Impact of the European Union on UK Law Systems

2419 words (10 pages) Essay in English Legal System

05/06/19 English Legal System Reference this

Last modified: 05/06/19 Author: Law student

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‘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.’

Explain and analyse the statement above in the light of the current position under the UK Constitution.

Introduction:

This assignment is about the European Union impacting the UK law system making and to conclude whether it has weakened the UK judicial system or has enhanced it. It also explains the breakdown of the English Law system being subject to important external factors, in particular the law and institution of the European Union and Council of Europe [1] and how the administrations and omissions are controlled.

The English Judicial System:

English law has a developing history, some elements of the system which have been around for centuries have changed such as the monarchy. The lord’s gathering built up the regal courts, directed by proficient judges, which slowly consumed the lawful forces of the baronial and clerical courts. By 1250 the regal judges had combined the different traditions into precedent-based law, that is, law normal to the entire nation, also known as common law. Another framework known as equity created in the Court of Chancery, in which the Lord Chancellor considered petitions.

UK constitution is not seen as codified but found in the form of Case Laws, Acts of Parliament, Conventions and many more. The powers under this constitution are separated as legislative, executive and judiciary but the main principle is the sovereignty of Parliament according to Dicey, who claimed that Parliament is allowed to pass any act and make any law it wishes to. Our government works as an executive where the judiciary applies the laws legislated by the Parliament, this sovereignty of the Parliament to make primary legislation is reaffirmed by the Human Rights Act 1998.

One component of English law is the doctrine of judicial precedents, whereby the announced decisions of the courts originate laws for future judgements. A judge is bound by judgements of courts of prevalent purview yet not really by those of mediocre courts. Judicial precedents is very well valued as a power in the English legal system in order to provide judgements and make case laws because the within the structural hierarchy of courts a decision of a higher court will be binding on courts lower than it in the hierarchy. [2]

The ‘rule of law’ is one of the centre standards of the UK Constitution, it is an unwritten teaching which is regularly used to allude to the major esteems of the constitution. Despite the fact that it is hard to characterize, it is a key part in any constitution in any society. One example of this is the case of Entick v Carrington, which is an original case in English law. Although externally concerning trespass, the choice for this situation was additionally to have significant protected ramifications for precedent based law purviews over the globe. It set up the rule that privilege forces of the ruler and government are subordinate to the tradition that must be adhered to. It ensures that administration authorities acting in an official limit can’t practice open power unless such exercise of it is approved by some particular administer of law. Government authorities can’t enter private premises without lawful expert.[3]

Delegated legislation is the law made by some person or by some body under the authority of an Act of Parliament, it can be overruled as it doesn’t come from the Parliament. But all the laws made should be compatible to the European convention however, they cannot go against the European court of Human rights which is one of the supreme courts in the UK. This shows that the UK is no more sovereign in controlling the laws itself, although the Human Rights Act 1998 does provide fair trial for the people in the UK and if any of the human rights are breached the case can be taken to the European court of justice or the European court of Human rights and the UK law has to be considered while making a decision; R v A (NO2 2002 1AC 45) in his judgment for this situation, Lord Steyn stated: “Regardless of the possibility that, translated by the customary standards of understanding, the importance of the enactment concedes to no uncertainty, segment 3 may in any case require the enactment to be given an alternate significance. This House must read words into [the legislation] in order to make that segment consistent with a denounced’s entitlement to a reasonable trial under Article 6.”

European convention signed in 1950, is a main element of the Human rights, guards our liberty, fair trial and privacy therefore the judges have to give effect to other laws in a way that is compatible with this convention otherwise it would be unlawful, shown in the case of Colozza v Italy (An Appeal) where the right to fair trial was breached. A court or tribunal deciding an inquiry which has emerged regarding a Convention right should consider any judgment, choice, announcement or counselling sentiment of the European Court of Human Rights, together with some other decisions or assessments of the Commission on Human Rights or the Ministers in the Council of Europe.

