“Blackburn’s Silent Victory” by Kafui Quashigah.

Albert Raymond Blackburn, the British “Moral & Judicial Crusader”, served as a Member of Parliament for Birmingham King’s Norton & Birmingham Northfield. Among his “judicial crusades” was challenging the constitutionality of the European Communities Act, 1972 in the Blackburn v Attorney- General case in 1971.

The purpose of the European Communities Act was to make provision to include the United Kingdom in the European Communities (Now known as the European Union). Under this Act, all UK legislation had effect subject to directly applicable European Union (EU) Law. Bluntly speaking, EU Law had supremacy over domestic UK legislation.

“In this case Mr Blackburn–as he has done before–has shown eternal vigilance in support of the law. This time he is concerned about the application of Her Majesty’s government to join the Common Market and to sign the Treaty of Rome. He brings two actions against the Attorney General, in which he seeks declarations to the effect that, by signing the Treaty of Rome, Her Majesty’s government will surrender in part the sovereignty of the Crown in Parliament and will surrender it for ever. He says that in so doing the government will be acting in breach of the law…”

…Mr Blackburn points out that many regulations made by the European Economic Community will become automatically binding on the people of this country; and that all the courts of this country, including the House of Lords, will have to follow the decisions of the European Court in certain defined respects, such as the construction of the treaty

“…Much of what Mr Blackburn says is quite correct. It does appear that if this country should go into the Common Market and sign the Treaty of Rome, it means that we will have taken a step which is irreversible. The sovereignty of these islands will thenceforward be limited. It will not be ours alone but will be shared with others…”

-Lord Denning MR.

In spite of the overwhelming support of Blackburn’s concerns by the Court, it was nonetheless held that his statement of claim disclosed no cause of action and the appeals were dismissed because-

“The treaty-making power of this country rested in the Crown, acting on the advice of its Ministers; and in negotiating and signing a treaty, even a treaty of such importance as the Treaty of Rome, Her Majesty’s Ministers would be exercising the prerogative of the Crown and their actions in so doing could not be challenged or questioned in the courts.

Also, “although in legal theory no Parliament could bind its successor, the question whether if Parliament were to pass an Act implementing the Treaty of Rome (which once signed was irrevocable), a subsequent Parliament could reverse the previous Parliament’s enactment, should not be pronounced on until that event happened for the sole power of the courts was to decide and enforce what was the law and not what it should be now or in the future; and it was no part of the Court’s function to make declarations in general terms regarding the powers of Parliament, particularly where the circumstances in which the court was asked to intervene were hypothetical.

Following this decision, the UK joined the then EEC on 1st January, 1973 under the European Communities Act, 1972. On 5th June 1975 a referendum was held on whether the UK should continue to be a member of the EEC. The result was 67% of voters voting “YES” to remain in the EEC.

Many years have passed since then, and now, a considerable portion of the British Community has gradually tilted towards Blackburn’s stance. Proponents of the “Brexit” Campaign argued for Britain to “free itself from the restraints of Europe” and resume its place as “a powerful independent power”. Others argued that migrants used the EU’s free labour movement laws to flood the United Kingdom, putting a strain on housing, welfare and education. The EU’s refugee policy only made matters worse.

On 23rd June 2016, another referendum was held on whether the UK should continue to be a member of the EU. This time, 51.82% of voters voted to leave the EU, triggering the Article 50 process of the Lisbon Treaty.

The hypothetical dilemma faced by the Court in Blackburn v. Attorney- General (which they refused to delve into) was resolved by a majority of the British Community voting to leave the EU, the activation of Article 50 of the Lisbon Treaty and the eventual repeal of the European Communities Act. Clearly, successive Parliaments were not bound by the passage of the European Communities Act.

At long last, Blackburn was granted a remedy to his concerns- Not from the Court, which was of the opinion that there did not exist a factual situation which entitled him to obtain a remedy. Blackburn’s remedy came on June 2016, 45 years after his suit, from the section of the British Community that voted for the UK to leave the EU. Indeed, a silent victory for Albert Raymond Blackburn.