The next Prime Minister should write a constitution to protect our sovereignty

The next Prime Minister should write a constitution to protect our sovereignty

“If Parliament enacts that smoking in the streets of Paris is an offence, then it is an offence”. So says Sir Ivor Jennings In The Law and the Constitution, where he explains that, however absurd the legislation, parliamentary supremacy means that Westminster can make whatever laws it likes.

But this is not quite true. Although it would never be enforceable, banning smoking on the streets of Paris by the House of Commons could only be done if it didn’t contradict EU law. That’s because, contrary to popular belief, we already have a written constitution, one which can override UK Acts of Parliament.

In 1988 Margaret Thatcher passed the Merchant Shipping Act to prevent Spanish fishermen who had set up a British company (Factortame Ltd) from fishing in UK waters. It added new conditions for registration which the Factortame boats were refused. But the company challenged this law under the Treaty on the Functioning of the European Union and won. The European Court of Justice found that the Merchant Shipping Act was incompatible with the provision of ‘Freedom of Establishment’ in the EU treaty and the Act of Parliament was suspended.

The piece of legislation which enabled this to happen was the European Communities Act 1972. Because the Act places EU law on a higher footing than UK law, it acts as a Constitutional document that can’t be ignored in the way the Speaker ignores the House of Commons rules.

But all this is due to be resolved. If everything goes to plan, this unwanted constitutional Act will vanish on October 31st. Brexiteers will breathe a huge sigh of relief and it’s possible that politics will return to domestic issues. But if the last few years have taught us anything, it’s that the establishment will do everything in their power to reverse Brexit.

That is why the next Prime Minister should bring in a constitutional law which would prevent the UK from ever ending up in a position where our laws are made abroad. The law should be short and prevent the UK giving away its legislative supremacy, so that any power outside the UK would be unable to create or strike down our laws.

Drilling down into the detail, the Act could be bullet-proofed with a clause to prevent its express repeal without a supermajority in the House of Commons and another clause to prevent future legislation overriding it by preventing such laws from receiving Royal Assent.

Such an Act would only need a straight majority in the House of Commons but would effectively prevent our law-making power from ever being lost. If this had been in place, Edward Heath could never have passed the European Communities Act because it allowed European law to apply directly to the UK. Theresa May’s Withdrawal Agreement would have been ruled unconstitutional because Article 4 includes a clause which would have forced the UK to disapply domestic legislation if it contradicted EU law.

For too long Brexiteers have been on the defensive, but a written constitution is a way to take back the initiative and ensure the sovereignty we get back with Brexit is not lost in a hurry. If this constitutional Act had been in place in 1972, Heath would have been forced to come clean about his intentions, repeal it and explain to the country that he was planning to give away control of our laws. The British public would not have stood for it.

Voters have been betrayed by the Conservative Party’s handling of Brexit and many are looking to the Brexit Party for the solution. But if a new leader could combine the rhetoric of Nigel Farage with the political and procedural skills to lock in British sovereignty, it would be one of the greatest legacies a Prime Minister could ever give the British people.

For too long Brexiteers have been on the defensive, but a written constitution would protect our sovereignty