The main source of the EU law is the treaties which can be defined as a formally concluded and ratified agreement between countries. On the off chance that draft recommendations are endorsed by the European Parliament, speaking to EU natives, and the Council of Ministers speaking to part states then the proposition progress toward becoming law. The two most basic sorts of EU laws are known as regulations and directives. Regulations have immediate and prompt impact inside EU part states once they have been brought into impact at EU level whereas Directives set out an EU objective, which singular nations must transpose into national enactment. EU summits are gone by presidents, executives and chancellors who lead nations with altogether different lawful frameworks, the EU can only guarantee that its individuals meet normal principles of equity and majority rules system. The EU’s forces to make and uphold laws have a direction on the UK’s sovereignty, Parliament can be said to have surrendered some of its sovereignty when it passed the European Communities Act 1972, empowering the UK to join what was then the European Economic Community as a result of the dualist system, toward the start of 1973, and requiring courts in the UK to apply EU law. [4]

Looking at the current situation of the UK, EU membership, whether full or incomplete, in case of a Brexit will likewise fundamentally require some exchange offs on sovereignty as there are 14-17% of the UK law has driven from this membership. The UK government wants to replace the Human Rights Act with the British Bill of Rights and responsibilities, this would weaken our rights leaving politicians to decide when our fundamental freedoms should apply. Significantly, ECHR exists independently from foundations of the European Union, yet it has an essential effect on EU law judgements, for example, a current decision that detainees indicted lesser offenses ought to have the privilege to vote a choice that clashed with the will of Westminster. However any choice to pull back from the Convention; a move the UK could influence now to, is probably going to have a critically negative effect on the UK remaining in Europe, the United Nations and the district’s ethical expert around the globe.

The European Arrest Warrant enables British subjects to be sent to another country and charged for wrongdoings in outside courts, regularly for minor offenses and Brexit would stop this. However, attackers, murders and different genuine crooks who convict offenses in Britain must be returned once escaping abroad on account of the European Arrest Warrant and leaving would stop justice. Also, numerous of Britain’s laws are made abroad by directs gone down from Brussels and decisions maintained by the European Court of Justice. UK courts must wind up plainly sovereign once more. Although, the leave crusade has over-misrepresented what number of laws are dictated by the European Commission, it is smarter to shape vast laws from within instead of leaving. The British Parliament is not sovereign anymore; with the EU dead set on closer union and further monetary joining likely after the euro emergency, it is best to quit before ties develop. But in a globalized world, each nation must work nearer with others if the need to prosper financially and the desire of an isolated England may undermine the UK. Leaving could advocate another connection among Britain and the EU, in light of facilitated commerce and agreeable participation the EU, we would end the supremacy of European law, and re-establish our sway and vote based system. [5]

Public law isn’t at base about rights, despite the fact that misuse of power may and regularly do attack private rights; it is about wrongs, that is to state abuses of public power whereas Administrative Law is the law identifying with the control of government. Every single open specialist (aside from Parliament itself) can have their exercises regulated by the courts, this incorporates the Crown, government Ministers, nearby experts (Councils) and other open bodies. The main role of Administrative Law is to keep the forces of the state inside its lawful cut-off points with a specific end goal to secure nationals against manhandle of energy. Administrative Court oversees functions of the government and other open bodies and also that of inferior courts and tribunals, this is for the most part practiced through the strategy known as ‘Judicial Review’

A Judicial Review is a technique whereby the courts can decide the legality of a decision or activity made by an authority. It is concerned about the lawfulness of the basic leadership process rather than the benefits of the genuine choice. Given that the correct systems have been taken after when achieving a judgement, the court won’t substitute what it supposes is the right choice which might be put aside in the event that it is observed to be unlawful or completely unreasonable. Feldman’s detailed typology for the way courts can control administrative decision-making is through Directing, the conventional capacity of convincing government to hold fast to expressed legitimate forces and obligations; Limiting, setting points of confinement to the activity of watchfulness. For instance, the common law rules against shackling circumspection. Seemingly can affect government structures and basic leadership forms and Structuring which is setting explicit values to guide executive decision-making.

