The Real Record of the EU Charter of Fundamental Rights

Reposted from UK Constitutional Law Association blog, at https://ukconstitutionallaw.org/2016/05/06/piet-eeckhout-the-real-record-of-the-eu-charter-of-fundamental-rights/

Brexit debates have started focusing on the EU Charter of Fundamental Rights, after it has become clear that the economic effects of the UK departure from the EU are likely to be negative.  Michael…

Source: Piet Eeckhout: The Real Record of the EU Charter of Fundamental Rights

Facts of Life: How Michael Gove misrepresents the effects of EU law and the ECJ case law

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.

Brexit, sovereignty and the EU Court of Justice

It has been a momentous couple of weeks for Brexit, with the European Council settlement, the announcement of the referendum date, the Cameron-Johnson tussle, and the questions about the legally binding nature of the settlement. On this last point, nearly everything sensible and non-sensible has been said. Of course the settlement is binding, but it has different parts, most of which require further legislative action, either at Treaty level or by way of amending EU “secondary” legislation (which is really not secondary). This is in the very nature of the settlement, as it is prospective: it sets out what the UK will achieve if the referendum outcome is “remain”. But that there is a legally binding commitment, entered into by the 28 states that make up the EU, and which is taken very seriously by them, is beyond all reasonable and unreasonable doubt.

It was mainly comments by Mr Gove, in a BBC interview, which catapulted the “legally binding” question to the media forefront. But this also connects with Boris Johnson’s preference for sovereignty – UK parliamentary sovereignty – over being bound by EU law. I looked at the Gove interview, and found that his comments were actually very measured, in the face of rather aggressive questioning. There was however one line, which he kept on repeating, which paints a false picture. He insisted that as long as the EU Treaties were not amended, the EU Court of Justice could step in, because it stands above the nation states. I think the Court is the elephant in the Westminster rooms, and perhaps also in the wider Brexit debate. The trouble with making sense of what the Court is, and what it is not, is that it requires quite a bit of knowledge of its case law, and of how EU law works. But let me nevertheless try to bring across some basic points.

It is a misrepresentation to say that the Court is supreme over the EU member states. What the Court does is to interpret, authoritatively, EU law, and to require member States to comply with EU law. If anything is supreme, it is EU law, not the Court. And EU law is made by the member states, which have drafted the EU Treaties, and a majority of which need to consent to new EU legislation in the Council of Ministers.

Now it is true that the Court has said that the supremacy of EU law is an inherent feature of the Treaties. But again a lot of care is required with the use of terms. I personally don’t like the term supremacy, even if it is often used, also in the expert literature. I prefer the term primacy, which more adequately reflects the effect of EU law. Primacy means that in the event of a conflict between EU law and the laws of a member state it is EU law which needs to be respected; conflicting national law must be “disapplied”. This is the Court’s instruction to courts in the member states dealing with EU law issues. Primacy is a conflict rule. It does not establish an overall “supremacy” of EU law.

But I can already see the eye-brows of critical readers being raised. What is really the difference in these terms? Are you not simply confirming that EU law – and the Court interpreting it – are supreme, and that national sovereignty has gone out of the window? Before we take a further look at how all of this works, let me make a bit of a case for the defence of EU law primacy. It is, at heart, a rule-of-law and contractual matter. The EU is not about mere political cooperation. It is about making binding agreements on matters of common interest. For those agreements to stick, they must have the force of law. Every member state has an interest in the effectiveness of EU law, but I should think the UK’s interest in ensuring that EU law is respected is even greater than that of some other member states. If anything, the rule of law is taken seriously in the UK, and a complex and far-reaching venture such as creating an EU internal market – to name the EU’s most significant policy – could never work without respect for EU law. The UK – UK companies, the government, and UK lawyers – have been at the forefront of much EU law litigation, and London is a centre of EU law practice. This has all been much to the benefit of the UK’s free trade and internal market agenda. And it will be clear to all that the often advocated position that the UK Parliament should be able to decide, case by case, which EU laws apply in the UK cannot work at all. If all member states adopted such a position, there would be no EU law left worthy of that name. Any agreement in Brussels would immediately unravel.

