Is it right for community law to take precedence over domestic law?
Rather interesting question this. It is true that generally community law does take precedence even over primary legislation, even to the extent of incompatible acts of parliament being “disapplied” despite the previous absence of any power in the courts to strike down an act of parliament. However, the House of Lords (the court element) is of the view that, ultimately the courts are loyal to parliament and would obey a clear direct instruction to ignore EU law. One explanation of all this is to be found in Thoburn, were Laws LJ suggested that certain statutes are somehow hardened against implied repeal, the European Communities act being one of them. So, should it take precedence? Part of the problem with community law is the influence of the European Court of Justice. The ECJ is (or was) much more active in law making than domestic courts. In my view they tended to go beyond the limits of the EU treaties – to generate their own law (for example, claiming that community law is supreme
