Legal Skills (9th edn) - Chapter 2: Legislation PDF

2. Legislation Legal Skills (9th edn) Emily Finch and Stefan Fafinski p. 20 2. Legislation Emily Finch, and Stefan Fafinski https://doi.org/10.1093/he/9780192873088.003.0002 Published in print: 14 July 2023 Published online: August 2023 Abstract This chapter first considers the process by which Acts of Parliament come into being. It then turns to delegated legislation— that is, law that is made by other bodies under Parliament’s authority. Next, it discusses the impact of the European Convention on Human Rights and the Human Rights Act 1998. Finally it looks at EU legislation, which became increasingly significant during the time that the UK was a member of the EU. It explains the various institutions of the EU and role they had in the law-making process; the different types of EU legislation; and the circumstances in which individuals could use them in domestic courts. Keywords: Keywords, Acts of Parliament, delegated legislation, EU law, EU institutions, European Convention on Human Rights, Human Rights Act 1998, regulations, directives, EU Treaties Introduction This chapter deals with the first primary source of law that you will need to be able to find, understand, and use as part of your legal skills portfolio: legislation. It will begin by looking at the process by which an Act of Parliament comes into existence before turning to consider delegated legislation—that is, law that is made by other bodies under Parliament’s authority. It will also consider European Union legislation, which had an increasingly significant effect on the domestic law from the time that the UK joined the European Economic Community in 1973 to the time the UK left the EU following the June 2016 ‘Brexit’ referendum. Although large areas of UK law remained unaffected by EU law, certain high-profile areas were significantly affected; these included employment law, commercial and consumer law, environmental law, intellectual property law, and the law relating to the free movement of goods and workers throughout 1 Europe. Much of this EU law has been retained, although there is currently a Bill before Parliament which Page 1 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation will make it easier to amend or repeal retained EU law and end its special status. Although this is not yet law, it may become law during the lifetime of this edition, so we will cover its main provisions. You should keep a lookout for its implementation. This chapter will, in any case, discuss the various institutions of the European Union and their role in the law-making process before looking at the impact of the European Convention on Human Rights and the Human Rights Act 1998. It will then move on to explore the different types of EU legislation in detail, explaining the circumstances in which individuals were able to use them in domestic courts. Finally, it will explain the impact that Brexit has had on the supremacy of EU law and the proposed mechanism for dealing with the EU law that has been retained. Understanding legislation as a source of law is a fundamentally important legal skill. Every legal topic that you study will generally involve a mixture of legislation, delegated legislation, case law, and equitable principles. Therefore, a thorough understanding of how UK legislation works is essential. Furthermore, you must also understand the operation of EU legislation as it has impacted many areas of the domestic law. Without understanding the effects of the EU sources on the domestic law, you will not be able to see the ‘whole picture’ of a particular area of legal study—especially in areas that have been highly influenced p. 21 by the EU such as employment, commercial, environmental, consumer, and equality law. ↵ Learning outcomes After studying this chapter, you will be able to: Explain the process by which Acts of Parliament come into being Describe various types of delegated legislation and their function Understand the roles of the various institutions of the European Union Describe the process by which European Union legislation comes into being Explain the differences between European Union treaty articles, regulations, directives, decisions, recommendations, and opinions Distinguish between the concepts of direct applicability and direct effect Explain the principles underlying the supremacy of European Union law Discuss the effect of the European Convention on Human Rights and the Human Rights Act 1998 Page 2 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation 2.1 Domestic Legislation Legislation is a broad term which covers statutes (Acts of Parliament) and other types of legislation, including delegated (or subordinate) legislation and European Union legislation. 2.1.1 Statute law Parliament passes legislation in the form of statutes, or Acts of Parliament. On average, Parliament enacts between thirty and forty statutes each year. An Act of Parliament will begin life as a Public Bill, Private Bill, or Hybrid Bill. The procedure for enacting Private and Hybrid Bills is different to that for Public Bills. This chapter will concentrate on Public Bills and the resulting Public General Acts, although a brief overview of Private Bills, Hybrid Bills, and Private Members’ Bills is included here for completeness. 2.1.1.1 Public Bills Public Bills are introduced by the Government as part of its programme of legislation. Although many people think that most Public Bills arise from the commitments made by the Government as part of its election manifesto, in fact most Public Bills originate from Government departments, advisory committees, or as a political reaction to unforeseen events of public concern (such as the Energy Prices Act 2022, which was passed in just two weeks as a response to public concerns about increasing fuel prices following the conflict in Ukraine and the increased demand for energy since COVID-19 restrictions ended). p. 22 ↵ If enacted, most Public Bills result in Public General Acts which, as their name suggests, affect the general public as a whole. 2.1.1.2 Private Bills Private Bills are introduced for the benefit of particular individuals, groups of people, institutions, or a particular locality. They are promoted by organizations outside Parliament to obtain powers for themselves in excess of, or in conflict with, the general law. They often fail to become law due to insufficient time in a particular Parliamentary session. For example, before divorce became generally available under the public law, it was granted by Private Act of Parliament. Nowadays, personal Private Bills are extremely rare. There are now only a few Private Bills in each session. Private Bills tend to deal with nationalized industries, local authorities, companies, and educational institutions. Page 3 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation If enacted, Private Bills generally result in Private Acts (e.g. the most recent being the George Donald Evans and Deborah Jane Evans (Marriage Enabling) Act 1987), unless (as with Public Bills) they deal with local authorities, in which case the resulting legislation is known as a Local Act (the most recent examples being the Monken Hadley Common Act 2022 and the Highgate Cemetery Act 2022). Take care not to confuse Private Bills with Private Members’ Bills, which are a type of Public Bill and are covered later in section 2.1.1.4. 2.1.1.3 Hybrid Bills Hybrid Bills are a cross between Public Bills and Private Bills. According to the former House of Commons Speaker Hylton-Foster, they may be described as: A Public Bill which affects a particular private interest in a manner different from the private interests of other persons or bodies in the same category or class. Bills which propose works of national importance that only affect a specific local area are generally Hybrid Bills; for instance the Bill passed that dealt with the building of the Channel Tunnel was a Hybrid Bill. The Public Bill Offices decide whether a Bill is Hybrid category. Both Houses debate Hybrid Bills and they go through a longer Parliamentary process than Public Bills. Opponents to Hybrid Bills may submit petitions and certain individuals and groups can state their case before a select committee. The most recent examples all deal with transport: the most recent is the High Speed Rail (Crewe–Manchester) Bill 2022, which is still at the Committee stage in the House of Commons at the time of writing. Each of these projects claims to benefit the country as a whole, although they clearly affect the private interests of those who are closest to the works more than those living a great distance from them. 2.1.1.4 Private Members’ Bills Private Members’ Bills are non-Government Bills (Public, Private, or Hybrid) that are introduced by private Members of Parliament (MPs of any political party or members of the House of Lords who are not Government Ministers). They may be introduced in the Commons in a variety of ways: by ballot, under the ‘ten minute rule’, or by presentation. Private Members’ Bills introduced in the House of Lords are treated in the same way as all other Public Bills. The ballot offers the best chance of success for a private member who wishes to introduce legislation, It is a random draw for twenty opportunities to introduce legislation. In practice, only the first seven or eight p. 23 MPs drawn from the ballot are guaranteed time to debate their ↵ Bill. Standing Order No 14(9) provides that Private Members’ Bills will have precedence over government business on thirteen Fridays in each session. The ‘ten minute rule’ comes from Standing Order No 23, which allows an MP to propose legislation other than