Tuesday, April 18, 2017

THE EU & UK

The EC - the culmination/evolution of the early communities of the 50's (ECSC, EURATOM and the EEC) - forms part of the EU but must be distinguished from the EU.



The UK's ascension to the EC in 1973 and the incorporation of EC law into domestic UK law certainly pose an interesting challenge to the traditional doctrine of parliamentary or legislative sovereignty/supremacy given the reality of the dominance of EC law over domestic law in the relevant areas (including, the creation of the common market, the free movement of capital, persons, good and services, and now immigration and asylum too) where member states by signing the treaty have surrendered a limited part of their sovereignty and created a new body of law - a unique legal order - binding themselves and their individual citizens. (Van Gend en Loos; Costa v Enel).



But this has little to do with the EU and its treaties, which are part of the body of international law; thus giving member states a wide discretion whether or not to co-operate, voluntarily, in areas of EU competency, namely, common security & foreign policies and cooperation in policing & criminal justice affairs. So it is clear that law of the EU proper- which is the umbrella body that includes the EC - has no dominance over the UK (law).



A cursory look at the EC's jurisprudence - from Van Gend en Loos and Costa through ERTA (1971), Internationale Handelsgesselschaft, Simmenthal, Haim (2000), Francovich...to Factotame (2) - clearly reveals the supremacy of EC law over UK law. The ECJ with its teleological style of interpretation has astonishingly stamped its (i.e. EC law) supremacy on member states to the point that the ECJ will fine member states for failure to implement EC measures (Francovich); even fine their parliaments! (Haim); member states cannot enter into international agreements in areas of EC jurisdiction (ERTA); even the lowest court of any member state can set aside domestic law that conflicts with EC law - even domestic constitutional law (Internationale Handelsgesselschaft, Simmenthal), including in the event of doubt pending an ECJ ruling to clarify that doubt!!! (Factortame). This is awesome-supremacy of EC law over domestic law of member states.



One can't but admire the ability and craftiness of the UK judges to 'defend' the conventional - common law - doctrine/rule of parliamentary supremacy in the face of all this sound evidence and reality. They're good; probably the best judges in the world. Their stance is that the European Community Act 1972 that brought EC law into domestic UK law is an ordinary (as contrasted with fundamental or constitutional) act of parliament and can, theoretically at least, be repealed at any time by one stroke of the UK parliament's pen, subject only to political, moral and other practical inhibitions of course. Isn't that an extremely unrealistic stance? [Can sovereignty really be dissected into legal and political in the way Equity has dissected property into legal, equitable - and even equitable and beneficial - ownerships to create (the world/law of) trusts? There's a well established and respected school of thought - of course - that sovereignty minus part or limited sovereignty equals no sovereignty. In other words, it’s a contradiction of terms to speak of part sovereignty. This goes to say that if parliament (or the judges) carve out for themselves legal sovereignty from the Peoples' Sovereignty to use for the sole pleasure of parliament; it’s a contradiction of terms to continue to speak about legal or political sovereignty. This contradiction is further exposed when one consider that under this doctrine of parliamentary/legal sovereignty parliament can't pass any law, the effect of which will, bind itself, limit its sovereignty, or elevate the status of the court from subordinate to a true constitutional court with powers to rule on the validity of statutes. That's surely a legal ristriction as far as it relates to legislation on any subject matter.] Additionally, according to the judges, by s.3 of ECA 1972 the UK parliament empowered UK judges to sit - not as a UK court but - as a court exercising EC jurisdiction when dealing with 'matters of law' involving EC law conflict.



UK courts have always had many jurisdictions - Criminal, Admiralty, Family, Coroners, etc - but that does not make them non-UK courts or make their judges foreign. A UK court with an EC jurisdiction is still a UK court and its judge is a person/body. Furthermore Dicey 3rd condition of sovereignty stated that no court or body [whatsoever or where so ever on the face of this earth] can question the validity of an act of the UK parliament. Presently the UK court - and judges - with an EC jurisdiction can do just that and of course the ECJ too. I've already stated above that a 'sovereign' parliament is not free to pass any law the effect of which will elevate the status of the Court to constitutional.



The doctrine of sovereignty defiantly lives on solely because the UK judges, who created it, continue to pay great respect to it and defend it from air, land, sea and space. This brings to my mind the respect paid to the immunity of husbands from persecution for non-consensual sexual intercourse with their wives until R v R! This, Shawnda, summarizes and exposes the real power, linguistic skill and craftiness of the UK judges (as they continue to develop the common law 'over' statutes) to conveniently defend any common law doctrine until the time and politics is right to ditch it.