Critically consider the position of Parliamentary sovereignty in light of the United Kingdom’s membership in the European Union.

This question is concerned with the sovereignty of Parliament given our membership in the EU. Students should focus on the extent to which Parliament’s sovereignty has been restricted by its membership.

Students should first set the scene by explaining that as a result of the European Communities Act (ECA) 1972, any UK enactment has effect subject to existing ‘enforceable Community rights’. Students should then take a detailed look at some of the key case law dealing with sovereignty in light of our membership including Van Gend; Costa; and Factortame. Students should not merely recite the facts or the legal principle but should engage with the law and establish whether these cases truly restricted the sovereignty of Parliament or not.

Students must also consider the potential effects of Brexit on Parliamentary supremacy and are advised to consider Chapter 10 to allow them to do so well.

Adrian runs a small business in the UK, making watches specifically aimed at 10-15 year olds. Adrian employs Mark, Helen and Joy. Helen and Joy leave work early every day to pick up their children. Mark requests that he too can leave early; however he has no children and Adrian refuses his request to leave early.

A recent EU Directive has been introduced which provides that it is unlawful to discriminate against an employee on their parental status. The deadline for implementation was June 2014. It is now July 2016 and the Directive has not yet been implemented. Adrian still refuses to allow Mark to leave early.

Advise Mark as to whether he has any rights to enforce.

Would your answer be different if Mark was employed by the Ministry of Justice?

This question simply concerns the operations of Directives on national law.

Students are best advised defining a Directive and then comparing it to other forms of law from the EU (such as treaties and regulations).

Students should note that Directives are not directly applicable as they require implementation by the Member State (Article 288 TFEU). They should also note that Directives can be directly effective so long as they are ‘sufficiently clear, precise, and unconditional’ (Van Duyn) and its implementation deadline must have expired (Pubblico Ministero v Ratti). That appears to be the case here, however, Mark works for a non-governmental body (i.e. a private body). According to Marshall, Directives can have vertical direct effect; however, cannot be relied upon horizontally. As a result, Mark cannot rely on the Directive in his present place of work.

However, had Mark been working for the Ministry of Justice, this is a public body thus allowing for vertical direct effect. Under the Francovich principle, Mark may be able to claim damages from the state by their failure to implement the Directive within the allotted time frame.

Students should conclude that in the first circumstance, Mark has no rights available to him. However, in the second circumstance, as the body is a public body – it is subject to direct effect and thus Mark can claim a remedy.