Adam Gearey. EU Law in British Law.

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UK courts cannot set aside legislation because that would undermine parliamentary sovereignty.

Parliament can make any law it so pleases.

ECHR was domesticated partly because parliament was overmighty.

Courts can issue a declaration of incompatibility if UK law is in breach of EU Law obligations- it is an invitation to a minister to consider the situation. The court is not ordering the minister to change the law merely suggesting ti

UK courts interpret UK law in the context of ECHR. UK courts develop British law in  a fashion consistent with ECHR.

HRA does not circumscribed parliamentary sovereignty but it allows courts to interpret British Law in keeping with ECHR. It does not permit courts to strike down UK Acts of Parliament

1972 European Communities Act – Parliament limited its own sovereignty by pooling sovereignty.

Dicey said no Parliament could bind a later Parliament.

EU Law trumps UK Law.

Factortame – Merchant Shipping Act suspended by House of Lords.

Lord Bridge on this case. His obiter dicta,

 

”   If the supremacy within the EEC of community law over the naitonal law of member states was not already inherent it was already well established in the jurisprudence of the court of justice long before the UK joined the community. Whatever limitation on its sovereignty that Parliament accepted when it passed the 1972 act was entirely voluntary.  Under the terms of the 1972 act it was always clear that it was the duty of the UK court when delivering final judgment override any national law that was incompatible with any directly enforceable rule of community law.    When decisions of the ECJ have exposed areas of UK statute law that have failed to implement community directives Parliament has always loyally acted to make appropriate and prompt amend.    Thus there is nothing novel in according supremacy to community law in those areas to which they apply. National courts must not be inhibited from granting the appropriate relief and injunctions. It is no more than a logical recognition of that supremacy. ”

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A UK court will disapply UK provisions if they collide with EU Law. That is because Parliament has instructed courts to do so.

Lord Denning in Bulmer and Bollinger – EU law is like an incoming tide.

 

 

 

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About Calers

Born Belfast 1971. I read history at Edinburgh. I did a Master's at UCL. I have semi-libertarian right wing opinions. I am married with a daughter and a son. I am allergic to cats. I am the falling hope of the not so stern and somewhat bending Tories. I am a legal beagle rather than and eagle. Big up the Commonwealth of Nations.

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