by being drawn in the ballot. The MP must be first through the door of the Public Bills Office on Tuesday or Wednesday at least fifteen days before the Bill is to be read. Bills introduced in this way are not Page 4 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation debated. The MP has ten minutes to speak and the Bill will either go ahead or be blocked by any MP who wishes to oppose it. It is rarely a successful way of introducing new law and is often used as a way to raise awareness of the issue. Standing Order No 57 allows any MP to present a Bill on a Friday if there is time after the Ballot Bills are discussed. There is no debate or discussion. The Bill is just put before the House. They are rarely successful, but the European Union (Withdrawal) (No 2) Act 2019 was a notable successful exception. Relatively few Private Members’ Bills end up as Acts of Parliament. Although they often deal with relatively narrow issues (such as mock auctions and drainage rates), they may also be used to draw attention to issues of concern that are not within the legislative agenda of Government. Significant pieces of legislation that have begun life as Private Members’ Bills include the Abortion Act 1967 and the Hunting Act 2004. The most recently successful Private Members’ Bill (at the time of writing) is the Approved Premises (Substance Testing) Act 2022, sponsored by Rob Butler MP and Baroness Sater, which made provision for compulsory substance testing in approved premises (which are essentially hostels which provide temporary accommodation for people who have been released from prison but are considered to present the highest risk to the community). Be careful not to confuse Private Members’ Bills with Private Bills. 2.1.1.5 Consolidating and codifying statutes Statutes may also be passed to consolidate or codify the law. Consolidating statutes A consolidating statute is one which re-enacts particular legal subject matter which was previously contained in several different statutes, which repeals obsolete law, or which gives effect to certain amendments. According to the Companion to the Standing Orders and Guide to Proceedings of the House of Lords, the following types of Bill are classified as consolidation Bills: Bills, whether public or private, which are limited to re-enacting existing law Bills to consolidate any enactments with amendments to give effect to recommendations made by the Law Commissions Statute law repeals Bills, prepared by the Law Commissions to promote the reform of the statute law by the repeal of enactments which are no longer of practical utility Statute law revision Bills, which are limited to the repeal of obsolete, spent, unnecessary, or superseded enactments Page 5 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation Bills prepared under the Consolidation of Enactments (Procedure) Act 1949, which include corrections and minor improvements to the existing law. 2 p. 24 ↵ As Lord Simon stated in Farrell v Alexander: All consolidation Acts are designed to bring together in a more convenient, lucid and economical form a number of enactments related in subject-matter [which were] previously scattered over the statute book. Consolidation Bills are introduced in the House of Lords and are scrutinized by the Joint Committee on Consolidation Bills. Examples of such consolidation Acts include the Children Act 1989, the Companies Act 2006, and the Equality Act 2010. Codifying statutes A codifying statute is one which restates legal subject matter previously contained in earlier statutes, the common law, and custom. The meaning of ‘common law’ and ‘custom’ is considered in chapter 5. Unlike consolidation, codification may change the law. Examples of codifying Acts are the Theft Act 1968, which attempted to frame the law of theft in ‘ordinary language’, and the Consumer Rights Act 2015, which brought together pre-existing consumer protection law that was previously spread across multiple statutes. 2.1.1.6 The domestic law-making process White Papers and Green Papers Before a Bill is introduced into Parliament, it may be preceded by a White Paper or a Green Paper. White Papers set out Government proposals on topics of current concern. They signify the Government’s intention to enact new legislation and may set up a consultative process to consider the finer details of the proposal. Green Papers are issued less frequently. They are introductory higher-level Government reports on a particular area put forward as tentative proposals for discussion without any guarantee of legislative action or consideration of the legislative detail. Page 6 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation Drafting the Bill Proposed Government legislation is passed to the Parliamentary draftsmen (officially the ‘Parliamentary Counsel to the Treasury’), who draft the Bill acting on the instructions of the Government department responsible for the proposal. Oddly, it is conventional practice that the Ministers responsible for the Bill do not usually see the instructions sent from their departments. Procedure for Public Bills Once drafted, the Parliamentary procedure for Bills introduced in the House of Commons can be depicted p. 25 as shown in Figure 2.1. ↵ Page 7 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation Figure 2.1 The Parliamentary procedure for Bills introduced in the House of Commons Page 8 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation p. 26 Bills introduced in the House of Lords A Government Bill can be introduced into either the House of Commons or the House of Lords. Most Bills begin life in the House of Commons; particularly Bills which deal primarily with taxation or public expenditure. The House of Commons has priority in such matters by virtue of its financial privileges (see Parliament Acts 1911 and 1949). Conversely, Bills relating to the judicial system, Law Commission Bills, and consolidation Bills conventionally begin their passage in the House of Lords. A relatively recent example of a House of Lords Bill which became law can be found in the Armed Forces (Flexible Working) Act 2018, which made provision for members of the regular forces to serve part-time or subject to geographic restrictions. House of Commons—First Reading The First Reading in the House of Commons is a formality. The Title of the Bill is read by the Clerk of the House and a date is fixed for the Second Reading. Conventionally, the Second Reading does not normally take place before two weekends have passed. House of Commons—Second Reading The Second Reading in the House of Commons involves the main debate on the principles of the Bill. For Government Bills, the debate is usually opened by the Minister responsible for the Bill and closed by a junior Minister. A vote is generally taken on the Bill as a whole at the end of the Second Reading. The Bill will then move to a Standing Committee (unless it is moved that the Bill be sent to a Committee of the whole House, a Select Committee, or a Special Standing Committee). House of Commons—Standing Committee Following the Second Reading in the House of Commons, most Bills are sent to a Standing Committee. The name ‘Standing Committee’ was coined from the time when Bills were sent to large, permanent committees which considered all Bills they received. The membership of the Standing Committee now varies for each Bill. Standing Committees can have as many as fifty members or as few as sixteen. The members are chosen by the Committee of Selection by virtue of their particular expertise or interest in the subject matter of the Bill and to ensure that the party political composition of the Committee is, so far as possible, representative of the overall party political composition of the House of Commons: in other words that the relative proportions of members of the various political parties are roughly the same in the Committee as in the House of Commons as a whole. The Chair of each Standing Committee is selected by the Speaker of the House of Commons from a panel of chairmen. The Standing Committee examines the provisions of the Bill in detail and votes on whether each clause, as proposed, ‘stands part of the Bill’. Amendments may be moved in Standing Committee. These amendments are also voted upon. The Bill (as amended in Standing Committee) then moves into a Report stage. Page 9 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation House of Commons—Report stage Unless a Bill has been considered by a Committee of the whole House without amendment, the Committee stage is followed by a Report stage (sometimes referred to as a Consideration stage). Here, further amendments may be proposed and introduced, often in an attempt to undo the changes made in Committee. Once the Report stage is complete—which may take two or three days—the Bill finally proceeds to its Third Reading in the Commons. House of Commons—Third Reading In the Third Reading of the Bill, its contents are debated for a final time. It is unusual for any further p. 27 amendments to be made at this stage. Indeed, unless six members table a motion ↵ that ‘the Question be not put forthwith’, the Third Reading does not have to involve any debate at all. Once the Third Reading is over, the Bill is then tied up with a green ribbon and taken to the House of Lords by the Clerk of the House of Commons with a message kindly requesting the Lords’ agreement to its content. Procedure in the House of Lords The procedure in the House of Lords mirrors that in the House of Commons. Bills have a formal First Reading, are debated on a Second Reading, proceed to consideration in Committee (although, unlike in the House of Commons, the Committee stage is