ADR And EU Law In The UK: An Essay.

The Purpose and Success of Alternative Dispute Resolution (ADR) through Acas

1. Evaluate the purpose of Alternative Dispute Resolution (ADR) and, with particular reference to the services provided by Acas, assess to what extent it is a successful means of resolving disputes outside the formal judicial process.

2. Explain why European Union law takes precedence over domestic law in the United Kingdom?

The term ADR is used to describe various ways of solving a dispute including mediation, conciliation, arbitration and ombudsmen. In other situations, ADR methods provide an alternative to litigation and as a result, these methods are called alternative dispute resolution (Woolf, 1996). The purpose of using ADR methods for resolving disputes is that it provides cheaper and faster ways of resolving a dispute. At the same time, it also needs to be noted that the ADR methods are not adversarial in nature (Cremin, 2007). Generally the solutions provided by ADR are long-lasting because in this case, both the parties are satisfied. At the same time, ADR also provide significant flexibility to the parties as compared to the court processes. Generally, the ADR processes are used in case of civil disputes like family disputes or disagreement between the neighbours (Domenici and Littlejohn, 2001). But the popularity of ADR has also increased in the commercial field also and as a result, various ADR processes are used in the commercial disputes. Are the same time, ADR methods are also being used to resolve employment disputes.

As significant pressure has been created by the policymakers, the use of media processes has effectively increased in resolving various types of disputes. But at the same time, although ADR processes are extensively used for resolving disputes, methods like mediation are seldom used to resolve employment disputes, particularly in the private sector and by the voluntary organizations. The low number of disputes resolved by ADR in the streets become particularly apparent when the number is compared with the disputes in the commercial field that are being resolved by using ADR processes (Doyle, 2000). The focus on the use of ADR processes resolving employment disputes is particularly emphasized for small and medium enterprises. The reason is that it has been seen that the small and medium enterprises generally tried to completely terminate the employment relationship and do not try to repair these relations. The situation is however not the same in case of larger organizations where generally internal ADR processes are introduced with a view to achieve the benefits that are provided by using ADR for resolving disputes (Newman, 1999).

The Advisory, Conciliation and Arbitration Service (ACAS) is a non-departmental public body of the government and the purpose of ACAS is to improve the organizations and working life by promoting and facilitating strong industrial relations practices. This purpose may be achieved by ACAS by several different mediums like mediation or arbitration although probably the ACAS is better known for the collective conciliation functions performed by it in which it resolves the disputes between the groups of employees or workers who are generally represented by a trade union and the employers (Sourdin, 2002). This organization was established in 1974 but as early as 1896, there was a conciliation and arbitration function that had been set up by the government during those times and which was delivered by the Board of Trade. As mentioned above, perhaps ACAS is widely known for its role in resolving high-profile, collective disputes but it needs to be noted that ACAS plays a much wider role and is related but different aspects of dispute resolution and prevention (Deborah, 2004). While generally the term mediation is used for describing third-party intervention, ACAS makes a distinction between ADR processes like mediation, conciliation and arbitration.

The Precedence of European Union Law over Domestic Law in the United Kingdom

In this regard, ACAS has adopted a strategy which includes the improvement of employment relations and for this purpose ACAS at the employers in acquiring skills that are needed for developing and applying the procedures that can sustain employment relations even in the situations where high conflict is involved. It needs to be noted in this regard that in the business world of today, the number of small and medium forms is increasing day by day and as a result, it is very uneconomical but nearly impossible to have external intervention in all the cases where disputes need to be resolved. As a result, it is important to introduce ADR processes at the early stage of the conflict. The reason is that by introducing ADR and the early stage, a disagreement can be prevented from becoming an entrenched dispute in which case, the distance between the parties involved in the conflict also increases significantly and it becomes very difficult later on to resolve the dispute and bring the parties together. in this way, it is possible to prepare the ground for providing direct ADR services by medium and large business enterprises as is the case with certain large organizations these days where mediators have been retained by these organizations who step in whenever there is the beginning of a conflict.

