Factortame was an uninteresting case over who could access fishing quotas. Factortame was also a hugely important case concerning who rules? The answer being that it’s them over there, Brussels, which does. This does indeed have something to do with where we are now with Brexit:
Carl Gardner, a former government lawyer who has negotiated for the UK and defended the government in the European courts, says that while the decision came as a shock to the British legal system, it came as “even more of a shock to the political system”.
He suggests that along with the Maastricht Treaty in the early 90s, the decision in Factortame helped stoke Euroscepticism.
“The experience made politicians more defensive of sovereignty,” he suggests. He also believes the “scars Factortame left” are reflected in the Human Rights Act, which carefully avoided letting judges disapply acts of parliament. “If we’re tempted to think we’ll soon be free of Factortame, we’re wrong,” he says. “Any withdrawal agreement is likely to prevail over our own law.
“I’m not sure we’ll ever hear the last of Factortame, which leaves as permanent a mark on our law and politics as any case ever decided by the court.”
The specific point being:
Crossbench peer and barrister Lord Pannick says that Factortame was “the most significant decision of United Kingdom courts on EU law”. “It brought home to lawyers, politicians and the public in this jurisdiction that EU law really did have supremacy over acts of parliament,” he says.
Before Factortame that fact had not been widely understood, even though it had been decades since the UK had joined the European Economic Community in 1973. After the judgments, says Pannick, there was no longer any excuse for ignorance.
This is a fairly important point, they rule us, not we rule us.
Sure, it’s possible to go on and say that, say, the European Parliament is only a larger us ruling a larger us. But that’s then a Parliament that cannot initiate legislation, really only has the power to delay. That is, rather less power than the House of Lords does in the UK. We usually tend to think we the people should have rather more protection from the executive than that.
But it is true that Factortame brought home to us all that it’s EU law which is paramount, this isn’t simply a treaty or agreement, it’s an imposition of sovereignty, a reduction of our own.
It’s even possible to argue that this is as it should be it’s just that an awful lot of people don’t agree. Which is rather how we got to where we are today.