The Law and Security
Who makes the Law?
How does the European Court relate to our legal system?
Are the laws and decisions of the EU imposed on us in an acceptable way?
How many UK laws come from the EU?
European Court of justice
Role of European Court
The Court is the highest judicial authority of the EU to which we appoint one of the judges. Its main role is to ensure that the laws of the EU are fully observed and enforced in every country and when there is a conflict between the EU’s and our laws then the Court’s decision is supreme. Its ruling is very wide since it includes constitutional, labour, administrative, fiscal and criminal laws.
The UK courts have ruled that it is the duty of a UK court, when delivering final judgement, to override any rule of national law found to be in conflict with any directly enforceable rule of EU law unless Parliament expressly says this is not the case.
The way it works
A complaint is handled firstly by the Commission, which might even start its own investigations, and then if it is not satisfied that there have been changes at the national level, the issue will be referred to the Court. However, the Court can neither annul the UK’s laws nor order us to pay damages to an individual adversely affected by the infringement of EU law. It is up to the UK government to decide what it needs to do to comply and then if it is still not satisfied the Commission can ask the Court to impose financial penalties.
The central questions of this relationship is how much we have surrendered our ability to make our own laws for our own society (“Sovereignty”) and whether the Court’s rulings are in line with the fundamental principles of our laws that have grown up over centuries. However, on the other side the Court is protecting citizens and companies in some areas that the government might not regard as important and many of its decisions have done a lot of good, for example for workers’ rights.
Vote Leave claimed that the UK government has lost 101 out of 131 legal actions taken to the Court in the past 40 years including the ban on British beef exports.
Human Rights Law
The European Convention on Human Rights is an international treaty that is enforced by the Council of Europe and not the EU and so would remain in force even if we leave the EU.
The Court has been using the EU’s Charter of Fundamental Rights on matters that go beyond the European Convention on such issues as data protection.
Regulations and directives
They lay down the same law throughout the EU and immediately become law in their entirety without having to go through any parliamentary process.
Directives are addressed to the members and not to the citizens directly. Their function is to ensure that the EU law is obeyed if possible by local systems such as our Courts or even Parliament. We can not change what they say but we can impose them through our own structures rather than having them imposed on us by the EU. If they are not enacted by the member state then the Court can impose fines or award damages to individuals.
There are two types of Directive and one of them, which gives the Commission more powers, is the one more frequently used.
They only apply to specific individuals or companies or countries.
They are non-binding declarations opinions.
The principle of subsidiarity was clearly set out in the Lisbon treaty as a way to limit the action of the EU to places where the national, regional or local laws are unable to be effective. However, it excludes areas which are under the exclusive control of the EU such as the laws laid down in any Regulations.
The UK elects 73 out of the total 751 members (MEP’s) with elections every 5 years and the next one is in 2019.
It costs £1.4 billion to run including £100 million to satisfy an agreement with France to have meetings in Strasbourg 12 times a year.
It is the only elected institution in the EU and the turnout in the UK elections has been only 35%, which is the lowest in the EU (Belgium get 89%). It would be very disappointing if this is repeated in the Referendum but we hope to overcome the feeling that this is out of ignorance, apathy or disrespect.
Legislation starts with the Commission which, after a lot of consultation around the EU, puts it to the Council to mould it into better shape and to get a majority of the members to agree it. It is then sent to the Parliament where it is either passed or sent back to the Council to make changes. It eventually becomes law when the majorities in both the Council and the Parliament agree.
UK laws coming from the EU
There are many different answers to this question and so it comes to a meaningless range between 7% and 75%.
The main problems are definitions:
of “laws” can include Directives and Regulations as well as EU laws themselves.
“Influence” is wielded not only by the various EU Instruments but it could include laws the pre-empt EU law or statutory instruments.
Business For Britain campaigns for Out and its detailed report in 2015 concluded: “Between 1993 and 2014, 64.7 per cent of UK law can be deemed to be EU-influenced. EU regulations accounted for 59.3 per cent of all UK law. UK laws implementing EU directives accounted for 5.4 per cent. of this.”
A House of Commons report looked narrowly at “how much UK legislation implements EU law or other EU obligations” and came up with 13% but this excluded Regulations which are implemented without legislation.
Charter of Human Rights
The Charter is an instrument of the EU and is subject to interpretation by the European Court of Justice (ECJ). This is different from the European Convention on Human Rights with its own European Court.
The Charter has brought together all the rights of individuals into one place and if any UK laws conflict with it then our laws are immediately overridden. Michaell Gove, the Justice Secretary admitted that the forthcoming Bill of Rights will still be subject to the primacy of European law.
It gives the ECJ considerable powers of interpretation since as a House of Commons report concluded: “…in any national area of policy which is derived from EU law, compliance with fundamental rights will fall under the purview of the Charter as ultimately interpreted by the ECJ”. This has given people the right to claim damages in areas concerning the military, the police, asylum seekers and the prisons.
Our membership of the EU is based fundamentally on legal rights and obligations between members. The negotiations for exit will be about which rights we can keep and which obligations will be changed – and how.
Many commercial agreements, as well as grants and funding arrangements for research etc., will have clauses relating to the membership of the EU and the enforcement of Regulation and Directives as well as compliance with EU law. These will presumably have to be redrafted if we exit the EU.
The case made for Exit
The Court takes away any ability for the UK to make its own laws.
The Bill of Rights will be subject to the primacy of EU law.
It does not recognise the legal traditions that have built up over hundreds of years.
There have been miscarriages of justice that have failed to protect UK citizens.
The unelected, unaccountable bureaucrats have far too much power of enforcement.