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

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By Katie King on

Tory buffoon needs to brush up on his EU law


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.