Parliamentary Sovereignty and the Common Law


Note: I am republishing this, because the case in question is under discussion in another thread. SIG

The “Metric Martyrs” and the Constitution
Sean Gabb
(February 2002)
http://www.seangabb.co.uk/?q=node/80

On Monday the 18th February 2002, judgment was given in the Court of Appeal on the “Metric Martyrs” case (Thoburn v Sunderland City Council. These were appeals from four men who had in different ways been told by lower courts that it was no longer legal for them to use the English system of weights and measures for any purpose of trade. The grounds of their appeal were that the relevant laws had been made further to powers contained in the European Communities Act 1972, whereas it appeared that their right to continued use of the English system had been protected by the Weights and Measures Act 1985. According to the doctrine of implied repeal, an earlier Act cannot be used to amend or repeal a later Act. Instead, where any conflict arises between Acts of Parliament that cannot be smoothed by judicial interpretation, the later one always takes precedence: leges posteriores priores contrarias abrogant .

What made this case so important was that it was brought to clarify the constitutional status of our membership of the European Union. Either the Judges could apply the doctrine of implied repeal, in which case, our membership of the European Union was compromised to whatever degree the European Communities Act had been repealed, or they could announce that Parliament was no longer sovereign, and that we were now unambiguously under the rule of a centralising, Roman Law despotism based outside this country. In the judgment given last Monday, the four men lost their case. According to Lord Justice Laws and Mr Justice Crane, the 1972 Act was protected against implied repeal by the 1985 Act, and the English system of weights and measures has been legally abolished to the degree stated in the disputed laws.

Now, looking at the superficial aspects of the case, it is a defeat. As a conservative, I deplore the legal suppression of weights and measures which are an integral part of our culture. Whatever its merits considered purely in themselves—and these are probably not so great as is usually claimed—the metric system is an alien thing. Its imposition cuts us off from part of our history, and makes it harder for us to enjoy that intimate communion with the past that is part of any nation’s strength and cohesion. As a libertarian, I deplore the imposition of anything. If greengrocers want to sell bananas by the pound or the kilogramme—or indeed by the ancient Athenian mina—that is a matter for them and their customers, not for the authorities. However, if we look beneath the surface, we can see that the judgment was not so much a defeat as a great if conditional victory for both conservatives and libertarians. For while it would not have been politically conceivable for the Judges to strike down any part of the European Communities Act, they did preserve parliamentary sovereignty to the extent that a majority of the House of Commons will be able in due course to repeal that Act by positive legislation; and that is, let us face reality, how we shall eventually withdraw from the European Union—not by some clever legalistic trick, but by full public debate followed by parliamentary repeal. And of equally great importance for us, when the Judges squared the apparent circle given to them, they did so by reviving the ancient doctrine of fundamental law.

This is a mediaeval doctrine that last flourished in the rather strange legal soil of the 17th century. Its most famous statement is in Lord Chief Justice Coke’s judgment in the case of Dr Bonham (1610). Bonham had been fined for practising medicine without a licence from the Royal College of Physicians. The charter under which he was fined had been confirmed by Act of Parliament. In giving judgment for Bonham, Coke CJ commented:

And it appears in our books that in many cases the common law will controul acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such act to be void (8 Coke’s Reports, 117-18).

By the end of that century, though, the whole notion of a fundamental law that could be used to judge the validity of Acts of Parliament was in decline. In the American colonies, the notion retained its hold among the lawyers, and is preserved in the Constitution and Bill of Rights. But in this country, the very different notion emerged of the absolute legislative sovereignty of the Crown in Parliament. Our rulers were restrained by their sense of right and wrong—or more often by their caution—in exercising power, but were under no legal restraint so long as they could rely on Parliament to pass whatever Acts they wanted. Parliament was sovereign. Its Acts could be interpreted by the courts—and frequently have been into senses that no Member of Parliament might have recognised in the division lobbies—but could not be called in question.

The doctrine as a whole was elaborated to its full logical conclusions by A.V. Dicey in his Law of the Constitution (1885). It was fully accepted by the courts. “For us an Act of Parliament duly passed by Lords and Commons and assented to by the King, is supreme, and we are bound to give effect to its terms” said Lord Dunedin in 1906 (Mortensen v Peters, 8 F.(J.C.), 93,100).