The next point is that the EU Court may well say that primacy is inherent in EU law, but that is not the position under UK law – or indeed under the laws of about any other member state. Under UK law it is the European Communities Act 1972 which proclaims and establishes the force of EU law. This is the core sovereignty point. As my columnist hero Philip Stephens points out in the FT, Parliament can at any time amend or revoke this Act, and throw EU law primacy out of the window. Of course, in the absence of a withdrawal from the EU such a revocation of primacy would create a membership crisis, precisely because membership cannot work without respect for EU law. But is that not simply a normal club membership issue?

So the EU could not work well without the primacy of its laws. Now it is the case that the EU Court is the ultimate interpreter of EU law, and that it is at times activist and creative, particularly when it comes to the interpretation of the founding Treaties. Criticisms of this activism are a current staple of EU law academic commentary, and flare up with reassuring regularity. But a large majority of court-watchers also agree that the Court is not unchecked. Its case law can only work if courts in the member states accept and implement it. There is a well-established judicial dialogue, particularly between supreme and constitutional courts, and the Court of Justice. The German Constitutional Court has been something of a protagonist, but the UK Supreme Court has also been an effective interlocutor. The other point is that the Court of Justice is generally sensitive to the political times, as a supreme court should be. A recent example is the case law on EU citizenship, where in the last couple of years the Court has become more conservative, for example in the area of …, yes, social benefits for EU citizens.

My last point, and perhaps the most significant one. If I were asked how often EU law has prevailed over primary legislation enacted by the UK Parliament, in the course of the UK’s EU membership, I would struggle to come up with even a handful of cases. The best known case is Factortame, more than 25 years ago, where the UK courts accepted that an act of Parliament discriminating against Spanish fishermen had to be disapplied. That is about as significant as it ever got. I would really challenge those arguing that EU law, or the Court’s supremacy are intolerable to come up with specific examples of where and how EU law interferes with significant UK primary legislation. The list will be very short.

Brexit is not an escape from EU regulation

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Copyright The Telegraph

One of the recurring themes of the Brexit debate is that the EU is said to impose an excessive regulatory burden on UK companies and on the UK economy.  Remarkably, a substantial number of business people also adopt such a position.  As a mere academic I am of course not in a position to disprove assessments within companies that EU membership has led to more “red tape”.  But I do feel that some basic facts are missing from the conversation.  They concern the reasons for EU regulation, and the question whether Brexit equals escape from it.

Most of the EU regulation of goods and services is aimed at establishing an EU internal market – the very EU project which is met with near universal approval in the UK.  The regulation may at times be complex, because of the inherent difficulties of regulating myriads of goods and services in Europe’s sophisticated economies, but the overall goal is clear and straightforward: to substitute 28 sets of rules with harmonised ones which allow companies to trade throughout the EU (and indeed beyond, as I will show).  It is easy to lose sight of that dimension of EU regulation, which is taken for granted, precisely because the EU has been so successful at achieving free trade, at least as far as goods are concerned.

So why might this dimension of EU regulation be undervalued?  I think it may have to do with its very policy mechanics.  Where the EU harmonises national product regulations, it substitutes itself for national regulators, who do not regulate for the sake of it, but seek to achieve goals such as health, consumer and environmental protection.  That inevitably means that the EU, when harmonising, must also pursue those goals.  If it did not do so, it would be accused of simply deregulating, at the expense of public health, the environment, and the consumer.  Obviously, people and companies may disagree whether the EU strikes the right balance, in a particular case, between free trade (deregulation) and the public policy concerns underpinning regulation.  Companies may well think that the EU regulates with too much of an eye on public policy and too little on free trade.  But the overall prize is nevertheless a very big one: the ability to sell products which comply with EU regulation in a market of more than half a billion people.  Moreover, most of the academic literature has expressed concerns about excessive EU deregulation, rather than excessive regulation.