almost invariably taken in the Committee of the whole House), are debated again on Report and then receive a final Third Reading. At the end of the Third Reading there is a formal motion ‘that this Bill do now pass’. Assuming that the Bill survives the motion at the end of the Third Reading in the House of Lords, it is returned to the House of Commons with the Lords’ amendments which must be considered in the Commons. If the House of Commons does not agree with the Lords’ amendments it can send it back with counter-amendments and its reasons for doing so. Therefore a Bill can go back and forth between the Houses several times until proceedings are terminated or the Parliamentary session runs out of time. This is called the ‘ping-pong’ process as the Bill passes backwards and forwards between the two Houses until agreement is reached. However, in practice, the House of Lords often accepts the second offering from the House of Commons. The Parliament Acts 1911 and 1949 These Acts provide a means by which the House of Commons can, under certain circumstances, bypass the House of Lords to present a Bill for Royal Assent without it having been passed by the House of Lords. The procedure under the Parliament Acts has historically been used infrequently. The 1911 Act was used only three times: for the Welsh Church Act 1914, the Government of Ireland Act 1914, and the Parliament Act 1949, which amended the 1911 Act to reduce the power of the House of Lords further. Before 1997, the amended form of the 1911 Act had been used only once, in respect of the War Crimes Act 1991, but the 1997 Page 10 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation Labour Government used the Parliament Acts to force through three Acts: the European Parliamentary Elections Act 1999, the Sexual Offences (Amendment) Act 2000, and the Hunting Act 2004. The Acts have not been used since. The Parliament Acts do not apply to Bills which prolong the length of a Parliament beyond five years, Private Bills, Bills sent to the Lords less than a month before the end of the Parliamentary session, and Bills which are introduced in the Lords. Royal Assent Royal Assent is required before any Bill can become law. The monarch is not required by the constitution to assent to any Act passed by Parliament. However, assent is conventionally given by the monarch acting on ministerial advice. It has not been refused since Queen Anne refused to assent to the Scottish Militia Bill of 1707. Indeed the Royal Assent Act 1967 has marginalized the personal involvement of the monarch to the extent that all that is now required for Royal Assent by Notification is a formal reading of the short title of the Act with a form of words signifying the fact of assent in both Houses of Parliament. Without express provision to the contrary, an Act of Parliament is deemed to come into force on the day 3 p. 28 (and for the whole of the day) that it receives Royal Assent. Otherwise it will come ↵ into force on a date specified within the Act itself, or via an ‘appointed day’ provision which allows the Act to be brought into force via a statutory instrument. Statutory instruments are described in section 2.1.2.1. Parts of the Act may be brought into force on different dates (e.g. some provisions of the Judicial Review and Courts Act 2022 came into force on the day it was passed, whereas others came into force two months later, and others depended upon certain parts of the Sentencing Act 2020 coming into force. For more information on the coming into force of statutes, see chapter 4. Territorial extent There is a presumption in the absence of proof to the contrary that Acts of the UK Parliament enacted after 1707 apply to the whole of the UK. If such an Act, or any part of it, does not apply to Scotland, Wales, or Northern Ireland, this will usually be expressly stated within the Act itself. In modern practice, an ‘extent’ provision setting out any limitations on the geographical application of the Act is usually found towards the end of the Act. You will find more about this in section 4.1.8. Acts of the UK Parliament that apply only to particular regions are usually denoted by the inclusion of the name of the region in the short title of the Act, for example the Solicitors (Scotland) Act 1980. Following the passing of the Scotland Act 1998 and the creation of the Scottish Parliament in 1999, statutes can be enacted by the Scottish Parliament provided that the subject matter of the Act is within its legislative competence. These Acts are given Royal Assent under Letters Patent (a published written order Page 11 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation issued by the Crown). The UK Parliament retains the power to legislate for Scotland on all matters, including those matters that are now within the legislative competence of the Scottish Parliament. 4 However, a convention has developed (the Sewel Convention) that the UK Government will ‘not normally’ introduce legislation dealing with matters that have been devolved to the Scottish Parliament, the National Assembly for Wales or the Northern Ireland Assembly, without the agreement of the devolved legislature (which is given by their passing of a ‘legislative consent motion’). In Wales and Northern Ireland Acts are given Royal Assent via Letters Patent in the same way as Acts of the Scottish Parliament. 2.1.1.7 The impact of the Human Rights Act 1998 Section 19 of the Human Rights Act 1998 provides that the Minister in charge of each new Bill in either House of Parliament must, before the Second Reading of the Bill, either: Make a statement of compatibility—that is, state that the provisions of the Bill are compatible with the European Convention on Human Rights, or Make a statement acknowledging that it is not possible to make a statement of compatibility, but, despite this, the Government still wishes the House to proceed with the Bill. The courts have no power to set aside any Act of Parliament that is incompatible with Convention rights; this is a function that is exercised by Parliament (which has a fast-track procedure under s 10 of the Act that it may use in such cases if it wishes to do so). The court may, however, make a ‘statement of incompatibility’ under s 4 of the Act if it is satisfied that the provision is incompatible with a Convention right. Such a statement does not affect the validity, continuing operation, or enforcement of the provision in respect of which it is given; and is not binding on the parties to the proceedings in which it is made. p. 29 2.1.2 Delegated legislation Parliament has delegated legislative power to various other persons and bodies. Delegated legislation is law made by persons or bodies with the delegated authority of Parliament. It is sometimes referred to as ‘subordinate legislation’. 2.1.2.1 Statutory instruments An Act of Parliament may grant the power to make statutory instruments, usually to a Minister of the Crown. The scope of this power can vary greatly, from the technical (e.g. varying the dates on which different provisions of an Act will come into force or changing the levels of fines or penalties for offences) to much wider powers such as filling out the broad provisions in Acts. Often, Acts only contain a broad framework and statutory instruments are used to provide the necessary detail that would be considered too Page 12 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation complex to include in the body of an Act. Statutory instruments can also be used to amend, update, or enforce existing primary legislation. A single Act of Parliament (known as the ‘parent Act’) can give rise to more than one statutory instrument: for instance the Finance Act 2021 has, at the time of writing, given rise to twenty statutory instruments. ‘Statutory instruments’ is a general term that includes regulations, rules, and orders. A very common form of statutory instrument is a commencement order which brings all, or part, of an Act into force. For examples of commencement orders, see chapter 4. The procedure for introducing a statutory instrument is usually laid down partly in the parent Act and partly in the Statutory Instruments Act 1946. The use of statutory instruments is becoming increasingly widespread as a means of introducing some flexibility into the legislative process as well as helping to contain the ever-increasing length and complexity of statutes. For instance Parliament passed forty-four UK Public General Acts between January and November 2022, but made 1,099 statutory instruments in the same period. While this may seem a lot, the most prolific year for statutory instruments was 2014 in which 3,481 were made—over one hundred times the number of Acts (thirty) passed in the same year under the Conservative–Liberal Democrat coalition government. Procedures for creating statutory instruments The procedure for creating a statutory instrument is laid down in the parent Act. These procedures can be categorized as: Negative resolution Positive resolution No approval by Parliament. Most statutory instruments are made under the negative resolution procedure. It is named as such since it does not require Parliament to act unless it disapproves of the statutory instrument. It takes one of two forms depending on the state of the statutory instrument at the time that it is presented to (‘laid before’) Parliament. In the first form, the statutory instrument is laid before Parliament in draft and cannot be made if Parliament votes its disapproval within forty days. In the second form, the statutory instrument is p. 30 actually made and laid before ↵ Parliament. If Parliament votes its disapproval within forty days, then the statutory instrument cannot remain in force. Around 10 per cent of statutory instruments require positive resolution—in other words they require positive Parliamentary approval. This procedure takes one of three forms. The first of these requires the draft statutory instrument to be laid before Parliament. It can only come into force if approved by resolution of the House or Houses specified in its parent Act. The second form is similar, except that the statutory instrument is made before being laid before Parliament. However, it cannot come into force until approved by resolution as before. The final situation occurs where the statutory instrument has been made, comes into immediate effect, and is then laid before Parliament. It cannot continue beyond the period specified in the parent Act without positive resolution. Page 13 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation The remaining statutory instruments require no approval by Parliament. This either means that they do not need to be laid before Parliament at all, or that they do, but do not require any subsequent form of approval. 