Tony Blair in Parliament yesterday: Our comments in bold.
Before the European Council, I made it clear that the concept of a constitutional treaty for Europe had to be abandoned and that we should agree instead a conventional amending treaty like the Nice, Amsterdam and Maastricht treaties and the Single European Act. I also made it clear that the UK had four central demands which had to be met. First, on the charter of fundamental rights, we secured a legally binding protocol, specific to the UK, and applicable both to the British courts and to the European Court of Justice. Let me read the terms.
"the Charter does not extend the ability of the Court of Justice, or any court or tribunal of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that the Charter reaffirms. In particular, and for the avoidance of doubt, nothing inthe Charter creates justiciable rights applicable to the United Kingdom except in so far as the United Kingdom has provided for such rights in its national law.”
However it looks like the UK's "safeguards" on the charter are already unravelling. A leaked analysis from Parliament’s legal expert looks at the claim by Tony Blair that the Charter of Fundamental Rights will not extend the ability of the European Court of Justice to challenge UK laws. It said: "This is a high standard to set, and I doubt if what appears to have been agreed secures this result."
The Guardian reports that former Justice Commissioner Antonio Vitorino has questioned the legal basis for the British opt-out from the Charter of Fundamental Rights, negotiated by Tony Blair at the EU summit. According to the article, the Commission’s legal experts take the same view, and expect the British opt-out eventually to be tested in the courts.
Jacques Ziller, a professor at the European University Institute in Florence, said that the idea of one country opting out of the charter was “nonsense” and would quickly be challenged in the courts. (European Voice, 31 May 2007)
Firms operating in more than one member state would clearly be affected. Migrants coming from another member state to the UK would presumably still be covered. And anyone who travelled to another EU country – e.g. to use health services – would still be able to use the Charter.
It is also curiously worded. It singles out part of the Charter (Title IV), but not all of it to say that it does not create justiciable rights applicable to the United Kingdom “except in so far as the United Kingdom has provided for such rights in its national law.” This itself begs the question – as it will be the European Court of Justice that has do decide fro itself whether the United Kingdom has provided for such rights in its national law.
The Government has potentially created a lawyers paradise with this messy fudge. It has clearly broken its repeated promise that the Charter would not become legally binding.
In respect of our criminal law system and police and judicial processes, we obtained an extension of the opt-in rights that we secured in an earlier treaty on migration, asylum and immigration issues. This means that we have the sovereign right to opt in on individual measures, where we consider it would be in the British interest to do so, but also to stay out, if we want to. It is precisely the pick and choose policy often advocated. It gives us complete freedom to protect our common law system, but it also allows us to participate in areas where co-operation advances British interests. In asylum and immigration, for example, we have opted in on measures dealing with illegal immigration, and in measures allowing us to return asylum seekers to other European countries—both unquestionably in Britain’s interests. But it will be within our exclusive power to decide on a case-by-case basis, which is exactly what we wanted.
This does not mention the one of the single biggest things the UK has given way of -Giving the European Court of Justice full jurisdiction over justice and policing. This clearly breaches previous promises from which is clearly a crossing of this red line. The Government themselves admitted that it was a big transfer of national sovereignty:
"The Government does not accept that we should agree to extend full ECJ jurisdiction over the very sensitive areas covered by the Third Pillar. These raise sensitive issues relating to national sovereignty — law and order and the criminal justice process.
"An acceptance of extended jurisdiction would have to be on a "once and for all" basis. This would be a significant extension of the ECJ's legal responsibilities. In any event, there is already some scope for the review or interpretation of Third Pillar measures by the ECJ, at the suit of the Commission or the Member States, pursuant to Article 35(6) and (7) TEU."
This is a really big deal. Giving the Court competence is an even bigger transfer of power than giving up the veto. At least if there is a majority vote we can try to get other countries to support us and block things we don't like. But if the court makes a judgement we don't like there is simply no comeback.
No one knows for sure what EU judges might do with their new powers.
On the Today programme on 14 June 2006, BBC Europe Editor Mark Mardell reported that if criminal justice was transferred to the first pillar: “A Commission spokesman was telling me, well we’d want to look at things like Belmarsh, can you hold foreign suspects indefinitely? The Commission don’t like it so Britain could get hammered.”
The Government also previously admitted that it would mean many more costly appeals in immigration cases:
“The Minister informed us that the UK had chosen not to opt in to the Commission's proposal (Q 28). While he acknowledged that there could be a benefit for parties faced with genuinely difficult questions of interpretation of EC law, "there is clearly a risk that adding what is in effect an avenue of appeal at a very early stage in the process might be an opportunity of further complicating our existing asylum and immigration processes" (Q 28).