European Case Law

The other source of European law is the body of case law of the ECJ. The ECJ has ruled that EC Law takes precedent over national law. This is known as the concept of primacy of EC law and conflicts with the idea of the supremacy of the English Parliament. English courts have therefore presumed Parliament intends to comply with EC law, even if there is clear wording to the contrary.

The ECJ has also taken a purposive approach when interpreting EC law. It has also propounded the principles that the law should be non-retrospective, the principles of natural justice, equality of treatment, proportionality and the protection of fundamental rights.

Previously the European Convention on Human Rights (ECHR) has been used by the English courts as an aid to statutory interpretation. The European Court of Human Rights can hear appeals from the House of Lords where there is an issue of human rights involved.

All final judgments of the European Court of Human Rights are binding.

The Human Rights Act 1998 gives effect to the ECHR. It requires that statutes should be interpreted so as to conform with the ECHR. UK courts are not able to set aside primary legislation that is incompatible with the convention rights; instead the higher courts can, by schedule, make a declaration of incompatibility under section 4 of the Act. Before a Bill is read for the second time before Parliament, section 19 of the Act provides for one of two sorts of statements to be made by the Minister in charge of the Bill.

Either a statement to the effect that, in the Minister's view, the Bill is compatible with the convention rights or a statement that the Minister is not able to make such a statement but that the Government nevertheless wish the House to proceed with the Bill.

There is no specific provision for the courts to follow the ECHR in their development of common law but public authorities will be prohibited from acts incompatible with the convention. In this way the courts will also have to apply the ECHR in the development of the common law.