Supreme Court Fantasies

Alistair Mackie (letters in the Times of October 6th 2009)suggested that now that the judges have a building in Westminster labelled “Supreme Court” separate from the House of Lords, they should be empowered, in Lord Denning’s words 1980), to “set aside statutes which are contrary to our unwritten constitution in that they are repugnant to reason or fundamentals”.  


Well, the judges sitting as our supreme court have set aside British statutes in the recent past, not because they conflict with the fundamentals of our “unwritten“ constitution, far from it, but because they conflict with the European Court’s interpretation of European law.  


In flat defiance of what just about every Briton had taken to be a fundamental principle of our democratic existence, namely that no Parliament can bind its successor, their Supreme Lordships set aside the Merchant Shipping Act 1989, passed without dissent through both Houses of Parliament. They did this in order to let a Spanish-owned company Factortame Ltd sue the British government for barring Factortame’s Spanish-crewed ships access to British fish quotas (ECR I 2433 1990), one of the very things which the MS Act had been passed to prevent. 


Their Lordships’ reasoning appeared to be that far from not binding its successors, the European  Communities Act (ECA) 1972 over-rides any successor British statute where it conflicts with European law, and if necessary their Lordships will refer any conflict to the European Court for a definitive ruling. 


Now it is perfectly proper for their Lordships to point out that legislation, proposed or actual, may conflict with the government’s treaty obligations, but that is the limit of their obligations and power as it is for any other individual citizen. It would then be for the government of the day to decide whether to press ahead and accept any penalties which might eventuate, BUT crucially it should do this publicly, preferably in Parliament. 


The exact equivalent of the 1989 MSA affair is fast approaching and that in the shape of the Large Combustion Plant directive which unless Britain seeks a “derogation” from it or simply tells our electricity companies to ignore it, will cause about 12% of our electrical generation capacity to be shut down. This will inflict real hardship on the generality of the  British public and our industry, unlike the poor fishermen who have been regarded as expendable by every government since Heath’s. 


 Not until the ECA is repealed (or itself disallowed) and Britain thereby leaves the European Union, or the judges screw up the courage to defy the European Court at some stage, will talk of our having a Supreme Court in Westminster be anything but fantasy.   


Professor S.F. Bush

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