But let us assume that the UK verdict is nevertheless negative, and that Brexit is preferred because it removes the EU regulatory burden.  Well, those who favour this might come in for a surprise.  And in saying that I want to discount the so-called Norway option: that the UK would become part of the European Economic Area, and therefore continue to bind itself to EU internal market regulation.  Let us assume the UK government does not opt for this.  What would happen?

First of all, UK companies seeking to export to, or operate in the EU’s internal market would still have to comply with EU regulations.  That much is incontrovertible.  In that connection, I have to say that those who argue that, instead of exporting to Europe, the UK economy could orient itself towards trade with other parts of the world, are living in fantasy land.  There is nothing whatsoever in EU membership which compels UK companies to trade with Europe, at the expense of trade with the rest of the world.  Quite the contrary.  The EU has concluded free trade agreements with many non-EU countries, from which UK exporters currently benefit.  And it is negotiating the biggest free-trade agreement of all, TTIP, with the US.  If anything, Brexit might make it more difficult to trade with certain countries.  Also, why would successful UK companies want to forego the huge market which lies just across the Channel?

Second, and this is perhaps the most significant yet least noticed feature of EU regulation: being outside the EU does not equal escaping from regulation, even for businesses whose trading with Europe is limited.  There is indeed, if you will, a dark, hegemonic side to EU regulation.  In lawyers’ parlance, it often has extraterritorial scope or effects.  When I say this is least noticed, I am particularly referring to the UK.  Other parts of the world are much more aware of this phenomenon, and complain about it.  This is particularly the case for the US.  How exactly this extraterritoriality phenomenon works is not for this blog to disentangle, but there is very serious academic work on this, for example by Anu Bradford at Columbia, who speaks about the Brussels effect; and by my colleague Joanne Scott at UCL.  Let me just give some quite telling examples.

Exhibit 1.  The EU Court of Justice has interpreted EU data protection and privacy legislation as including a so-called “right to be forgotten”.  This was in a case involving Google, which is now obliged to remove certain links, when so requested by an individual who considers that the links are outdated and affect their privacy.  Wherever you log onto Google, you will see a message about this.  If there was ever a UK competitor to Google, it would have to comply with this right to be forgotten because of the very nature of the world-wide web.

Exhibit 2.  The same EU Court of Justice has recently decided, in a case involving Facebook, that the US is not a “safe harbor” as regards the processing of personal data.  There are insufficient guarantees in US law for the protection of such data, and unless and until a new deal is reached with the US, internet companies could not hold the data of EU citizens on US servers.  That would constitute a violation of the relevant EU legislation.  After Brexit, such legislation would continue to apply to any processing of EU-originating personal data in the UK.

Exhibit 3.  EU policies on climate change have aimed to include airline CO2 emissions into the EU’s emissions trading scheme.  But this has not been limited to intra-EU flights: the goal is to extend it to all flights to or from EU territory, including those operated by non-EU airlines.

There is a wider political point about all this.  Even in the cleanest Brexit scenario, where the UK decides not to negotiate access to the EU internal market of the kind from which Switzerland or Norway benefit, much EU regulation will continue to apply in the UK.  Of course, the UK could try to object to some of this regulation, but it would need to negotiate with the EU in order to change things.  From the outside, that is inevitably going to be much harder than from the inside, as a full EU member.

Brexit and the illusion of immigration control

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Consider the following excerpt, from an article which appears in the Financial Times, in June 2020:

The UK’s determination to preserve its independence creates an additional risk hanging over the economy. The country is not a member of the EU, but depends hugely on access to EU markets. This year it must renegotiate its relationship with its big neighbour.

