Britain’s legal system can’t ‘trump’ Brussels — and Boris Johnson is wrong to pretend otherwise

Tory buffoon needs to brush up on his EU law

Boris

The Mayor of London Boris Johnson waded into the controversial ‘in or out’ debate yesterday with a column in the Telegraph entitled ‘Britain’s own legal system should trump the one sitting in Brussels’ — and it was pretty bad.

The bulk of Johnson’s article is a regurgitation of the classic ‘parliamentary supremacy’ debate: the EU has stripped the UK of its national sovereignty and freedom to legislate according to national norms and values, and therefore we would be better off if our national laws were not subject to external checks by the EU.

But Johnson’s piece also contains something different: he proclaims to have found a miracle solution to the problem at hand. Stay in the EU, he argues, but ignore and undermine the sovereignty of EU law. Who cares if this is the central characteristic of the European project?

Johnson — who studied classics at Oxford before becoming The Telegraph‘s Brussels correspondent and later a politician — suggests that we can achieve this by attacking the European Communities Act 1972, a UK law, as opposed to the European Treaties.

Through the passage of this Act, parliament has codified that UK courts must interpret national law in accordance with European law. The latter is therefore supreme, and all national laws must be checked to ensure compliance.

Almost 20 years later came Factortame, every law student’s favourite case, in which the House of Lords gave a nod to both the Act and the supremacy of EU law by refusing to apply a national law which did not comply with a European law.

Like it or not, parliament has effectively carved out an area of its sovereignty for the European law-makers, be that both the legislators in Brussels and the Court of Justice in Luxembourg. And the courts have backed this.

As the 1972 Act paved the way for the current situation, the blonde buffoon has a simple solution: repeal it, while somehow staying in the EU.

But the reality is that there is no easy way to create the have-your-cake-and-eat-it EU relationship that Boris longs for. To quote one of the pinnacle rulings of the Court of Justice in key constitutional case Costa v ENEL:

The [EU] Treaty has created its own legal system which … became an integral part of the legal systems of the Member States and which their courts are bound to apply.

And, crucially:

It follows … that the law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as [Union] law and without the legal basis of the [Union] itself being called into question.

In other words, you either follow the rules and stay part of the EU, or you are out.

And the Tories have known this all along.

The much quoted Costa v ENEL judgment was laid down seven years before the UK’s accession to the EU, plenty of time before the government decided to sign up. Johnson’s attempt to dismiss European supremacy as “ill-thought-through legal activism on the part of the EU” is a farce. The government at the time, which let’s not forget was a Conservative one, knew full well that the democratic picture was as it was when it joined the EU, and it cannot escape this by tweaking the Act that codified this accession.

But the failings of Johnson’s argument don’t stop there. Even if the European Communities Act was to be repealed, and the fairytale continued with Britain somehow not being booted out of the EU, how would the judiciary react? Bristol University legal academic Dr Philip Syrpis believes Johnson’s failure to consider this is a big oversight:

Were parliament to begin to legislate deliberately contrary to EU law it is impossible to know how the UK courts might react. No one knows what the UK courts would do, but for me the key is that parliament has just not chosen to legislate in that sort of a way. It would precipitate some sort of constitutional crisis for the UK and the EU, whose resolution would be for the political sphere. It is, in other words, not the sort of easy solution which Boris suggests.

If Johnson wants out of EU primacy then he wants out of the EU, and attempts to sugarcoat this are simply wishful thinking.

30 Comments

Guru nana

Seems that he wants a Swiss model in terms of its relationship to EU Directives.

(11)(0)
Anonymous

In essence this piece is right, and Johnson’s ‘solution’ sounds like a non-starter from a legal point of view (I haven’t read his article and don’t propose to).

But the statement above, “In other words, you either follow the rules and stay part of the EU, or you are out” completely overlooks the widespread problem that EU states incorporate regulations, transpose directives and so on … and then routinely ignore them.

