How Parliament’s Power Was Lost | Tom Spencer

The idea of freedom of movement of goods and services across similar economies in Europe is a fundamentally good idea. There is no problem with holding these countries to a minimum standard of human rights. However, there is a problem when this is done on the  condition of a mandated discarding of one’s national sovereignty to a supranational power in which you wield minimal power. This is what prompted me and millions of others to vote to leave in 2016 and would do so again if forced to vote again if Labour were to win the next general election.

The problem with the supremacy of EU law is that it directly conflicts with parliamentary sovereignty. Arguably, parliament can give its sovereignty away. However, this only works if parliament could simply automatically take it back. Up until the early 1990’s this was easily possible, but the Factortame judgement changed this.

The case of Factortame was the first real time that European Law directly conflicts with British Law. The EU law was clear on this that their laws must always be taken above. This was found first in an Italian case where a man who held shares in an energy company took action against the Italian government for nationalising the sector. In this case from 1963 it was admitted that, “the member states have limited their sovereign rights… and have thus created a body of law which binds both their nationals and themselves”. Despite this, 2 successive governments white papers were at worst misleading and at best outright lies in claiming that this wouldn’t infringe upon parliamentary sovereignty.

The problem in Factortame is that an act aiming to reduce the foreign ownership of British shipping firms directly conflicted with EU law. This act was the Merchant Shipping Act and the problem was the principle that a British registered ship had to have British owners was contrary to the Common Fisheries Policy set out in the Treaty of Rome.

Thus, there was an inherent conflict of interests for the courts to deal with. On one hand the courts had a duty to uphold the will of parliament, on the other they had a duty to uphold the laws of the EEC. A traditional view of the constitution would look to the doctrine of implied repeal. This effectively explains that when two laws conflict with each other the more recent statute takes preference and the older one is repealed. Dicey explains this by saying, “should the Dentists Act 1872 contravene the Act of Union, the Act of Union would be repealed”. As the common fisheries policy was incorporated into British law in the European Communities Act 1972 then the more recent Merchant Shipping Act should have implicitly repealed the European Communities Act taking us out of the EEC.

However, in Factortame this isn’t what happened. In Factortame, the referred the case to the European Courts who obviously would give a judgement reasserting the supremacy of EU law. And, unsurprisingly this is what happened. The problem with this is that it meant that it wasn’t explained why EU law was now supreme, despite what all the reports leading up to joining told us.

Thus, we have to look to a future case from 2002 for an apt explanation of why this judgement was in complete ignorance of a long-standing constitutional ruling. Here, Lord Justice Laws explained that, “the 1972 Act is, by force of the common law, a constitutional statute. Ordinary statutes may be implicitly repealed. Constitutional statutes may not”. So, what Factortame did is create two tiers of law which is incompatible with how our constitution has existed since its creation. This is simply an example of a judge having an ideological position and changing the law to justify it, rather than fulfilling his duty as a judge to form his judgements on what the law obviously is. To be blunt, this is judicial activism.

It was at this point that the sovereignty of parliament was discarded. No longer could our membership of the EU simply end by statutory authority. Now extra processes were required acting as entrenchment; this is another arrangement incompatible with the way the constitution has worked for centuries. However, it didn’t have to be this way with membership of the EU being incompatible with our constitution. Although, I personally hold strong reservations against more than just the unions constitution a simple amendment to it may have satisfied many Brexiteers.

For me, Lord Denning’s suggestion is the best. Denning argued that the courts first priority is to administer the will of parliament. This shouldn’t be debatable, and it really isn’t to the vast majority of the public. However, the courts should also pay respect to EU law and allow it to fill in gaps or omissions currently in our system. Of course, as a passionate Eurosceptic I’d rather Brussels had no say in our system; however, this appears a great compromise of how parliamentary sovereignty could coexist with membership of the EU.

Sadly, what followed Factortame was more integration and more discarding of sovereignty, in the form of the Maastricht and Lisbon Treaties. Every time that further integration occurred, we were told it would be the end of it. David Cameron actually did a very good thing in trying to stop this with the European Union Act 2011. However, this was too late. Already had too much power been transferred to Europe. Had Denning’s advice been taken when it came to the conflict shown in Factortame, then maybe there could be a sensible way we could remain a member. This wasn’t the case, so now we’re here where we are now.

If the EU sought not to assert its supremacy from its foundation and allow national courts to act as Denning thought best, then the EU would not be suffering the its international reputation as a server of diktats. The economic protectionism of Europe and lack of accountability remains; however, this approach would satisfy the demands of many Eurosceptics and allowed the EU to actually fulfil its purpose.

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