How European Community Law Affects English System Essay

Introduction

The English System has been greatly affected by the European Community. This could be because of a number of issues like the binding nature of treaties, issue if parliamentary sovereignty. Most of these laws have been applied in a number of cases within the English system. These details will be further examined below.

Regulations and directives in English Law

English law applies within Wales and England. Other parts of the United Kingdom have their own laws to govern them. Usually, the highest level of civil and criminal cases within Wales and England are handled by the House of Lords Appellate Committee. But the Supreme Court itself is governed by the Supreme Court of England. It is made up of the High Court of Justice that mainly deals with civil cases, Crown Court that deals with criminal cases and a Court of Appeal. There are some tribunals that mainly deal with issues related to labour such as the Employment Appeal Tribunal and Employment Tribunal.. ¹

In the English court system, statutes are the highest form of law. Judges are not allowed to disregard this form of law. Also, laws are passed using very strict rules; the English system is rather rigid.

European Community Law

Primary legislation within the European Community is obtained from treaties. Once a country is a signatory to a given treaty, then it is obliged to apply all the regulations that are surrounding the given treaty. They strictly apply to a member country and they take precedence in that country’s courts.

Secondary legislations within the European Community are passed through directives, decisions and legislations. Directives can be likened to parliamentary legislations.

European Community law ascertains that all the laws passed by the EC community are binding and that they take precedence over all others within the law. This was as a result of the 1972 Law passed. Judges are also expected to consider an external source of law enforcement through the EC. It is a sort of regulatory body decisions made by courts. This role played is what is known as Marleasing

How EC Law became English Law

The United Kingdom joined the European Community in the year 1973. In the previous year 1972, the European Community had passed an Act called European Communities Act. This Act required that all the treaties and remedies created by the European Community are binding within all member States of the Union including England and Wales. The implication of those was that there was the incorporation of certain types of laws within the English system i.e.

• decisions.
• directives.
• regulations.
• treaties.

Therefore EC Law became part of the English system through treaties. The most important treaty was the one signed in the year 1957 called the treaty of Rome. This treaty caused the formation of the European Economic Community. Under Article 249 of that treaty, rules were laid down on what procedures must be followed when creating other types of laws (decisions, directives, regulations, treaties) ²

Treaties have an immense contribution to the way laws in the English system are applied. They set out obligations and rights that must be respected by members. The treaties set pout principles that govern cases such as; equal work should earn members equal pay regardless of their genders. Workers are also to be allowed to work in different segments of the Community.

The European Community uses regulations as the main form of entrance into the English system. These regulations can be likened to Acts of parliament in England or Wales. Regulations are based on treaty article and given an indication of how the latter can be implemented. For example one regulation regarding the movement of workers based upon the Treaty of Rome. The regulations require that any foreigner who may be living in England or vice versa is entitled to all the rights and freedoms accorded to citizens especially with regard to social factors and tax payments.

Vertical and horizontal effects

Treaty provisos are usually applicable within member States. When the directive is applied between states and individuals, then this is called vertical effect. On the other hand, horizontal effect refers to the application of European Community Law when it comes to issues affecting individual to individual. ³

The issue of horizontal effects was put in practice in the case of Marshall vs. Southampton and South west Hampshire Area Health Authority (1986). In this case, Mrs. Hampton felt that she was not getting equal pay according to her male counterparts on the Health Authority. The European Community Law that was applying in this case the equal pay law. But this directive only applies to relationships and cases between the State and individual. But the Court held that the Health Authority could be regarded as an arm of government implying that the issue of vertical direct effect could be applied to the case and therefore Mrs. Hampton gained favour on the basis of the EC Law. After this case, the UK was forced to change its law so as to comply with European Community regulations with regard to equal treatment of workers irrespective of their sex.

Parliamentary Sovereignty

European Community Law has also affected the issue of parliamentary supremacy. Parliamentary supremacy may be defined as the treatment of parliament as the supreme law making body within a given country. In this concept, there is a need to abide by all laws duly passed in parliament. These laws cannot be challenged or questioned in the courts of law.

But with the introduction of the European Community Law, the issue of parliamentary sovereignty has been disregarded. The EC law takes precedence over laws passed within a certain country. If a national law is in contradiction with regulations passed by the European Community then that national law will be neglected and precedence given to laws passed by the Community. In this sense, the Supremacy of parliament does not hold in the English System, as it did before the introduction of the European Community. ⁴

In the case of Parliamentary R vs. Secretary of State for Transport, Exparte Factortame (1990), this issue of parliamentary supremacy was put to the test. The Act of parliament that applied in this scenario was the Merchant Shipping Act of 1988. This Act governed the issue of purchase of quotas among between Spanish and British Fishermen. The Act was passed because it was realises that there were some Spanish fishermen who found a way to acquire quotas by the purchase of British boats. Parliament decided that all the boats passed by the Spanish will only belong to them by a percentage of 15%, the remaining seventy five percent was to belong to the British.

But the Spanish Fishermen realised that they could not own boats. They took this case to Court applying the English system. The Court requested for a ruling on the issue from the European Community Court of Justice. The Community passed that the Merchant Shipping Act was in contravention with EC Laws. In response to this, the House of Lords followed the instructions passed by the European Community and disregarded the Merchant Shipping Act of 1988. ⁵

Conclusion

Because the English system falls under the European Community, there have been a number of changes that it has had to incorporate into its system. However, it should be noted that there are still some instances when the law of the land applies in the English system. In this sense, parliament is seen as a supreme body of law. If the UK decides to abandon the European Community, then parliament can resume supremacy in this case.

In the case of Bulmer v Bollinger, Lord Scar man was trying to explain how the UK system and the EC legal system relate. He called the EC, a tide representing entry into the English system. At first, this may not be well understood bit after the people of the UK have adjusted to its ways, then they will be able to work with it and abide by it without any obstacles, just as an estuary enters a river.

Reference

Questions and answers (2007): European Law. Web.

Kirsten, M. and Sally W. (2005): Facts and misconceptions about age, health status and employability in the UK. Report No. HSL/2005/20. Buxton, United Kingdom: Health and Safety Publications.

Norman, (2006): The Law of Employment. The Employment Equality (Age) Regulations. Barrister at Law, Fourteenth edition, Oxford University, Oxford press.

Norman, (2006): The Law of Employment. The Employment Equality (Age) Regulations. Barrister at Law, Fourteenth edition, Oxford University, Oxford press.

Footnotes

1. Questions and answers (2007): European Law. Web.
2. Kirsten, M. and Sally W. (2005): Facts and misconceptions about age, health status and employability in the UK. Report No. HSL. Buxton, United Kingdom: Health and Safety Publications.
3. Norman, (2006): The Law of Employment. The Employment Equality (Age) Regulations. Barrister at Law, Fourteenth edition, Oxford University, Oxford press.
4. Questions and answers (2007): European Law. Web.
5. Norman, (2006): The Law of Employment. The Employment Equality (Age) Regulations. Barrister at Law, Fourteenth edition, Oxford University, Oxford press.