(3)(1)
Salmon Act 1986, s.32

On that point, “In other words, you either follow the rules and stay part of the EU, or you are out”…

Katie, consider:
(i) Nobody actually abides by all the rules. Even the really serious ones. For example, how many times in the last 20 years has the Court of Auditors approved the European Union’s accounts? Right. So the EU has broken its own financial rules over and over and over again. So, by your logic, either the EU institutions have to kick themselves out, OR (and this is just a possibility) perhaps the EU rules aren’t as inflexible as you make out and perhaps the EU will recognise the pragmatic reality that some Member States aren’t going to abide by all of the rules all of the time, but it’s still better to keep them in.
(ii) It’s all very well threatening to kick Member States out, but it’s never happened and it’s never going to happen. Politically, it would be disasterous for the EU to kick a Member State out. The EU would rather cling to the principle of a United Europe than kick Greece out (even when it’s in their financial interests to do so) so how likely are they to kick the UK out given the size of the UK’s contribution? Hmmm…

(4)(0)
Anonymous

(1) Is it written by a Tory who wants to succeed Cameron in 2020?

(2) Is it about the EU or the ECHR?

If the answers to both questions are yes, you can automatically assume it’s bollocks and not waste your time reading any further.

(17)(8)
Anonymous

I am stung by your devastating retort, and I marvel at your elegant analysis, the logic of which has so beautifully yet devastatingly destroyed my erroneous preconceptions.

Please excuse me while I go home and cry.

(8)(2)
Anonymous

Sorry, I was intimidated by the boldness of your proudly positing the idea that more individuals should comment on things without reading them. As part of the stuffy establishment of reading things before I offer up an opinion, I am naturally threatened by such extraordinary mavericks.

(2)(7)
Anonymous

It’s as much a political question as a legal one. In purely political terms, why should we allow a foreign entity to take supremacy over us? Why is the liberal commentariat perfectly happy with this state of affairs, and why can’t they recognise the validity of an opposing view? Just anti-Tory nonsense.

(6)(3)
Anonymous

So, this is an entire article written to explain by Boris’s view is wrong. It isn’t a ‘valid view’.

So much of the anti-EU rhetoric seems to be ‘stop using reasoning against us, we just don’t like yourups and thats as valid a view as yours so stop criticising waaah’.

(2)(4)
Anonymous

Exactly. Boris’ article is a political piece with a tiny paragraph about the legal aspect tacked on at the end. Presumably he didn’t go into legal details because he’s a politician, not a lawyer. The key point to address is the principle of it and what sort of high-level approach we should take to a concept like the EU project.
Knee-jerk language in this blog post such as “Tory buffoon” and “it was pretty bad” seem to suggest the standard anti-Tory chip on shoulder approach while avoiding the substantive question.

(7)(1)
Anonymous

Boris voluntarily involved himself in a legal debate. Saying it’s as much a political issue as a legal one is by the by.

(4)(1)
Anonymous

He is involved in a multidisciplinary debate (which admittedly carries a substantive legal aspect) from a political standpoint. Any answer he gives is obviously going to be flexible and hypothetical in nature because it reflects the higher-level musings of politics. He’s not a law undergrad; did people really expect him to waffle on about Factortame and Costa in a popular newspaper written for laypeople? The point being made is that the way the EU works should change to accommodate his proposed solution, not that we should suddenly implement his one-paragraph idea apropos of nothing.

Also, I’m not quite sure what you mean by “voluntarily” given that it is a part of his job as an MP. He doesn’t exactly have much of a choice as to involving himself. Unless you were trying to colour him as some sort of busybody hobbyist in an attempt to unfairly undermine his position?

(3)(0)
Anonymous

I meant that he didn’t have to comment on the legal aspects of the problem if he didn’t understand them. All very well for him to voice his concerns in the political dimension and leave the legal solutions out of it.

(0)(1)
Anonymous

“I propose that we change the law and change the nature of an international project”
“But that would contravene the law and go against the nature of an international project!”
What an asinine rebuttal.

(2)(1)
Anonymous

Isn’t it more:

“I want the benefits of an international project without the sacrifices!”

“If you don’t make the sacrifices, the project doesn’t work.”

(3)(1)
Anonymous

That’s certainly a way of looking at it, albeit overly simplistic in my view and not quite representative of what he’s proposing.

My interpretation of what he is saying in his article is that we should be going back to basics and discussing in practical terms the benefits and obligations of the EU in order to determine if there is adequate balance. With the benefit of the experience we have gained as a member state we are now in a better position to consider the successes and failures of the European Project. This is an important discussion to have if we are to negotiate terms as to our involvement in the EU and ensuring that there is proportionality between what we get and what we give.

