On the referendum #18: the ECJ uses the Charter of Fundamental Rights to take more power over the UK, this is just the start

The European Court of Justice (ECJ) in Luxembourg today issued a series of judgments of considerable importance for the UK and the upcoming EU referendum.

Firstly, in a case called Delvigne, the ECJ held that some prisoners must obtain the vote in elections to the European Parliament. Rejecting the UK Government’s submissions and agreeing with those of the European Commission and Parliament, it held that it had jurisdiction under article 51 of the EU’s Charter of Fundamental Rights to rule on the legality of a French law depriving some prisoners of the vote. Overruling two recent decisions of the Supreme Court in R (Chester) v Lord President of the Council and Moohan v Lord Advocate, the ECJ held that the Charter gives EU citizens the right to vote in certain elections.

Although the ECJ accepted the French law was a ‘proportionate’ limitation of the right to vote, there is little doubt that the UK’s 1983 legislation is not ‘proportionate’ and is thus contrary to the Charter. The European Court of Human Rights in Strasbourg has consistently said as much, and article 51(3) of the Charter states that the Charter must be interpreted to conform to Strasbourg rulings. The ECJ found the French legislation was ‘proportionate’ because unlike the UK, France only removed the vote from prisoners sentenced to more than five years, and gave them a right to review their disenfranchisement. The UK has no right of review, and removes the vote from all prisoners.

It is now a virtual certainty that some prisoners will gain the right to vote in European Parliamentary elections. Either the UK’s 1983 legislation will be set aside altogether, or prisoners denied the vote will win damages under the EU law doctrine of ‘state liability’. This is a legal certainty for as long as the European Communities Act 1972 remains in force, regardless of what the Government might say. In 2011, Parliament voted overwhelmingly against allowing any convicted prisoners the vote, and Cameron has said the prospect makes him ‘physically ill’.

Secondly, in a case called Schrems, the Court invalidated the 2000 EU-US safe harbour agreement on procedural grounds, with big implications for British companies which store data outside the EU. More importantly, the Court engaged in a significant discussion about the compatibility of government surveillance programmes with the Charter of Fundamental Rights (see paragraphs [87]-[95]). In a little noticed case in July 2015, the Divisional Court in London struck down the Data Retention and Investigatory Powers Act 2014 for inconsistency with the Charter. Nothing in today’s ruling suggests the Government’s appeal against that ruling will be successful. In fact, the reverse is true. Despite ‘security’ being the theme of the Conservative Party conference, a foreign court, rather than the British Parliament, will now decide what is necessary to protect the UK’s national security. The EU has long desired to scupper the US-UK intelligence sharing agreement that has been in place since 1945. The ECJ now has the tool it needs to start doing this.

The ECJ has been given more power over the UK by the Charter than the US Supreme Court has over the American states. Although pro-EU lawyers claim the Charter only applies when the UK ‘implements EU law’, the UK Supreme Court made clear in 2011 that that potentially limitless phrase ‘is to be interpreted broadly’. Even pro-EU bodies like the CBI admit than over half of new British laws originate from the EU. The ECJ will increasingly use the Charter to do whatever it likes without any democratic accountability. The Blair Government wrongly claimed that it had an ‘opt-out’ from the Charter, which it alleged would have the same legal status as ‘The Beano or the Sun’. Subsequent cases in the ECJ and UK Supreme Court have made clear these claims were entirely false, and that the Charter has ‘direct effect’ in UK law. David Cameron once claimed that ‘we will want a complete opt-out from the Charter of Fundamental Rights,’ a promise repeated at p. 114 of the 2010 Conservative Manifesto, yet the Charter does not appear to be part of the renegotiation.

Today’s judgments also demonstrate that the Conservatives’ 2015 manifesto promise to repeal the Human Rights Act 1998 and reform the ECHR is pointless within the EU. As Mr Justice Mostyn observed in a 2013 judgment, the Charter contains all the rights in the ECHR and this ‘much wider Charter of Rights would remain part of our domestic law even if the Human Rights Act were repealed.’

Thirdly, the Advocate General issued an opinion in a case where the Commission was suing the UK over the requirement that claimants of child tax credits and child benefit must be habitually and lawfully resident in the UK. Amazingly, the Commission argued that claimants didn’t need to be lawfully resident in the UK: an argument that the AG rejected. However, the ECJ isn’t bound by this opinion, and might still accept the Commission’s extreme arguments, as it did today over prisoner voting.

However, the AG stated that any checks on the lawful residence of EU citizens had to comply with the principle of ‘proportionality’, and could not be carried ‘out in every single case, something which, in my view, is prohibited’. The AG stated that the UK must apply a presumption that EU citizens resident in the UK for more than three months are here lawfully. This undermines a pledge by David Cameron that EU jobseekers who haven’t found work within three months will be forced to leave the UK.

The opinion makes it crystal clear that for as long as Britain remains in the EU, the ultimate arbiter of whether migrants can stay in the UK and claim benefits will be the EU institutions like the ECJ, not the British people.

For many decades, Whitehall has deceived itself and deceived the public about the true nature of the EU project. Their ability to keep doing this is crumbling…

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2 thoughts on “On the referendum #18: the ECJ uses the Charter of Fundamental Rights to take more power over the UK, this is just the start

  1. The way you’ve described this doesn’t sound right…. The UK has a protocol in the Lisbon Treaty preventing the EU Charter of Fundamental Rights from being used to confer new rights in UK law. If it refers to a right that originates in the ECHR that’s a different matter, but then that wouldn’t have anything to do with the EU. I don’t see how this particular French case does anything other than strengthen the UK government’s position against prisoners’ votes.

    • No, if you look at the ECJ judgments and our own Supreme Court judgments you will see that it is explicit that the ECJ can create new rights as they wish. NB. The ECJ itself invented the doctrine of the supremacy of EU law in the first place, it wasn’t even in the original Treaties.

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