The real reasons why Britain’s elite Establishment doesnt want the EU – to escape the European justice laws that don’t fit British colonials slave methods and Nazi regime
Of the dark clouds looming over Brexit negotiations between the EU and U.K., the divisive issue of continuing jurisdiction of Europe’s highest court in Britain is one of the darkest.
British Prime Minister Theresa May made departure from the European Court of Justice in Luxembourg a red line early in her tenure as prime minister — most ministers argue that continued jurisdiction of a foreign court over Britain’s affairs is untenable once it leaves the bloc, though the government has left open the possibility that the court could retain oversight during any transitional period.
The EU27, by contrast, counter that the ECJ is the only appropriate judicial bodythat can fairly decide matters relating, for example, to the rights of EU citizens residing in the U.K. after Brexit. Britain’s desire to leave the court also has a bearing on its decision to leave the European nuclear energy regulator, Euratom — whose members must accept the ECJ’s judgments.
Officials failed to square the circle at the first two rounds of Brexit talks.
Ahead of the Wednesday publication of a position paper on how Britain suggests disputes are resolved with the EU post-Brexit, the government has risked the rancor of Brexiteers by appearing to soften its language.
“Direct” jurisdiction of the European Court of Justice will end suggesting there could be concessions over the future role of the European court.
Here is POLITICO’s guide to why (some) Brits hate the European Court of Justice so much.
1. Vote leave, take back control
This was the slogan which helped sell Brexit to 52 percent of Brits in the Brexit referendum last year.
“It was very clear in the referendum knocking on doors, people said ‘we want our parliament to make the laws and our acts of parliament to be interpreted by our courts not a foreign court,’” Conservative Brexiteer MP Peter Bone said. “It is a big thing. It goes to the crux of the referendum … that is really in a nutshell what it is all about.”
But not everyone agrees. Charles Grant, director of the Centre for European Reform, said he was not convinced many people have a problem with the ECJ. “It is a fairly small minority,” he said.
Former Home Secretary Charles Clarke rejects May’s analysis entirely: “I certainly don’t hate the ECJ and I believe that at least 95 percent of the British people don’t give a toss about the ECJ, of which probably 75 percent haven’t the slightest idea what it is,” he said.
“It’s some dry legalistic types who claim, utterly wrongly, to be speaking for Britain. It beats me why Theresa May mentioned it in her Tory conference speech last year [in which she made leaving the ECJ a red line] except to appease those people. There is, in my opinion, no popular or political concern at all about the jurisdiction of the ECJ,” he added.
2. Because Nick Timothy hates it
One of the main authors of May’s Conservative Party conference speech last October, in which she began to set out her Brexit vision, was one half of her then chief of staff duo, Nick Timothy. He is no longer in No. 10 Downing Street — a victim of the Tories’ disastrous election result — but the red line remains.
A clue to his thinking came in a piece he wrote for the Spectator after his resignation.
“There has long been talk of a choice between ‘hard’ and ‘soft’ forms of Brexit, with the latter requiring membership of the EU’s single market. Since that would involve accepting the jurisdiction of the European Court of Justice, vast annual membership payments to the EU, and the continuation of free movement rules, people who voted to leave the European Union might wonder whether advocates of a ‘soft’ departure really do understand that Brexit means Brexit,” he said.
3. ‘No, minister’
Ambitious and ideological ministers often find they have been thwarted by its rulings. Jill Rutter, a former Whitehall official who served in the Department for Environment, Food and Rural Affairs, the Treasury and No. 10 during her civil service career, said one source of frustration with the ECJ came from ministers losing cases.
“Sometimes we like the Court [of Justice] when it is forcing other people to do the right thing. It is fine to make sure everyone else is doing the right thing. It is when the court applies to us that ministers find it gets really annoying,” she said.
In an article for the Vote Leave campaign website after announcing he would back Brexit, Environment Secretary Michael Gove accused the “unaccountable” Luxembourg court of extending its reach every week.
“It is hard to overstate the degree to which the EU is a constraint on ministers’ ability to do the things they were elected to do, or to use their judgment about the right course of action for the people of this country,” he wrote. “I have long had concerns about our membership of the EU but the experience of government has only deepened my conviction that we need change. Every single day, every single minister is told: ‘Yes Minister, I understand, but I’m afraid that’s against EU rules.’ I know it. My colleagues in government know it. And the British people ought to know it too: Your government is not, ultimately, in control in hundreds of areas that matter.”