Being an independent and impartial body, ACAS does not side with any party but as the parties in reaching an appropriate resolution of a dispute. As the employment world of today has moved away from large-scale industrial disputes that were commonly seen during the 1970s to mid-80s when ACAS gain most of its popularity, these days the emphasis of ACAS is more on helping the businesses in preventing the disputes before they arise. For this purpose, ACAS uses various methods like its telephone helpline and also the training sessions provided by the employers. Moreover, most of the conciliation work of ACAS now focuses on individual complaints to the Employment Tribunal where it is claimed by the employees that a legal right has been denied to them by their employer.

In the same way, while assessing the use of ADR regarding employment matters in future, it is important to note that the main goal in this regard is the maintenance of good employment relations and objectives like reducing the number of cases before tribunals are only short term goals. Under these circumstances, these days greater emphasis is being laid on the promotion of using ADR methods at the earliest stage of a conflict at the workplace. This approach needs to be encouraged as it helps in preventing the escalation of a dispute into a large-scale conflict. At the same time, it is also important that the wide range of third-party interventions that are available in ADR should be considered by all the parties concerned in order to appreciate the true value of the advantages provided by ADR. The result is that in the end it can be said that ACAS can be considered as a successful means of resolving disputes as workplace and the methods used by ACAS are outside the formal judicial process.

As a result of the accession of the United Kingdom to the membership of European Community, it means that the European Community law is also applicable in the UK. This applicability has a significant impact on the legal system in the UK. First of all, section 2(1) of the European Communities Act, 1972 provides that all the rights directly resulting from the Treaties and Community without requiring further indictments have to be enforced by the courts in the UK also (Bradley and Ewing, 2008). At the same time, section 2(4) that the courts in the UK have to interpret and give effect to the UK law by following the principle that the European Union law is supreme. As a result, in case of a conflict between the UK law and the European Union law, the EU law has taken precedence over the over the domestic law of the UK. The provisions of section 2(4) are applicable retrospectively as well as prospectively. As a result, if there is a conflict between the national law of UK and the Community law, the courts are required to give preference to the Community law (Lyon, 2003).

At the same time, Community law is also considered as a part of the domestic law in case of each Member State (Wade, 1996). This is applicable in case of the United Kingdom also. In this regard, the European Court of Justice (ECJ) has also stated that if there is a conflict between the domestic law of a member State and the community law, preference has to be given to the Community law and as a result, the community law prevails over the domestic law (Turpin and Tomkins, 2000). In this regard, section 3 of the European Communities Act provides that the interpretation of Community legislation and treaties is a question of law and this question has to be interpreted by the European Court of Justice and in case this question is required to be decided by the UK courts, the courts in UK have to decide the question in accordance with the decisions given by the European Court of Justice (Conde Nast Publications Ltd v Customs and Excise Commissioners, 2007).

In this regard, it has to be noted that the Community law is treated as a part of the national Law of each Member State (Allan, 1997). Therefore, this is applicable in case of the United Kingdom also. At the same time, the European Court of Justice has also clearly stated that if there is a conflict between the domestic law and the European Union law, in such a case, preference has to be given to the European Union law (Costa v Ente Nazionale per l'Energia Elettrica (ENEL), 1964). As a result, according to section 3, or the courts in the UK are bound to interpret the matters related with Community law in accordance with the decisions that have been given by the European Court of Justice in this regard (Felixstowe Dock & Railway Co v British Transport Docks Board, 1976). At the same time, the courts are also required to load the relevant opinion that has been delivered by the European Court of Justice regarding such matters.

At the same time, according to section 3, a duty has been provided for the Parliament of the UK as well as a power to the courts of the United Kingdom that they should help the United Kingdom in fulfilling its obligations that have been prescribed by the Treaty. For this purpose, it has been intended by the UK Parliament that the courts in UK are required to apply community law if a conflict arises between the Community law and an act of Parliament (Fleming (Bodycraft) v Customs and Excise Commissioners, 2008). In this way, it is clear that there is a duty on the part of the courts in the United Kingdom to give preference to the Community law in case there is a conflict between the domestic law of the UK and the Community law. The European Communities Act imposes this duty on the courts in the United Kingdom. In this regard, Article 220 of the European Community Treaty provides that it is the duty of the courts to ensure that when the courts are interpreting or applying the Treaty, they are following this law.

