Brexit: We Never Lost Our Sovereignty

… but we could.

Until recently I thought as so many still do, that the EU had taken over. At the Third Reading of the 1993 Maastricht Bill, that great if sometimes a little crazy Parliamentarian Tony Benn said it was “my last speech in a free Parliament.”

Not, it turns out, quite, thanks to our judiciary.

It began with a pound of bananas. Or rather, 454 grammes.

In February 2000, trading standards officers visited the Sunderland market stall of greengrocer Steve Thorburn and warned him against using pounds and ounces. After another visit in which they erased the authorisation stamps on his weighing machines, they finally raided him on 4 July 2000, seized his scales and successfully prosecuted him in the Magistrate’s Court in March 2001.

For what?

The Weights and Measures Act of 1985 had entitled traders to continue using Imperial as well as metric units; but the Act was amended in 1994 in accordance with various EU directives, outlawing the use of Imperial measures after the end of 1999.

Now, the EU only had the power to issue such orders because we had joined the EEC under the 1972 European Communities Act. A key point is that ECA 1972 included provisions of the type known here as ‘Henry VIII clauses’ that allow Ministers to pass secondary legislation on matters arising – ‘statutory instruments.’ Hence the basket of Weights and Measures Act 1985 amendments laid before Parliament on 19 July 1994 by the then Minister for Trade and Industry, Lord Strathclyde – see Column 182 in Hansard here.

Statutory instruments represent a partial devolution of power from the Legislature to the Executive, obviating the need to pass new primary legislation and so escaping bothersome Parliamentary scrutiny. This is an issue that goes far beyond the meddlesome nuisances of the EU.

Thorburn’s defence was that of ‘implied repeal’: since the 1985 W&M Act came later, surely it overrode ECA 1972? The magistrate correctly observed that EU law had primacy so long as we were still in the Community, and found against him.

Thorburn and other victims of Germaniacally zealous officialdom appealed to the High Court in 2002. Giving judgment against the ‘Metric Martyrs’, constitutional expert Lord Justice Laws explained that it was not a case of EU law versus British law, since ECA 1972 had imported the former into the latter.

So why could the 1985 law not ‘implicitly repeal’ the one from 1972?

The answer was that ECA 1972 is a ‘constitutional statute’ – a special kind that stands above the common run of laws. But – and here is the key to our prison – it arises from and remains in British law, and can be repealed by us. 

Laws LJ went on to say (para 58 here):

‘There is nothing in the ECA which allows the Court of Justice, or any other institutions of the EU, to touch or qualify the conditions of Parliament’s legislative supremacy in the United Kingdom. Not because the legislature chose not to allow it; because by our law it could not allow it. That being so, the legislative and judicial institutions of the EU cannot intrude upon those conditions. The British Parliament has not the authority to authorise any such thing. Being sovereign, it cannot abandon its sovereignty.’

And so, on 25 June 2018, the EU Withdrawal Act was passed.

I am sure that His Lordship is too modest to wish it, but surely he is a strong candidate for a permanent statue on the fourth plinth in Trafalgar Square. As is a humble, freedom-loving greengrocer who died tragically young, mistakenly believing he had been defeated.

This is only the beginning. ‘We need to talk about Parliament’ – the use of statutory instruments, of Orders in Council (such a useful tool for the Constitutional vandal Blair), the general ‘bullying’ as Angela Eagle called it last week, of Parliament by the Executive.

Worse, Bruce Newsome’s TCW article today shows the outrages that the latter, or at least the Prime Minister personally, is now prepared to attempt.

How tragic, that she seems willing to assist the relentless drive of the EU to make itself master of all Europe, and to snuff out our near-thousand-year-old flame of liberty before its captive nations try to light their own candles from it.

She has gone from laughing-stock to weeping-stock. She, and they, will, must, fail.