2.1.2.2 By-laws By-laws are laws which are made by a local authority and only apply within a specific geographical area. By-laws are usually only created when there is no general legislation that deals with particular matters of concern to local people, such as waste collection and public park opening hours. By-laws are made under the Local Government Act 1972. However, by-laws can only come into force once they have been affirmed by the relevant Minister. By-laws come into force one month after affirmation unless a specific date is provided within the by-law itself. 2.1.2.3 The Rule Committees The Rule Committees have delegated power to make procedural rules for the courts. These consist of the Civil Procedure Rule Committee (who are responsible for the Civil Procedure Rules 1998 and their subsequent amendments), the Criminal Procedure Rule Committee, and the Family Procedure Rule Committee. 2.1.2.4 The Privy Council The role of the Privy Council is described further in chapter 5. The Privy Council may make Orders in Council, such as emergency regulations. These have the force of law. It may also implement resolutions of the United Nations Security Council. 2.1.2.5 Validity of delegated legislation Unlike Acts of Parliament, delegated legislation may be challenged in the courts via the doctrine of ultra vires. Ultra vires is a Latin term meaning ‘outside (their) powers’. If a body acts beyond the powers that are delegated to it by the parent Act, then the delegated legislation p. 31 can be declared void by the court. The body is said to have acted ultra ↵ vires by exceeding its powers. 5 The delegated legislation may also be referred to as being ultra vires. Delegated legislation is also ultra vires if it conflicts with an earlier Act of Parliament. Prior to Brexit delegated legislation that conflicted with European Union legislation would also have been ultra vires. Page 14 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation Decisions which are made by the public bodies granted power by delegated legislation can also be challenged via judicial review. See section 5.3.4.2. 2.1.2.6 Advantages and disadvantages of delegated legislation Advantages The main advantage of delegated legislation is that detailed rules and regulations can be introduced relatively quickly without the need for full debate in Parliament that Acts would require. There is insufficient Parliamentary time available to debate all Bills in full and delegated legislation enables the most effective use of this limited time. Moreover, Members of Parliament may not have the particular specialist knowledge to debate certain subject areas. It is therefore preferable to delegate authority to individuals or bodies with the requisite degree of specialist, technical, or local knowledge. Disadvantages Since delegated legislation is not debated before Parliament in the way that Acts are, the opportunity for public objection is minimized. Nor is delegated legislation publicized before and after implementation in the same way as some new Acts of Parliament. For instance, the Civil Partnership Act 2004 and the Identity Cards Act 2006 both received widespread media coverage, whereas a mass of delegated legislation was also introduced over the same period without any significant attention. While it could be argued that media attention derives from the very nature of primary legislation and its general public impact, it is also true that delegated legislation can have a significant public impact (e.g. the majority of the Identity Cards Act 6 2006 would have been brought into force by delegated legislation). Finally, the proliferation of delegated legislation means that in researching any area of law, it is important to be sure that your research is up to date. 2.2 European Legislation Since the UK joined what is now the European Union, an increasingly influential range of sources of law came from Europe. However, in the June 2016 referendum on the UK’s continued membership of the EU— the so-called ‘Brexit’ vote—52 per cent voted to leave. After a considerable period of uncertainty, the UK finally left the EU on 31 January 2020, followed by a time-limited implementation period which lasted until 11 p.m. on 31 December 2020, during which EU law continued to apply to the UK. With regard to human rights issues, individual citizens of the UK had the right to petition the European Court of Human Rights from 1966. Building on this, the Human Rights Act 1998 came into force in October p. 32 2000, allowing individuals to rely on (most of) the rights ↵ guaranteed by the European Convention on Human Rights directly in national courts as well as enabling courts to overrule earlier incompatible decisions. This section will consider European Union legislation in the form of treaty articles, regulations, Page 15 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation and directives. It will also consider the European Convention on Human Rights as a further European source of law. However, it is important to remember throughout that the European Court of Human Rights is separate from the Court of Justice of the European Union and that the Brexit decision has had no impact on the UK’s relationship with the European Court of Human Rights, its accession to the European Convention on Human Rights, or the operation of the Human Rights Act 1998. However, it is worth noting more generally that certain legislation that protects equality and human rights was led by the EU, including the areas of data protection and privacy; human trafficking; workplace discrimination on the grounds of religion, belief, sexual orientation, and age; and equal pay for men and women. 2.2.1 The European Convention on Human Rights 2.2.1.1 A brief history The European Convention on Human Rights and Freedoms is a creation of the Council of Europe although it is, at least in part, based upon the 1948 United Nations Declaration of Human Rights. The Council of Europe was formed in 1949, shortly after the end of the Second World War, with the aim of international cooperation and the prevention of the kinds of widespread atrocious violations of human rights which had occurred during the war. The European Convention on Human Rights was signed in Rome in 1950, ratified by the UK a year later, and came into force in 1953. 2.2.1.2 Convention rights The European Convention on Human Rights establishes a number of fundamental rights and freedoms (see Table 2.1). Some of the rights are absolute: this means that no interference with them is permitted. Others p. 33 are limited: this means that no interference is permitted, but there ↵ may be limitations stated within the right itself. Finally, there are qualified rights: this means that exceptions (called ‘derogations’) or reservations are permitted, as long as the exception or reservation is proportionate (goes no further than it has to) in order to achieve a legitimate purpose. Table 2.1 Convention rights by Article number Article Convention right Type 1 Obligation to respect human rights Absolute 2 Right to life Absolute 3 Prohibition of torture, inhuman, or degrading treatment or punishment Absolute 4 Prohibition of slavery and forced labour Absolute 5 Right to liberty and security Limited 6 Right to a fair hearing Limited Page 16 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation Article Convention right Type 7 No punishment without law Absolute 8 Right to respect for private and family life Qualified 9 Freedom of thought, conscience, and religion Qualified 10 Freedom of expression Qualified 11 Freedom of assembly and association Qualified 12 Right to marry and found a family Qualified 13 Right to an effective remedy Qualified 14 Freedom from discrimination Qualified 2.2.1.3 The European Court of Human Rights The European Court of Human Rights was established in 1959 as a final avenue of complaint for claimants who had exhausted the remedies available to them in their domestic courts for alleged breaches of Convention rights. At the same time, the European Commission of Human Rights was also established. The Commission’s role was to decrease the caseload of the European Court of Human Rights by filtering out some cases and attempting to resolve others by conciliation. The individual’s right to petition the European Court of Human Rights became available to UK citizens in 1966. The European Court of Human Rights and the European Commission of Human Rights were abolished on 31 October 1998 and replaced by a single Court of Human Rights. Questions of admissibility (formerly dealt with by the Commission) are now dealt with by its judges sitting in committee. It is really important not to confuse the European Court of Human Rights (which sits in Strasbourg) with the Court of Justice of the European Union (which sits in Luxembourg). They are separate courts with separate jurisdictions. 