But among anti-EU purists at Westminster the issue of legal sovereignty and the role of the ECJ – which makes the laws and ultimately is where power lies – has long been the most totemic in the Conservative party.
If it’s a court that makes he laws rather than an elected legislature then it’s not a democracy, is it?
“Eurosceptics want to ‘take control’ – but if the UK wants to maintain close links with the EU, it will need a compatible legal system”
We want close links with China but it doesn’t mean we have to become a communist one party State …… ah, hang on a minute, what am I thinking, that’s the end game.
Legal sovreignty ? Is there any other kind? The impication is that there must be and the UK should be settle for that sovreignty and remain under the aegis of the ECJ.
Tom Utley in the Mail has an idea which Ben Elton could pitch to the BBC: a sitcom about remoaners.
Isn’t tort, the basis of much of English common law (that you regularly defend) for the last thousand years, basically defined by courts making the law? Was in fact pretty much the only lawmaking except royal decrees up until we started bothering with a (initially, not particularly democratic) parliament.
As indeed they all do in all democracies, with both common and codified laws, since no court is going to bother making a judgment that is out of line with the judgments of the highest court in the land.
Put another way – when did you last vote for the UK Supreme Court?
Under English common law, judges ‘discover’ the law by reference to centuries of precedents. That is quite different to the continental jurisdictions where judges can make law by fiat.
The UK Supreme Court should be abolished and the role of the Lord Chancellor returned to what it was before Blair meddled with it in order to make us more EU-like. Blair did so much damage…
The whole point is those precedents are not democratic (ye benche doth hold that Messr. X in doing Y was behavinge like a bit of a cunte and fentences him to 5 years…, which turns into criminalising, in perpetuity or until parliament rules otherwise, whatever Messr. X was doing).
A judge cannot make law like that in Germany. If it’s no longer common in England, that’s only because every imaginable form of human behaviour and interaction has already ended up before the courts so there is already a precedent.
What a judge _can_ do in Germany (as in England) is decide which side of the line between legality and illegality some act lies, and that decision will of course inform other courts. But they cannot determine that some behaviour is illegal unless it is so defined in the criminal code (or other laws). In England, you can theoretically do that.
In England, everything not explicitly prohibited by law is permitted.
In Germany, everything not explicitly permitted by law is prohibited.
I don’t see how judges in E&W can make law, do you have an example? I agree they can interpret badly written legislation in ways that weren’t intended, but that’s the fault of politicians.
“Anti-EU purists” object to being ruled by foreign unelected judges.
There are a lot of purists about these days.
BiND – “I don’t see how judges in E&W can make law, do you have an example?”
The classic in family law is White v White , in which the judges, completely arbitrarily, invented a doctrine of equal sharing of matrimonial assets on divorce. Nothing of the kind is implied by the underlying statute (MCA 1973) which mentioned only the spouse’s financial needs.
But as I see it there’s no reason why Parliament can’t legislate to make the position clear. That doesn’t help the original case but it should stop further abuses. And while I don’t agree with retro active legislation they could even put that wrong right.
Or am I missing something?
Big…you should study the English legal system before making a fool of yourself. Law, equity, tort are all different streams of law with which statutes intermingle. All have their bases in laws defined by Parliament. English law admits that parliament might pass bad laws but tries to work out what they mean. The ECJ decides what they think the law ought to mean and force it upon everyone in true EU nazi style
BiND – “But as I see it there’s no reason why Parliament can’t legislate to make the position clear. ”
No there isn’t, and the fact that they haven’t is recognised as unsatisfactory. But it’s a very controversial issue and legislative reform – unlike judicial fiat – will take time.