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Chapter

Cover European Union Law

7. Legislative Powers  

Competences and Procedures

This chapter addresses what the legislative powers of the European Union are, and what types of procedures are legislative procedures. It begins by analysing the scope of the Union's legislative competences. This scope is limited, as the Union is not a sovereign State. The chapter then looks at the different categories of Union competences. Depending on what competence category is involved, the Union will enjoy distinct degrees of legislative power. The chapter also considers the identity of the Union legislator. Various legislative procedures thereby determine how the Union must exercise its legislative competences. Finally, the chapter scrutinizes the principle of subsidiarity as a constitutional principle that controls the exercise of the Union's shared legislative powers.

Chapter

Cover European Constitutional Law

7. Legislative Powers  

Competences and Procedures

This chapter addresses what the legislative powers of the European Union are, and what types of procedures are legislative procedures. It begins by analysing the scope of the Union’s legislative competences. This scope is limited, as the Union is not a sovereign State. The chapter then looks at the different categories of Union competences. Depending on what competence category is involved, the Union will enjoy distinct degrees of legislative power. The chapter also considers the identity of the Union legislator. Various legislative procedures thereby determine how the Union must exercise its legislative competences. Finally, the chapter scrutinizes the principle of subsidiarity as a constitutional principle that controls the exercise of the Union’s shared legislative powers.

Book

Cover European Constitutional Law
European Constitutional Law uses a distinctive two-part structure to examine the legal foundations and powers of the European Union. The text takes a critical approach to ensure awareness of the intricacies of European constitutional law. Part I looks at the constitutional foundations including a constitutional history. This part also looks at the governmental structure of the European constitution. Part II moves on to governmental powers. It looks at legislative, external, executive, and judicial powers. It ends with a study of limiting powers and EU fundamental rights.

Chapter

Cover European Union Law

5. The European Union legal system  

This chapter discusses the EU system’s sources of law covering: primary legislation, secondary Union legislation and other sources of law, including ‘soft law’. It also discusses the legislative procedures, decision-making procedure of the Commission and legislative powers and implied powers. The chapter concludes with a discussion on the application of the principle of subsidiarity and proportionality.

Chapter

Cover Public Law

6. The UK Parliament  

This chapter focuses on three principal issues concerning the UK Parliament. First, it addresses the democratic credentials of Parliament. Second, it considers Parliament’s legislative role. Third, it examines Parliament’s powers. The chapter shows that, at least in constitutional theory, Parliament is ‘sovereign’, meaning that its authority to legislate is legally unlimited, and considers why this is, whether it is acceptable, and whether the notion of parliamentary sovereignty remains accurate today.

Chapter

Cover Public Law

5. Separating and Balancing Powers  

This chapter examines the division of powers between the executive, legislative, and judicial branches of government. It considers the debate as to whether, why, and how separation of powers should occur in the UK’s constitutional system. Political constitutionalists tend to downplay the role of courts, while legal constitutionalists tend to be keen on using the idea of separation of powers to bolster the importance of the courts as a major ‘check and balance’ on the institutions that carry out the other two functions (legislative and executive). The discussions also cover the separation of power between the Crown and Parliament; judicial analysis of separation of powers; and interactions between Parliament, the executive, and judges. The ‘Westminster model’ is also explored.

Chapter

Cover Public Law

5. Separating and Balancing Powers  

This chapter examines the division of powers between the executive, legislative, and judicial branches of government. It considers the debate as to whether, why, and how separation of powers should occur in the UK’s constitutional system. Political constitutionalists tend to downplay the role of courts, while legal constitutionalists tend to be keen on using the idea of separation of powers to bolster the importance of the courts as a major ‘check and balance’ on the institutions that carry out the other two functions (legislative and executive). The discussions also cover the separation of power between the Crown and Parliament; judicial analysis of separation of powers; and interactions between Parliament, the executive, and judges. The ‘Westminster model’ is also explored.

