Is Laws LJ right to suggest that EU law is like secondary legislation?

Public Law for Everyone

In his third Hamlyn Lecture, Laws LJ elaborates upon the analysis he offered in Thoburn v Sunderland City Council of the constitutional status of EU law in the UK. Like the view advanced in Thoburn, the position adopted by Laws LJ in his lecture is subtle and fascinating. He endorses the view—affirmed by section 18 the European Union Act 2011—that EU law is effective in UK law only because primary legislation—section 2 of the European Communities Act 1972—so provides. The novelty of Laws LJ’s Thoburn judgment lies in his characterisation of the ECA 1972 as a “constitutional statute”, meaning that it can be repealed only by specific provision in subsequent legislation. Crucially, however, on Laws LJ’s analysis the ECA’s status as a constitutional statute does nothing to change the fact that EU law applies only for as long as, and on the terms that, Parliament is willing to…

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