At the present time, the European Communities Act [1972] provides that the UK is bound by law enacted by the European Union (“EU”), whereby provisions of EU law are superior to domestic law, in that EU provisions take precedent in circumstances where there is conflict between the two sources of law.
However, David Cameron’s recent proposal for a referendum to determine the UK’s future within the EU has fuelled questions as to whether the UK may finally ‘break free of the shackles’ that appear to have been imposed on it by the EU. Such a referendum could refine constructively the relationship between the UK and EU, and possibly reduce the effect that EU law has within the UK.
The first question to consider is whether the UK has the power to opt out of provisions of law imposed on it by the EU. In line with the doctrine of parliamentary sovereignty, the UK Parliament has the ability to repeal the European Communities Act (the statutory instrument which brought the UK into the EU) and thus revoke its membership with the EU. This would mean that the provisions of law enacted by the EU would become void within the UK. However, it would be wrong to conclude that the UK may simply ‘pick and choose’ which provisions of EU law it wants to apply. If the UK attempted to take such a course of action, the EU may have the right to impose sanctions against the UK. I would suggest that the only way the UK may take free of provisions of EU law would be to legislate expressly for the revocation of its membership within the EU.
The UK’s ability to revoke its membership with the EU would then be dependent on whether a referendum such as the one proposed by David Cameron takes place, as well as the public voting against staying in Europe on such renewed terms. The second question to consider is whether the UK should merely make attempts to opt out of the law imposed on it by the EU, and what the consequences of such a course of action would be. The EU has limited law-making power within the UK, and so can only legislate in the areas that the treaties provide for. Therefore the consequences of such an attempt to remove the EU’s law-making power within the UK would be of limited effect.
I would then suggest that the extent to which the law would change if the EU was no longer recognised by the UK as a superior source of law would be dependent on the current status given to that law by the EU. Essentially there are two broad types of EU law; regulations and directives. Article 189 of the Treaty of Rome provides that regulations are binding on all member states and all members have to accept the same definition. This is in contrast to directives, where member states have scope to adjust or tinker with the definitions of such directives so that it may fit in with the requirements of national law. I would therefore suggest that it is less likely that directives, such as the Working Time Directive, would be subject to wholesale amendment or repeal, as such provisions of EU law have been read in such a way which ‘fits’ within national law.
However, if the UK was seen to split from the EU then there would be less regulation over the laws that are enacted by Parliament, as the UK would be moving towards a theory of parliamentary sovereignty outlined famously by AV Dicey. The only real protection that could then be used to safeguard against Parliament abusing its power is the political safeguard of democratic elections, although the judiciary also provides protection through the “separation of powers”, which offers useful “checks and balances”. This worry is compounded by the fact that laws enacted by the EU, such as the Working Time Directive, are necessary and proportionate, safeguarding against potential abuses by certain interest groups. If the UK Parliament was afforded the power to legislate for areas in relation to the work place, this could quite potentially result in the exploitation of certain citizens within society.
In my opinion, then, the only feasible way that the UK opt out of specific provisions of EU law would be to expressly state that they are making a move away from the EU by repealing the European Communities Act. Proposals for a referendum may have politically “lined the stomach of the UK”, but this is only the first step on the road to a different relationship between the UK and the EU – and there are certainly several crossroads to be negotiated along the way.