The only limitation of sovereignty was its protection. It was held that no Parliament could bind itself. Parliament could do anything, except preserve its own Acts from repeal. An Act from the time of Henry VII, for example, states that it cannot be repealed. An early 19th century annotator of the State Trials refers to this as a void provision. A later Act would always override an earlier one—and do so regardless of whether that had been the intention of Parliament. Repeal could be intended or simply implied. “The Legislature cannot, according to our constitution” said Lord Justice Maugham, “bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal” (Ellen Street Estates Ltd v Minister of Health [1934] 1 King’s Bench Reports , 753. 14.).

Now, suddenly, the notion of fundamental law has been pulled out of the legal grave in which it had been rotting for three hundred years, and declared part of the law of our Constitution. In one sense, it was the only way out of the paradox that the “Metric Martyrs” case had apparently raised. By announcing that there was a “hierarchy of Acts of Parliament” – “ordinary” and above them “constitutional”, the Judges were able to save the European Communities Act from implied repeal. Undoubtedly, they emphasised, European Union law is supreme in this country—but only to the extent given by the European Communities Act, which can be repealed should Parliament explicitly decide to do. Even so, short of explicit repeal, it is immune from any implied repeal. But in another sense, the judgment is only an extension of the growing impatience that Judges have felt for a very long time with the constraints imposed on them by the doctrine of parliamentary sovereignty. And, in spite of the status given for the moment to the European Communities Act, these are constraints that should be regarded with impatience by everyone who values freedom in this country.

“The sovereignty of the Crown in Parliament” is a nice set of words. The phrase rolls off the tongue and carries the mind back to earlier ages in our history. But the phrase no longer describes what is at all a desirable state of affairs. We are ruled by people who get an almost sexual thrill from messing up our lives. Because they run the two main parties, they are able to pack the House of Commons with a combination of sheep who would vote black white and white black if ordered, and of weaklings who know that something is wrong, but are controlled by bribes and blackmail. Every so often, a few decent people get elected. But that is because the control is not yet perfect; and its main effect, sadly, is to keep alive in some minds the delusion that parliamentary democracy still actually exists. The general result is tyranny mitigated by recollections of a better time.

The Judges have been worried by this for generations. According to Lord Wright in 1942,

Parliament is supreme. It can enact extraordinary powers of interfering with personal liberty. If an Act of Parliament… is alleged to limit or curtail the liberty of the subject or vest in the executive extraordinary powers…, the only question is what is the precise extent of the powers given (Liversidge v Anderson , Appeal Cases, 106).

Since then, things have grown worse. Bad laws pour out in a continual stream. A well funded interest group only has to demand, or a media campaign to start, and the politicians reach for their legislative hammer. In the 1960s, the insurance companies complained about the level of awards in civil cases where they were known to stand behind a defendant; and so the politicians virtually abolished the right to trial by jury in the civil courts. In 1987, there were complaints when some defendants in a criminal case pooled their right of peremptory challenge to secure a more sympathetic jury; and so the politicians abolished that right. Around the same time, the authorities wanted to raise the conviction rate or financial crimes; and so the politicians created the Serious Fraud Office, and gave it the right to compel self-incrimination. In 1991, a few children were bitten by dogs; and so the politicians brought in a law that almost everyone now regards as mad. Arguments about the rule of law drew at best a blank stare, at worst an exultant sneer.

Nor is it just that Parliament is churning out bad laws—though many are very bad. It is that Parliament is churning out thousands of pages of new law every year, supplemented by thousands more of statutory instruments. No one has read or can read all of these. No one is co-ordinating the process of their manufacture. Quite often, no one knows what the laws are on an issue from one day to another. Not surprisingly, they frequently contradict each other. This is what led to the challenge to the metrication laws. The Weights and Measures Act does contradict the European Communities Act. No one intended this to happen. No one noticed it had happened for about 15 years. But it did happen.

