The Brexit debate is starting to crystallise. The Treasury’s report on the negative impact of the alternatives to full membership presents the Leave campaign with considerable difficulties. The one EU policy that has always met with broad-based approval in UK political circles is the single market. At least membership gave that purely economic benefit – “if only the EU could be confined to constructing this free internal market” has been a persistent rallying cry. For the Leave campaign now to argue that it does not matter too much whether the UK is inside the EU internal market is rather incongruous, and aims to puncture the political consensus. Not an easy thing to do.
It is therefore not surprising that Michael Gove, in his headline speech in response to the Treasury report on how “the facts of life say leave”, struggles to take issue with the report’s findings. Instead, the focus is on democratic self-government, even “independence” (as if the EU were a colonial master), and on removing the yoke of EU law and of the ECJ case law. The broad argument is that the limited negative economic effects of Brexit – if there are any – are outweighed by the return of full democratic self-government.
At an aggregate level, the extent to which EU membership equals abandoning national sovereignty, to the benefit of an organisation that is not democratic in the ways of a nation state, is a matter of personal assessment. The Leave campaigners are of course entitled to take the view that it is all too much. But facts are facts, and particularly when he speaks about EU law and the ECJ case law, Mr Gove is less than accurate – to put it as mildly as possible. So here are a series of statements that plainly misrepresent the facts.
- “And if we try to object, the European Court of Justice – the supreme court of the EU – can force us to submit to the judgment of others regardless of what our population, our parliament or even our own judges might think is right.” But in the next sentence Michael Gove states that it is the European Communities Act 1972 (yes, a UK Parliament Act) that is the basis for EU law trumping UK law. So it is the UK Parliament itself that has agreed to the primacy of EU law – an indispensable principle if EU decisions and laws are ever to work, as I have argued before.
- Mr Gove then argues that “the European Court now has the perfect legal excuse to grab more power – the Charter of Fundamental Rights”, and that “we were promised that we had a cast-iron opt-out” from the Charter by the Blair Government. He adds that the ECJ “has now informed us that our opt-out was worthless”. Only, the man who negotiated this, then Attorney General Lord Goldsmith QC, has always said that the Protocol to which Gove refers is not an opt-out. And that was always clear: the Protocol does not use the term opt-out, and anyone reading it will conclude that it cannot be construed as an opt-out. It “clarifies” what the Charter is and what it isn’t. It is true that the Blair Government fudged this, but please do not blame the ECJ for it.
- The speech goes on to take issue with how the ECJ applies the Charter, in various judgments. What Mr Gove conveniently omits to mention is that the Charter is not, in contrast with the European Convention on Human Rights, a freestanding, generally applicable human rights instrument. The Charter only applies within the sphere of EU law – not outside it. It binds the member States “only when implementing EU law” (Art 51(1)). This means that any UK laws which have nothing to do with the EU (believe it or not, still the overwhelming majority), are not subject to the Charter and to the ECJ’s jurisdiction.
- Several further claims in the speech fail to identify this significant limit to the Charter’s application. For example, Mr Gove states that “the ECJ has recently used the Charter to make clear that it can determine how our intelligence services monitor suspected terrorists.” Fortunately there is a footnote, referring to the relevant case law, in particular Digital Rights Ireland. Anyone trying to get to the bottom of this: don’t look for any such statement by the ECJ, it’s simply not there. What this judgment did was to strike down an EU Directive (yes, the vilified ECJ, always pro integration, now regularly strikes down EU legislation) on the retention of telecommunications data by mobile phone companies, for surveillance purposes. Not at all a case about any member State legislation, let alone about the UK intelligence services. The ECJ indeed applied the Charter, but against the EU itself. This is the Charter’s primary objective: to ensure that the EU respects fundamental rights of EU citizens, and of anyone else who is subject to EU law.
