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Sense and Prejudice, or When is old news ‘news’? EU law, the European Court of Human Rights and the Parliamentary Sovereignty

Alex Warleigh-Lack

While reading through the Guardian website last night, I stumbled across an article published on 9 October this year by its legal correspondent, Joshua Rozenberg. This piece, Never mind human rights law, EU law is much more powerful, related the findings of a UK court in the case of an unfair dismissal and discrimination claim brought by two Moroccan citizens employed by the Moroccan embassy in London. The judge ruled that human rights legislation did not apply in this case, but that the UK’s obligations under the EU’s Charter of Fundamental Rights did. Mr Rozenberg deduces that this has implications for parliamentary sovereignty in the UK, acting as a reminder that for all the furore over the Strasbourg Court’s rulings, it’s the one in Luxembourg that national sovereignty-fetishists need to be more concerned about: EU law has ’direct effect’(the ability of member state citizens, in certain specified circumstances, to use EU law in national courts and/or against their own governments), whereas that of the European Court of Human Rights does not.

Now, to be fair, Mr Rozenberg argues that such a situation can be a good thing, because, as in the case he was reporting, it can serve to protect the rights of the individual and citizen. And he also notes that the situation regarding EU law and its direct effect is not new. His report is a useful reminder of where many in the UK media and policy communities so often allow their anti-European prejudice – or perhaps ignorance -  to cloud their sense, confusing the EU with the Council of Europe and thus failing to aim at the right target.

In fact, the supremacy of EU law, the doctrinal basis from which ‘direct effect’ springs is really old news, despite its remarkable nature: the European Court of Justice, or ECJ, proclaimed it in the early 1960s. It has been reinforced by several subsequent rulings by the ECJ and has been written into the EU Treaties, and thus primary EU law. It was acknowledged in the 1972 European Communities Act by the UK Parliament. No one can be taken by surprise by this ruling if they have been paying attention to the EU at any time over the last 50 years. It is literally there in black and white for all to see.

The real story of this ruling, I would suggest, is its indication of several matters that follow on from such supremacy. Some of these matters are also old news, but some are emphatically not.

On the ‘old news’ side of the equation, there is the fact that, since the UK Parliament agreed to pass the 1972 Act on which the subordination of UK law to its EU equivalent is based, and a future act of Parliament could remove that (albeit at the likely cost of UK secession from the EU), parliamentary sovereignty may technically survive. However, in the absence of a written constitution it is difficult for UK courts to police the boundary effectively, and thus one aspect of the UK’s constitutional tradition may serve to undermine another.

On the ‘new’ side of the equation is the implication that the UK opt-out from the provisions of the EU’s Charter of Fundamental Rights, the document which was invoked by the UK court in the case reported by Mr Rozenberg, is worth less than meets the eye. Article 51 of the Charter states that it cannot be used to extend the scope of EU law, and the UK’s opt-out, enshrined in Protocol 30 of the Consolidated Treaties of the EU, is primarily aimed at preventing EU law from extending workers’ rights, as pointed out by Anthony Teasdale and Timothy Bainbridge in their Penguin Companion to European Union (4th ed, 2012).  The opt-out now appears to have failed in its purpose, albeit at the behest of a national court and in a case with appeals pending.

As a political studies scholar, I draw certain ironic inferences from this. First, could it be that EU law is not so uniformly neoliberal in practice as certain recent ECJ rulings might imply, and that if they are so-minded UK courts can interpret it in a more socially progressive manner than the last Labour government, which was in power when the Charter was written into the Treaty, intended? Second, could it be that parliamentary sovereignty has ironically been responsible for the extension of the de facto scope of EU law in the UK? If so, for fans of paradox, what perfect felicity!

 

Prof Alex Warleigh-Lack is Executive Director of the Centre for Research on the European Matrix (CRonEM) at the School of Politics, University of Surrey.

This blog was originally posted at the CRonEM blog.

Twitter: @AlexEUProf and @surreypolitics



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