It is the responsibility of the administrative courts to adopt the necessary measures for the execution of all its decisions, likewise their duty to advance the counteractive action, end and repair of infringement to qualities and merchandise that are naturally ensured as far as general wellbeing, condition, urbanism, town and nation arranging, personal satisfaction, social legacy and products of the State[6], when attempted by open substances and as long as they don’t constitute criminal offense or regulatory offense. As important as the reported is the locale of the regulatory courts to control the supervision of the lawfulness of standards and different demonstrations of law from lawful elements of open law under the arrangements of the managerial or assessment law and standards and different demonstrations of law drilled by private people, in particular concessionaries, in the activity of regulatory powers.

Conclusion:

In conclusion of the above, I can state that the European Union and the Council of the Europe are empowering the UK laws as the European laws and courts have become supreme.  UK cannot manage various contemporary problems alone as a state hence, they require the support of the European Union and being a member of it gives them the ownership which no longer leaves the UK Parliament as sovereign. The UK’s legislative, executive and judicial powers are now controlled and operated within the framework of European Union law which supersedes any existing UK law to the contrary. The common Fisheries Policy established by the EEC validates this conclusion as the European Court of Justice ruled that the Merchant Shipping Act 1988 was contrary to community law thus Spanish companies could sue the for compensation. This demonstrates that both the sovereign power of Parliament to legislate and courts in interpreting are now restrained by the EU law.

Bibliography:

  • Gary Slapper and David Kelly, The English Legal System (18th edn, no date)
  • Aihjaorg, ’10th Congress f the IASAJ’ (Aihjaorg, march 2010) <https://www.aihja.org/images/users/1/files/portugal.national.report_portugal.en.pdf> accessed 25 October 2017
  • Bbccouk, ‘Does the EU impact on UK sovereignty?’ (BBC News, 23 February 2016 ) <http://www.bbc.co.uk/news/uk-politics-eu-referendum-35630757> accessed 23 October 2017
  • Telegraphcouk, ‘What would Brexit mean for British sovereignty?’ (The Telegraph, 2017) <http://www.telegraph.co.uk/news/2016/05/19/how-does-the-eu-impinge-on-british-sovereignty-and-if-the-uk-vot/> accessed 24 October 2017
  • Lawteachernet, ‘Entick V Carrington’ (Lawteachernet, no date) <https://www.lawteacher.net/free-law-essays/public-law/entick-v-carrington.php> accessed 25 October 2017
  • Martin Partington, Introduction to the English Legal System ( 2013-2014)

[1] Martin Partington, Introduction to the English Legal System ( 2013-2014)

[2] Gary Slapper and David Kelly, The English Legal System (18th edn, no date)

[3] Lawteachernet, ‘Entick V Carrington’ (Lawteachernet, no date) <https://www.lawteacher.net/free-law-essays/public-law/entick-v-carrington.php> accessed 25 October 2017

[4] Bbccouk, ‘Does the EU impact on UK sovereignty?’ (BBC News, 23 February 2016 ) <http://www.bbc.co.uk/news/uk-politics-eu-referendum-35630757> accessed 23 October 2017

[5] Telegraphcouk, ‘What would Brexit mean for British sovereignty?’ (The Telegraph, 2017) <http://www.telegraph.co.uk/news/2016/05/19/how-does-the-eu-impinge-on-british-sovereignty-and-if-the-uk-vot/> accessed 24 October 2017

[6] Aihjaorg, ’10th Congress f the IASAJ’ (Aihjaorg, march 2010) <https://www.aihja.org/images/users/1/files/portugal.national.report_portugal.en.pdf> accessed 25 October 2017

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