally able to join the EU in 1972. Due to its dualist character, its membership had to be incorporated by parliament, which it finally did through ECA. It prioritized membership benefits over surrender of its sovereignty in limited areas and made arrangements in the statute to reflect this. Under s.2(1) of the Act, its dual character was compromised because it accepted direct applicability of the EU treaties and regulations. Under s.2(2), it has authorized ministers to enforce the rulings of European Court of Justice (ECJ) through delegated legislation. Under s.3, it has mandated domestic courts to make a reference to ECJ for clarity about the meanings and validity of EU law rather than guessing it themselves. Its most categorical acceptance of supremacy of the EU law is in s.2(4) whereby it has accepted its precedence over domestic law. Still, the phrasing of this section evokes many questions. For example, did it affect predated domestic law or post-dated one or both?

UK’s domestic courts have dealt with s.2(4) through two interpretive methods: construction approach and disapplication approach. The former is the judicial supposition that the national law was not intended to ignore EU law unless parliament expressly bypassed it. This means that the Court was under a duty to prefer such interpretation of national law which protected EU law. This logic was applied in McCarthy v Smith, Pickstone v Freemans and Lister v Forth. The latter approach, on the other hand, requires the Court to set aside incompatible national law. Its application was exceptionally seen in Factortame where the Merchant Shipping Act, 1988, was temporarily suspended on the direction of ECJ. Despite this, the harmonization process has not been as strict as advised by ECJ in its rulings.

In Costa v ENEL, member states were forbidden by ECJ from making EU-defiant laws and if they made such laws, they would apply the EU law. Yet the United Kingdom dared to pass the Merchant Shipping Act, 1998. The main issue here is the audacity of the parliament to make conflicting laws, despite EU restraints. There is a clear reluctance on the part of British parliament to accept that an external body can restrain its legislative activity. Furthermore, in Simmenthal, it was said to be the duty of member states to set aside conflicting national law and there was no need to wait for it to be amended. This was true for national law predating or postdating EU law. The acceptance of this by the British courts has rather been superfluous and protective of national law. For example, in Thorburn v Sunderland, the Weight and Measures Act, 1985, post-dated the ECA 1972 and it was clear that the latter had to be applied. But the Court went on to see how the doctrine of implied repeal could be adjusted with the supremacy of EU law. Obviously, on the application of implied repeal, the 1985 Act was the effective law but to achieve compatibility with EU law, the Court reasoned that ECA was a constitutional statute which could only be expressly repealed. Hence the EU obligation coming from 1972 Act to sell groceries in kilos applied. Nonetheless, in HS2, when a conflict arose between EU Directive and Bill of Rights, 1688, the Court refused to set the latter aside. The reasoning given was that parliamentary sovereignty was a cornerstone constitutional principle and it could not be impliedly repealed. This is a stark violation of the principle set out in Internationale Handlesgesellschaft where EU law was said to be superior to national constitutional principles.

This discussion shows that the EU, from the very start, was always a new and sui generis legal order in Europe whose law was envisaged to have superiority over domestic laws of member states. Although the UK had agreed to respect and follow the Luxembourg jurisprudence, it went through a hard time to maintain it because of threat to its parliamentary sovereignty.

The challenge persists even after Brexit. This saga is long but, to cut the story short, the Conservative government led by David Cameron had pledged people a referendum on the continuing membership of EU. This was finally carried out in 2016 and had resulted in 52% population favouring a withdrawal from EU. After Mr Cameron’s resignation, the tough Brexit negotiations were carried over by his successors Ms Teresa May and Mr Boris Johnson. Finally, it was carried out on 31st January 2020, with the transitional period for trade agreement ending on 31st December 2020.

The new relationship is now governed by the European Union Withdrawal Act, 2018. Under its sections 2, 3 and 4, directives, regulations and treaties have acquired the status of retained EU law. Its s.5 explains the new sovereignty; the British parliament has the power to expressly repeal the retained EU law. Until such time, the retained law will prevail over British law predating 31st January 2020, and to that extent its courts will be bound by the logic of Costa, Simmenthal and Handelsgesellschaft. Importantly, there is no obligation to refer to ECJ under s. 6 of the Act. Thus the domestic courts are most likely to resort to construction approach in cases of conflict. As regards implied repeal, the Thoburn logic will continue to apply to Withdrawal Act. As a result, the retained EU law will have to be expressly repealed. Any coincidental conflict will shift the priority pendulum in favour of the retained EU law. So, the new sovereignty is that parliament can expressly repeal EU law but the courts will not impliedly repeal it because of the constitutional status of the Withdrawal Act 2018. In sum, the hurdle to its power is the constitutional principle established by the judiciary in Thoburn.
Concluding, it is arguable that the membership of EU has had serious effects on the supremacy. The UK has been struggling to reconcile it with parliamentary sovereignty and has been cautious to retain the former; however, possible. The Brexit has restored claim to sovereignty through express repeal but has set in motion the supremacy of retained EU law till the time such an advance is made.

The author teaches jurisprudence and legal theory at Pakistan College of Law, Lahore. She can be

contacted at: mawraraja@protonmail.com

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