European Communities Act 1972 (UK)


The European Communities Act 1972, also known as the ECA 1972, was an Act of the Parliament of the United Kingdom which made legal provision for the accession of the United Kingdom to the three European Communities, namely the EEC, Euratom, and the ECSC and for the incorporation of Community Law and its acquis communautaire, its Treaties, Regulations and Directives, together with judgments of the European Court of Justice and the Community Customs Union along with the Common Agricultural Policy and the Common Fisheries Policy into the domestic law of the United Kingdom.
The Treaty of Accession was signed by the Conservative Prime Minister Edward Heath and the President of the European Commission Franco Maria Malfatti in Brussels on 22 January 1972; the UK's accession into the Communities was subsequently ratified via the Act to have full legal force from 1 January 1973.
By the Act, Community Law became binding on all legislation passed by the UK Parliament. Arguably it was the most significant statute to be passed by the Heath government of 1970–1974, the Act was also one of the most significant UK constitutional statutes to ever be passed by the UK Parliament.
The Act was at the time of its repeal significantly amended from its original form, incorporating the changes wrought by the Single European Act, the Maastricht Treaty, the Amsterdam Treaty, the Nice Treaty, and the Treaty of Lisbon.
On 13 July 2017, the then Brexit Secretary, David Davis, introduced what became the European Union Act to Parliament which makes provision for repealing the 1972 Act on "exit day", when enacted defined as 29 March 2019 at 11 p.m., but later postponed by EU decision first to either 22 May 2019 or 12 April 2019, later to 31 October 2019, and then again to 31 January 2020.
The Act was repealed on 31 January 2020 by the European Union Act 2018, although its effect was 'saved' under the provisions of the European Union Act 2020. This provision is in effect from 31 January 2020 until the end of the Brexit implementation period, on 31 December 2020.

Origin and background

When the European Communities came into being in 1958, the UK chose to remain aloof and instead join the alternative bloc, EFTA. Almost immediately the British government regretted its decision, and in 1961, along with Denmark, Ireland and Norway, the UK applied to join the three Communities. However, President Charles de Gaulle saw British membership as a Trojan horse for US influence, and vetoed it; all four applications were suspended. The four countries resubmitted their applications in 1967, and the French veto was lifted upon Georges Pompidou succeeding de Gaulle in 1969. In 1970, accession negotiations took place between the UK Government, led by Conservative Prime Minister Edward Heath, the European Communities and various European leaders. Despite disagreements over the CAP and the UK's relationship with the Commonwealth, terms were agreed. In October 1971, after a lengthy Commons debate on a white paper motion on the principle of accession, MPs voted 356-244 in favour of joining the EC.
For the Treaty to take effect upon entry into the Communities on 1 January 1973, and for the UK to embrace the EEC Institutions and Community law, an Act of Parliament was required. Only three days after the signing of the Treaty, a European Communities Bill of just 12 clauses, was presented to the House of Commons by Geoffrey Rippon. The European Communities Act came into being, and Edward Heath signed the Treaty of Accession in Brussels on 22 January 1972. Denmark and Ireland also joined the Community on the same day, 1 January 1973, as the UK; the Norwegian people had rejected membership in a referendum in 1972.

First Reading (House of Commons)

The European Communities Bill was introduced the House of Commons for its first reading by Geoffrey Rippon, Chancellor of the Duchy of Lancaster on 26 January 1972.

Second Reading (House of Commons)

On 17 February 1972, the House of Commons voted narrowly by 309-301 in favour of the Bill at its second reading, after three days of intense debate. Just before the vote the Prime Minister Edward Heath argued his case in the debate with the following words.
The Bill then passed on to Committee Stage before its third reading.

Third Reading (House of Commons)

During this discussion in the House of Commons, MPs pointed out that the Government had structured the European Communities Bill so that Parliament could debate the technical issues about how the treaty enactment would occur but could not debate the treaty of accession itself and decried this sacrifice of Parliament's sovereignty to the Government's desire to join the European project.
On 13 July 1972, the House of Commons voted 301-284 in favour of the Bill in its third and final reading before passing on to the House of Lords. Before the vote took place, Geoffrey Rippon argued in the House of Commons immediately before the vote:
The Bill then passed to the House of Lords.