After a referendum vote in favour of tougher immigration controls, UK politicians must in the next 12 months implement curbs on EU migrants. The difficulty they face is squaring that with the EU principle of the free movement of people. The UK’s trading relationship with the EU is based on a web of bilateral contracts. In a worst-case scenario, those contracts could be terminated.

Failure to secure future access to EU markets and recruit skilled labour would pose a threat at least as great as a soaring currency. The uncertainty already worries UK business leaders.

Their assumption is that a pragmatic solution will be found; both sides would have much to lose and the EU has bigger problems to resolve without picking on the UK. But symbolically, the Prime Minister will spend the Brexit anniversary on Friday in Brussels meeting the European Commission president. Reaching a deal with the EU, a government spokesman says, “is probably the biggest challenge facing the UK in 2020”.

Is this complete fiction? My argument is that it is not, and the above excerpt is in fact taken from a piece by Ralph Atkins, in the FT of 14 January. Except that Atkins talks about Switzerland, today – the changes I have made are limited to substituting references to Switzerland with the UK…

Indeed, i is becoming increasingly clear that Brexit, if it happens, is unlikely to result in a severing of all ties between the UK and the EU. Two pieces published this week, by the EU Council’s former lawyer, Jean-Claude Piris in the FT, and by Jonathan Portes for The UK in a Changing Europe, draw attention to what is likely to happen in the event of a Brexit vote. Let me add my own voice to these analyses, as they are critical for the referendum vote.

It is now crystal clear that immigration is among the major concerns which may determine how votes go in the Brexit referendum. Voters may think that Brexit will mean that future UK governments will be able to limit immigration from the EU, in much the same way as they are able to limit non-EU immigration today. A return of full sovereignty over the UK’s external borders. However, they are likely to wake up in a very different world, with a big Brexit hangover. Why is that?

A Brexit vote means that the UK government needs to negotiate its withdrawal from the EU – see Art 50 of the Treaty on European Union. This is a legal requirement, binding on the UK, and it is of course a necessity of life, too, because withdrawal from the EU is a most complex kind of divorce, with a lot of joint assets and a thick web of legal commitments. The other EU leaders (the European Council) will give guidelines to the EU Commission, which will need to negotiate with the UK on the Brexit arrangements. There is a lot at stake here, both for the UK and for the EU. Although the contents and outcomes of this negotiation are in the realm of conjecture, there are clear forces, present today, which are likely to drive this negotiation. It seems highly implausible that the UK government would not want to maintain a high level of access to the EU internal market. It would definitely be under pressure, from the side of business, to minimise the Brexit disruption by maintaining market access as much as possible. But the EU will, in return, make demands. And it has always been part of the EU’s ethos that the internal market is about more than trade in goods and services: it includes free movement of persons. When the internal market was extended to the EFTA countries, in the early 1990s, through the EEA Agreement, free movement of persons was fully included. When Switzerland rejected the EEA, it subsequently requested a series of agreements on access to the internal market, but again the EU insisted that there be an agreement on free movement of persons. The above excerpt, in its original wording, concerns the issues Switzerland currently faces as a result of its own anti-immigration referendum.

But in the UK, too, there will be forces advocating the continuation of free movement after a Brexit referendum: businesses, universities, perhaps even the NHS; and not to forget UK citizens living in other EU countries.

This last constituency highlights another dimension of the Brexit negotiation. The EU Commission is likely to insist that EU citizens currently living in the UK may continue to do so, and will not be discriminated against – in return of course for protecting the rights of these UK citizens living in Europe. If this were accepted, the status quo would linger on, making it even harder to move to an entirely different regime for new entrants (and leavers): why should they be treated differently?