Now, the politicians are being brought under control. Let me quote from the relevant sections of the judgment:

In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental…. And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b). The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the [Human Rights Act 1998], the Scotland Act 1998 and the Government of Wales Act 1998. The [European Communities Act] clearly belongs in this family…. The ECA is, by force of the common law, a constitutional statute.

Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature’s actual not imputed, constructive or presumed intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes. I should add that in my judgment general words could not be supplemented, so as to effect a repeal or significant amendment to a constitutional statute, by reference to what was said in Parliament by the minister promoting the Bill pursuant to Pepper v Hart [1993] AC 593. A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and State, by unambiguous words on the face of the later statute.

This development of the common law regarding constitutional rights, and as I would say constitutional statutes, is highly beneficial. It gives us most of the benefits of a written constitution, in which fundamental rights are accorded special respect. But it preserves the sovereignty of the legislature and the flexibility of our uncodified constitution. It accepts the relation between legislative supremacy and fundamental rights is not fixed or brittle: rather the courts (in interpreting statutes, and now, applying the HRA) will pay more or less deference to the legislature, or other public decision-maker, according to the subject in hand. Nothing is plainer than that this benign development involves, as I have said, the recognition of the ECA as a constitutional statute.

Some people, I know, are angry that the European Communities Act has been given this special status. However, its protection against implied repeal comes not—as the Sunderland City Council lawyers argued—because on entering the European Union, we accepted a new legal order in which our own constitutional arrangements were reduced to the status of a town council, but because the Common Law now recognises a whole class of special Acts of which the European Communities Act is presently one. If we ever repeal the European Communities Act by explicit Act of Parliament, it will drop out of this special class, but the special class will remain.

And we can repeal the European Communities Act. That much is now certain. The various judgments in the Factortame legislation left the position of European Union law highly ambiguous—was it or Parliament supreme?. This judgment make it clear that the laws of the European Union enjoy a borrowed primacy in England. Parliament may have chosen to indulge a foreign authority, but cannot subordinate itself to it: “there is nothing in the ECA which allows the Court of Justice, or any other institutions of the EU, to touch or qualify the conditions of Parliament’s legislative supremacy in the United Kingdom. Not because the legislature chose not to allow it; because by our law it could not allow it.”

This is not the outcome that the supporters of the “Metric Martyrs” were hoping for. It is not an outcome, I think, that anyone was expecting. The point of fundamental law was not raised in any of the hearings, and it is highly unusual for Judges to go beyond the points raised in a case except for giving obiter dicta , which have no binding force as precedent. But it is a not a judgment that the Government was hoping for. Its general implications have yet to be revealed. But it seems reasonable that a vast mass of bad laws can now be set aside as inconsistent with fundamental laws that they have not explicitly repealed. Therefore, the sections of the Road Traffic Act 1982, that allow the Police to impose fines on motorists without going to court, may be inconsistent with the guarantee of due process in Magna Carta. The various Firearms Acts—especially the most recent ones, which are intended to criminalise rather than regulate the possession of guns—may be inconsistent with the Bill of Rights. The Government’s proposed Confiscation Agency, which will import the American doctrine of civil asset forfeiture, will require the explicit repeal of Magna Carta and parts of the Human Rights Act. At a stroke, the Judges have put the politicians under a restraint that may be as severe in practice as that imposed by the Supreme Court in America. It means that they can carry on their game of stealing our freedoms—but they must do so in the open, by spelling out what they are doing in words that cannot be ignored by the courts. I have no doubt that if they had known in advance the outcome of this case, the authorities would quietly have connived at breaches of their metrication laws.

We have lost the right to use our traditional weights and measures. But we may have gained the vast benefit of living again under a Constitution that protects our fundamental rights. I feel sorry for the four men who have taken on the considerable legal costs of getting this case into court, and I hope that the public appeal will be sufficient to pay these costs. But it was, most emphatically, a case worth getting into court. It has given us, I repeat, a great and unexpected, if conditional, victory.

