“If the law supposes that,” said Mr Bumble, … “the law is a ass – a idiot.” (Charles Dickens, Oliver Twist)
A Fishy Precedent
In 1980 the EU made an agreement with Spain allowing its fishermen limited access to EU waters (Spain had the largest fishing fleet in Europe). Some Spanish firms registered their boats as British under the easy-going rules of the Merchant Shipping Act 1894, despite the owners being Spanish, living in Spain and landing their catches there. This was called “quota hopping” because these Spanish catches counted against the maximum quota permitted to Britain under the Common Fisheries Policy (CFP).
Parliament passed laws and amendments to stop this unfair practice but in 1985 Spain joined the EEC and a Spanish firm, Factortame, sought an injunction, saying the revised Merchant Shipping Act 1988 (MSA) affected its right under EU law not to be discriminated against on grounds of nationality. The District Court referred the case to the European Court of Justice (ECJ) but issued an injunction to say that Community Law prevails over English Law in the event of a conflict. The Court of Appeal did not accept the injunction. The House of Lords (which then acted as UK’s highest court) was inclined to agree that it should not contradict Parliament’s sovereign will but that it had no clear authority to rule on Community law without the ECJ’s permission. The ECJ effectively ruled in favour of Factortame and the Law Lords effectively conceded sovereignty to the EU.
So, a consequence of the CFP is that fish caught in British waters count against Britain’s fishy quota but need not be swallowed by British diners or earn export revenue to compensate. By overruling the MSA the ECJ denied the UK Parliament its expressed will. And this resulted from Parliament’s own actions, when it approved the European Communities Act (1972). This was an Act passed by the UK Parliament which, among other things, established the precedence of EU law over UK national law, in areas of EU competence (which are still being discussed). It seems clear that the only way to remove this precedence is to repeal the 1972 Act, which the Prime Minister has said she will do.
The question for the Supreme Court in December is whether, by triggering Article 50, the UK Government will impliedly (a legal term) overturn the European Communities Act which, the High Court has judged, cannot be done without an act of Parliament. As we understand it, the Government’s view is that repealing the European Communities Act cannot be done without formally applying to leave the EU first, which the Government claims the right to do, using the royal prerogative, and it may be possible to revoke the Article 50 application, thus removing the implied rejection of the European Communities Act.
The question now is in the hands of their Lordships. Can we judge that they will apply the law irrespective of their own instincts, preferences and interests? Let’s have a quick look at some of them, without answering the question.
The High Court
The panel of judges comprised Lord Chief Justice Lord Thomas, Master of the Rolls Sir Terence Etherton and Lord Justice Sales.
As a founder of the European Law Institute (whose goal is to enhance European legal integration) should Lord Thomas have excused himself from the judgement? Had there been a jury would he have been allowed to serve on it (in view of a possible conflict of interest)?
The Supreme Court
UK lawyers are generally part of the EU-supporting elite: see Lawyers In For Britain – “A group of 300 senior City lawyers, led by Freshfields Bruckhaus Deringer partner John Davies, has banded together to support Britain’s membership of the EU.” Lawyers usually don’t express their political views publicly, for good reason, yet they felt able to break the convention in this case. Worse than declaring their political views, and any potential conflict of interest, is failing to declare them.
Four of the 11 Supreme Court judges who will hear the Government’s appeal have links with Europe and the EU:
Lord Carnwath was one of four co-founders of the EU Forum of Judges for the Environment which exists to ‘promote the enforcement of national, European and international environmental law’.
Lord Reed was president of the same forum from 2006 to 2008 and also served on the European Court of Human Rights and an adviser on an EU initiative with Turkey from 2002 to 2004
Lord Mance represented the UK on the Consultative Council of European Judges, set up to advise the Council of Europe on the ‘independence, impartiality and competence’ of judges. He is also a member of a panel set up under an EU treaty to give an opinion on candidates’ suitability for the European Court of Justice.
Lord Kerr sat in the European Court of Human Rights and has made rulings against the UK Government..
Whenever the EU owns the law-making power in a subject, member-states lose the ability to legislate in that matter, especially if they intend to legislate in breach of their EU obligations.