2.2.2 European Union law 2.2.2.1 A brief history The UK became a member of the European Communities on 1 January 1973 when the European Communities Act 1972 came into force. At this time the ‘European Communities’ were the European Economic Community (the ‘EEC’), 7 established by the Treaty of Rome 1957, together with the European Coal and Steel Community, and the European Atomic Energy Community (‘Euratom’), with the EEC being the most significant. Page 17 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation The 1992 Treaty on European Union (also known as the Maastricht Treaty or TEU) renamed the EEC as the European Community (EC) and the geographical entity formed by the Member States became the European Union (EU) when it came into force on 1 November 1993. As such, the EU evolved from a trade body into an economic and political partnership. The Maastricht Treaty is not the only treaty that you will encounter. The Single European Act 1986 (which is actually a treaty rather than an Act of Parliament—despite its name) initiated moves towards the harmonization of laws across the Member States. The 1997 Treaty of Amsterdam made further changes, not least of which was the renumbering of the pre-existing Treaty provisions. The Maastricht Treaty established the three so-called ‘pillars’ of the European Union: the European Community, Common Foreign and Security Policy, and Police and Judicial Co-operation in Criminal Matters. The 2001 Treaty of Nice effected further changes relating to the enlargement of the Community which allowed the addition of ten new Member States on 1 May 2004, and two more on 1 January 2007, increasing the membership from fifteen to twenty-eight by 1 July 2013 before reducing to twenty-seven following the p. 34 UK’s exit in 2020. The membership of the EU over time is illustrated in Table 2.2. ↵ Table 2.2 The membership of the European Union Year Countries Membership 1957 Belgium, France, Germany, Italy, Luxembourg, Netherlands 6 1973 United Kingdom, Denmark, Ireland 9 1981 Greece 10 1986 Portugal, Spain 12 1995 Austria, Finland, Sweden 15 2004 Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, 25 Slovenia 2007 Bulgaria, Romania 27 2013 Croatia 28 2020 United Kingdom withdrew from the EU 27 Candidate Albania, Moldova, Montenegro, North Macedonia, Serbia, Turkey, Ukraine countries Potential Bosnia and Herzegovina, Georgia, Kosovo candidates Page 18 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation As the EU expanded to include more Member States, a new European Constitution was proposed which contained significant reforms to both the institutions of the EU and its operation. This proposed constitution was rejected by France and the Netherlands. Following this rejection, a new Reform Treaty 8 was drawn up and was signed in Lisbon on 13 December 2007. It was originally intended to have been ratified by all Member States by the end of 2008. However, following a referendum on 12 June 2008, the Irish electorate voted against its ratification by 53 to 47 per cent. This decision was reversed in a second referendum in 2009 after the Irish secured concessions on particular policies, including abortion, taxation, and military neutrality. The Treaty of Lisbon was ratified by the UK on 19 June 2008 by the European Union (Amendment) Act 2008 and came into force on 1 December 2009. The Treaty of Lisbon amended the Treaty on European Union and the Treaty establishing the European Community (Treaty of Rome)—which was also renamed the Treaty on the Functioning of the European Union. Its most significant changes include: The creation of a long-term President of the European Council The elimination of the pillar system The division of European policy areas into three categories: exclusive competence, shared competence (with the Member States), and supporting competence (where the EU supports, coordinates, or supplements the actions of the Member States) More qualified majority voting in the Council of Ministers Increased involvement of the European Parliament in the legislative process The Charter of Fundamental Rights being given the status of a legally binding instrument. p. 35 ↵ Therefore, the two key treaties are the Treaty on European Union (TEU; Maastricht) and the Treaty on the Functioning of the European Union (TFEU; Treaty of Rome). The other treaties amended these as the scope of the EU changed over time. 2.2.2.2 The institutions of the European Union It is important to be able to distinguish between the different institutions of the European Union and to understand their functions. The most relevant are set out in Article 13 TEU as: The European Commission The Council of Ministers/European Council The European Parliament The Court of Justice of the European Union The General Court Page 19 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation The European Commission The European Commission represents the interests of the EU as a whole. It proposes new legislation to the European Parliament and the Council of the European Union, and it ensures that EU law is correctly applied by member countries. The first main role of the European Commission lies in proposing new laws using its ‘right of initiative’ for the protection of the citizens and interests of the EU. It proposes such laws according to the principles of subsidiarity and proportionality: that is, it will only put forward proposals on issues that cannot be dealt with at national, regional, or local levels and then no more than necessary to achieve the agreed objectives. Legislative proposals are drafted by the Commission and, if approved by a minimum of fourteen of the (currently) twenty-seven Commissioners, are sent to the Council and the Parliament. Each EU Member State has one Commissioner, although the Commissioners are not representatives of their respective countries. Each Commissioner is responsible for one or more specific areas of policy. The appointments run for a term of five years and are subject to the approval of the European Parliament. The second role of the Commission is in the enforcement of European law as ‘guardian of the Treaties’ together with the Court of Justice. It can take action, including the imposition of penalties, against an EU Member State that is allegedly in breach of its obligations under the Treaties (Article 258 TFEU) or for failure to implement a piece of EU legislation (Article 260 TFEU). The Commission also has roles in managing the EU budget and allocating funding (with the Council and Parliament) and representing the EU on the world stage, negotiating agreements between the EU and other countries. p. 36 The Council of the European Union The Council of the European Union represents the governments of the individual EU countries. It is one of the main law-making bodies of the EU, along with the European Parliament. The Council of the European Union shares responsibility with the European Parliament for passing EU laws that are proposed by the Commission. It also coordinates the broad economic policies of the EU countries and develops the EU’s foreign and defence policies. The Council also coordinates cooperation between the courts and police forces of EU countries to ensure equal access to justice for EU citizens throughout the Union and mutual recognition of court judgments. It is further concerned with policing the EU’s borders and combating terrorism and organized crime. The EU budget is approved jointly between the Parliament and the Council. Finally, the Council can enter into international agreements on behalf of the EU on a range of diverse matters including: environment, trade, textiles, fisheries, science, technology, and transport. Page 20 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation The Council’s members are politicians who are Ministers in their respective national Governments. Each Minister has the authority to commit its Government to a particular policy or decision. There are no fixed members: its membership fluctuates according to the subject matter under debate. For instance, if the debate concerned environmental issues, the UK would have been represented by the Secretary of State for Environment, Food and Rural Affairs. The presidency of the Council is held for six months by each EU Member State on a rotational basis. The general voting method for the Council is qualified majority voting, except where the Treaties require a different procedure (e.g. a unanimous vote). This means that proposals require a majority of 55 per cent of the EU countries (so, a minimum of fifteen) but those members in favour must represent at least 65 per cent of the total EU population. Take care not to confuse the Council of the European Union with the European Council or the Council of Europe. The Council of Europe is a separate body and has responsibility for the European Court of Human Rights. The European Parliament The European Parliament represents the people of the EU. It is one of the main EU law-making institutions, along with the Council of the European Union. Members of the European Parliament (MEPs) are directly elected representatives of the people, with elections being held every five years. The first main role of the Parliament is debating and passing EU laws, together with the Council. The process by which this is done is known as the ‘ordinary legislative procedure’, set out by the Lisbon Treaty. In many areas (such as economic