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25 responses to “Parliamentary Sovereignty and the Common Law

  1. the de facto constitution of this country is now the lisbon treaty, a.k.a. the ‘constitution for europe’. the eu used to derive its authority from a series of inter-governmental treaties. now there is a new entity, also named the european union, which derives its authority from the lisbon treaty itself. it does this in subtle ways; most tellingly, the european council was formerly an inter-governmental body, with each head of state representing his own country. now, however, the european council is an eu body, so when cameron et al meet, they do so as representatives of the european union, not of their own countries. this is why repealing the 1972 eca will, in my view, achieve nothing. as i said recently elsewhere, we will have repudiated a treaty which no longer exists, or at least that is how the ecj will see it. we will tell the ecj we no longer recognise their jurisdiction as we have left the eu. the ecj will tell us we are still bound by lisbon. we will tell them to get lost. then it’s tanks through the channel tunnel i suppose?

  2. WOW!

    We really do learn something new, sometimes significant, every single day.

    To the four who lost but lost in a way that allowed the public at large to win… might I add a sincere thank you. I do hope all, or at least part, of your costs were met by supporters who chipped in at the time.

  3. Hugo, that sounds particularly ominous.

    I’ve always been anti anything tying us to Europe. Trade a few goods and services – yes, that’s ok but don’t offer to walk arm in arm. Not yet, not for maybe a century or more. My personal experiences and business dealings in various countries taught me to always demonstrate ‘extreme’ caution. For instance: whilst I admire the German attitude toward hard work, I’m not, in the slightest way, inclined to believe they admire us for being good at anything. They talk the talk.

    But come on, you’re having a laugh surely? Is it truly your opinion, that we’ve allowed ourselves to be legally shackled to the EU with bonds so powerful, that if they refused to allow the will of the UK’s electorate’s to prevail, only the threat of war would persuade them to change their minds?

  4. There will, or may, come a point at which war would be required to leave the EU, but we aren’t there yet. The obvious parallel was the attempted secession by the USA’s southern states. Ultimately, the North was able to hold the USA together by having both sufficient will and sufficient armed force.

    Currently it is enormously unlikely that Continental citizens would be prepared to die to keep Britan in the EU. Especially as we all have nukes. And half an aircraft carrier (pending). In reality, if we voted in Nigel Farage at the next election and he rang them up and said, “we’re off, cheerio”, then whatever the ECJ said or the European Council(s) or anyone else said, we would leave.

    A contract is as binding as the capabilities of its enforcers, and no more. There is no Platonic essence of contract that binds signatories; just human will, words and actions.

  5. And it’s worth noting that the US Civil War was only possible, on the Union side, because of a toxic mix of Yankee millennialist fervour and Lincoln’s megalomania. Currently there is no equivalent of the former in the EU, and it has yet to throw up its little Caesar.

  6. I think we’d just tweet them that we’ve gone, and that’d be that. I agree that they don’t have the political will, or – even at the last – the military muscle to hold onto us, unwilling as we’d be to stay.

    We also have “previous”, at exhibiting what even Stalin called, in Churchill, “that quality of desperation”, when we as a people are pissed off.

    We also owe them marginally more money for goods-etc than they owe us. You don’t go after your debtor with a gun, when he owes you billions. When you owe thousands or millions, you are at their mercy, yes. When you owe billions, they are at yours.

    They’ll be much nicer to us when we have gone. But I do fear, as does Sean – and we have discussed the intricacies of this betimes – the untrammelled power of the British Political Enemyclass in its own country, when the shackles of “EU-human-rights treaties” and all that stuff have been lifted off their shoulders.

    • I’ll add my own pennyworth here. I’ve decided that membership of the European Union is not among the causes of our troubles. It’s merely one of the symptoms.

      Suppose we were to tell Brussels: “We’re going to repeal a mass of directive-led regulations, and pass a Declaratory Act about the ultimate sources of our law. But we’d like to remain part of the Single Market. Say yes, and we’ll keep paying you all the money Tony Blair signed us up to. It’s a lot of money for you, but not that much for us. If you want to fine us for multiple violations of your laws, we’ll pay up – but keep the fines lowish.”

