Direct Effect EU Law and Brexit: Analytical Essay

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On the 17th of October 1972, the United Kingdom became part of the EU member states after the European Communities Act 1972 had received royal assent. This then resulted in the UK becoming part of the European Economic Communities which was created in 1958 by the Treaty of Rome. Some key provisions of this act are as follows ‘s2 (1) incorporates EU law into domestic law, s2 (2) Implementation of treaties by Ministers/Order in Council, s2 (4) instructs domestic courts to interpret all statutes passed before and after the ECA 1972 consistently with EU law, S3 tells courts to apply EU law and when considering EU law must act in accordance to the principles of CJEU and finally S3 provides for the reference by domestic courts to the CJEU on points of law’.

The EU has major impacts in the UK as it provides the primary law, they produce secondary legislation which is then implemented into the UK’s rulebook. There are also many areas that are affected by EU Law from trade, movement, agriculture, equality & discrimination, external trade and development, environmental, consumer and health protection and technological and scientific advance. This shows that nearly everything that happens in the United Kingdom has an impact from the EU. Our human rights are also protected in the EU treaties.

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It also has a constitutional impact in the United Kingdom as it provides that ‘the legal obligations and rights are not just created for the states but also for the people’. Direct effect was established in ‘Van Gend [1963]’ it provided that people can refer to EU law before they got to their national courts.

Constitutional impacts could be separated in to three different stages. Firstly, by triggering Brexit then the second stage is delivering Brexit (UK’s current stage) and the final stage is what happens post-Brexit. After the third stage there may be many complications which would vary from the capability of the Government to legislate as everything would be delegated to the executive instead of EU law intervening.

A further issue is the institutional deficits that may arise following Brexit. Currently, during the transition period there are complications on which rights to keep from the EU law and which will not be taken on. In order for such complications to be resolved there will have to be sufficient institutions to enforce laws as they will have to secure the correct protection of rights.

The Court of Justice of European Union has declared in the case of Costa v ENEL [1964] that ‘laws provided by the treaty cannot be overridden by domestic legal provisions but can be framed’. Therefore, if a clash exists between the EU law and national law, the EU law will overcome it, in some cases the national judge will have to eliminate national law.

As well as the EU having impacts on the UK’s constitution, it also has an effect on Parliamentary Sovereignty. This was further explained in the case of Stoke on Trent City Council v B&Q [1991] it was said that ‘The treaty of Rome is the supreme law of this country, taking precedence over Acts of Parliament’ this shows that the treaty is more important than the act of parliament which therefore means that the UK is not completely sovereign and have to abide by EU law. This was accepted by Parliament to surrender part of its sovereignty when the European Communities Act 1972 was enacted.

Post-Brexit many difficulties will arise within the Parliament of the United Kingdom. Whether the UK Parliament has enough time to provide any agreements or solutions to leave the EU with a deal. The first job that the Parliament must do is create a framework for future relations with the EU when implementing the Withdrawal Agreement, secondly, it will have to legislate for the process of the separation of the UK and EU and finally will need to legislate on a no-deal Brexit which is highly likely if the above are not accomplished. This must all be done within the time frame given and preparing for substantial changes by making sure they are maintaining constitutional standards.

In conclusion, the United Kingdom withdrawing from the EU will have consequences as after so many years of the input of EU law and EU Courts, the United Kingdom would have to delegate all of those powers into its own constitutions, parliaments and courts within the time-frame given and must reassure that people’s rights are retained and protected correctly.

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