“HOW HAS THE MEMBERSHIP OF THE EU AFFECTED THE ENGLISH LEGAL SYSTEM” – MD’s Law opinion

The European Union is a union of 27 member nations, located in Europe, which was formed to cater the political, economic, military factors affecting the member countries. The union was governed by a specific set of laws known as the European Community Law and it later became the European Union Law. The EU law can be simply described as a set of judgments and laws that act together along with the legal system of the member states of the Union. These laws are highly respected by the member nations. In case of political, economic or military conflicts, the EU laws are given more importance than the National laws. The United Kingdom has been a member of the European Union or the European Economic Community (EEC) since 1973 but with Brexit, implemented in early 2020, they are no longer a member of the Union. The following essay will be based on the EU laws and how these laws have affected the legal system of the United Kingdom. Before getting into the ways in which the EU has affected the legal system of England, first let’s take a look at the EU laws themselves.


These laws are generally divided into three categories- primary laws, secondary laws and supplementary laws. Primary laws are usually referred to the treaties that form the European Union. These include the treaties that govern the functioning of the Union. The Union negotiates and agrees the treaties with the governments of the member states. The Paris Treaty of 1951 and the Rome Treaty of 1957 are considered as the founding treaties of the EU. These treaties include the roles and responsibilities of the member nations, the organizations involved in the decision making process of the union and its legislation, different executive practices that constitute the EU laws and its implementation. The EU treaties are governed and amended by the primary laws. The European Court of Justice is responsible for ensuring that the EU laws are implemented in the same manner in every member nation.  The Secondary law considers including the acts as well as agreements. These agreements are signed by the members of the states that allow them to govern their policies to achieve predetermined objectives.

Two different categories are developed of this act that include the acts listed in the article 288 of the treaty of functioning of the EU and acts not listed in the article 288 of the treaty of functioning og EU. These acts play the role of recommendations, providing opinions, enabling in making decisions, and directives as mentioned in the article 288. Acts related to communication, recommendations, white and green papers are included in the second category of the unilateral acts. Conventions and agreements are grouped together. These consist of the internal agreements between the EU and the member states or with other nations outside of the organization.  The Supplementary laws refer to all the principles of the legislation developed by the court of justice. The supplementary laws help the European Union to bridge the gap between the primary laws and the secondary laws. These laws include all the international laws such as regulations related to customs and its implementation. The Case law outlines certain principles that allow the court of justice to implement its rules in different areas of which the treaties do not give legal provisions or directives.

Usually, the European Union Laws have the authority to provide legal decisions regarding freedom, social justice fundamental rights, criminal laws and competition laws within the member states. The freedom may include freedom of movement of products and goods or movement of persons, capital or services. The competitive law controls the economic activities of the member nations. This prevents any member country from disrupting the economic rules and regulations. This law also provides guidelines for handling criminal cases of the member nations or those cases that involve a dispute between a member nation and another nation which is not a member of the union. On the basis of Supremacy, the European Laws are preferred above any laws in the member countries. These laws provide fundamental rights and protect the rights of the citizens in the member countries. It allows an individual to sue any organization for violating their human rights, as long as it is present within the member country of the European Union. 

Now that we have discussed the European Union and its laws briefly, we are going to take a look at the English legal system and how it is affected by the European Union Laws. The English Legal system generally refers to the legislation of the country that is responsible for regulating all the legal matters of the United Kingdom. Community law was made applicable in England as soon as it joined the European Union. However, the application of this law had a significant effect in the legal system. The European act of 1972 mentioned the presence or new development of the law sources in the UK from January, 1973. However, unlike the other member states, these law sources were associated with the areas where the European Union also had concerns. Agriculture, fishing, companies, movement of goods, education, health and environment were some of the areas included in the law. On the other hand, the Union laws do not follow the competency in the social as well as economic areas of the UK. The Primary laws of the European Union and the judgments heard by the European Court of justice developed highlighting implications on the English legal system. 


The direct application of the EU laws has significantly affected the English legal system. For example, the British government refers to itself as a sovereign government. Accordingly, the parliament is at the apex position of the country in terms of legislative authority. The parliament has the authority to create laws and no courts in the country have the ability to restrict Parliamentโ€™s laws. But this is not the case as the membership of the country with the European Union has compromised the authority of the parliament. According to the primary laws of the Treaty of Rome 1957, all the laws of the treaty will affect the member states and the United Kingdom is not an exception. The treaty of Rome is considered to be superior to any national laws and laws from other states should agree with it. This treaty is against the sovereignty of the United Kingdom which states that no other law is above the laws passed by the parliament of the country. This has a negative impact on the citizens of the United Kingdom and they do not have many options left other than to follow the EU laws for their own sake. 


Similarly, according to the act of 1972, there must be resemblance and alignment of any law that is developed by the member states either before the formation of the Union or after, to the requirements of the community law. As a result, the English laws are also made to align with the principles of the Union law. This means that the Union now takes charge over all the national laws. The European laws have made the English legal system ineffective as it states that the national courts need to ignore any laws that contradict the European laws. As a result of this, the courts of England are unable to take decisions on their own without considering the legal guidelines as stated by the European Union on certain issues. The EU laws also influence the ways English legal system processes the fundamental rights of their citizens. Generally, the areas where the European laws are implemented include rights of children, employees and female workers. 

There are several examples where the European Union laws have contradicted the English legal system. For instance, in the case of R v Secretary (1994), it was found that some parts of the Employee Protection Act of 1978 did not comply with the community laws on equal treatment of men and women workers. The Act gave more rights to the full time workers and fewer rights to the part time workers.  

To summarize, the English Legal system has been significantly affected by its membership with the European Union. The EU laws have contradicted the domestic laws of the country on several occasions. Over 50000 laws have been introduced in the country over the last 25 years and as a result of this, the lawmakers of the United Kingdom are facing severe challenges after Brexit[1]. The Prime Minister of the country has said that the European Communities Act will be abrogated once the United Kingdom formally leaves the European Union.

Since its joining in 1973, the EU laws have significantly influenced the legislation of the United Kingdom. Areas such employment and immigration have also been affected. The continued application of EU laws will depend largely on the outcome of the UK’s negotiations with the EU. The new trade agreements with the EU will be influential for the UK. 


References

Fahy, N., Hervey, T., Greer, S., Jarman, H., Stuckler, D., Galsworthy, M. and McKee, M., 2019. How will Brexit affect health services in the UK? An updated evaluation. The Lancet393(10174), pp.949-958.

Fennelly, N., 2018, June. Brexit: legal consequences for the EU. In ERA Forum (Vol. 18, No. 4, pp. 493-511). Springer Berlin Heidelberg.

Huxley-Binns, R., Martin, J. and Frost, T., 2017. Unlocking the English legal system. Taylor & Francis.

Jakab, A. and Kochenov, D. eds., 2017. The enforcement of EU law and values: ensuring member states’ compliance. Oxford University Press.

MacMillan, C., 2016. The impact of brexit upon English contract law. King’s Law Journal27(3), pp.420-430.

McConalogue, J., 2020. Parliamentary Sovereignty, the Precedent of the Mixed Constitutional Model and the UKโ€™s Membership of the EU. In The British Constitution Resettled (pp. 113-149). Palgrave Macmillan, Cham.

Partington, M., 2017. Introduction to the English Legal System. Oxford University Press.

Schimmelfennig, F., 2018. Brexit: differentiated disintegration in the European Union. Journal of European public policy25(8), pp.1154-1173.

Trybus, M., 2018. Brexit and the Law School: Re-imagining EU Law.


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