      If that were the deal we put, I bet the Europeans would jump at it. Everything bad that we blame on Europe is only there because our own rulers want it that way. When I come to power at the head of a military coup, I will repeal the ECA on day one. It would get in the way of what had to be done by way of restoring the nation. This being so, I don’t think Europe is quite the black cloud the UKIPers say it is. Indeed, so far as it stops our own utterly malevolent rulers from doing all they’d like to us, I think being formally ruled by a bunch of corrupt but mostly sensible Europeans may be to our current benefit.

  7. Sean, Lord Justice Lawes did not look at whether the ECA Act of 1972 itself “impliedly repealed” whole chunks of our common law – whole chunks of the fundamental law of the land, including parts of previous constitutional acts. The judgment specifically states that the Act of Union and other constitutional acts can’t be impliedly repealed, but the 1707 Act of Union, article 17 said this:

    “XVII That, from and after the Union, the same weights and measures shall be used throughout the United Kingdom as are now established in England, and standards of weights and measures shall be kept by those burghs in Scotland to whom the keeping the standards of weights and measures, now in use there, does of special right belong; all which standards shall be sent down to such respective burghs from the standards kept in the exchequer at Westminster, subject, nevertheless, to such regulations as the Parliament of Great Britain shall think fit.”

    The judgement was half-baked and ad hoc, designed to rescue the EU project – because if the judgement means anything at all, then the 1707 Act of Union has not been expressly repealed on the point of weights and measures itself.

  8. let me start by putting all my cards on the table. in 1987 i remarked to my wife that it soon wouldn’t matter who we voted for because we were increasingly ruled by brussels. then came the factortame case in which the ec (as it then was) ordered us to repeal (or perhaps amend) the merchant shipping act to allow the spaniards to plunder our fishing waters. this was clearly billed at the time in the press as the test of who governed britain, and we got our answer.
    then came the maastricht treaty in 1992. i decided this was a treaty too far. the word ‘irrevocable’ ran through it like the lettering in a stick of rock. i joined the uk independence party, stood for parliament for horsham against francis maude, who had signed the maastricht treaty, in 1997, 2001 and 2005. luckily i didn’t give up the day job.
    right from the start it has been my firm belief that the eu cannot survive without our contributions and will never willingly let us leave. the only way we will ever get out is by force of arms. their motives are partly financial and partly ideological. they want to make the uk subservient to france and germany and to wrest us away from the anglo-sphere.
    it won’t need the citizenry of the eu to invade us; they have europol and the egf, the european gendarmerie force, waiting in the wings to suppress any signs of insurrection. i am genuinely surprised that they haven’t been deployed in greece. not yet anyway. the logo of the egf is an upturned sword and a flaming grenade. hardly dixon of dock green is it? the important thing to bear in mind about europol and the egf (and any eu official for that matter) is that they are immune from prosecution. vladimir bukovsky, the soviet dissident, once remarked that the biggest difference between the eu and the ussr was that the kgb were never above the law, unlike the eu security forces. once you have armed paramilitary police roaming the streets who are above the law you are in trouble. prior to lisbon, they could only be invited here by the home secretary. once invited, however, they could only be recalled by brussels. now, post lisbon, they can come and go as they please and round up the troublemakers.
    in the meantime our own police have been subtly transmogrified from public servants to government agents, and the law no longer provides a shield for the citizen but has become a sword for the state.
    every prime minister in my lifetime with the exception of margaret thatcher has been working to impose the eu on the british people without their knowledge or consent.
    you only have to look at this windmill business – wind turbines obviously cannot provide the electricity we need when the wind stops blowing, so the government is building a bloody great cable through the channel tunnel so we can buy our electricity from the french to make up the shortfall. the moment there is a realistic prospect of our withdrawing from the eu the frogs will just pull the plug on us. the mere threat will be enough to cowe the brainwashed british into submission.
    meanwhile the british army is being merged with the french and it can’t be very long now before they are required to swear an oath not to hmq but to the president of the eu, president blair perhaps?
    the sad truth is we are in so much deeper than people seem to realise.

  9. On the note of the EU, I have been offered an opportunity to apply for a training session on ‘Access to Social Rights for Young People’ ofcourse ‘Strasbourg/ Project development and learning’ is where it is held. I am sorely tempted to accept and see just what sort of propaganda they are peddling.

