The Role of the Courts

Until 20 years ago most people would have assumed that British courts were about two things: the criminal law and the civil law both of whose codes and practices were codified by case law and by parliamentary statute.

In 1989, however in the so-called Factor Tame case, the House of Lords in its Supreme Court function set aside the Merchant Shipping Act of that year as incompatible with the European Communities Act (1972), which it was, but in setting aside the MSA  the Supreme Court gave itself a huge Constitutional role which Parliament hadn’t given it. In  particular, it unilaterally abrogated what most of our people and indeed Constitutional lawyers have held basically as true  for ever, namely that no Parliament  can bind its successor. The embattled Thatcher government had no appetite for a fight although the cause would have been wildly popular as the MSA sought to protect British fishing quotas from being used by foreign (mainly Spanish) boats registered in British ports.

From this wildly undemocratic position the courts have gone on to assume an ever greater consitutional role using judicial review and the European Convention of Human rights to over-ride the administration of government in literally hundreds of ways, particularly where foreign nationals are concerned.

In essence the judges have taken the view that anything European, whether treaty, case law from the European court, or directives from the European Commission, takes precedence over British law passed by a Parliament responsible to the British people.

Now the judges have absolutely no right to do this. It is one thing for them to point out that  a law passed by Parliament  is incompatible with a treaty obligation we have entered into previously. It is for the government of the day to decide what to do about it, e.g. amend the law, accept whatever penalty might be involved in non-compliance with the terms of the said treaty, or do nothing.

This column will consider what should be done to remove the judges’ power to adjudicate on these matters, pending the formulation of a proper constitution which might have a role for judges, but only after it has been put to the British people and approved by them.

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