[Ed: Please read Part 1 of this essay which was published on UKIP Daily here.]
Since the WMA85 did not explicitly repeal any provisions of the ECA1972, which it might have done by including words like “any provisions in or deriving from the ECA72 notwithstanding”, but didn’t, then in this case the earlier ECA72 must be held to prevail over the later WMA85. They even added, as a consolation “sop” to the defence and to Eurosceptics in general, that Parliament is in any case free to repeal the ECA72 whenever it wishes, as long as it does so explicitly.
The Metric Martyrs now presented an appeal to the House of Lords, but it was thought that their appeal was not worth hearing, so the decision of the Appeal Court acquired the status of legal precedent, which as every law student knows, is now binding on all subsequent decisions.
This “innovation” by Laws and Crane can be summarised in general terms as follows:
There are now two levels of law in the United Kingdom: a) Constitutional laws and b) Ordinary laws. There are different rules applicable if Parliament wishes to repeal any of them.
In cases where there is a conflict between two ordinary laws, the later law is deemed to annul those provisions of the previous law in conflict with it, under the well-established doctrine of “implied repeal”, whereby that part of the earlier law, if found to be in conflict with the later, is declared null and void.
In cases where there is a conflict between an ordinary law and a previous constitutional law, then the constitutional law is held to prevail over the ordinary law, unless the subsequent ordinary law explicitly repeals a provision in the preceding constitutional law. Parliament can repeal any constitutional law by simple majority vote, for one bedrock rule of our constitution is that No Parliament Can Bind Its Successors. This is also the basis for the doctrine of implied repeal.
However what Laws and Crane established is the principle that Parliament cannot change the constitution by implied repeal.
So by the same token, if there is a conflict between two ‘constitutional laws’, then it must surely follow that unless the subsequent constitutional law explicitly repeals a provision in the preceding constitutional law, then the preceding constitutional law prevails.
So if in a case against the Kent police charging them with unlawful detention or false imprisonment, their defending counsel should argue that the PTA1972 over-rides any provisions of Magna Carta 1215 or indeed Habeas Corpus, under “implied repeal”, the counter-argument could be to say that Magna Carta has constitutional status, and so has Habeas Corpus. Therefore if the PTA1972 had been intended to over-ride it it should have said so explicitly. In fact it did not abrogate section 38 of Magna Carta! Indeed section 38 is hardly ever talked about because, in the English-speaking world at least, it is considered too obvious that you need evidence of wrong-doing before starting legal proceedings against anyone.
After all the public razzmatazz (on both sides of the North Atlantic) about celebrating our Magna Carta heritage in 2015, I would like to see a judge having the brazen face to deny that Magna Carta has Constitutional Status! And since Ms Southern is a Canadian citizen, and Ms Pettibone (who was also so detained) is a US citizen, and both countries proclaim Magna Carta as a founding document of their – and our – civilization, I think that this argument ought to have the power to crush these miserable bureaucrats who try to steal our liberties.
As indeed was the original intention of those who drafted it, all those centuries ago.
And indeed as commentators from Coke to Churchill have repeated down the ages.
Previous attempts to get us out of the tentacles of the EU through the law courts have failed. Largely owing to the unwillingness of the judges to go against Parliament. And to the general climate of opinion which was held to be in favour of EU membership.
But now that Brexit has won the referendum, and the government is officially in favour, some judges might at least be willing to follow the precedent of the Appeal Court’s Laws and Crane…. who will thereby be hoisted with their own petard!
I hope this may be helpful.
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[Ed: If you still think the EAW is some arcane judicial instrument and talking about it is irrelevant because Brexit is about trade etc, then think again. The author of this article, Mr Torquil Dick-Erikson, has just sent in the link to a report (see here) about the Spanish Judiciary having issued an arrest warrant for a Catalan professor involved in the Catalonian Independence Movement last year. Scottish Police have asked her to ‘hand herself in’.
I find it remarkable that the Scottish SNP politicians, from Ms Sturgeon down, talk about the right of people fighting for their independence but blithely accept that they can’t do anything about that law:
“The fact that our justice system is legally obliged to follow due process in the determination of extradition requests does not change those views. Scottish ministers have no powers to intervene in this process. However, the legal process includes the right of any individual subject to proceedings under the 2003 Act to oppose their extradition in the courts and it is vital that the integrity of this process is protected.”
It doesn’t seem to occur to her and her colleagues that this case should not be about supporting independence for Catalonia but about striking the EAW from our Law Books.]