    There is also a chance to apply to be a ‘UK Young Ambassador’, this will be involving – ‘..carry out research and consultation, to participate in European policy discussions and events, to campaign nationally and in Europe, and to report on and promote your work.’ Again Europe is the word.

    I am looking at both of these currently, in my eyes it’s better I get in than some idealogue young person who will accept the taxpayer funded grandeur of the EU. Interesting to hear what you guys think of this.

  10. My advice to all young men, is to play the current crop of bastards at their own game. First of all, get your hands on some cash. Maybe by working at whatever. If no jobs are available, now that our new cousins have got them all, you could always try picking pockets around Westminster. If that didn’t work out, again due to the extremely fierce competition, you could always go into politics yourself, or the better yet the law… but maybe you don’t want to stoop that low? However, do remember that Robin Hood felt obliged to rob for a living.

    Anyways, after you’re sufficiently well funded, buy one or several homes abroad; many can be bought very cheaply – no need to look for a lake-side setting. Start flying lessons immediately and get a PPL. Buy shares in a light aircraft based near you and currently part owned by those who think that God save the Queen is a brilliant song. Then, after you’ve done that, you’ll have a bolt hole for you and your kids to bolt to (should you eventually have any). Should the humble pad abroad be a long way from the UK you’ll need to do some island hopping… but it can be done I promise you. After that, of course you could ‘maybe consider’ acting spy in the way you bravely suggest. In any, event it’s absolutely inspirational to know that you’re interested enough to be planning ahead.

    I’m not poking fun. Seriously, if the position you’re in was a tad brighter, I’d say, just go for what you believe in and good luck. But you’ve not been left with a lot to believe in have you? You owe no one any favours. Good Luck.

  11. jfen these ‘opportunities’ have got ‘common purpose’ written all over them.

  12. JFen:

    Several well-read and very well aware people are freely giving of their time to this site. They comprehend the situation far better in the round than me. I absolutely defer to their opinions. Please forget my ramblings. My position in life is now slightly different to the average. I seethe with rage at what has become of our England during my lifetime but feel a growing sense of impotence. I only ‘think’ that I can protect my family; who really knows? You’ve been left a legacy which sadly includes fighting anew for the things lost to you and which need to be restored. I do hope that you and your peers succeed. Best wishes.

  13. john warren i just re-read your post – you say “Is it truly your opinion, that we’ve allowed ourselves to be legally shackled to the EU with bonds so powerful, that if they refused to allow the will of the UK’s electorate’s to prevail, only the threat of war would persuade them to change their minds?”
    no, i do not believe for one minute that the threat of war would persuade them to change their minds. we are not in a position to make such a credible threat.
    also i forgot to mention earlier the many treacherous measures imposed on us by our own government, such as the ‘regulation of investigatory powers act’ and the ‘civil contingencies act’. one of these (can’t remember which one off the top of my head & don’t have time to look it up) contains wording almost identical to hitler’s enabling act of 1933. i once sent a letter in to the press quoting a passage and invited readers to guess whether it had been written by charles clarke (then home secretary) or adolf hitler. when i looked at my own letter later on i genuinely couldn’t remember which of the two i was quoting. the gist of the legislation was that ‘we know we have given ourselves far-reaching even dictatorial powers, but we promise to use them only when absolutely necessary’. that is exactly what the nazis said.
    a british government minister may now, in the event of a real “or perceived” emergency, grant himself the powers to suspend any law or any part of the constitution, to order people to move to a specific location or to refrain from moving at all, pretty much anything he fancies in fact. just like the gestapo. this is not something that “might” happen one day; it is already the law of the land under the above two acts.
    it is my firm belief that these acts will be used to supress any attempted rebellion on our part against the eu. we have to recognise that the entire british political class (with a handful of notable exceptions) is working for the eu, not for the british people. until we understand that we shall get nowhere.

  14. Perhaps Sean was right, and we should have left them to their own devices in 1914. I think that’s when the damage was really done. But as War Secretary, I cannot see how we could have allowed the European Coast – all of it, as would have been the case – to fall into the Kaiser’s hands. #

    We’d have been naked. I just don’t see what else we could have done, other than we did.

