Tuesday, February 19, 2002

Not the end of the world

There has been a lot of breastbeating on this decision on pounds and ounces, (this from Iain Murray is a fine example of the genre). This is what I said on the case on January 19 2001 (please notice the date):

I don't think that he [a previous correspondant] is right about the case proving whether EU or British law is paramount - it will just be an entertaining sideshow.

As long ago as 1979 Denning said in McCarthys Ltd v Smith:

"If the time should come when Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in t or intentionally acting inconsistently with it and says so in express terms then I should have thought that it would be the duty of our courts to follow the statute of Parliament ... Unless there is such an intentional and express
repudiation of the Treaty, it is our duty to give priority to the Treaty."

This was reinforced in the Factortame case (1989) when a later law (made in 1979) was seen as contrary to the European Communities Act (1972) and was set aside. Although Michael Shrimpton makes a good and entertaining case that the European Communities Act can be accidentally overriden - the doctrine of the courts is obviously different. Steve Thorburn has to meet a tougher test - was the weights and measure act INTENDED to over-ride the European Communities Act. I'm afraid that this will be very hard.

So in short, if Thorburn loses this will not be proving EU law to be superior to British Law, it will not be a statement that Britain can not leave the European Union on a Parliamentary vote. It will leave the law exactly where it was.

Of course if Thorburn wins this case, it will be a statement that EU law is the same as any other law and will cause minor havoc for our membership of the EU. It is therefore devoutly to be hoped for.

And I later said this:

The point is not that the European Communities Act cannot be repealed, everyone (apart from Teddy Taylor) agrees with this. The point is how is it to be repealed.

Can it be repealed like other laws, ie can it be merely repealed by an unintentional clash with a later law? The present thinking on the law seems to be that it cannot.

Therefor the decision will not change the law concerning Europe, although it may publicise the present understanding of British law. Basically the idea is that the European Communities Act is judged to be higher than other British statutes - and laws will be presumed to be drawn in accordance to it unless they state that they are intended to clash with it.

This does not preclude repeal, as long as the repeal is deliberate. To my knowledge the 1985 Weights and Measures Act does not state that it intends to turn back the European tide of metrication.

There are massive issues here of democratic control, but I believe that the Thoburn case will not change things one jot.

Nil desperandum.


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