Of course all this might be different if the main political parties made firm promises that a Brexit vote will mean a return to full immigration control, also for those from the EU. But neither the Conservatives nor Labour make such a promise. Those voters who choose Brexit with a view to the UK regaining such control are at great risk of being completely desillusioned with the ultimate outcome. This needs to be emphasised

Cameron and reform of EU free movement – to discriminate or not to discriminate

benefit tourism

Prime Minister Cameron has, at long last, written down his list of proposals for EU reform, to be followed by the in/out referendum. Nothing that was not expected, in some form or other. Cameron seems keen to wrap this reform process up at breakneck speed, making the whole thing look like a really short film, with the longest trailer ever.

 

Commentators agree that the 4th demand, reform of free movement, is the hardest to achieve. That is particularly the case with respect to the proposal to introduce a 4-year residence/contribution condition for migrant workers to qualify for in-work benefits or social housing. The pundits also point out that the letter to European Council President Tusk tries to create some room for manoeuvre by recognising that these issues are difficult for other Member States. They are indeed, not least because this proposal seems to require some kind of exception to what is the constitutional cornerstone of free movement of persons (and much else) in the EU: non-discrimination on grounds of nationality. But there isn’t much commentary which digs deeper, and that is what this post aims to do. What is discriminatory, and what not?

 

Before doing so, the proposal calls for a couple of other comments. First, it has been cobbled together quickly, at the time when Chancellor Merkel made clear that more drastic restrictions, such as an emergency break on immigration from other EU Member States, were unacceptable. It drew inspiration from an Open Europe briefing co-authored by my LSE colleague Damien Chalmers. That briefing called for a new EU directive on citizenship and immigration, which would contain a comparable 3-year rule. It has to be said that this briefing went into the direction of declaring that discrimination is a virtue, by advocating a new provision establishing the supremacy of national citizenship over EU citizenship. The proposed directive would “set out that welfare benefits, social housing and publicly funded apprenticeships are in principle reserved for national citizens and can only be granted to EU citizens n limited circumstances”. The authors denied that this required Treaty change, but if I was asked to write a legal opinion on this, I would come to the opposite conclusion.

 

Second, it is not clear at all that the proposal, if implemented, would make any difference to the numbers coming to the UK. Research shows that so-called benefit tourism is a marginal phenomenon; that EU citizens come to the UK to work; and that they contribute more in taxes and draw less on benefits, proportionally, than UK nationals. But no need to develop those points, as all this has been extensively commented upon.

 

Third, I note the disconnect between two current UK government policies. The government is concerned that so-called in-work benefits, which as I understand them work mainly through systems of tax credits, are too much of a pull-factor for EU citizens. However, the same UK government is looking at drastically reducing these tax credits, in general, as part of its deficit-cutting programme. If the pull-factor were real, would this issue not be taken care of by the general welfare-reduction policies?

 

But onto the discrimination point. Let me, in succinct blogpost fashion, try to sum up the law on non-discrimination on grounds of nationality. We EU lawyers distinguish between direct and indirect discrimination (also described as overt and covert discrimination). Direct discrimination means that a particular law or rule takes the prohibited criterion – here nationality – as the basis for differential treatment: “UK nationals obtain in-work benefits unconditionally, nationals from other Member States must have legally resided in the UK for 4 years.” Such direct discrimination is a clear breach, and the Treaties would need to be changed to make it lawful. I note in passing that this is the kind of Treaty change which requires an elaborate procedure, as a rule requiring the convening of a “Convention” – so not just consensus among Member State governments.

 

But the prohibition of discrimination on grounds of nationality does not mean that EU Member States cannot have policies distinguishing between residents and non-residents – as opposed to nationals and non-nationals. In the field of taxation, for example, the EU Court of Justice readily accepts such distinctions. Nor does it mean that the award of some kind of benefit on condition of prior residence violates the non-discrimination principle. These are what we call cases of indirect discrimination. Requiring a period of prior residence is not directly discriminatory, but since most UK nationals live in the UK, and most non-UK nationals do not, distinctions based on residence are suspect. Crucially, however, they can in certain cases be justified. Here is an example from the Court’s case law. Mr Bidar, a French national, came to the UK to study (at UCL!). He requested a student loan, to cover his maintenance costs. These loans are government-subsidised, and the UK limited the loans to students who had been resident in the UK for 3 years before starting their course. The UK argued that UK taxpayers funded the student loans, and that it was therefore legitimate to impose the residence condition. The Court accepted this. It stated that it was legitimate for a Member State to grant assistance only to students who have demonstrated a certain degree of integration into the society of that State. And the existence of a certain degree of integration could be regarded as established by a finding that the student in question has resided in that State for a certain length of time. In other words, requiring a certain period of prior residence for the award of a benefit is not a priori unlawful.

