Chapter 8 Answer guidance

Membership of the European Union

Explain in your own words what is the nature and role of the European Union.

What do you remember about the history of the European Union? Think about the significance of World War II and the initial purpose for bringing European states together. If you cannot remember, see the extract from Munro in section 8.1.
What do you understand about the term ‘European Community’?
How many member states are in the European Union?

What are the main EU institutions and who are the personnel involved in them?

Remember that the EU institutions form the structure of the EU. What do you remember about the structure of the EU? Figure 8.1 should help.
Which institution involves the heads of state or government of each of the member states and guides the direction of the EU?
What is the difference between the ‘European Council’ and the ‘Council of the European Union’?
Which institution is made up of member states’ governmental representatives?
Which institution contains elected representatives from each member state of the European Union?
What do you understand to be the role of the European Commission?
Can you explain the relationship between the Council of the EU, the European Parliament and the European Commission?
Which institution oversees the use of EU funds and which institution determines matters of EU law?
Refer to section 8.1.2 for help with the main EU institutions.

How would you describe monist and dualist states to a friend interested in international law?

Remember that this is about how international law applies in any state.
The key distinction is whether or not international law is automatically applicable in domestic law from the moment it is ratified, or whether a domestic provision (for example an Act of Parliament) is required to bring the international law into the domestic sphere. Do you know which of these is the case for a monist state and which describes a dualist state?
Is the UK a monist or a dualist state?
It might help to think about a particular international treaty as an example. For example, think about an example which is ‘European’ but is not a creature of the European Union: the European Convention on Human Rights. The UK state (the executive) signed the up to the Convention in the 1950s. But it was not until 2000 that the UK incorporated the treaty into the domestic legal order. Before 2000, what did an individual in the UK need to do in order to complain about a violation of the Convention? Could they seek to enforce the Convention in domestic UK courts? And so, did the Convention apply in domestic law before 2000?

In no more than 300 words, explain the UK’s current relationship with the EU.

One of the most exciting aspects of being a law student is that your subject changes around you. Some things will undoubtedly have changed since this book was written. You might find it easier to start by thinking through the UK’s relationship with the EU before the 2016 Referendum on membership of the European Union.
What did the European Communities Act 1972 achieve? Think back to what you know about ‘dualist’ states and think through why the ECA 1972 Act was necessary.
What was the significance of the ECA 1972 in terms of inconsistencies between UK and EU law?
Now that the UK has withdrawn from the EU, what are the current arrangements in place? You may wish to consider the status of retained EU law and also the ongoing if limited relationship that Northern Ireland has with EU law so as to prevent a hard border between it and Ireland.
Finally, you may want to consider how the new arrangement appears to be operating in relation to people, goods, services and capital both in Great Britain, Northern Ireland and Ireland. There are some early thoughts in the textbook but much more will become known over the coming months and years. Try to see where your internet research can take you and see if you can identify new legislation and/or case law which assists you to answer this question.

Chart the development of UK and EU case law, which has an impact on parliamentary supremacy. What does it tell you about the changing nature of parliamentary supremacy, if anything? What does this mean in relation to your own understanding of parliamentary supremacy?

What did the ECJ case law seem to suggest about the legislative supremacy of states after joining the Community? Think about the case of Costa v ENEL.
Can you recall what the argument was in Blackburn v Attorney General? Mr Blackburn considered that, by signing the Treaty of Rome, the UK Parliament would lose its legislative supremacy for good. Did Lord Denning agree?
Shortly after Costa v ENEL, another case demonstrated that the European treaties were to be considered hierarchically superior to a state’s domestic law and that ECJ rulings on EU law were to be considered to be authoritative. What did that mean for UK judges and their treatment of the ECJ case law? Can you name a case demonstrating these things? See section 8.4.1 if you have forgotten.
In Factortame, the House of Lords was faced with an incompatibility between UK and European law. What did the court do?
In another case, Lord Justice Laws outlined the concept of a ‘constitutional statute’. Can you remember the name of the case and explain why this term is important to the nature of parliamentary supremacy? Read section 8.4.2 if you need help.

To what extent has parliamentary supremacy been strengthened by the insertion of Article 50 of the Lisbon Treaty?

Think first about what Article 50 of the Lisbon Treaty does (section 8.5.1).
Remember that European treaties are hierarchically superior to a state’s domestic law and that ECJ rulings on EU law are authoritative. But is a state trapped in membership of the EU? Or is a member state able to withdraw from the EU?
Was there a procedure for a member state to withdraw voluntarily from the EU before Article 50?
Think about how your answers to these questions relate to what you understand about parliamentary supremacy. Is parliamentary supremacy weakened or strengthened by the insertion of a procedure to permit voluntary withdrawal from the EU?

Has the UK’s membership of the EU ultimately resulted in a loss of supremacy regardless of whether the UK leaves the EU?

There is no right or wrong answer to this question. When thinking about it, pay particular attention to the wider implications of leaving the EU.
What are the difficulties with disentangling the UK legal system from the EU? If the government make use of Henry VIII powers to make changes through delegated legislation, how would this alter the balance of powers in the UK and do you think that this offends against the principle of parliamentary supremacy?
How might the process of leaving the EU impact the devolution settlements of Scotland, Wales and Northern Ireland? Hint: think about whether the devolved nations consented to leaving the EU.
Review section 8.5.2 if you are unclear on the constitutional implications of the UK’s withdrawal from the EU.

What are the constitutional implications in the UK resulting from the UK’s withdrawal from the EU?

This question is asking you to focus on the constitutional position within the UK rather than the UK’s constitutional relationship with the EU.
There are constitutional implications for the relationship between the UK as a whole and the devolved nations, the most obvious of which is Northern Ireland continuing to have a (limited) relationship with some EU law in order for there not to be a hard border between Northern Ireland and Ireland.
There are implications for our understanding of parliamentary supremacy and the separation of powers via the relationship between the legislature and the executive (Miller cases).
There are constitutional implications from the use of Henry VIII clauses that allow the executive to make changes to primary legislation under certain circumstances.
There are also implications of the UK having integrated EU law into the domestic legal system at the point of exit so as to ensure that our legislation was not incomplete when we left the EU.
You could address this question broadly or narrowly: broadly by addressing a range of the topics below, or narrowly by selecting one and looking at it in real detail (in which case you would need to explain that in your introduction).