governance, immigration, energy, transport, consumer protection, and the environment) equal weight is given to the Parliament and the Council and most EU laws are adopted jointly between these two institutions. The steps in the ordinary legislative procedure are as follows: The Commission sends its proposal to Parliament and the Council. They consider it and discuss it on two successive occasions. After two readings, if they cannot agree, the proposal is brought before a Conciliation Committee made up of an equal number of representatives of the Council and Parliament. Representatives of the Commission also attend the meetings of the Conciliation Committee and contribute to the discussions. When the Committee has reached agreement, the agreed text is sent to Parliament and the Council for a third reading, so that they can finally adopt it as law. The final agreement of the two institutions is essential if the text is to be adopted as a law. Page 21 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation Even if a joint text is agreed by the Conciliation Committee, Parliament can still reject the proposed law by a majority of the votes cast. p. 37 ↵ The number of MEPs for each EU Member State is broadly in proportion to its population, although, following the Lisbon Treaty, none may have fewer than six or more than ninety-six MEPs. Following the UK’s withdrawal, the maximum numbumber of members was reduced from 751 (a maximum set by the Treaty) to 705. Twenty-seven of the UK’s seventy-three seats were reallocated (to France, Spain, Italy, the Netherlands, Ireland, Sweden, Austria, Denmark, Finland, Slovakia, Croatia, Estonia, Poland, and Romania). The remaining forty-six seats were set aside for future allocations should new Member States join in the EU. The European Parliament also debates and adopts the EU budget with the Council. It also exercises democratic supervision of the other EU institutions: for instance, Parliament approves the nomination of 9 the President of the Commission and the Commissioners (as a body) and can censure the Commission, forcing its members to resign. It may also consider petitions from citizens and set up inquiry committees. The Court of Justice of the European Union The Court of Justice of the European Union (still often referred to by its former name as the European Court of Justice or ECJ) upholds the rule of EU law by ensuring consistency of application between EU countries, settling disputes between EU Governments and institutions, and hearing cases that are brought before it. The CJEU sits in Luxembourg and comprises one judge from each EU Member State. The judges sit in chambers of three or five as well as in plenary session (where all judges sit to hear a case). They are assisted by eleven ‘advocates general’ whose role is to submit reasoned, public, and impartial opinions to the Court on the cases brought before it. Each judge and advocate general is appointed for a six-year term. The Court delivers a single judgment: separate concurring or dissenting judgments are not permitted. The cases brought before the CJEU fall into certain types. The most common are: Preliminary rulings. National courts may make interim references directly to the Court if they need clarification on how a particular piece of European legislation should be interpreted. The need for such references will arise during the course of a national (domestic) action. In England and Wales this typically occurred in the Supreme Court (although it has been done directly from a magistrates’ 10 court). In other words, if a national court cannot make a ruling because it is unsure how to interpret a piece of EU legislation, then it can effectively suspend the proceedings before it to ask the Court for its opinion. These references are made under Article 267 TFEU. The case will then proceed in the national court with the assistance of the European Court’s ruling. It is the role of the national courts to give effect to and enforce the rulings of the CJEU. Page 22 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation Failure to fulfil an EU obligation. The Court also hears actions for failure of an EU national Government to fulfil its obligations under EU law. Proceedings before the CJEU are preceded by an p. 38 investigation conducted by the Commission, which gives the defendant EU Member State the opportunity to reply to the complaints made against it. If that procedure does not result in remedy of the failure by the defendant EU Member State, an action for breach of EU law may be brought before 11 the CJEU. That action may be brought by the Commission —as is practically always the case—or by 12 another EU Member State. If the CJEU finds that an obligation has not been fulfilled, the EU Member State concerned must remedy the breach without delay. If the Court later finds that the breach has 13 not been remedied, it may, upon request of the Commission, impose a financial penalty. Actions for annulment. The CJEU may also hear applications seeking the annulment of a regulation, directive, or decision. Such actions may be brought by a Member State, by the European Parliament, the Council of the European Union, or the European Commission, or by individuals to whom a measure is addressed or which is of direct and individual concern to them. Actions for failure to act. The CJEU may also review the legality of a failure to act on the part of an EU institution. Where the failure to act is held to be unlawful, it is for the institution concerned to put an end to the failure by appropriate measures. Direct actions. Any legal person can bring an action directly before the CJEU if they have suffered loss or damage as a result of the acts or omissions of the EU’s institutions or its staff. Appeals from the General Court. Appeals on points of law only may be brought before the CJEU against judgments given by the General Court. If the appeal is admissible and well founded, the CJEU may set aside the judgment of the General Court. The CJEU may decide this itself or may refer the case back to the General Court, which is bound by the decision of the CJEU given on appeal. The General Court The General Court has jurisdiction at first instance over all direct actions brought by individuals and EU countries, with the exception of those to be assigned to a ‘judicial panel’ and those reserved for the CJEU. It was formerly known (until 1 December 2010) as the Court of First Instance. The Court of First Instance was established by the Single European Act of 1986 to ease some of the burden of cases on the Court of Justice. It was renamed as the General Court by the Treaty of Lisbon. It comprises up to two judges from each of the EU countries, but, unlike the CJEU, does not have permanent advocates general. It currently has fifty-four judges (some countries having not nominated their full quota of judges). Judges sit in chambers of three or five or, exceptionally, singly. For complex or important cases it may sit as a Grand Chamber of thirteen or as a full court. However, around 80 per cent of cases are heard by a chamber of three. It deals with: Direct actions against the institutions, bodies, offices, or agencies of the European Union Actions brought by the Member States against the Commission Page 23 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation p. 39 Actions brought by the Member States against the Council relating to acts adopted in the field of State aid, ‘dumping’, and acts by which it exercises implementing powers Actions seeking compensation for damage caused by the institutions of the European Union or their staff Actions based on contracts made by the European Union that expressly give jurisdiction to the General Court Actions relating to Community trade marks Appeals, limited to points of law, against the decisions of the European Union Civil Service Tribunal Actions brought against decisions of the Community Plant Variety Office or of the European Chemicals Agency. There is a route of appeal to the CJEU within two months on points of law only. As previously stated, it is vitally important not to confuse the Court of Justice of the European Union (CJEU) (which sits in Luxembourg) with the European Court of Human Rights (which sits in Strasbourg). They are separate courts with separate jurisdictions. The European Council The European Council is composed of the Heads of State or Government of the EU countries together with its President and the President of the Commission. It defines general political directions and priorities of the Union. It does not have any law-making function. The European Council was introduced in 1974 in an attempt to deal with policy matters at the highest level, comprising the individual Heads of State or Governments of each of the Member States. It acquired a formal status in the Maastricht Treaty and became a formal institution of the Union following the Treaty of Lisbon. The European Council defines the general political direction and priorities of the European Union, but does not exercise any legislative function. It meets twice every six months, convened by its President, but may convene specially if a specific situation requires it to do so. Decisions of the European Council are taken by consensus unless the Treaties require unanimity or qualified majority voting. The European Council elects its President by qualified majority. The President’s term of office is two and a half years, renewable once. 2.2.2.3 Sources of EU law There are three sources of EU law: Page 24 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation Primary sources. A number of primary sources of European law have already been mentioned. These are the founding Treaties: the Treaty on European Union and the Treaty on the Functioning of the EU. These Treaties provide the framework of competencies between the EU as a body and its member countries. They also set out the powers of the EU institutions. Therefore, they set out a broad legal framework within which the institutions implement EU policy. Other primary sources include the amending EU Treaties, the annexed protocols, and the accession Treaties for new EU countries. Secondary sources. Secondary sources supplement the primary sources by providing a more detailed p. 40 treatment of the law in a given area and establishing how the principles and objectives identified in the primary sources are to be achieved. The secondary sources of European law comprise unilateral acts (regulations and directives, decisions, opinions, and recommendations) and conventions and agreements (international agreements between the EU and an external country or body and agreements between EU countries and between EU institutions). Supplementary law. This covers the case law of the CJEU, relevant international law, custom and usage, and general unwritten principles of law and justice. The sources of EU law can be summarized as shown in Table 2.3. Table 2.3 Sources of EU law Primary sources of EU law Secondary sources of EU law Supplementary law Treaty of Rome 1957 Regulations Case law of the CJEU Single European Act 1985 Directives Principles of international law Treaty on European Union (Maastricht Treaty) Decisions issued by the Unwritten principles of law and 1992 Commission justice Treaty of Amsterdam 1996 Opinions Treaty of Nice 2001 Recommendations Treaty of Lisbon 2009 Conventions and agreements The interrelationship between EU law and domestic law The body of EU law became part of domestic law by virtue of the European Communities Act 1972. Section 2(1) of the Act provided that: Page 25 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression ‘enforceable Community right’ and similar expressions shall be read as referring to one to which this subsection applies. This meant that all directly applicable EU law, regardless of whether it has already been made or is to be made in the future, became part of national law. Before proceeding much further, we must cover some important terminology. Direct applicability and direct effect It is important that you understand the distinction between provisions of EU law which are directly p. 41 applicable and provisions that are directly effective. ↵ A provision of EU law is directly applicable if it automatically becomes part of the law of an EU Member State without the need for that EU Member State to enact any further legislation. A provision of EU law is directly effective if (and only if) it creates rights upon which individuals may rely in their national courts and which are enforceable by those courts. Thus, direct applicability is concerned with the incorporation of EU law into the legal system of an EU Member State, whereas direct effect is concerned with its enforceability. Before considering which of the different types of EU law have direct effect (i.e. can be relied upon by individuals in national courts and are enforceable by those courts) it is necessary to understand the distinction between vertical direct effect and horizontal direct effect as illustrated in Figure 2.2. Page 26 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation Figure 2.2 Horizontal and vertical direct effect A provision of EU law has vertical direct effect if it can be enforced against an EU Member State in its own courts. A provision of EU law has horizontal direct effect if it can be enforced against another individual in the courts of an EU Member State. Therefore, provisions of EU law with vertical direct effect can be enforced against any EU Member State p. 42 itself. Vertically directly effective provisions may also be enforced against ↵ so-called ‘emanations of the state’—that is, bodies that provide a public service under the control of government—such as local 14 15 authorities and health authorities, nationalized industries, and public-sector employers. You should take care when reading cases which consider the distinction between direct applicability and direct effect since the CJEU does not always distinguish between its use of the two terms. Page 27 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation We have looked at the different sources of EU law and the rules of direct applicability and direct effect which determine how those provisions operate within domestic law. To complete the puzzle, we finally have to establish the applicability and effect of each type of provision. Treaty articles Although it is for the CJEU to determine, treaty articles are normally held to be directly applicable. Therefore, following s 2(1) of the European Communities Act 1972, they required no further legislative action by the UK to take effect as law. A treaty article will have vertical direct effect (it will create individual enforceable rights against the state) if its terms are ‘clear, precise and unconditional’ and its implementation required no further legislation in 16 EU member countries (i.e. it was directly applicable). These are often referred to as the Van Gend criteria from the case in which the matter was first considered. In other words, an Article has vertical direct effect if the EU countries had no discretion in the means of its implementation. 17 Treaty articles may also have horizontal direct effect. Therefore, provided that the Van Gend criteria were satisfied, Treaty articles could be enforced directly in UK courts, regardless of any other domestic legislation. Regulations Article 288 TFEU states that a regulation ‘shall have general application’ and ‘shall be binding in its entirety and directly applicable in all Member States’. Since regulations are immediately directly applicable, then, as with treaty articles, s 2(1) of the European Communities Act 1972 meant that they did not require any further legislative work for their implementation. They took effect on the day specified within them, or if the regulation was silent as to their effective date, on the twentieth day following their 18 publication in the Official Journal. You can find more information regarding the Official Journal in section 3.2.1 which demonstrates how to find EU legislation. 19 Therefore, subject to satisfying the Van Gend criteria, regulations, like treaty articles, have both vertical 20 and horizontal direct effect. Directives Article 288 TFEU shows quite clearly that directives are fundamentally different from regulations. It states that: A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authority the choice of form and methods. Page 28 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation p. 43 ↵ In other words, directives tell the Member States of the EU what needs to be done, but leave each of the states to decide what provisions of domestic law to enact in order to implement that directive. There is always a specified period of time for the EU Member States to implement any given directive. Directives often provide the fine detail on a given area; here, the EU recognizes that individual EU Member States may need to implement them in slightly different ways, to reflect their own national cultures or customs. Therefore, as long as the objective of the directive is met, the EU gives each EU Member State a measure of discretion as to its precise method of implementation in its domestic law. Many pieces of important and influential UK legislation arose from the implementation of EU directives, such as the Equal Pay Act 1970 and the Sex Discrimination Act 1975. Since directives require domestic legislation for their implementation, they are not directly applicable forms of EU law. Moreover, if the directive has been properly implemented, an individual who wishes to bring an action based on that directive will use the national law rather than relying on the directive itself; 21 therefore, in general, directives do not have horizontal direct effect. However, a directive will have vertical direct effect if it satisfies the Van Gend criteria and the time for 22 implementation specified in the directive has passed. Directives may also be said to have indirect effect, since the CJEU also requires national law to be 23 interpreted in accordance with directives. Finally, an EU Member State that has failed to implement a directive may be liable to compensate 24 individuals who have suffered as a result. In other words, if an individual has lost out because of defective implementation of a directive by an EU Member State, they may be able to sue that state for their losses provided that the breach was sufficiently serious (which will be so if the Member State ‘manifestly and 25 gravely disregard[ed]’ its obligations). Decisions The final secondary sources of European law are decisions. Article 288 TFEU provides that a decision ‘shall be binding in its entirety upon those to whom it is addressed’. The addressees may be individuals, companies, or EU Member States. Thus, they are not directly applicable, but may be capable of having direct effect. 2.2.2.4 ‘Soft law’—recommendations and opinions Recommendations Recommendations are not legally binding. However, courts of EU Member States are required to interpret 26 their own law in the light of recommendations. Page 29 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation p. 44 Opinions In common with recommendations, opinions also have no legal authority. However, the opinion of the Commission may be a precursor to legal proceedings. If the Commission states an opinion that a Member State is in breach of an obligation, then it would be unwise for a Member State to ignore it. Despite their persuasive nature, Article 288 TFEU states that ‘Recommendations and opinions shall have no binding force’. 