Impact of EU Law on the English Constitution, Human Rights and Sovereignty

Introduction

This essay will analyse the impact of EU law on the English constitution. Which mention: how the EU law applies to UK; Judicial review referring to Human Rights; The UK constitution and the sovereignty;

“Membership of the European Union and the Council of Europe has undermined the UK Constitution to such an extent that the UK Parliament is no longer sovereign. It will be good to return to the traditional means of overseeing the work of government.”

UK Constitution

A constitution is the rules and
practices exercised by the functions of the organs of the state and UK is
unwritten constitution which it consists of act of parliaments diversified
documents.

The law come from the parliament
who make statutes plus the Delegated Legislature and their departments of
ministers. Written law are in addition to the common law and equity (ex: case-
Earl of oxford’s 1615) and the European community law.

The parliament main job is to
legislate.  After careful consideration
via debates, laws are enacted which are considered for the betterment of the
country. And they have a process which consist in pass the law both in the
House of Commons and the House of Lords (they both must agree), and the monarch
(the queen) signs and becomes an act of parliament.

The public law concerns with the
functions of the body part of central and local government. The rule of law is
very important concept for the constitution according to which the government
has no arbitrary authority over the citizen, signifying that the law is supreme.[1]

EU law

By the European
Communities Act 1972, the EU law applies to UK now (in 1972) and in the future Before 1972 the UK was sovereign, but the UK
Parliament decided to give away some of that power (like the other countries
did and they called European Community). That means that on some issues, the EU
institutions in Brussels and not MPs in Westminster, will have the
authoritative statement, so EU legislations are automatically binding UK law.
[2]

EU
legislation is passed through the co-decision process, in which the Commission
drafts a proposal, then both Parliament and Council discuss, amend and vote on
the proposal through the processes of two readings. The end of the procedures, both Council and Parliament must reach an
agreement on the final proposal, which then come law on publication in the EU’s
‘Official Journal[3]‘

The EU’s standard decision-making is proceeded by the
directly elected European Parliament and must approve EU legislation together
with the Council (the governments of the 28 EU countries).

The European Commission also consults interested
parties such as non-governmental organizations, local authorities and civil
society. Experts give guidance on technical issues. In this way, the Commission
guarantees that legislative proposals correspond to the needs of the citizens. [4]

European Community example: Case-Laws LJ in Thoburn v Sunderland City Council [2002] EWHC 195, paras 62-64[5]

Impact of Parliamentary Sovereignty

Parliament Sovereignty make
legislative competence (ability or suitability) of parliament is unlimited
(absolute). Theoretically only parliament can make or unmake any law[6];
No one can question the act of parliament and the current parliament is free to
overrule any previous parliament act. But in practice parliament does not
assume unlimited authority, the legislative must be recognized by international
law to be within its competence.[7]

For example: R v Secretary of State for Transport, ex parte Factortame (No 2) [1991] 1 AC 603 “The applicants were companies with Spanish interests who had previously enjoyed fishing rights entitling them to fish against UK quotas under the Common Fisheries Policy. Under the 1988 Act, which made registration of such rights compulsory, F and O were no longer eligible because of their Spanish connections (s.14(1)). F and O applied for judicial review to challenge the validity of certain provisions of the 1988 Act because they contravened European law. The House of Lords held that the Queen’s Bench Division had exceeded its powers in granting interim relief against S, as there was no jurisdiction in existence to enable the making of such an order against the Crown. The House of Lords then referred a question to the European Court of Justice about the relative status of English and European law. The European Court ruled that in cases concerning community law, where the only barrier preventing a national court from granting interim relief was the existence of a national rule, then the national court must set aside that rule[8].”

Impact of Judicial Review

Parliament confers power to the public bodies (anybody or
corporate that performs is duties and exercises its powers for the public
benefit, as opposed to private gain for example: the local authorities, commissioners…)
and the courts supervises to make sure that they are in accordance with the
doctrine of ultra vires.

Like in the case of Council of Civil Service Unions v
Minister for the Civil Service 1985 AC 374 HL also known as the GCHQ, where the
administrative decision of banning trade union was questioned before the Court
and the administrative body had to explain their rational behind the decision.
The traditional grounds to use judicial review are: illegality, irrationality
and procedural impropriety.[9]

Judicial review also can be used to challenge public
authorities that are incompatible with the European convention on human rights
for example: R (on the application of CG) v The Commissioner of the Police of
the Metropolis 2011 UKSC 21, 1 WLR 1230[10].

