Naked Politics Blogger
Thud. That’s the sound of my head hitting my desk after yet another brave Brexiteer boldly boasts that only by equipping the east coast of the UK with jet engines and physically propelling ourselves away from the rest of Europe and the EU can we reclaim our sovereignty. Sovereignty is a big, regal-sounding word, intimidating enough to be important, yet nobody ever really seems to say what it actually means. All someone can garner with a once-over of these articles without their eyes glazing over is that the EU means that we don’t have whatever this sovereignty is and that this is a Very Bad Thing. A Catastrophically Bad Thing, in fact, so bad that it requires us to scurry to the local voting place on the 23rd of June and vote to leave, all to save this nebulous sovereignty. So, I’d like to clear up what this strange sovereignty thing is, and how we actually do still have it.
When people talk about sovereignty, this refers to something more specifically known as Parliamentary sovereignty. Dicey, a guy born in the 19th century who coined this, basically meant said that it meant that Parliament (where laws are made) can make or unmake any law it wants, and nobody else can be more powerful than Parliament in this regard. Unfortunately, I cannot set up shop in my garage and make a law declaring myself as Lord of the Universe, though hopefully the third time is the charm. Even if I could, it probably wouldn’t last very long – the MPs in Parliament could get together and make a law that says that I am no longer Lord of the Universe, as I am not more powerful than Parliament. This is basically what sovereignty is; Parliament can do whatever it wants, and nobody else is more powerful than Parliament.
If you wouldn’t mind me going all Doctor Who on you for a second, this also applies across time. Bear with me on this. Nobody else is more powerful than Parliament. This includes older versions of Parliament. Weird, right? Think of it this way. Imagine that today everyone in Parliament gets together and passes a law that says that we have to kick out all blue-eyed babies, and then tomorrow decides to pass a law saying that we don’t have to do that. We’d probably be in a bit of a pickle – which law do we follow? This is where something called implied repeal comes in. The latest Parliament is always the strongest, and so where there is a conflict with laws, the later one always wins the moment it is enacted, so that the earlier Parliament can’t tell it what to do. Keep this in mind for later. It’s important, promise.
Where this fits in with Brexit goes all the way back to the seventies. In 1972, Parliament passed the European Communities Act (which I’m going to refer to as the ECA) which allowed it to join what is now the EU. This Act includes a bit – in s2(4) to be precise – that says that all UK legislation will have effect subject to directly applicable EU law. I’ll explain this a bit more in depth later, but basically, UK law and EU law have to agree with each other. No use in having two laws that tell you to do opposite things or get imprisoned for life.
Where the situation gets sticky – and where the aforementioned brave Brexiteers start to froth at the mouth slightly – is in something called Factortame. Don’t bother whipping out the dictionary to figure out the hidden meaning here; it’s the name of a company of Spanish fishermen. Exciting stuff. Perhaps more importantly, this is also the name of the legal case said company was involved in against the Secretary of State for Transport. It gets better! The case was about something called the Merchant Shipping Act 1988 (the MSA) – over a hundred pages of boat regulations. Okay, I may have lied about it being exciting, but this is still an extremely important case. Many people with a flair for the dramatic have clutched their hands to their breast and keeled over, wailing that this case represents the death of sovereignty and that the EU did it.
I’m going to explain why that’s ludicrous, and why you shouldn’t listen to someone who says that the only way we can get back sovereignty is to flee the EU the way I flee from responsibilities. Maybe my plates will one day wash themselves, but we can’t bring back what never died.
So, Factortame. The end result was that the judges in the House of Lords – the biggest and baddest court in the land, now known as the Supreme Court – decided that because the MSA wasn’t quite in line with EU law, it had to go. It clashed with the rule in the ECA that our law has to be compatible with EU law. This is where Brexiteers and various legal theorists say that Parliamentary sovereignty died a tragic death; implied repeal (remember this?) didn’t work, and the Parliament that passed the ECA bound the Parliament that passed the MSA. The EU successfully murdered poor old sovereignty.
It all sounds pretty disastrous so far. Never fear, however, for implied repeal is actually still working pretty fine – it was just a misunderstanding more than anything. Think back to the example with the clashing laws on blue-eyed babies, and how the later law impliedly repealed the earlier law. This happened because they were both about the same thing, and we couldn’t have them both pulling in opposite directions. Now have a think about the laws in Factortame; the ECA is about EU law applying in the UK, and the MSA is about boats. They’re completely different topics! The moment that the MSA was passed, there was no clash, and so there was no reason for implied repeal to ever do anything. Sovereignty is still pretty much okay.
The reason that the MSA was dis-applied was because the ECA was interpreted as giving a power to get rid of other laws that didn’t fit with EU law. This may still ring alarm bells in your head – if the EU has the power to just delete our laws whenever they don’t quite fit, we need to leave! Sovereignty is still dead! Not quite, I’m afraid. This comes from something called a “Henry VIII” clause; it gives people other than Parliament the power to make, alter, or get rid of laws that either already exist or will exist. The Acquisition of Land (Assessment of Compensation) Act 1919, for example, has a bit about “any Acts incorporated therewith” (I Googled it, it means in the future) doing what it says or being gotten rid of. No EU in sight, but it’s the exact same thing that Brexiteers are complaining about. I haven’t seen any campaigns telling us to disaffiliate with Parliament for doing the exact same thing people hate the EU for doing. Weird.
If sovereignty didn’t die back then, then it didn’t die with Factortame, and it’s alive and kicking now. The reports of its death are greatly exaggerated. Don’t listen to Team Brexit on sovereignty; it’s fearmongering based on a big, scary word. When they ask you to vote to leave the EU to reclaim our sovereignty ask them; how we can reclaim something we already have?