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Parliamentary Sovereignty Notes

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This is an extract of our Parliamentary Sovereignty document, which we sell as part of our Constitutional Law Notes collection written by the top tier of Oxford students.

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Constitutional Law reading week 5 General Reading Craig "Britain in the EU" in Jowell and Oliver (2006)

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NB the EEC Treaty of 1957 was the Rome Treaty. It was preceded by 1951 European Coal and Steal Community treaty.

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The Single European Act (SEA) 1986 completed the single market. Maastricht Treaty (Treaty on EU) 1993 introduced the three pillar structure (SEE Stefan's notes)

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The Maastricht Treaty 1993 increased the power of the European parliament and set a detailed timetable for economic and monetary union. It drew a distinction so that the first pillar was supranational and the second and third pillars (2= Common foreign and security policy; 3= justice and home affairs) were more intergovernmental, member-states taking decisions (to the exclusion of European parliament, Commission and ECJ).

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The treaty of Amsterdam blurred the distinction: more of a "supranational tenor" about intergovernmental decisions on pillars 2 &3. Treaty of Nice dealt with institutional consequences of enlargement. Treaty of Lisbon- see Craig lecture notes

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Originally the EEC treaty created 4 major bodies: Council of Ministers (representatives from member states' governments); The Commission (members appointed by each state); the Assembly (indirectly elected to represent the people); Court of Justce

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Prior to Maastricht, the assembly was very weak (only having a right to "consultation" where an article provided that it should). the commission had the power of legislative initiative as well as other powers from all 3 branches of govt, making it powerful. Nevertheless the Council exerted power over the Commission: the Luxembourg Accords ensured that member state's major interests would not be affected unless that state agreed, so that the threat of veto always coerced legislation. The European Council was a body of heads of state and could determine the general direction of the EU.

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The Maastricht Treaty established the Co-decision procedure: The Commission submits a bill to the European Parliament (EP). If EP and Council accept it then the act can be adopted. If EP wants to amend it then its amended version is sent to the Council who can accept, reject or re-amend it. If it is rejected or sent back to the EP, the same process occurs and if there is still no agreement, then the Conciliation Committee (equal no. reps from EP and Council) can try and

agree on a joint text. If this is agreed then the act can be adopted. The point is that the bill cannot be passed unless the EP and the council agree to it- article 251 sets out co-decision procedure.

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The ECFI and the ECJ have assumed considerable powers of judicial review: they have said that community actions can be invalidated if they contradict "legitimate and proportionate expectations", if they contradict procedural legality and fundamental rights.

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The European scrutiny committee looks at the legal and political importance of EC documents e.g. draft proposals for legislation. Some important documents are referred to the European Standing Committee and from there to the House of commons for debate. The HL select committee on the European Union also produces reports on certain EU documents that it feels should be drawn to the attention of the house.

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The improved democracy in the EU, due to increased powers of EC, has meant that it is no longer acceptable to use the veto and this is almost never now done.

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On Sovereignty Wade's traditionalist view is the following: Parliamentary sovereignty means that no act of parliament can be held invalid in the courts. Therefore no parliament can bind its successors. The only limitation of parliament's power is that it cannot detract from its own continuing sovereignty

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Wade's view causes problems where parliament passes an act that contradicts an EC law. An attempt to blunt the problem is made by principle of construction: that UK law should be interpreted so as to comply with EC law.

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In Factortame no.2 (i.e. after ECJ's judgement) Lord Bridge said that in enacting the European Communities Act 1972 parliament voluntarily sacrificed some sovereignty; secondly Lord Bridge accepted the argument that unless EC laws took precedence then the EC would be unviable; thirdly there was a duty for national courts to override UK law in applying EC law EOC case In the EOC case, the Equal opportunities commission argued that the UK's differing redundancy package for full time and part time workers discriminated against women. The HL held that the UK law was in contravention of EC law and that it therefore could be disapplied, using Factortame as a precedent for its ability to do this. Similarly it held that any national court, not just the HL, had the power to make such a declaration.

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