4. Brits aren’t used to restraints on parliament
The U.K.’s particularly strong aversion to the ECJ — particularly when compared to other EU countries — could stem from the fact the U.K. operates under a common law system and most other EU countries have civil law systems, according to Holger Hestermeyer, an expert in international dispute resolution at King’s College London. While some countries have a codified law, British law has been developed by judges in court, applying statute, precedent and case-by-case reasoning.
“The difference between those systems is much smaller than politicians like to think. It is that other systems are used to constitutional restraints on parliament while the most important U.K. constitutional doctrine is sovereignty of parliament,” he said.
5. Show us the money
ECJ rulings frequently cost governments large sums of money. One example is the court’s verdict that men and women in the U.K. should both get cut-price bus passes at 60 years of age. The ECJ found the government had broken EU equality rules by denying men cut-price passes until the age of 65, while women qualified at 60.
Rutter, who is now a director of the Institute for Government, said that when civil servants had to tell a minister their policy had been overturned by the ECJ and they would have to spend money they didn’t want to, they experienced a “very personal loss of sovereignty.”
“Lots of ministers think they make the best decisions and they don’t like judges in a foreign court telling them what to do,” she added.
6. Referees should be neutral
If in doubt, ministers turn to Britain’s national religion of football to illustrate a point.
Explaining why Britain has made the ECJ a red line and did not want to be under its jurisdiction post its departure from the EU, Brexit Secretary David Davis told the BBC in July: “If Manchester United goes to play Real Madrid, they don’t allow Real Madrid to nominate the referee. So we wouldn’t allow the Europeans to nominate that. It’s a joint agreement.”
A British official complained after the close of the latest round of Brexit talks that the EU’s demand on the ECJ represented an “unprecedented” attempt to impose a foreign court’s will on a third country. Irritation ran high at what some in London consider to be “judicial imperialism” on the part of the EU.
7. The UK doesn’t like some of its judgments
Remember when a Spanish vessel overwrote a British parliamentary act? Factortame Ltd versus the U.K. transport secretary is the textbook case for EU law students.
In a nutshell, the British government sought to restrict Spanish vessels fishing in U.K. waters, and the company Factortame took them to court. The outcome of the legal saga, which ran from 1989 to 2000, was that the House of Lords acknowledged in October 1990 that EU law was supreme over British law in areas where there are competencies in the EU treaty.
The Surinder Singh judgment is another ruling the U.K. government is “not keen on” as it is seen as a way of getting around immigration rules, according to Catherine Barnard, professor of European Union law at Cambridge University. This judgment allows a U.K. national who lives and works in another European country for a period of time, to be considered under EU rather than British law on their return. That means that if they have been joined by a non-European Economic Area (EEA) spouse, that person doesn’t have to meet certain immigration requirements that apply to Britons — in particular a minimum income requirement introduced in 2012.
Ministers rarely trumpet judgments from the court that they do like. For example in 2015 the ECJ ruled against the ECB attempt to limit the clearing of euros outside of the eurozone, which in effect would have created a two-tier single market — to the detriment of London’s financial services industry.
8. Lost in translation?
ECJ judgments are not always as clear as they could be, according to Barnard. “Because the ECJ is written in one language which is translated into 23, and they can only give a single judgment, it is inevitably a compromise,” she said.
Nevertheless, British judges have deferred to the European top court on numerous occasions. Between 1974 and 2016, according to the ECJ 2016 annual report, the U.K. issued 612 preliminary rulings to the European Court of Justice, meaning British judges effectively asked the EU court to interpret EU law on their behalf. By comparison Denmark and Ireland, which joined the EU in the same year as the U.K., have used the same procedure 91 and 184 times respectively. British judges fell well short of their German and French counterparts though, who asked 2,174 and 934 times respectively over the same time span.
In a recent preliminary ruling EU judges ruled — after a British request — that plain packaging for cigarettes complied with the latest EU tobacco products directive.
9. It has ‘Europe’ in the title
Many people are confused about the difference between the ECJ — which enforces EU law — and the European Court of Human Rights, which is based in Strasbourg and was established by the European Convention on Human Rights.
Unpopular, and well publicized, judgments about allowing prisoners the right to vote and preventing terrorists being deported are often attributed to the wrong court, according to Barnard. “There is some confusion between the courts and again it reinforces this narrative of external control over internal affairs,” she said.
Joe Twyman, head of political and social research at YouGov, said repeated surveys about the ECJ suggest the average Brit does not have a particularly well-developed view about the ECJ specifically, as distinct from “Europe” more generally.
“Its independence and separation from the European Union, along with its distinct history, are not widely known. Instead those broadly positive towards the EU will usually be positive towards the ECJ and vice-versa,” he said.