Tuesday, 2 November 2010

EU Law: How exactly does the EU penetrate our legal system?

Hi there, according to a rather humourous email I received not enough of us are writing blogs on this site! Thus, I have decided to post here a series of blogs to inform readers about the actual political science (or nonscience/ nonsense) of the EU.

Yes, most of us know our arguments backwards about why the EU is a bad things but can we really get into the nitty gritty detail that our opponents will use to confuse us? Now I know many UKIP members are VERY well informed, not least by the education the party provides, however until recently I personally have not understood the legal side of the EU as much as I would like to.

Thus, as somebody who is qualifying in English Law with European Legal Studies LLB. I feel it might benefit others if I share some of things I have learned in a series of blogs.

This is number one: How does the EU penetrate our legal system.

Well there are 2 main types of law and, of course, the EU has both: primary and secondary law. As you can guess primary law is more important than secondary law.

EU Primary Law is the Treaties such as Maastricht and Lisbon. For our politicians to transform these Treaties and turn them into British law calls they need do is make an Act of Parliament. Simple enough.

Things are more complicated when it comes to secondary law (very much a back-route entrance for the EU to create great legal changes as i will try to explain)

There are two main forms of EU secondary law.

Number 1: Regulations, these are the highest form of EU secondary law and they take ffect without the national authority doing anything. EU Regulations give the legislative bodies of the EU to make whatever law they want and have it implemented in all member states. Weirdly enough this means secondary legislation is in a way of an even higher status than primary legislation. The Treaties require our politicians to make an Act of Parliament to create the laws. A regulation involves our politicians doing NOTHING AT ALL. As soon as the Commission, for example, says something is a law- it's a law.

So regulations are rather dodgy aren't they, give the EU a little bit to much power. Alas, the EU uses them scarcely, or at least the EU is supposed to use them scarcely due to the principle of "subsidiarity". This is the idea that EU laws should as much as possible involve decision making at the lowest level. Thus instead, to maximize local disccression the Eu relies upon directives. A directive is a law that member states must implement in which so ever way they choose to do so.

If a member state takes a long time over making a Directive into national law or fails to do so then they might lose out on the advantages of that law. E.g. If there is an EU law to subsidies British agriculture, the British government wont get that subsidy if it has not implemented the relevant directive. HOWEVER, there is a very obscure principle which comes into play here called direct effect (developed by the ECJ) whereby- let us take this example of subsidies for British agriculture- a farmer might say " look because the UK govt. hasn't made this law I'm losing out". The farmer could take the UK to court and force the law to be made. In this way the EU clearly penetrates right through our legal system.

You will note in all this that it is possible for secondary legislation from the EU to go against primary UK legislation (Acts of Parliament) and this has happened many times. The rule is that the EU law must take precedent and overrule the UK national law. This is a bit of a problem to say the least because secondary legislation is made by lower authorities. So, a very small group of bureaucrats in Brussels can overule laws made by the democratically elected government of the UK. This is often referred to by legal academics as the "Henry VIII Clause" because it's so authoritarian.

I will check over this for typos etc. later. Hope it might be useful for someone who wants a little more info about the fundamental legal aspects of our arguments. Hope to add some more articles to this series soon!