Jean-Yves Gilg

Editor, Solicitors Journal

From the archive: May 19, 1967

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From the archive: May 19, 1967

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Lawyers and the Common Market

We welcome the decision of the Government and of Parliament to apply for membership of the European Communities. There is no profit in mourning over lost opportunities in the past nor in gazing wistfully backwards to a world which has gone for ever. The articles which we have published recently have underlined the fact that we must find a different place for our country if we are not gradually to run down.

The Common Market contains many perils as well as many advantages and very sound arguments can be advanced against it, but at the end of the day it appears to us to have a decisive balance of advantage. If, as we hope, our application is successful, it will be essential for us to play our full part willingly and not be always looking over our shoulders at what might have been. The Lord Chancellor took the opportunity during the debate in the House of Lords last week to outline the consequences of membership to our constitutional and legal system. He explained that it involves acceptance of a body of law derived from the treaties, some of which must be given effect by national legislation and some takes effect directly as law within the member States. It involves a transference of legislative and judicial powers in certain spheres to community institutions and an acceptance of a corresponding limitation of the exercise of national powers in those spheres. Adherence to the treaties would transfer to community institutions the power of concluding treaties on tariff and commercial matters and would involve a considerable body of implementing legislation, and a number of existing Acts would require to be amended. The Lord Chancellor said that it is implicit in accepting the treaties that the United Kingdom would not only accept existing community law but also refrain from enacting future legislation inconsistent with it.

All this must be causing earth tremors in places where traditional constitutional lawyers, committed to the idea of parliamentary supremacy, lie buried, but in practice national sovereignty is or ought to be dead. The arid controversies about the supremacy of Parliament which have continued over the years since the Statute of Westminster, 1931, have a certain entertainment value, but we prefer to rest on the robust and realistic view of the Judicial Committee of the Privy Council in British Coal Corporation v. R. [1935] A.C. 500 - '… that is theory and has no relation to realities'.

The Lord Chancellor last week stressed that community law has little direct effect on the ordinary life of private citizens and in so far as it imposes obligations it does so mostly in relation to commercial and industrial activities; the result is that the main impact of community law would be in commerce, customs and restrictive practices. It follows that for many lawyers life will not change merely because we join, however much it may change for other reasons; equally, it is apparent that there will be no lack of demand for lawyers, and for those who are willing to forsake conveyancing and probate and become pioneers the opportunities are boundless and the rewards, financial and otherwise, tempting.

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