2.2.2.5 The history of the supremacy of EU law From the point of view of the EU, where there is a conflict between EU law and the law of EU Member States, EU law prevails. This has been clear since Van Gend en Loos in 1963 where the European Court of Justice (as it then was) clearly stated that ‘the Community constitutes a new legal order … for whose 27 benefit the states have limited their sovereign rights’. 28 In Costa v ENEL the following year, the European Court of Justice made two important observations regarding the relationship between Community law (as it then was) and national law; first, that the Member States have definitively transferred sovereign rights to a Community created by them. They cannot reverse this process by means of subsequent unilateral measures which are inconsistent with the concept of the Community. In other words, the autonomy of the Member States to act as they wish has been limited by virtue of their membership of the Community. Moreover, it is a principle of the founding Treaties that no Member State may call into question the status of Community law as a system uniformly and generally applicable throughout the Community. It follows that Community law, which was enacted in accordance with the Treaties, has priority over any conflicting law of the Member States. Therefore, in Costa v ENEL, the European Court of Justice emphatically established the primacy of Community law over national law. In Simmenthal, the Court further held that the principle of supremacy does not invalidate conflicting national law; but simply established that the national law was of no effect in the areas in which it conflicted. The Court also stated that national courts should apply European law in the case of a conflict without waiting for the setting aside of the conflicting 29 national provision. This means that the enactment of the European Communities Act 1972 prevented Parliament from introducing new statutes which conflicted with European law. This was at odds with the constitutional principle of Parliamentary sovereignty which, in essence, says that Parliament may enact any law that it wishes (it has ‘unlimited legislative competence’) and that there is no other body that may challenge the validity of a properly enacted Act of Parliament. Initially, the view of the UK courts was that UK law 30 remained supreme. In Felixstowe Dock & Railway Co v British Transport Docks Board Lord Denning stated 31 obiter that: It seems to me that once the Bill is passed by Parliament and becomes a [UK] Statute that will dispose of all discussion about the [EU] Treaty. These courts will have to abide by the [UK] Statute without regard to the [EU] Treaty. Page 30 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation 32 p. 45 ↵ However, in Macarthys v Smith the Court of Appeal started to drift away from the idea of UK law taking priority over Europe, finding that national law was in fact subservient to Europe, although Lord Denning again considered that if Parliament deliberately and consistently breached European law, ‘it 33 would be the duty of our courts to follow the statute of our Parliament’. This conflict was not tested in the domestic courts for some years. It was eventually considered in the 34 Factortame cases. These concerned a conflict that arose between certain provisions of the EC Treaty (as it was then) which prevented discrimination on the grounds of nationality and Part II of the Merchant Shipping Act 1988 which provided that fishing boats registered in the UK that were fishing for the quotas allocated to the UK by the EC must be owned and managed by UK citizens: Spanish fishermen wanted to fish here. The House of Lords upheld the opinion of the European Court of Justice and granted an interim injunction against the Crown to prevent it from enforcing an Act which contravened European law: an act which was previously constitutionally impossible. The House of Lords later held that parts of the Merchant Shipping Act 1988 were incompatible with the relevant provisions of the EC Treaty. This constitutional conundrum was cleverly and carefully reconciled by Lord Bridge. He first considered s 2(4) of the European Communities Act 1972 which provided that: Any enactment passed or to be passed … shall be construed and have effect subject to the foregoing provisions of this section. In other words, any legislation passed or to be passed in the UK must be interpreted with applicable European law in mind. Lord Bridge argued that, since s 2(4) of the European Communities Act 1972 states that any enactment must have regard to Community obligations, this effectively meant that Parliament’s intention was that all future legislation would be EC-compliant and would contain a fictional ‘invisible clause’ to this effect, unless the incompatibility was so important that it needed to be explicitly stated in the new legislation. Lord Bridge said that: Whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 it was entirely voluntary … when decisions of the Court of Justice have exposed areas of United Kingdom law which failed to implement Council Directives, Parliament has always loyally accepted the obligation to make appropriate and prompt amendments. Thus there is nothing in any way novel in according supremacy to rules of Community law. Therefore the relevant provisions of the Merchant Shipping Act 1988 took effect subject to directly enforceable Community rights. In doing so, the House of Lords affirmed that, for all future cases, where a statute was silent on a matter covered by European law, it was presumed that it was intended to comply with European law. Page 31 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation The Conservative–Liberal Democrat Coalition Agreement published following the 2010 general election contained a promise to ‘ensure that there is no further transfer of sovereignty or powers [to the EU] over the course of the next Parliament’; to ‘amend the 1972 European Communities Act so that any proposed future treaty that transferred areas of power, or competences, would be subject to a referendum on that p. 46 treaty’; and to ‘examine the case for a United ↵ Kingdom Sovereignty Bill to make it clear that ultimate authority remains with Parliament’. The ensuing European Union Act 2011 contained a sovereignty clause in s 18 as follows: Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act. Thus, s 18 demonstrated the clear intention of Parliament that if UK law clearly, deliberately, and explicitly stated that EU law was not to be followed then the courts should apply the domestic UK law. The associated Explanatory Note states that s 18 was ‘declaratory’ of the position at the time: This declaratory provision was included in the Act in order to address concerns that the doctrine of parliamentary sovereignty could in the future be eroded by decisions of the courts. By providing in statute that directly effective and directly applicable EU law only takes effect in the UK legal order through the will of Parliament and by virtue of the European Communities Act 1972 or where it is required to be recognised and available in law by virtue of any other Act, this will provide clear authority which can be relied upon to counter arguments that EU law constitutes a new higher autonomous legal order derived from the EU Treaties or international law and principles which has become an integral part of the UK’s legal system independent of statute. 2.2.2.6 Brexit Although the right to leave the EU has been a right under Article 50 of the Treaty on European Union since 2007, it had never been exercised by any Member State of the EU before the UK did so on 29 March 2017 following the Brexit referendum in 2016. This meant the UK was scheduled to withdraw from membership of the EU on 29 March 2019. The day after triggering Article 50, the Government provided initial details of what was popularly known as the ‘Great Repeal Bill’ to ensure that EU law would no longer apply in the UK from ‘exit day’ (specifically 29 March 2019 at 11 p.m.—which was midnight Brussels time). The European Union (Withdrawal) Act 2018 received Royal Assent on 26 June 2018. Its main provisions relating to EU legislation and its relationship to UK law are set out in Table 2.4. Page 32 of 38 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 15 January 2025 2. Legislation Table 2.4 Main provisions of the European Union (Withdrawal) Act 2018 Section Effect 1 Repeals the European Communities Act 1972 on exit day 2 EU-derived domestic legislation in effect before exit day continues to have effect on and after exit day 3 Direct EU legislation, so far as operative immediately before exit day, forms part of domestic law on and after exit day 4 Any rights, powers, liabilities, obligations, restrictions, remedies, and procedures which exist and are followed by virtue of s 2(1) of the European Communities Act 1972 immediately before exit day continue as such on, and after, exit day 5 The principle of supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day 6 A court or tribunal is not bound by any decisions of the CJEC on or after exit day; neither can it refer any matter to the CJEC p. 47 ↵ According to the accompanying Explanatory Notes prepared by the Department for Exiting the European Union, the Act ended the supremacy of EU law in UK law, converted EU law as it stood at the moment of exit into domestic law, and preserved laws made in the UK to imp

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