Anaya Nolan
The primacy of European Union law, or the 'supremacy of EU law', is a legal principle that establishes the precedence of EU law over conflicting national laws of member states. This principle has been a point of contention between the EU and the UK, especially during the UK's membership of the EU, which ended on 31 January 2020. The UK's unwritten constitution and doctrine of parliamentary sovereignty, which asserts that 'an Act of Parliament is the highest law in the UK', posed challenges to the acceptance of EU law supremacy. The European Communities Act 1972, which incorporated EU law into UK domestic law, was a key piece of legislation in this debate, with the UK courts initially reluctant to accept the doctrine of EU law supremacy. However, over time, there were efforts to address the conflict between EU and UK laws, and the Retained EU Law (Revocation and Reform) Act 2023 allowed the UK government to revoke or modify retained EU laws, ending the supremacy of EU law within the UK legal system.
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What You'll Learn
The UK's adoption of EU law
The United Kingdom became the first member state to formally leave the European Union on 31 January 2020, after 47 years of membership. The European Communities Act 1972 (ECA 1972), which incorporated EU law into UK domestic law, was repealed by the European Union (Withdrawal) Act 2018. However, the European Union (Withdrawal Agreement) Act 2020 saved the effect of the 1972 Act, allowing EU law to remain in force in the UK until the end of the implementation period on 31 December 2020.
Despite these challenges, the UK's adoption of EU law followed the principle of the primacy of EU law, which states that EU law takes precedence over conflicting national laws of EU member states. This principle was derived from the interpretation of the European Court of Justice, which ruled that member states had agreed to limit their sovereign rights in areas covered by EU treaties. The majority of national courts accepted this principle, recognising the need to disapply national norms that were not compliant with EU law.
In conclusion, the UK's adoption of EU law was a complex process influenced by legal principles, court interpretations, and the relationship between EU and UK sovereignty. The UK's departure from the EU in 2020 marked the end of the direct application of EU law in the UK, with the Retained EU Law (Revocation and Reform) Act 2023 allowing the UK government to revoke and modify retained EU laws.
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The primacy of EU law
The principle of primacy was established long before the United Kingdom joined the European Community. The UK, as a member state, agreed to limit its sovereign rights in areas covered by EU treaties and could not adopt national laws that were incompatible with European law. This was further enforced by the European Communities Act 1972, which incorporated EU law into UK domestic law.
The European Union (Withdrawal) Act 2018 repealed the European Communities Act 1972, ending the direct effect of EU law in the UK. The Retained EU Law (Revocation and Reform) Act 2023 further allowed the UK government to revoke or modify retained EU laws, ending the supremacy of EU law within the UK legal system.
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UK courts' reaction to EU law supremacy
The primacy of European Union law, or the 'supremacy of EU law', is a legal principle that establishes the precedence of EU law over conflicting national laws of member states. This principle was derived from the interpretation of the European Court of Justice (ECJ), which ruled that European law takes priority over any contravening national law, including the constitution of a member state.
The UK Parliament, to a certain extent, accepted the primacy of EU law. However, initially, UK courts were reluctant to accept the doctrine of the supremacy of EU law. In the Bulmer (1974) and Felixstowe Dock (1976) cases, Lord Denning asserted that once a statute was passed, the courts would disregard EU law. Nonetheless, in the Macarthys Ltd (1979) case, his view evolved, and he acknowledged the overriding force of EU law, stating:
> [I]n construing our statute, we are entitled to look to the EC Treaty as an aid to its construction; but not only as an aid but as an overriding force. If…our legislation…is inconsistent with Community law…then it is our bounden duty to give priority to Community law.
Following the Macarthys Ltd case, the House of Lords (now the Supreme Court) in Garland (1983) emphasised that the rule of construction should be employed to ensure consistency with EU law, even if it significantly deviates from the statute's plain meaning. Subsequently, in Duke (1988) and Finnegan (1990), the House of Lords declined to adopt the rule of construction due to the specific circumstances of those cases. However, in Pickstone (1989) and Litster (1989), the House of Lords once again demonstrated its willingness to accord supremacy to EU law, employing a purposive approach to achieve consistency with the objectives of the EC Treaty.
The UK's enactment of the European Union (Withdrawal) Act in 2018, as part of the Brexit process, formally repealed the European Communities Act 1972, which had incorporated EU law into UK domestic law. The Retained EU Law (Revocation and Reform) Act 2023 further allowed the UK government to revoke or modify retained EU laws, ending the supremacy of EU law within the UK legal system.
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The sovereignty clause
The relationship between EU law and UK law has been a controversial topic for much of the UK's time as an EU member state. This is because it represents a constraint on the constitutional principle that the Crown-in-Parliament is sovereign.
The primacy of EU law, also referred to as the 'supremacy principle', is a legal principle that establishes the precedence of EU law over conflicting national laws of EU member states. This principle was derived from an interpretation of the European Court of Justice, which ruled that European law has priority over any contravening national law, including the constitution of a member state itself.
In 2011, the UK government passed the European Union Act 2011, which included a sovereignty clause to address the issue of the primacy of EU law. This clause, known as Clause 36, states that 'it is recognised that the Parliament of the United Kingdom is sovereign' and that nothing in the Act 'derogates' from this sovereignty. The clause was included to underline the principle of parliamentary sovereignty and to put it on a statutory footing.
With the UK's withdrawal from the EU in 2020, the European Communities Act 1972 was repealed, and EU law no longer has direct effect in the UK. The Retained EU Law (Revocation and Reform) Act 2023 further allowed the UK government to revoke or modify retained EU laws, ending the supremacy of retained EU law within the UK.
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Revoking retained EU laws
The Retained EU Law (Revocation and Reform) Act 2023, also known as the REUL Act or the Brexit Freedoms Bill, gives ministers and devolved authorities substantial powers to revoke or reform retained EU laws (REUL). These are laws accumulated during the UK's membership of the EU.
The REUL Act seeks to end the special status of REUL in the UK statute book, allowing it to be more easily amended, revoked, or replaced. The Act includes a revocation schedule, listing at least 600 pieces of REUL for revocation by the end of 2023. These include laws that are now defunct, unnecessary, burdensome, or duplicative after leaving the EU. For example, certain items relating to the National Air Pollution Control Plan will be revoked to better focus on ambitious air quality targets set in the Environmental Act.
The REUL Act also confers broad delegated powers to restate, replicate, revoke, and replace REUL/assimilated law. These powers will expire on 23 June 2026. The Act permits lower courts to depart from legacy case law of the Court of Justice of the European Union more frequently. It also relaxes scrutiny rules for modifying or revoking REUL, making it easier to use pre-existing delegated powers.
The UK Government has committed to ongoing reform and review of REUL. The REUL Dashboard, a public database of retained EU laws, is updated every six months until June 2026. The Government's REUL reform report sets out a roadmap to revoke or reform half of all REUL by June 2026, with expectations of "huge improvements" to the regulatory environment for UK businesses.
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Frequently asked questions
Yes, the primacy of EU law (or the 'supremacy of EU law') is a legal principle that establishes the precedence of European Union law over conflicting national laws of EU member states.
The principle of the primacy of EU law is based on the idea that where a conflict arises between an aspect of EU law and an aspect of law in an EU member state, EU law will prevail. This is to ensure that EU policies can be pursued without hindrance from individual member states.
No, since the implementation period ended on 31 December 2020, EU law no longer applies to the UK. However, the principle of the supremacy of EU law applies to the interpretation of retained EU law. The Retained EU Law (Revocation and Reform) Act 2023 allows the UK government to revoke or modify retained EU laws.