Chapter

Cover Complete Public Law

10. Devolution and Parliamentary Supremacy  

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. Devolution can be defined as the conferral of powers by a central governing institution on a regional or national governing body, without the central institution having to concede legislative supremacy. Such devolved powers can be administrative, executive, or legislative in nature. The process of devolving such powers to three of the UK’s four nations—England, Scotland, Wales, and Northern Ireland—was initiated by the passing of the Devolution Acts of 1998. This chapter begins by tracing the history of devolution and then discusses the ways that power can be devolved and the roles and powers of the Scottish Parliament, Welsh Assembly, and the Northern Ireland Assembly. It addresses the question of whether there should there be an English Parliament and, finally, examines the effects of devolution on parliamentary supremacy, as well as the effects the UK’s exit from the EU has had on the devolution settlement.

Chapter

Cover European Union Law

9. Executive Powers  

Competences and Procedures

This chapter studies three executive powers in the context of the European Union. It begins with an examination of the political power to act as government. The ‘steering’ power of high politics belongs to two EU institutions: the European Council and the Commission. The Union ‘government’ is thus based on a ‘dual executive’. The chapter then moves to an analysis of the (delegated) legislative powers of the Union executive. The central provisions here are Articles 290 and 291 TFEU. The European legal order has allowed for wide delegations of power to the Commission; while nonetheless insisting on substantive and procedural safeguards to protect federalism and democracy. Finally, the chapter looks at the (administrative) enforcement powers of the Union. Based on the idea of ‘executive federalism’, the power to apply and enforce European law is here divided between the Union and the Member States. The Union can—exceptionally—execute its own law; yet, as a rule, it is the Member States that primarily execute Union law.

Chapter

Cover European Constitutional Law

9. Executive Powers  

Competences and Procedures

This chapter studies three executive powers in the context of the European Union. It begins with an examination of the political power to act as government. The ‘steering’ power of high politics belongs to two EU institutions: the European Council and the Commission. The Union ‘government’ is thus based on a ‘dual executive’. The chapter then moves to an analysis of the (delegated) legislative powers of the Union executive. The central provisions here are Articles 290 and 291 TFEU. The European legal order has allowed for wide delegations of power to the Commission; while nonetheless insisting on substantive and procedural safeguards to protect federalism and democracy. Finally, the chapter looks at the (administrative) enforcement powers of the Union. Based on the idea of ‘executive federalism’, the power to apply and enforce European law is here divided between the Union and the Member States. The Union can—exceptionally—execute its own law; yet, as a rule, it is the Member States that primarily execute Union law.

Chapter

Cover Complete Public Law

5. The Separation of Powers  

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. The separation of powers is a theory or a doctrine that describes how a state organizes the distribution of power and function between its different branches. It is often used as an umbrella term to denote the extent to which the three ‘powers’ in, or branches of, the state are fused or divided—that is, the legislative, the executive, and the judicial powers. This chapter begins by sketching the history of the separation of powers in the UK. It then discusses the purpose of the separation of powers; the similarities and differences between different theories of the separation of powers; the impact of recent constitutional reform on the operation of the separation of powers in the UK; how courts have interpreted the separation of powers; and the relevance of the separation of powers today, including in the context of the balance of power between the executive and Parliament as regards the UK’s decision to exit the European Union.

Chapter

Cover Public Law Directions

7. Separation of powers  

This chapter looks at the separation of powers. The separation of powers is a doctrine requiring that executive, legislative, and judicial powers within a state should be clearly divided and allocated to separate institutions; the aim is to prevent the concentration of power in any one branch and reduce the potential for arbitrary or oppressive exercise of power. Although the degree of separation between the three branches varies between states, codified constitutions will regulate those spheres of power by allocating specific roles and functions to each branch and will allow checks or controls to operate between them to ensure accountability. The separation of powers in the UK is weakest between the legislative and executive, and strongest and most distinct between the judiciary and the other two branches. Indeed, the Constitutional Reform Act 2005 has brought stronger separation between the judiciary and the executive, making the judiciary more autonomous.

Chapter

Cover An Introduction to European Law

3. Union Competences  

This chapter explores the scope and nature of the European Union's legislative competences. Based on the principle of conferral, the EU must act within the scope of competences conferred upon it by the Member States. Three legal developments have significantly undermined the principle of conferral in the past. First, there has been a rise of teleological interpretation. The EU's competences are here interpreted in such a way that they potentially ‘spill over’ into other policy areas. The second development is the rise of the EU's general competences. The EU enjoys two very general legislative competences that horizontally cut across the various policy titles within the EU Treaties: Articles 114 and 352 TFEU, which concern internal market competence and residual competence, respectively. The third development is the doctrine of implied external powers. The chapter then studies the different categories of EU competences: exclusive, shared, coordinating, and complementary.

