The stolen referendum: European court 'robs Britain of vote' by overturning UK opt-out

European court of justice: Sovereign over Britain?
European court of justice: Sovereign over Britain?
Alex Stevenson By

A European court's ruling effectively overturning Britain's opt-out to the charter on fundamental rights has robbed the UK of a referendum, Tory MPs are claiming.

Their dismay follows comments from a high court judge yesterday making clear that Britain's 'watertight' opt-out has been rendered meaningless by the European courts of justice.

The UK secured its opt-out during the Lisbon treaty negotiations, meaning the charter's numerous rights - including the right to strike and the right to marry - did not apply in Britain.

But Mr Justice Mostyn said yesterday that a ruling from the European courts of justice in 2011 made clear the opt-out did not "exempt the UK from the obligations to comply with the provisions of the charter".


He added: "The constitutional significance of this can hardly be overstated.

"Notwithstanding the endeavours of our political representatives at Lisbon, it would seem the much wider charter of rights is now part of our domestic law.

"Moreover, that much wider charter of rights would remain part of our domestic law even if the Human Rights Act were repealed."

Tory backbencher Bernard Jenkin told Politics.co.uk this morning he feared the government's lawyers would prevent ministers from reacting firmly to the development.

"The same lawyers who advised Labour that this wouldn't happen will now be advising the present government and they will seek to minimise the significance of this judgement and pretend there is nothing surprising about it, or that it might be reversed on some future occasion," he said.

"These are the same lawyers who have got it wrong for the last 25 years and this is, as the judge himself said, a hugely significant ruling.

"If the government had proposed a treaty change to include the charter of fundamental rights into British law, that would have triggered a referendum under the EU bill. So the court has just circumvented a referendum."

The Ministry of Justice has dismissed Mr Justice Mostyn's comments outright, saying his analysis "does not reflect the government's position" because it is inconsistent with both the charter and established case law.

"The charter's impact is very limited — it does not create new rights," a spokesperson said.

"We put in place safeguards to ensure that the charter does not extend existing rights, and would strongly oppose any changes that propose to do so.

"We are currently considering the impact of the charter as part of the government's wider review of the balance of competences between the EU and the UK. We are seeking evidence on how the charter has been applied in practice."

Conservative MPs reacted angrily to Mr Justice Mostyn's ruling in the Commons last night, repeatedly raising points of order immediately after the bedroom tax vote.

Arch-eurosceptic Bill Cash asked: "What can be done to stop this coach and horses going through Acts of Parliament, invading our supremacy, and what can you and Mr Speaker do to defend this Parliament?"

John Redwood protested at deputy Speaker Eleanor Laing's ruling that the issue was not for her to comment on, arguing that it should be a matter for the chair "if the fundamental rights and liberties of this great House of Commons are damaged by a foreign court and we can do nothing about it".

Jenkin then asked whether a minister had indicated any willingness to come to the Commons to make a statement on the issue.

With the Commons now having risen for the half-term recess, any statement will not be forthcoming until next week.

Justice secretary Chris Grayling said the judge's comments showed why Britain needs a full renegotiation of its relationship with the European Union, however.

"Labour duped us when it signed the Lisbon Treaty and promised this kind of ruling wouldn't happen," he said.

"We cannot go on seeing crucial decisions about our society and our system of justice and government being taken by unaccountable European courts."

Cash told Politics.co.uk his party leadership's attempt to blame Labour was unfair because David Cameron's shadow Cabinet had rejected his call for the Lisbon treaty legislation to explicitly state the charter of fundamental rights would not apply to UK law.

"It couldn't be worse," he said.

"What they've done is completely fail to prevent the European court from having jurisdiction in respect of the charter of fundamental rights over the United Kingdom in respect of domestic law.

"And they have completely undermined any question of our being able to achieve the result which we would have hoped to have followed from the repeal of the Human Rights Act."

Keith Vaz, the chair of the Commons' home affairs committee, famously said in 2000 the charter of fundamental rights had no more legal effect than a copy of the Beano.

But Kieron Beal and Tom Hickman of Blackstone Chambers argued in a 2011 paper that "there can no longer be any real doubt that the Charter has legal effect in UK law".

"From a practical perspective, it is now the first point of reference on many human rights issues," they concluded.

"There nonetheless remain a number of ambiguities and complexities, which will need to be resolved by both the EU and domestic courts."

The coalition's failure to take decisive steps against the shift could cost the Conservatives in next spring's European elections.

Tim Aker, head of policy at Ukip, said David Cameron was presiding over a "pathetically weak" administration not prepared to stand up to Strasbourg on the issue.

"Once again we see that Tory 'euroscepticism' is a pipedream rather than a working reality," he commented.

"They claim that their rusty 'referendum lock' will trigger a public vote when significant powers are shifted. Surely there should be a vote tomorrow given this sinister development?"

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