European Communities Act 1972 (UK)

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European Communities Act 1972
Long title An Act to make provision in connection with the enlargement of the European Communities to include the United Kingdom, together with (for certain purposes) the Channel Islands, the Isle of Man and Gibraltar.
Citation 1972 c. 68
Introduced by Geoffrey Rippon, Chancellor of the Duchy of Lancaster
Territorial extent United Kingdom
(Also applicable to and in but not [formally] extended to [to become formally incorporated into and as part of the laws of] either any of the Islands (of the Crown Dependencies; of the Isle of Man, of Jersey, of the Bailiwick of Guernsey as a whole or of any one of the Islands of Guernsey), or Gibraltar)
Dates
Royal assent 17 October 1972
Status: Amended
Text of statute as originally enacted
Revised text of statute as amended

The European Communities Act 1972 (c. 68) is an Act of the Parliament of the United Kingdom which legislated for the accession of the United Kingdom to the European Communities (EC) (which was the collective term for the European Coal and Steel Community (ECSC), the European Economic Community (EEC) (also known at the time as the "Common Market") and the European Atomic Energy Community (EAEC)) and also legislated for the incorporation of European Union law (then Community law) into the domestic law of the United Kingdom. All three of these institutions would later form part of what is now known as the European Union. The act has been amended several times to give legal effect to the Single European Act, the Maastricht Treaty which formed the European Union, and most recently the Treaty of Lisbon. It may be repealed or amended[1] following the decision in the EU Referendum to "Leave the European Union" on 23 June 2016.

In an interview with BBC News on 2 October 2016, Theresa May promised that the Government would introduce a bill to repeal the Act.[2]

Overview[edit]

Lord Rippon was responsible for drafting the necessary domestic legislation that took the United Kingdom into the then European Communities (EC) principally the European Economic Community (EEC) otherwise known at the time as the "Common Market" which would later become the European Union.

The European Communities Act was the instrument whereby the UK was able to join the European Union (then known as the European Communities). It enables, under section 2(2), UK government ministers to lay regulations before Parliament to transpose EU Directives and rulings of the European Court of Justice into UK law. It also provides, in section 2(4), that all UK legislation, including primary legislation (Acts of Parliament) have effect "subject to" directly applicable EU law. This has been interpreted by UK courts as granting EU law primacy over domestic UK legislation.

Effect[edit]

The primacy and direct effect of EU law has no formal basis in the founding treaties of the union but was developed by the European Court of Justice (ECJ), on the grounds that the purpose of the treaties would be thwarted if EU law were subordinate to national law. The view of the ECJ is that any norm of EU law takes precedence over national law, including national constitutions. Most national courts, including the United Kingdom's, do not accept this monist perspective.[3] The British constitution is based on Parliamentary sovereignty and has a dualist view of international law: international treaties do not become part of UK domestic law unless they are incorporated into UK law by an Act of Parliament.[4] The primacy of EU law in the United Kingdom derives from the European Communities Act. This means that if the Act were repealed, any EU law (unless it has been transposed into British legislation) would, in practice, become unenforceable in the United Kingdom and Gibraltar, and the powers delegated by the Act to the EU institutions would return to the Parliament of the United Kingdom.[5] This was made clear to be the law in the United Kingdom by the inclusion of the "sovereignty clause" in the EU Act 2011 passed by the British Parliament.

The question of sovereignty had been discussed in an official document (FCO 30/1048) that became available to the public in January 2002 under the Thirty-year rule. It listed among "Areas of policy in which parliamentary freedom to legislate will be affected by entry into the European Communities": Customs duties, Agriculture, Free movement of labour, services and capital, Transport, and Social Security for migrant workers. The document concluded (paragraph 26) that it was advisable to put the considerations of influence and power before those of formal sovereignty.[6]

Factortame[edit]

In the Factortame case, the House of Lords (Lord Bridge) has interpreted section 2(4) as effectively inserting an implied clause into all UK statutes that they shall not apply where they conflict with European law. This is seen by some as a departure from the British constitutional doctrine of parliamentary sovereignty, as traditionally understood.[7]

Repeal[edit]

Main article: Great Repeal Bill

The UK voted for British withdrawal from the EU in the June 2016 referendum. In October 2016 the prime minister, Theresa May, promised a Great Repeal Bill which would repeal the 1972 act and import its regulations into UK law, with effect from the date of British withdrawal. The regulations could then be amended or repealed on a case-by-case basis.[8]

The Supreme Court ruled in January 2017 that an act of Parliament was needed before the government could invoke Article 50 to give notice to leave the European Union.[9]

See also[edit]

Notes[edit]

  1. ^ Allen Green, David (11 July 2016). "Is an Act of Parliament required for Brexit?". Financial Times. Retrieved 11 July 2016. 
  2. ^ May, Theresa (2 October 2016). "Brexit: PM to trigger Article 50 by end of March". BBC News. 
  3. ^ Craig, Paul; De Burca, Grainne (2015). EU Law: Text, Cases and Materials (6th ed.). Oxford University Press. p. 266. ISBN 978-0-19-871492-7. 
  4. ^ Craig, Paul; De Burca, Grainne (2015). EU Law: Text, Cases and Materials (6th ed.). Oxford University Press. p. 365. ISBN 978-0-19-871492-7. 
  5. ^ Akehurst, Michael; Malanczuk, Peter (1997). Akehurst's Modern Introduction to International Law. London: Routledge. pp. 65–66. ISBN 978-0-415-11120-1. 
  6. ^ FCO 30/1048, Legal and constitutional implications of UK entry into EEC (open from 1 January 2002).[1]
  7. ^ Elliott, M. "United Kingdom: Parliamentary sovereignty under pressure". International Journal of Constitutional Law. 2 (3): 545–627. doi:10.1093/icon/2.3.545. 
  8. ^ Mason, Rowena (2 October 2016). "Theresa May's 'great repeal bill': what's going to happen and when?". The Guardian. Retrieved 3 October 2016. 
  9. ^ "Article 50 'Brexit' Appeal". The Supreme Court. 24 January 2017. Retrieved 28 January 2017. 

Further reading[edit]