From Interstate - Journal of International Affairs VOL. 1998/1999 NO. 1
Britain And The European Union
When Great Britain joined the European Union in 1973 (then referred to as the European Community) many expected the British common Law system to clash with the European Law system, which is mainly based on its continental predecessors, in particular the systems of the first Member States: Germany, France and Italy.
But nothing of the kind occurred, the only problems Great Britain had to face were the adjustment problems all countries have to face when joining the Union. Perhaps it wasn’t realistic to think such a clash would occur, because Member States declare their acceptance of the European Laws and Regulations upon the date of joining the Union, lock stock and barrel.
The influence of British Law on European Law hasn’t been of much significance. However, European Law has had far more influence on British Public Law. These influences shall be discussed below.
Influences of British Law on European Law
As of the moment Great Britain joined the European Union, the two main European Law systems combined (common and continental Law), which could have lead to new problems on harmonising Private Law, because both systems are substantially different on that part. Although many of the problems were removed by the ruling that Member States accept European Laws and Regulations, they still could have brought along new perspectives. However, Great Britain Joining the Union couldn’t change the nature and the main characteristics of European Law. Of course, European Law has changed a lot since Great
Britain’s entry into the European Union, so British Law may have influenced European Law. To identify these influences, European Law can be divided into three layers: primary Law (Inaugural Treaties, in particular the EC Treaty and EU-Treaty), secondary Law (Regulations based on the Treaties, such as directives) and tertiary Law, the jurisdiction of the Court and the general principles of Community Law.
In respect of primary Law, it can be said that Great Britain didn’t put its stamp on the European Act of 1986, nor on the Treaties of Maastricht and Amsterdam (1992 and 1997, respectively), because the British government at that time didn’t want fundamental reforms, and for this reason the British influence on these Treaties is not very extensive. At the time of the negotiations of the Maastricht Treaty Britain’s attitude didn’t change much, despite the new John Major government promising to put Britain “in the heart of Europe”. Once again the British negotiations were mainly focused on preventing changes proposed by other Member States. Britain used the same approach to the 1996 Intergovernmental Conference on the European Union where the new Labour government, installed a month prior to the closing of the negotiations, couldn’t change much about their defensive position.
This is not the only reason for the minor influence of British Law on European Law. Another factor is the form of British Constitutional Law, which is informal and based on simple fundamental rules. This cannot serve as a model for the complex Legal system of the European Union, while the German system, for instance, shows many parallels with the European Institutional Law and its somewhat federal form. Two very important institutional changes are the legislative right of consultation of the European Parliament and the principle of subsidiarity; both introduced by the Treaty of Maastricht, which are both results of federal inspiration. Both were new for Great Britain, the Oxford dictionary didn’t even define the term “subsidiarity”! To this day the subsidarity principle isn’t used by the British that often, and if used, it is for the wrong reasons: mainly to show the Eurosceptics amongst them, that there will always remain room for their national sovereignty.
As for the secondary layer, when Great Britain joined the Union a lot of secondary Law had already been formed. Even if Great Britain could have influenced either the content or the form of certain secondary Law, it was again its defensive position that made this quite impossible. Britain became known as an awkward and troublesome Member of the Union.
However, it cannot be said that British Law doesn’t influence the content of European Law at all. Directives are almost always in spired by national rules on the applicable subject of one of the Member States. The Member State which can defend its own rules best during the negotiations will note that the directive will use the form and/or method of that national rule. Very often these “best national rules” are Great Britain’s. This is not her only influence on European Law; Great Britain also has a vivid tradition of deregulation, which in the last couple of years has also become an issue of European importance (privatising and/or liberalising of govemmental monopolies). For instance, in the telecommunications sector the European Union used the British experience as a source of inspiration.
The last point of interest is whether the entry of Great Britain had some influence on European jurisdiction? There are no specific points that can be attributed to the entry of Great Britain into the European Union, although many expected the Common Law judges to bring along certain common Law traditions. Some say the British judges brought a new style to Court in relation to hearings and the precedent-effect, but it cannot be said with certainty that British judges are truly responsible for these slight changes. There are no changes to the content of the jurisdiction that can definitely be attributed to British influence. The British do have a great influence on European legal literature, which could be explained by the fact that English is a language read and spoken by all other Member States. The conclusion is that there is almost no tension between British Common Law and European Law, which is based on the several Continental Law systems. This can be explained by the transnational problems for which the European Union seeks solutions, leaving the national Laws of all Member States neither as a model nor as an obstacle. Even in the case of harmonisation of directives, where European Law does have to deal with national Law, there are no obvious clashes between the two. Mainly because this type of Law has already been known in Great Britain as statutory Law for years, which completes or sets aside existing common Law-rules. Traditionally this statutory Law comes from London, but in the European case it comes from Brussels, which doesn’t make much difference in its application.
Finally, differences in legal style or in techniques shall always lead to discussions, but they’ll never be the essence of legal discussions about new European Treaties, Regulations and/or Rules. Many of these differences are the result of political ideologies of certain governments. These governments come and go, but it is never as a result of the British Law system itself, which will always be the same no matter what government is in charge.