- It is interesting to explore this a little further. It is true that there are now further questions, before the ECJ, on whether the privacy and data protection principles which were applied in Digital Rights Ireland, are also binding on the UK and affect the legality of the Data Retention and Investigatory Powers Act 2014. But again the ECJ would be able to apply the Charter in this case, only if it established a clear link between this Act and EU data protection legislation. No decision yet. However, what is really interesting in this connection is that the German Constitutional Court decided, back in 2013, that the EU Charter did not apply to German legislation on a counterterrorism database, because that legislation was not implementing EU law. The Court considered that the law was clear about this, and it effectively put the ECJ on notice that it should not extend the scope of the Charter too far. It also used a simple technique for ensuring that the ECJ could not, in that case, disagree: it did not refer any questions of EU law to it. UK courts have also used this technique of saying that EU law is clear, and dispensing with a so-called reference to the ECJ. In those cases the ECJ simply does not have an opportunity to “interfere”. So when Mr Gove states that the ECJ can force through its decisions “regardless … of what our own judges might think is right”, he misrepresents the extent to which national judges are able to influence the ECJ – or even to ignore it altogether, in worst-case scenarios. This is not a personal view. There are whole libraries on the dialogue between national judges and the ECJ, and on how member State courts are capable of influencing the ECJ.
- Mr Gove also claims that the ECJ can now apply the Charter in cases involving refugees. He is right. But where he says that “Britain has lost control of a vital area of power and the European Court will increasingly decide how our policy must work”, he forgets to mention that the UK has an opt-out/opt-in for EU asylum legislation. It is only because the UK Government decided to opt into some of this legislation (not all of it) that the ECJ case law interpreting that legislation also binds the UK.
- “The ECJ recently used the Charter to make clear that the European Court – not our Parliament – will decide the issue of whether convicted felons can vote and if so how far this right should be extended.” Well, the case is not about “our Parliament” – it is a French case. And the convicted felon who brought the case objected to the fact that he could not vote for the European Parliament. This, the ECJ found, rightly in my view, is within the sphere of EU law. The judgment cannot be extended to national elections. At any rate, Mr Gove is of the opinion that the European Parliament is “a mock parliament”. And the European Court of Human Rights has long established that a general ban on prisoner voting violates the European Convention on Human Rights. So even if the UK left the EU, there would still be a prisoner-voting problem (withdrawal from the Convention is of course not on the ballot paper in June).
- There are more misrepresentations. “The ECJ used the Charter to tell us that the European Court will decide whether we can deport Abu Hamza’s daughter-in-law.” Allow me to clarify. First, there is as yet no judgment in the case; only an Opinion by one of the ECJ’s Advocates General. Such Opinions are “reasoned submissions” to the Court, and the Advocate General is independent and has comparable status to an ECJ judge. But the Advocate General never decides; the Court does that. Many Opinions are followed, but not all of them. What is more, this Opinion finds that there may be public security grounds for deporting this person, and suggests leaving it to the referring court (the Upper Tribunal (Immigration and Asylum Chamber) London) to decide upon deportation. It is worth adding that the case is anonymised (“CS”), by the Upper Tribunal, and that it is only because of her identity having been revealed in the House of Commons that we know this is Abu Hamza’s daughter-in-law. Guilt by association?
- The ECJ “has even used the Charter to increase the price of insurance for women”. Well, not exactly. What it has done is to strike down (again) a provision in an EU Directive that allowed member States to derogate from the principle of equal treatment of men and women, in insurance matters. The Directive prohibits gender-based discrimination in goods and services markets. But it contained a permanent exception for insurance – particularly car and life insurance (women cause fewer accidents, and live longer). The ECJ found that this exception violated the principle of gender equality. The effect is to equalise car and life insurance premiums for men and women. I might add that the ECJ has always been at the forefront of ensuring gender equality, particularly in matters of employment. Its first judgment on equal pay dates back to 1976. Of course I’m sure that the Leave campaigners are not in favour of abandoning equal pay and equal treatment.
I rest my case.