How Brexit was also a struggle between UK common law and EU laws

Stepping out of the political arena, one cannot help but notice the upheaval that Britain’s European obligations seem to have caused within its legal system. Suddenly, Sec. 2 of the European Communities Act 1972 gave ‘supremacy’ to ‘rights and obligations’ under the ‘Treaties (EU)’ over UK domestic law. The combined 10,000 page code of these bonds or the acquis communautaire covers all branches of law and regulates all aspects of society.

To give an example of what this meant, in the case of Ex P Factortame Ltd, at the request of a company of Spanish fishermen, the House of Lords prevented the British Secretary for Transport from applying the terms of British law Merchant Shipping Act 1988, which required ships to have a majority of British owners if they were to be registered in the UK. The judgment was made solely on the basis of the opinion of the European Court of Justice that the British law was incompatible with European law. While these judgments dealt with provisions of EU law which were directly applicable to the issue at hand, parallel case law emerged which required UK courts to interpret national legislation in the light of EU law even where it did not. was not directly applicable to litigation. (See Ebb Vs. EMO Air Cargo, 1995 4 ALL ER 577)

This legal trend appears to have caused great public confusion when a small fruit seller, Mr Thoburn, was prosecuted by Sunderland City Council in 2001 for selling bananas by the pound, breaching guidelines of the EU requiring metrication. These guidelines were to take precedence over the British Weights and Measures Act, which permitted both metric and imperial measurements. Thoburn (who sadly died aged 39 after failing to have his conviction overturned by the House of Lords) along with other prosecuted sellers became known as the “Metric Martyrs” and were behind the grassroots activism against “legislation in Britain by Brussels bureaucrats”. .” The fight for the cause of ‘metric martyrs’ was successful enough to force the European Commission to agree to change its guidelines to exempt Britain from the metric requirement.

This was done in specific recognition of the fact that “imperial measures form part of the traditions which are the very essence of Britishness”.

More and more branches of British law have undergone fundamental change without the will of Parliament. In the personal sphere, for example, EU law established written matrimonial agreements without any independent legal advice binding on the spouses and the UK Supreme Court was forced to uphold this in Radmacher Vs Granantino despite the fact that English law and custom were contrary.

The most intense attack on the influence of European case law on English institutions has come, not from Brexit campaigners, but from some of the country’s most respected judges. This was particularly the case in the area of ​​human rights law. The Strasbourg Court (European Court of Human Rights) has extended the scope of the European Convention on Human Rights (ECHR) to illegitimate children, criminal convictions, immigration, extradition, homosexuality, abortion, prisoners’ rights, assisted suicide, etc. is not envisaged by the express terms of the Convention, thus imposing values ​​to which the Member States were never intended to commit themselves.

In a series of judgments, Lord Reed has criticized the tendency of English lawyers to cite judgments of the Court of Strasbourg and provisions of the ECHR when the human rights in question could well have been protected by reference to the principles of English common law. He explains this approach in this discourse at the Inner Temple .

This sentiment is echoed by the UK’s most senior Court of Appeal judge, Lord Justice Laws, in his Hamlyn lecture, in which he calls the deference to the Strasbourg Court “unwarranted”. He says that human rights law “will enrich us…If we develop it according to common law methods and principles”.

The man who was recently called the “Brain of Brittany” has been even less charitable towards European human rights jurisprudence. In this highly publicized speechLord Sumption criticizes the Strasbourg Court for undermining democratic processes in the UK.

Elsewhere, he draws on his expertise as a historian to show why Britain is not suited to be part of a straitjacket legal system. He says: “We are less prone to being told what to do by outside authorities than most countries. It’s because of our physical location… that we’ve never been invaded or had a revolution since the mid-17th century, and we have a system of government and a legal system that very gradually evolved. and has unique characteristics shared by no other[…]we were the only country in Europe apart from Spain that was not invaded by the Nazis and we were the only one among European countries to be among the winners in the end.

Although Brexit does not mean Britain’s exit from the ECHR (which is not part of the EU treaties), general resentment against the EU has been fueled in large part by the Court’s case law of Strasbourg, as in the case of its interference in the centuries of the United Kingdom. old rule requiring disenfranchisement of convicted prisoners.

Therefore, it does not seem unreasonable that a country with such a different legal framework from other European countries should feel uncomfortable staying in a political union that requires uniform laws and legal administration.

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