    “I pause for a reply”, as Brutus said to the Crowd.

  15. Oh, I think we certainly should have left the Franks to it in 1914; all those British lives were not worth the endless spat over Alsace and Lorraine.

    Once we had all that, the 39-45 thing was inevitable and obligatory. But if we’d never had that great war in 1914…

    The European Coast in the Kaiser’s hands?

    *shrugs*

    The Prussians were our traditional allies against the dastardly imperialist French, after all. I don’t see it would have been any particular harm to have them in charge the other side of the Channel.

  16. It is indeed very grim stuff.

    “A later Act of Parliament trumps a previous Act of Parliament – unless we do not like the result, in which case we will declare the previous Act of Parliament a “Constitutional Act” and……”

    It is the old dodge of starting from the result the judges want – and then working backwards to the law.

    And all the waffle about “the Common Law in its maturity” and other high sounding guff, as a fig leaf for blatent abuse.

    A judge should speak plainly – on not say anything.

    After all (as Sean Gabb would point out) the Eurpean Communities Act of 1972 did not “by clear words” repeal any previous “Consititutional Act”.

    So the “argument” in this court judgement is false.

    But, somehow, I get the impression that Sean Gabb has not fully grasped his own point.

    For example, the “implications of the judgement”.

    The “implications” are whatever the judges want them to be.

    The “implications” can be anything – or nothing.

    This judgement is just more evidence (as if any were needed) that the courts are corrupt (arbitrary) and that the law is, therefore, an ass.

  17. Besides all else, if there were distinct “Constitutional Acts” and mere “Legislative Acts”, then there ought to be some clear formal distinction between the two, at the time of their passing. Otherwise, as Paul implies, the judges are just using a system known as “making shit up”.

  18. ” I’ve decided that membership of the European Union is not among the causes of our troubles. It’s merely one of the symptoms.” Exactly so.

    For all the posturing the political elites of this country are helping drive the globalist agenda. Worse, they’re prosecuting it with particular zeal. Occasionally they use the EU as excuse for something that doesn’t sit well with public opinion.

  19. Well, my oft-repeated argument is that the wellspring of Progressivism is the Anglosphere. We’re not locked in with the Europeans. They’re locked in with us.

  20. Sean, the famous CS Lewis quote springs to mind-

    “Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.”

    I think part of the reason I keep ranting on is that, in my opinion, Libertarians tend perhaps to be too eager to see the problem as robber barons, whereas in my view our oppressors are “tyrants for our own good”.

  21. Oh no – I am now forced to agree with everyone (a hard thing for me to do).

    Johney is right – it started long before the E.U.

    Harold Laski and E.H. Carr going off to help write the (wonderful sounding – but vile in the details) international convention on Human Rights, are typical of our ruling elite.

    After all, to bring things up to the present, Mr Cameron did not urge ministers to read “Nudge” (Cas Sustein’s “libertarian paternalist” totalitarianism-by-the-installment-plan book) as a warning – no he loves the book (no wonder they loved him at university).

    Ian is right. Apart from (perhaps) about the source of Progressiveism (the desire to order other folk about “for their own happiness” ) – I think it is universal (Catholic, Thomas Moore and co, as well as Protestant – European as well as Anglo) after all Frederick the Great did not need any English speaking philsophers to teach him to be a statist, and he did not need religion either.

    Bonagretia was religious – but his foe Pope John XXII was equally religious (he just read scripture the other way).

    If Heaven exists and I (somehow) get there – I am going to have a serious few words with the Empress Elizabeth. How dare the blond Empress die just before finshing the job of crushing Frederick and sending Prussianism to a deserved nothingness.

    And Sean Gabb is right also (says Paul through gritted teeth).

    It was ever thus with most (although not all) of the enlightened ones.

    Francis Bacon (the master of Thomas Hobbes) wrote “The New Atlantis” about the wonderful new world ruled by an enlightned elite (although there are clear signs of this thinking in Thomas Cromwell – a century before).

    Yet the enlightened Francis Bacon never met a bribe he did not like.

    Mr Christian Socialist Blair was (is) much the same.