Royal assent, Ratification, and Taking Effect

The Act received Royal Assent on 17 October, and the UK's instrument of ratification of the Treaty of Accession was deposited the next day with the Italian government as required by the Treaty. Since the Treaty specified its effective date as 1 January 1973 and the Act specified only "entry date" for its actions, the Act and the Treaty took effect 1 January 1973, when the United Kingdom officially became a member state of the European Communities along with Denmark and the Republic of Ireland.

The Act

The European Communities Act was the instrument whereby the UK Parliament effected the changes required by the Treaty of Accession by which the UK joined the European Union. The Act in its original form had just twelve clauses. Section 2 says "the Treaties are without further enactment to be given legal effect" in the UK. It enables, under section 2, UK government ministers to make regulations to transpose EU Directives and rulings of the European Court of Justice into UK law. The Treaty itself says the member states will conform themselves to the European Communities existing and future decisions. The Act and the Treaty of Accession have been interpreted by UK courts as granting EU law primacy over domestic UK legislation.

European Economic Community (EEC)

The Act legislated for the United Kingdom's accession to the European Economic Community, which was at the time the main international organisation of the three Communities and incorporated its rules and regulations into the domestic law of the United Kingdom.

European Coal and Steel Community (ECSC)

The Act legislated for the United Kingdom's accession to the European Coal and Steel Community and incorporated its rules and regulations into the domestic law of the United Kingdom.

European Atomic Energy Community (EAEC or Euratom)

The Act legislated for the United Kingdom's accession to the European Atomic Energy Community and incorporated its rules and regulations into the domestic law of the United Kingdom.

European Treaties

The Act incorporated the following treaties into the domestic law of the United Kingdom.
The following treaties were added to the act though subsequent amendments.
The Act legislated for the full participation of the United Kingdom in the Common Agricultural Policy and fully incorporated the policy into UK domestic law. It established the Intervention Board for Agricultural Produce. It repealed previous pieces of UK domestic legislation to allow for this.

Common Fisheries Policy

The Act legislated for the full participation of the United Kingdom in the Common Fisheries Policy and fully incorporates the policy into UK domestic law.

Customs Union

The Act legislated for the incorporation and full participation of the United Kingdom within the European Union Customs Union into domestic law, as well as the application of the European common external tariff to all goods which come into the UK from outside the European Communities. The Act repealed large sections of previous UK domestic legislation to allow for this.

Effect

The primacy and direct effect of EU law has no formal basis in the founding treaties of the union, but was developed by the European Court of Justice, long before UK accession, on the grounds that the purpose of the treaties would be thwarted if EU law were subordinate to national law. The view of the ECJ is that any norm of EU law takes precedence over national law, including national constitutions. Most national courts, including the United Kingdom's, do not accept this monist perspective. The British constitution is based on Parliamentary sovereignty and has a dualist view of international law: international treaties do not become part of UK domestic law unless they are incorporated into UK law by an Act of Parliament. The primacy of EU law in the United Kingdom derives from the European Communities Act. This means that if the Act were repealed, any EU law would, in practice, become unenforceable in the United Kingdom and Gibraltar, and the powers delegated by the Act to the EU institutions would return to the Parliament of the United Kingdom. This was made clear to be the law in the United Kingdom by the inclusion of the passed by the British Parliament.

''Factortame''

In the House of Lords Factortame case, Lord Bridge confirmed that section 2 of the ECA effectively automatically inserts a virtual clause into all UK statutes, that they are to be automatically disapplied wherever they come into conflict with European law. This is seen by some as a departure from the British constitutional doctrine of Westminster parliamentary sovereignty as it was and had been traditionally understood.

Repeal

The United Kingdom voted for withdrawal from the European Union in the 2016 EU referendum held on 23 June 2016, and afterwards there was speculation that the act would be either repealed or amended. In October 2016, Prime Minister Theresa May promised a "Great Repeal Bill" which would repeal the 1972 Act and import its regulations into UK law, with effect from the date of British withdrawal; the regulations could then be amended or repealed on a case-by-case basis.
The European Union Bill was introduced in the House of Commons on 13 July 2017. It was passed by Parliament on 20 June 2018, and received royal assent on 26 June 2018. The European Union Act 2018 provides for the repeal of the European Communities Act 1972 at the time the United Kingdom exits the EU, on 29 March 2019 at 11:00 pm. However, in a July 2018 white paper, the government announced its intention to amend the Withdrawal Act to provide for the continued effect of the ECA until the end of the "transition period", therefore allowing EU law to continue to apply in that period.