Chapter

Cover EU Law in the UK

5. Limits to EU legislative powers  

This chapter investigates the EU's competences and the principles of subsidiarity and proportionality, assessing if the limits set out in the Treaties actually work as concrete limits on EU legislative powers in practice. It begins by considering whether competences are genuinely clear and finite in how they set out limits to areas in which the EU can make laws. There are three aspects of EU law that have been deemed responsible for the EU's competence creep: the flexible provisions of Article 114 TFEU (Treaty on the Functioning of the European Union) and Article 352 TFEU, and the so-called doctrine of ‘implied powers’. Underpinning all three of these areas of ‘flexibility’ is criticism of the manner in which the Court of Justice has interpreted the relevant treaty provisions or doctrines. The chapter then evaluates the effectivity of the principles of subsidiarity and proportionality. It also looks at the impact of Brexit on the limits to EU legislative powers.

Book

Cover EU Law in the UK

Sylvia de Mars

EU Law in the UK tackles this subject with a post-Brexit perspective. It has a contextual approach, aiming to present the topic in a fresh and relatable way. Topics covered include the history of the EU from 1972 to the present day, the EU institutions, decision making and democracy, EU legislative powers, and the limits to those powers. The text also looks at the relations between EU and national law, domestic law, and enforcing EU law. It also considers the internal (or common, or single) market, the free movement of goods and workers, EU citizenship, and the free movement of services. Competition law is also touched upon. Finally, the text looks towards the future and considers how the UK can negotiate a future relationship with the EU.

Chapter

Cover EU Law Directions

3. Transfer of powers, competences, and law-making  

This chapter examines the division of competence and the transfer of powers from member states to the European Union (EU) in relation to the law-making process. It explains that the transfer of powers is designed to provide EU institutions with law-making powers to enable the EU to carry out its duties. The chapter highlights shifting dynamics in the policy-making procedures of the EU, particularly the balance between the legitimacy of the European Parliament and the legislative superiority of the Council of Ministers. It also discusses the participation of the institutions in the legislative process and the law-making principles and procedures.

Chapter

Cover EU Law Directions

3. Transfer of powers, competences, and law-making  

This chapter examines the division of competence and the transfer of powers from member states to the European Union (EU) in relation to the law-making process. It explains that the transfer of powers is designed to provide EU institutions with law-making powers to enable the EU to carry out its duties. The chapter highlights shifting dynamics in the policy-making procedures of the EU, particularly the balance between the legitimacy of the European Parliament and the legislative superiority of the Council of Ministers. It also discusses the participation of the institutions in the legislative process and the law-making principles and procedures.

Book

Cover Public Law Concentrate
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. Public Law Concentrate looks at all aspects of constitutional law including sources, rule of law, separation of powers, role of the executive, constitutional monarchy, and the Royal Prerogative. It also discusses parliamentary sovereignty and the changing constitutional relationship between the UK and the EU together with the status of EU retained and converted law under the European Union (Withdrawal) Act 2018 as amended by the 2020 Act, the Agreement on Trade and Cooperation effective from 1 January 2021, and the European Union (Future Relationship) Act 2020. Also covered are: administrative law, judicial review, human rights, police powers, public order, terrorism, the constitutional status of the Sewel Convention, legislative consent motion procedure, use of secondary legislation by the executive to amend law and make regulations creating criminal offences, especially under the Coronavirus Act 2020 and the Public Health (Control of Disease) Act 1984, the separation of powers implications of Henry VIII Clauses, the constitutional role of the Horuse of Lords in scrutinizing and amending primary legislation, the Speakers’ Ruling in the House of Commons on Points of Order and the Contempt of Parliament Motion, whip system, back bench revolts, confidence and supply agreements in government formation, and current legislative and executive devolution in Northern Ireland. The book additionally examines the continuing impact of the HRA 1998 and the European Court of Human Rights on parliamentary sovereignty and the significance of the 2021 Independent Review of the HRA.