South China Morning Post
Comment›Insight & Opinion
Grenville Cross says one laudable outcome of the UK’s decision to leave the EU is its Parliament and judges will no longer be subordinate to the bloated, overbearing court
Sovereignty, trade and border issues apart, Brexit also involves the UK’s withdrawal from the Court of Justice of the European Union.
This court, distinct from the Strasbourg-based European Court of Human Rights, was established in 1952 and is housed in Luxembourg. It has ultimate jurisdiction over the UK’s Parliament and courts, and currently comprises 28 judges, one for each state, each earning more than Britain’s prime minister, while its lower General Court has a similar complement. Many of the judges, strangely, never practised law before appointment, let alone had senior-level judicial experience, but came instead from an academic background.
Like other EU institutions, the Court of Justice is hugely expensive. In 2015, it had a budget of €357 million euros (HK$ 3.11 billion), almost triple that of a decade ago, with 2,144 employees. The Grand Chamber is decorated in gold, with a vast gold mesh net suspended from the ceiling, while gold-coloured decorations adorn the many buildings. The court complex, with its two accompanying towers, cost half a billion euros to build, but still cannot accommodate all the court’s employees.
Court cases are numerous, as there is no filtering process to weed out frivolous litigation. Documents have to be translated from a party’s original language into French, the official language, and then back again once the judgment or opinion is available. The court’s 1,000 translators, all qualified lawyers, translate about one million pages of judgments and rulings each year. Batteries of interpreters, who differ from translators, attend court sessions to provide simultaneous interpretations.
The 2007 Treaty of Lisbon gave sweeping new powers to the court, which it has eagerly deployed. It seeks to ensure that EU law is applied in the same way in every country, and that EU institutions and member states obey it.
Its judges have, for example, fined Microsoft for breaching competition rules, and held insurance companies to have been discriminatory for offering cheaper insurance to women drivers. As the EU has expanded, and promoted “ever closer union”, so the European Court of Justice has sought to advance EU integration. Its remit has penetrated new areas, including immigration, asylum and home affairs.
In 2013, for example, when Theresa May, then Britain’s home secretary, sought to refuse entry to the UK to a known terrorist with a French passport, the court allowed his appeal after his lawyers argued that he was entitled to a detailed explanation, thereby potentially compromising sensitive intelligence.
More recently, the court has, with scant regard for parliamentary sovereignty, reviewed the UK’s Data Retention and Investigatory Powers Act 2014, designed to promote internal security, with a judgment expected shortly.
As Apple’s recent tax case in Ireland has shown, the EU Commission now tells governments what taxes should be levied, even if it causes big firms to relocate. Although the Irish government plans an appeal to the European court, it should not hold its breath. The UK has already lost similar cases before the court, and, in 2005-2014, the government had to repay £7.9 billion (HK$79 billion) to companies that, although taxed legally under British law, were able to turn European law to their advantage.
It is now clear that matters concerning national security, criminal justice and border control must be handled exclusively by British judges, familiar with local conditions and respectful of Parliament. The UK’s judicial system, which, unlike its continental counterparts, is based on common law, is second to none in terms of quality, efficiency and value for money, and must no longer be subordinate to others. Britain will be well rid of the European Court of Justice, along with its gold mesh.
In this year’s Queen’s Speech, Queen Elizabeth said her government would “uphold the sovereignty of Parliament and the primacy of the House of Commons”. After Brexit, British courts will also, once again, hold sway in the land, which, in an ancient democracy, is as it should be.
Grenville Cross SC is a criminal justice analyst