Influences of European Law on British Law
European Law is a very impressive piece of applicable law for all Member States. Despite its political resistance to the European Union, Great Britain has one of the best reputations concerning the implementation of European Law into national legislation, and it’s one of the countries with the fewest procedures against it for breaching European Law. Despite her political resistance, Great Britain seems everything but a “troublesome partner” when it comes to compliance with European Law.
But a reputation for implementation and the number of breach procedures are not the only criterions. Other important ones are whether or not Community Law can be fully adopted by the national system of Law. Also whether or not Community Law has right of precedence over national Laws which are in contradiction with the applicable European Laws. Great Britain has always had a so called dualistic view on the relationship between national and European Law, meaning treaties can only be effective in the national Law system after incorporation, which normally happens by an Act of Parliament. This British dualism is primarily based on the principle of parliamentary sovereignty, which means “Parliament has the right to make or unmake any law whatsoever” and that “no person or body outside the legislature is recognised by the law of England as having the right to override or set the legislation of Parliament”. In the end, all Laws in Great Britain need to be based on an Act of Parliament, so treaties can never be directly applicable and they don’t have a direct effect on the legal position of subjects.
Furthermore, based on the principle of parliamentary sovereignty, an incorporated treaty can be undone by a later Act of Parliament. In such a case, Community Law hasn’t got precedence over national Law, after all “Parliament cannot bind its successors”. A later, contradictory, rule automatically sets aside a previous Law even if based on a treaty (the so called theory of implied repeal). When Great Britain joined the Union, many expected that problems would arise concerning the direct working of European rules, but in fact the entering of the European system of Law into the British one took place quite smoothly. The entire Community Law was incorporated into the Law of the land by the European Communities Act of 1972, although the problem of implied powers still remains. But the famous Factortame judgement brought a change: the House of Lords, through Lord Bridge, decided Community Law always has precedence over national Law, and even if this national Law consists of Acts of Parliament it will be set aside. This demanded a new approach from British judges: a more active role. This change broke down an important cornerstone of the British legal system.
At the moment the British Public and Administrative Law is in a crucial and creative phase, and is still fully developing itself. For instance, it had a decisive influence on the use of general principles like legitimate expectations, legal certainty and the duty to state reasons, which are all being used on a more frequent basis in British Administrative Law. The only European principle that’s not very popular in Great Britain is the principle of proportionality, which hasn’t got any roots in Great Britain. Therefore British judges don’t really know how to handle this principle, but it is slowly gaining ground. The British judges aren’t used to the active role the principle of proportionality demands of them, so it’s not being used as often as it should, but when the British judges have to deal with European Law they have to do so in their capacity as decentralised Community judge. They then have to participate in a more active role, which is something the British judges still need to adjust to.
Another point showing the European influence on the British system of Law is that the British jurisprudence is continually more tuned to its European equivalent, mainly for reasons of equality before the law and logical coherence. The House of Lords found it unfair that European rights were better protected than the British ones, which caused inequality before the law, therefore changes to this part had to be made.
Not only does European Law affect the contents (rules and principles) of British Law it also affects the methods and techniques. Furthermore, the British judges are very rule-dependent and aren’t inclined to use general principles. European Law is very different; it avails itself with vague terms and general phrasings, which need to be elaborated by the judges in each Member State, and finally, by the European Court of Justice. So, instead of the British literal interpretation, it requires a teleologic one. This flexible attitude is what the European Court of Justice expects of the national judges when upholding European Law. This means that the British judges need to participate in a more creative and political manner.
Once again, Great Britain seems to have adjusted very well: no resistance against the European legal culture has occurred. British judges have never accused the European Court of “judicial activism” like some other Member States have (the French with the Cohn-Bendit judgement and the Germans with the so called “banana” judgements).
British judges always try to fulfil their role as decentralised Community judges as best they can, and as far as possible in accordance with the demands of the European Court. This approach even has its effects on national Law, because in national matters, British judges seem to use the teleologic interpretation more often than the literal one. The conclusion is that European Law not only has its effects on the content of British Law, but it also has its effects on the methods and techniques used by the British judges. Again no clash between British common Law and European Law has occurred. In fact, the British system of Law seems to be one of the most efficient ones of all the Member States as it comes to implementing and following European rules and principles. Next to that, European Law seems to be the engine for the modernisation of British Law.
First of all it can be noted that a strange difference exists between the British political and the British legal attitude towards Europe. Great Britain has always been referred to as an awkward, troublesome and difficult partner, while in fact this doesn’t appear to be as true as it first seems.
Although Great Britain has always been a difficult negotiator during European Conventions, it is one of the Member States that seems to adjust to the European rules the best. British judges seem to be very flexible in adjusting to their new roles as decentralised Community judges. Nor are there any problems related to the differences between the British common Law system and the European system. In fact, the implementation of European Law into British Law hardly seems to bring any problems, which is something not many Europeans expected when Great Britain Joined the Union. Therefore the general conclusion would have to be that Great Britain is not as much as a troublesome partner as it might seem. In fact, it may be one of the most faithful Community Member States! Now lets hope the politicians get on the right road soon...