 

However, this all depends on the type of benefit, and the context of the case. In this respect, it shows that EU law has developed over a period of more than 40 years, through case law and through legislation on free movement. There are benefits which Member States confer which cannot be conditioned on prior residence, and there are those which can. This post is not the place to demonstrate this, as it would require an extensive study, but it does seem to me that there is a real need for creating greater clarity and consistency in this area of EU law. That would be a kind of EU reform which is worthwhile. What this would require is a process of looking carefully at the EU legislation on free movement, and of starting a debate on which “integration” requirements are acceptable, and which not. That can be done, but it will be time-consuming and difficult, also politically. Of course it cannot be done by the European Council at a summit: there is a legislative procedure in the EU, which involves the Commission, the Parliament and the Council of Ministers. But the European Council could initiate a work programme on this issue.

 

Whether the outcome of such a review process could be that the UK would be allowed to introduce the 4-year Cameron proposal is uncertain, in particular as regard tax credits and in-work benefits. EU legislation on free movement of workers has, from the beginning, provided that workers from other Member States “shall enjoy the same social and tax advantages as national workers”. Coming to work in another Member State involves a much higher level of integration than studying, and subjects the person to income tax and social security contributions in the same way as that State’s own nationals who are employed. The principle of non-discrimination in my view requires that all workers are treated equally in matters of taxation and social security.

 

Curious to see how all this plays out …

Prisoner voting and the UK’s imprisoned European policy

Reposted from European Futures: http://www.europeanfutures.ed.ac.uk/article-1900

Following this month’s EU court ruling on voting rights for prisoners, I situate the judgement in context and assess its consequences for the UK. In so doing, I explore the relationship between EU law and the European Convention on Human Rights, suggesting that, even when states attempt to avoid difficult ECHR rulings, they may encounter them again through EU law with significantly less room to manoeuvre.

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Recently, the EU Court of Justice delivered a judgement on prisoner voting. In the UK, the prisoner voting saga is well known. UK legislation bans all convicted prisoners from voting in general, European and municipal elections. There is no minimum threshold, other than serving a prison sentence, and the voting ban is lifted upon leaving prison. It is an automatic effect of being convicted, not an individually tailored punishment for certain types of criminal behaviour.

Ten years ago, the European Court of Human Rights decided in the Hirst case that this generalised, automatic voting ban is a breach of the fundamental right to participate in free elections, as articulated in Article 3 of Protocol 1 to the European Convention on Human Rights.

The Court found that, although there is great variation throughout Europe in the disenfranchisement of prisoners, the UK ban was too general and indiscriminate to pass muster. The Court generally recognises that states have a ‘margin of appreciation’ to determine limits to fundamental rights, but in Hirst, and in cases which followed, it found that the UK’s legislation was outside any acceptable margin.

This Strasbourg case law has become a preferred target for the Strasbourg-sceptics in UK politics and public debate, who see it as a prime example of the European Court of Human Rights extending the Convention far beyond what was originally intended, and meddling in issues which are best left to national democratic politics.

The UK government and parliament have been dragging their feet when it comes to implementing these Strasbourg judgements. Prime Minister David Cameron has himself said that the idea of prisoners voting makes him physically sick.