This is treated as the supreme authority in case of all the matters that are related with the Community law (Trent County Council v B&Q Plc, 1993). On the other hand, the European Court of Justice is considered as a judicial arm of the European Union. As a result, in case of all the matters dealing with the Community law, the judgments that have been given by the European Court of Justice are treated as overruling the judgments that have been given by the courts in the United Kingdom. Similarly, it has been provided by Article 234 of the European Community Treaty that the national courts can apply for a preliminary ruling to the European Court of Justice related with a particular point of community law before the national court decides the case.

Therefore under certain circumstances, a judge in the United Kingdom may disapply the provisions of the national law of the United Kingdom. This can be done for the purpose of giving preference to the Community law as against the national law and also in order to comply with the doctrine of direct applicability (Internationale Handelsgesellschaft GmbH v EVST, 1970). Therefore, European Communities Act provides that all the laws that have been enacted by the Parliament in the United Kingdom have to be applied and construed in accordance with the relevant provisions of the Community law (NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen, 1963). Therefore, in view of these provisions, it is required that the national law of the United Kingdom should be integrated with the Community law and it has to be given effect, by keeping in mind the principle that the supremacy is enjoyed by the European Union law.

As a result of these provisions, it is clear that the Community law has to be referred by the courts over the national law of the UK. For example in R v Secretary of State for Transport, ex parte Factortame (No. 2) [1991] AC 603, it was clearly stated by the Court that the European Union law, that is directly effective, has to be applied in case of a conflict between the UK law and the European Union law. In this case, the European Court of Justice also stated that in case the national law is contrary to the provisions of the European Union law, the national courts are required to ignore the provisions of such a law.

Therefore in the end, it is clear that due to the reasons mentioned above, the European Union law takes precedence over the domestic law in the UK.

References

Allan, T 1997, ‘Parliamentary Sovereignty: Law, Politics and Revolution,' in The Law Quarterly Review, 113(Jul), 443-452

Bradley, A & Ewing, K 2008, Constitutional and Administrative Law, Longman

Cremin, H. (2007). Peer Mediation: Citizenship and Social Inclusion in Action. Maidenhead: Open University Press

Domenici, Kathy, & Littlejohn, Stephen W. (2001), Mediation empowerment in conflict management. Prospect Heights, IL: Waveland Press, Inc.

Lord Woolf. 1996. Access to justice. Civil Justice Review

Lyon, Anne 2003, Constitutional History of the United Kingdom, Routledge

Margaret Doyle. 2000. Advising on ADR: the essential guide to appropriate dispute resolution. London: Advice Services Alliance.

Paul Newman. 1999. Alternative Dispute Resolution. Welwyn Garden City: CLT Professional Publishing

Sourdin, T. (2002) Alternative Dispute Resolution, Pyrmont NSW, Lawbook Co.

Turpin, Colin & Tomkins, Adam 2000, British Government and the Constitution (Cambridge University Press

Wade, W 1996, ‘Sovereignty: Revolution or Evolution?' in The Law Quarterly Review, 112(Oct), p. 568-575

Zutter, Deborah, 2004, Preliminary Mediation Practices, Bond University, Australia

Case Law

Conde Nast Publications Ltd v Customs and Excise Commissioners [2007] 2 C.M.L.R. 35

Costa v Ente Nazionale per l'Energia Elettrica (ENEL) [1964] C.M.L.R. 425

Felixstowe Dock & Railway Co v British Transport Docks Board [1976] 2 C.M.L.R. 655

Fleming (Bodycraft) v Customs and Excise Commissioners [2008] UKHL 2

Internationale Handelsgesellschaft GmbH v EVST [1970] ECR 1125

NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen [1963] C.M.L.R. 105

R v Secretary of State for the Environment ex parte Factortame (No. 2) [1991] 1 AC 603

Trent County Council v B&Q Plc [1993] 2 A.C. 730

Legislation

Section 2(1) European Communities Act, 1972

Section 2(4) European Communities Act, 1972

Article 220, European Community Treaty

Article 234, European Community Treaty