Magazine article The Spectator

The EU's Court of Injustice

Magazine article The Spectator

The EU's Court of Injustice

Article excerpt

The Cameron deal must roll back Europe's power over British law

Last week Donald Tusk, President of the European Council, tabled proposals which the government hopes will form the basis of the UK's renegotiated relationship with the European Union. Politically, the proposals may be just the job: a new commitment to enhance competitiveness, proposals to limit benefits to migrants, recognition that member states' different aspirations for further integration must be respected, and creation of a 'red card' mechanism to block EU legislation. Legally, however, they raise more questions than they answer.

This ought to have been an opportunity to look at the Court of Justice of the European Union, whose reach has extended to a point where the status quo is untenable. Aside from eroding national sovereignty (which it does) the current situation also undermines legal certainty -- which, in turn, undermines good governance. Proper reform needs to address the EU legal order, in particular the jurisdictional muscle-flexing of the Court of Justice in Luxembourg. The new proposals do not do this. Instead, they duck the issue entirely -- clearing the way for a whole new body of EU rights law.

The problem lies in the Charter of Fundamental Rights, which was solemnly proclaimed in 2000. It described 50 new 'rights, freedoms and principles' in addition to the 20-odd rights in the European Convention of Human Rights. So the Charter was a far more sweeping document. In 2007 it was given legal force by the Lisbon Treaty. At the time, it was loudly proclaimed that this would change nothing: that it just underlined what was anyway the case. Smelling a rat, the Labour government asked for -- and was given -- an assurance in writing that Britain would not be affected by the Charter. It was called 'Protocol 30'.

Before the ink had dried on Protocol 30, concerns were voiced about its precise meaning and effect. Tony Blair assured the Commons that there was nothing to worry about: 'It is absolutely clear that we have an opt-out from both the Charter and judicial and home affairs.' David Miliband, then Foreign Secretary, also assured us that the Charter would not 'extend the reach of European courts into British law'. Four years later, the coalition government was giving similar assurances: in March 2011 Ken Clarke, then Justice Secretary, said that the Charter was of more presentational importance and did 'not actually change anything'.

In English courts, however, another picture has been emerging. Take the case of 'NS', an Afghan asylum seeker who arrived in the UK seven years ago. …

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