Lord Hoffmann said: “In the great case
of Golder v United Kingdom (1975) 1 EHRR 524 the Strasbourg court decided that
the right to an independent and impartial tribunal for the determination of
one’s civil rights did not mean only that if you could get yourself before a
court, it had to be independent and impartial. It meant that if you claimed on
arguable grounds to have a civil right, you had a right to have that question
determined by a court. A right to the independence and impartiality of the
judicial branch of government would not be worth much if the executive branch
could stop you from getting to the court in the first place. The executive
would in effect be deciding the case against you. That would contravene the
rule of law and the principle of the separation of powers.”

Case of violation of Human Rights: Montgomery v Lanarkshire Health Board [2015] UKSC 11 (James
Badenoch QC of 1COR appeared for the
successful Appellant)

This was the case in which the Supreme Court reacted to the “changing paradigm of the doctor-patient
relationship”. Montgomery was
not only one of the seminal cases in the law of clinical negligence in thirty
years, it also recognized the importance of patient autonomy and the “stimulus of human rights” in
informing what a doctor must tell his or her patient about the risks inherent
in a procedure.

Case: Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs Secretary
of State for Foreign and Commonwealth Affairs v Janah

The secretary of state appealed against a declaration that the State
Immunity Act 1978 s.4(2)(b) and s.16(1)(a) was incompatible with ECHR art.6. The
respondents were Moroccan nationals who had been employed as domestic workers
by the Sudanese and Libyan embassies in London. Both had been recruited
overseas and only one had acquired permanent resident status in the UK. Both
were dismissed from their employment and brought claims in the employment
tribunal. Some of their claims were based on UK law, some on EU law. In each
case, the employment tribunal dismissed all the claims on the basis that they were
barred by s.4(2)(b) and s.16(1)(a) of the Act. The EAT upheld the dismissal of
the domestic law claims but allowed the EU law claims to proceed. The Court of
Appeal affirmed the EAT’s judgment, disapplying s.4(2)(b) and s.16(1)(a) so far
as they applied to the EU law claims and declaring them to be incompatible with
the right to access a court guaranteed by ECHR art.6.

These cases both where mention about in
opposition of the human rights (like right to a fair trial) and the EU law, and
some they were incompatible with the EU/UK law. And this assignment is about
these keywords.

Conclusion

The statement above is talking about UK not
having the EU law to follow as a good example, and my justification is that UK should
not stop following the rules imposed by EU because they have 28 countries and
expertise to help them to do fair laws, to all citizens. Having a good
relationship with the other countries because they need each other for the
trade (importing and exporting); the economy; to politics. And to have all the
power (sovereignty power to the Westminster of UK) in just one parliament they
will do want they want, and the EU law exist to not having unfairness and
unlawfulness in the life we live in.

Bibliography

• D. Oliver, “Is the Ultra Vires Rule the Basis of Judicial Review? [I9871 P.L. 543;
• Paul Craig, “Ultra Vires and the Foundations of Judicial Review” [I9981 C.L.J. 63; Forsyth, “Of Fig Leaves and Fairy Tales: The ultra vires Doctrine, the Sovereignty of Parliament and Judicial Review” [I9961 C.L.J. 122;

[1] A dictionary of law (8th edn, 2015)
pg 441-552

[2] Adam Tomkins, John Millar Professor
of Public Law, University of Glasgow, « https://publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/633ii/633we02.htm»

[3]Joshua Rozenberg, legal comentador «
http://www.bbc.co.uk/news/uk-politics-eu-referendum-35630757»

[4]   “EU law” «
https://europa.eu/european-union/index_en» accessed 25/10/2017

[5] Westlaw, «https://login.westlaw.co.uk/maf/wluk/app/document?&srguid=i0ad69f8e0000015f5e2efc89a02c207b&docguid=ICF306110E42811DA8FC2A0F0355337E9&hitguid=ICF306110E42811DA8FC2A0F0355337E9&rank=1&spos=1&epos=1&td=226&crumb-action=append&context=15&resolvein=true»

[6] Dicey’s
rule of law

[7] A dictionary of law (8th edn, 2015)
pg 553-609

[8] R. v
Secretary of State for Transport Ex p. Factortame Ltd (No.2), westlaw. « https://login.westlaw.co.uk/maf/wluk/app/document?docguid=I694671A0E42811DA8FC2A0F0355337E9&context=87&crumb-action=append»

[9] Associated
Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, HL

[10] Maureen
O’Brien, Thomson Reuters, judicial review, westlaw «
https://login.westlaw.co.uk/maf/wluk/app/document?src=doc&linktype=ref&context=100&crumb-action=replace&docguid=I03C85A30C9E211E2817BBE8A82975263»