The UK courts are not, on their own, in a position to accommodate prisoners’ voting rights under the Convention. The Human Rights Act, which implements the Convention in national law, does not allow them to override parliamentary legislation. Nevertheless, the UK Supreme Court has accepted the Strasbourg case law in Chester and McGeoch. The justices are clearly not as outraged as the Prime Minister and many in the Conservative Party.

Of course, the UK could free itself from this unwelcome Strasbourg interference by simply withdrawing from the Convention. Before last May’s general election, it often looked like a Conservative government would try to do just that. Now, however, it is less clear whether any radical reform of human rights policies is on the cards.

Be that as it may, there is now another European court which has put its foot in the door. Earlier this month, the EU Court of Justice decided in Delvigne to follow in the footsteps of the Strasbourg case law when it comes to voting bans for European Parliament elections. The case involved a French convict, but the principles which the Court established extend to all EP elections, including those in the UK.

The lesson is that, even if you manage to keep the Convention out of your front door, it will creep in through the backdoor of EU law. Why is this the case? To start, the EU has its own binding Charter of Fundamental Rights (CFR). In short, the Charter is a copy of the European Convention with a number of add-ons (such as a range of social and economic rights).

There is however an important difference with the Convention. Unlike the Convention, the EU Charter is not generally binding on the EU Member States. Instead, it only binds them when they implement EU law (Article 51(1) CFR). That is a crucial limitation, and one whose application is not straightforward. Ultimately, it is for the EU Court of Justice to determine in which instances the Charter applies.

The Delvigne decision is a prime example of the indeterminacy of the ‘implementation’ requirement in EU law. The Charter contains a provision on EP elections, but it only states the principle that MEPs ‘shall be elected by direct universal suffrage in a free and secret ballot’. There is no uniform EU-wide procedure for elections to the EP, and a 1976 Act (part of the EU’s treaty norms) does no more than leave the question of the franchise to national law, whilst at the same time confirming the requirement of direct universal suffrage.

Nevertheless, the Court of Justice decided that, in determining the franchise, the EU Member States must respect the Charter. In effect, it has interpreted the Charter requirements in accordance with the Strasbourg case law – even if it did not expressly refer to that case law.

For UK purposes, the crucial point in Delvigne is that the Court of Justice said that there must be a degree of proportionality between the seriousness of the crime or its punishment and a prisoner’s disenfranchisement. Clearly this means that the general, automatic and indiscriminate disenfranchisement of all prisoners does not comply with the EU Charter. For EP elections, some convicted prisoners can be disenfranchised, but not all of them.

There are now two bail-out cards for UK prisoners seeking to vote. At least in principle, the EU card is a trump. The fact that UK legislation does not provide for this EU requirement is not an issue, unlike the Convention and the Human Rights Act mentioned before. Under the doctrine of primacy, EU law prevails over any inconsistent national law. All UK courts are under an obligation to ensure that any rights under EU law are respected.

It will be interesting to see how this issue plays out. The Court of Justice judgement definitely puts further pressure on the UK to amend its prisoner voting ban. Nevertheless, the prisoner voting saga is but a proxy for a much wider point.

For EU Member States, adherence to the European Convention on Human Rights is next to indissociable from their EU membership. The EU is founded on a set of values which include human rights. The EU Charter must be respected within the scope of EU law. If an EU Member State were to leave the European Convention, it would continue to be bound by the Charter indirectly through EU law.

Such circumstances would lead to very awkward legal distinctions. For example, that state’s citizens would not have certain rights (because their case would not be covered by EU law), but migrant workers from other EU Member States would have those rights by virtue of the Charter and of being within scope of application of EU law. It would result in a paradoxical situation in which EU citizens living in that country would have greater human rights entitlements than its own citizens!

The result is that the UK government’s European policy is constrained – imprisoned even. On one side, the European Convention and EU membership cannot be easily separated. On the other, European judgements – be they delivered in Strasbourg or Luxembourg – must be respected and implemented.