Ending The Supremacy Of EU Law In The

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In leaving the European Union, the clock will not turn back to the pre-1972 constitutional settlement in the United Kingdom. This is because the UK has undergone many constitutional changes since entering into the European Union on 1st January 1973, after the European Communities Act 1972 came into effect. Reforms such as the devolution of power to Scotland, Northern Ireland and Wales, the introduction of the Human Rights Act 1998 and the supremacy of EU law, have all altered the manner in which the law has been implemented in the UK during their membership of the EU, and will impact the UK after withdrawal. This means that the conditions of the pre-1972 settlement will not be restored by Brexit due to the new constitutional framework that has been established in the UK, which I will discuss in this essay.

The UK has a very unique unwritten constitution, composed of Acts of Parliament, court cases and conventions that are controlled by the principle of parliamentary sovereignty. When the European Communities Act 1972 was enacted, under section 2, the UK was subject to European Community Law, and therefore, individuals arguing in courts within the ‘English legal system’ could construct their case on rights found in the international treaties that created the European Community. Consequently, the UK’s sovereignty could have been compromised during membership of the EU, due to the concept of judicial review, which allowed the Court of Justice of the European Union to scrutinize the legality of decisions made within EU member states3 and remove any legislation which does not correspond with EU primary legislation. European Law, therefore, is superior over the common law of member states, which often is set aside owing to the principle of direct effect in EU law. This principle permits that EU law provides individuals rights where the courts of member states are obliged to identify and enforce, guaranteeing the application and efficiency of EU law within all member states. If there was a disagreement amongst an act of UK Parliament and EU law, the UK Parliament would lose and EU law would succeed, which can be demonstrated by Factortame Ltd [1991] . In this judicial review case taken against the UK government, it was held that the courts had the power to limit or disapply an Act of Parliament if it was discovered to be contrary to EU law. In this case, the UK’s Merchant Shipping Act 1988 was classed as invalid as it deviated from supreme EU law, revealing the vulnerability of UK Acts of Parliament to scrutiny by an external organization. This was the first time that judges overturned a statute, highlighting the significance of this case as one which opposed the idea of parliamentary sovereignty in the UK. This case caused a substantial debate about whether the judgement observes the theory of legislative supremacy, as stated by the constitutional theorist AV Dicey. His thesis stated that “no man is above the law” and argued that Parliament was “an absolute sovereign legislature with the right to make or unmake any law ”, contrasting with the stance of the UK during EU membership as being bound to the supreme EU law. In summary, European Law simply does not acknowledge the concept of parliamentary sovereignty. This impacted the UK constitution during their membership of the EU, as it transformed the principles that the constitution was based on. Therefore, theoretically, leaving the EU may allow the UK to regain their parliamentary sovereignty. However, this may not be fully achievable after Brexit, as initially desired or expected, because of withdrawal agreements which have legislated that some EU law will be retained in UK law. The European Union (Withdrawal) Act 2018 became law on the 26th June 2018, containing over 10 pages of provisions on the nature and legal status of ‘retained EU law’ in UK law. These provisions establish a new constitutional framework where UK law would be created, repealing the European Communities Act 1972. It also includes the formal incorporation and adaptation of 20,000 pieces of EU legislation into the UK statute book through converting EU law into UK law, the preservation of all UK laws which implement EU obligations and ending the supremacy of EU law in the UK. The objective of incorporating EU law after withdrawal from the European Union means that the pre-1972 constitution will not be re-established, as EU law will still be utilised in the UK, just incorporated into UK statute. Similarly, the European Union (Withdrawal Agreement) Act 2020 states that most provisions of the European Communities Act 1972 will remain in full legal effect during the ‘transition period’, currently stated to last until 31st December 2020, which could still be extended. This shows how Brexit will not be a straightforward change or transition into the independent UK. There is still far to go and depending on future negotiations, it is questionable whether much of the pre-1972 constitution settlement will ever be restored.

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The Human Rights Act 1998 was established during Blair’s ‘new Labour’ government, incorporating most of the essential provisions of the European Convention on Human Rights 1950 into domestic law. It obliges the courts to, where ‘so far as it is possible’, give effect to legislation that is compatible with the ECHR rights under section 3. Citizens were then permitted to take their human rights cases to courts, instead of the European Court of Human Rights, which signified a transition for protecting human rights in the UK. This Act exercised a magnetic force over the entire political and legal system in the UK, and it is of fundamental constitutional importance within the legal system today. However, this Act could be criticised as it could be seen as establishing a too close link between UK law and Strasbourg Jurisprudence, which would consequently obstruct the objective of independence after Brexit as the Human Rights Act 1998 will remain law incorporating the ECHR into UK legislation. Also, as the principle of parliamentary legislative supremacy prevents entrenchment of the act, the courts cannot overturn legislation passed after this act that contradicts convention rights, allowing the ECHR to have a stronghold over human rights in the UK post-Brexit. In their 2019 manifesto, the Conservative party proposed to “update the Human Rights Act 1998 to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government”, implying the Act may be updated in the near future. This clearly indicates that Brexit cannot revive the pre-1972 constitutional settlement, as the UK has now incorporated Human Rights into domestic legislation, and is planning to for the foreseeable future.

In 1998, three constitutional statutes were introduced to give more power to Scotland, Wales and Northern Ireland through devolution. These Acts were the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 1998, and they established three devolved legislatures, which were given powers previously held at Westminster. More recently, these have been updated by the Scotland Act 2016 (after the 2014 independence referendum) and Wales Act 2017. These acts were introduced to bring decision-makers closer to the people it affects most, consequently creating the Scottish Parliament, Welsh Assembly and Northern Ireland Assembly. This is a change from the pre-1972 constitution, as allocating more power to these nations has allowed the UK to become more democratic through local governments, and allowed significant events like the 2014 Scottish independence referendum to happen. The Good Friday Agreement 1998 (or Belfast Agreement) also plays a huge part in changes since 1972, as an agreement which created peace amongst and Irish governments as well as the Northern Ireland Assembly, where Irish unionists and nationalists could share power. The Northern Ireland Assembly Act 1998 provided a framework for establishing the institutional aspects of the Agreement into UK law, and the Irish Constitution was amended. Regarding Brexit and devolution, the Miller I [2017] case held that no devolved approval was legally required to trigger Article 50, which instead should be decided through interactions between the governments and UK legislatures. This was due to Westminster Parliamentary sovereignty being entrenched within all the Acts of Parliament containing the devolved administrations’ powers. The Miller I [2017] case was significant as it held that the UK Government could not start withdrawal from the EU by formal notification to the Council of the European Union without an Act of Parliament permitting them to do so, limiting the Crown’s foreign affairs prerogative. To summarise, it is clear that the clock will not be turned back to the pre-1972 constitution, as the devolution of powers has hugely impacted the way laws are implemented in the four UK nations, with the introduction of new parliaments and assemblies. In terms of the Brexit process, it is an unclear and politically contentious topic of how devolution will impact the future debate and decision-making. As exemplified in Miller I [2017], approval from the devolved nations was not required, suggesting devolution may not be too troublesome in future negotiations.

Undoubtedly, the UK’s constitution has considerably changed and evolved since the settlement of pre-1972, through introducing new constitutional frameworks to adhere to EU law and the ECHR, as well as the process of devolution. The Brexit withdrawal agreements have also set out how the process of Brexit will go ahead in the future, which will guide how UK law will be created and altered from EU law. These changes could make it considerably difficult for the pre-1972 conditions to be restored by Brexit, and instead, a new constitution will evolve to create a new, independent United Kingdom.


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