“Well the Tories agreed to it decades ago, so you’re fucked and there’s nothing you can do to change it” is not a helpful or accurate rebuttal. These things are, and always should be, subject to change. It’s tremendously exciting that we are able to have dynamic discourse on such a divisive topic, but pieces like this article do little to help anyone.

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Evan Price

What is it about Legal Cheek reporters that they are unable to disagree with someone and remain polite about it at the same time?
Please stop it …

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Chegal Leek

THIS JUST IN: Piece of shit Evan Price writes a pathetic comment on Legal Cheek’s comments section – and it’s bad. Probably Tory scum.

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Evan Price

If this is a site for professional people, then this is not acceptable.

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Mr Idealistic

I just don’t see the problem with the ECJ having primacy. Autocracy always proves dangerous, see recent judgment re privacy measures. Please no ‘who watches the watchmen’ or Latin version thereof. People seem to forget that we are fully present and have a big say in the way the EU is run. MEP’s are democratically elected to represent our interests. I appreciate the European Parliament’s decisions are non binding but once they go to the Council we then have a huge say with a large chunk of votes, therefore a large influence. I just don’t understand the ‘Leave Europe’ argument at all, as a previous commenter said, we get to opt out of anything we don’t like anyway (Schengen Zone,Euro, will do so with immigrant quota etc..). We have it very good as it is. Only intelligent motivation to leave the EU seems to be regarding business/financial reasons and those protesters seem to be masquerading under a scaremongering agenda of evil immigrants (they took our jobs!) and the fact parlementary sovereignty is no longer supreme.

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Mr X

You state that “Autocracy always proves dangerous”, however, that is not what we have in this country. An Autocracy is defined as “a system of government in which supreme power is concentrated in the hands of one person, whose decisions are subject to neither external legal restraints nor regularised mechanisms of popular control (except perhaps for the implicit threat of a coup d’état or mass insurrection). Absolute monarchy and dictatorship are the main historical forms of autocracy.” We do not have a Supreme Leader ala North Korea but a Leader subject to democratic and legal control, as well as an informal checks and balances system. Furthermore, we have had a democratic system with full universal suffrage or at least the same as today since 1948, and a form of democratic control by 1707, when a Parliament for what would be the new UK was formed. Furthermore, limits on the power of the Monarch and therefore, stopping a complete Autocracy were commenced in 1217 when Magna Carta was reissued. Therefore, we have not had an Autocracy for hundreds of years, and we certainly do not need to be in Europe to prevent us having one! You talk about the democratic election of MEP’s but turnout for European elections is even worse than general elections, and even if people cared, our MEP’s can be easily out voted by MEP’s from other countries and they may make a decision that wrecks our country but suits theirs and we have to put up with it, for example a European Banking tax would decimate the City of London but leave much of Europe unscathed. In terms of immigration I do not fear immigration but I do think having complete control over immigration is no bad thing, it might allow us for example to have less people from Europe and more people from the Commonwealth countries with whom we have long, important and historic ties, but whoever comes in the point is our country will determine it, not whoever wants to come from Europe as now. There are plenty of countries that are not in the EU but have trade deals with EU thus preserving access to the market for example Albania, Georgia, Lebanon, Jordan, Switzerland, Montenegro, Norway etc. In fact the only country in Europe without such a deal is Belarus, therefore, if we left we could have the best of both worlds i.e. trade without everything else.

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Anonymous

Fair enough, you make good points and you didn’t pick up on my awful spelling and grammar which is appreciated. I would say that whilst your pedantry didn’t extend to those mistakes you did pick me up on autocracy. My apologies, I do know what an autocracy is. I thought in the context of the point I was making the word worked but perhaps I should be more careful in picking my words. What have I learnt? Not to write an opinion piece whilst hungover and to spend more time studying than actually replying to my own messy comments. I think the financial impact of leaving the EU and the political impact would be dire but that’s just vague messily put together commentary and I don’t have time to back myself with sources. Back to learning for me.

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Anon

This from the man that bought water canons for use on his own people

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