EU Constitution and the Metric Martyrs Judgment

The Business,
London
The EU's judicial land grab
March 6, 2005 12:00 AM (GMT)

WHEN the British are asked what they think about the proposed EuropeanConstitution, they regularly claim not to know enough about it.
The puzzlement is understandable: with the campaign to sell the constitution heating up across the European Union (EU), barely a day went by last week without a senior European politician arguing that it will change Europe forever; yet in Britain the government continues to claim - wholly implausibly- that the constitution is no more than a minor "tidying-up exercise" to"simplify" existing EU treaties.
The blunt truth is that, when it comes to this crucial constitution, the British public will be better informed if it stops listening to its own government and pays close heed instead to what continental leaders are saying. While British ministers deliberately distort the truth by downplaying the constitution's significance, British voters will have to reply on continental politicians for plain speaking and the facts.
For example, Hans Martin Bury, Germany's minister for Europe, was right when he said last week: "This constitution is, in spite of all justified calls forfurther regulations, a milestone. Yes, it is more than that. The EU constitution is the birth certificate of the United States of Europe";
and Denis MacShane, the British minister for Europe - who would never dare to be as honest with the British people as Mr Bury is with his - was typically wrong when he claimed that the constitution would change little becauseEuropean law already enjoys primacy over UK law. To understand why Mr Bury and other European politicians are right, consider the most explicit and recent judgment on who possesses legal supremacy inthe United Kingdom - and hence where sovereignty truly lies. It was made by Lord Justice Laws in the famous "Metric Martyrs" case of 2002. Far from being an irrelevant judgment of interest only to market traders or imperial measurement buffs, this was a case of political and constitutional significance for the future of Britain's relations with the EU. In his ruling, the judge made a crucial distinction between substantive law- day-to-day laws and regulations such as those limiting the working week or harmonising goods or services - and constitutional law. His judgment reflected on the crucial fact that the European Court of Justice (ECJ) has stated since the 1960s that EU law is superior to all national law including national constitutional law - itself a quasi-coup by the Luxembourg judges and one of the most blatant judicial land grabs in history, given that such powers were never mentioned anywhere in the Treaty of Rome.
But Lord JusticeLaws dismissed the ECJ's view and restated instead that the British Parliament is "sovereign" in the sense that it has ultimate authority to pass whatever statutes it likes; and that this sovereignty is protected byEnglish common law.
To the extent that this power may be curtailed, he ruled, this can only be done by domestic courts and the common law - not by the EU. In a ruling which is no more than a repetition of English constitutional traditions but which filled Foreign Office officials and the Europhile liberal-left elite who understood it with horror, Lord Justice Laws said that Parliament could not give away this ultimate authority to any foreign jurisdiction even if it wished to and even if it passed an explicit act to such an effect; if it attempted to do that and hence to bind future Parliaments, the courts would reject it as anti-constitutional.

British membership of the EU does not affect this: Parliament has delegated certain powers to the EU and its courts - such as the right to make policyand pass laws on agriculture or the single market - by virtue of joining theEU and passing the European Communities Act 1972 But the terms of this(perhaps temporary) delegation are ultimately defined by the British Parliament and courts, not the EU and ECJ. In other words, EU law is not superior to national constitutional law; day-to-day EU law usually trumps domestic law - but only because Parliament allows it to do so. Regardless of the views of Brussels bureaucrats or Luxembourg judges, theBritish Parliament, if it were so to decide, could repeal the EuropeanCommunity Act in whole (and hence leave the EU altogether); or in part (and hence cease to delegate certain powers to the EU) - so long as it did so explicitly; and the English courts would immediately give effect to it.

In another part of his remarkable ruling, Lord Justice Laws warned that theEnglish courts would stand prepared to strike down substantive EU law if it infringes on what they consider the fundamental rights of British citizens, as defined by traditional common law and the Human Rights Act. It is at this point that the European Constitution becomes directly relevant Article I-6 states that "the Constitution, and law adopted by the Union's Institutions in exercising competences conferred on it, shall have primacy over the law of the Member States". Read in isolation, this section does not make it clear whether the constitution is referring to substantive EU law being supreme over national substantive law - in other words, the usual day-to-day EU directives and rules must be followed whenever they clash with UK laws (roughly but not quite the current position of the UK courts); or whether it means that EU law is supreme over national constitutional law, which would officially signify the end of member states as independent countries.To make sure that everyone understands what is being talked about, an explanatory note was added to the final version of the constitution duringthe closing stages of the negotiations.
It states: "The conference notes that the provisions of Article I-6 reflect existing Court of Justice case law."
So there you have it: the European Courts think that EU law is superior to national constitutional law, a position explicitly rejected by the High Court in London; the reference to "existing Court of Justice case law" therefore means that the British Government is asserting its support for the ECJ's position and repudiating that of the British courts.
This is an astonishing, perhaps unprecedented, situation.

Either the Government is incompetent in claiming that the constitution is no big deal (and, since incompetence is becoming the hallmark of the Blair government, this explanation cannot be ruled out of hand); or it is deliberately hiding the revolutionary significance of the EU declaration in a desperate attempt to downplay the dramatic implications of theconstitution. Apart from anything else, the British government has set itself on a collision course with the courts, of a kind which will make the battles over the enforcement of criminal justice in recent years look like a Sunday tea-party at a rural vicarage.

To repeat: the British Government, by signing the constitution, wishes to endorse "ECJ case law", which asserts that EU law is supreme even over British constitutional law and can determine the nature of the relationship between the UK and EU, explicitly going against the position of the British courts as stated by Lord Justice Laws in the "Metric Martyrs" case.

The ECJ would regard the ratification of the constitution by Parliament as a deliberate renunciation of Lord Justice Laws' judgment - and hence a British desire to renounce his ruling; this would create an enormous constitutional crisis over the central question of who has ultimate legal authority in theUK - and signal a massive power struggle.Given Lord Justice Laws' view that the British Parliament does not have theright to abandon its own sovereignty, would the British courts refuse togive effect to the Constitution?

Or would they regard a "Yes" vote in the referendum as explicit public support for terminating the common law principle of parliamentary sovereignty - the foundation of the British constitution for centuries - and hence accept what would in effect be a revolution, in the strictest meaning of that word?

Given the number of lawyers in the Blair government (including the PrimeMinister and First Lady), someone must be aware of what is happening. The conspiracy of silence and deliberate dissembling (MacShane-style) that surrounds this whole affair is intolerable. It is a new nadir in British public life that such critical issues are neither discussed nor widely understood; for that, we suspect the Foreign Office cabal that has set Britain's European policy for decades is to blame. The outcome of the forthcoming British referendum on the constitution is therefore of the utmost importance - far more so than the result of the imminent British general election.