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26 April 2016updated 09 Sep 2021 12:13pm

Sorry Michael Gove, when it comes to Europe and the law, you’re just wrong

It's good that the Secretary of State has shown his working, if only so we can see where he's gone wrong. 

By Daniel Beard

Who’d be a judge?  People bring you tough questions to resolve, you give your view and then you are criticised with no right to respond.

It must be particularly galling when it is the Secretary of State for Justice doing the criticising.

Of course, all sorts of politicians do not like courts.  Courts have an awkward tendency to intervene in even the best laid political plans. 

Michael Gove is no doubt very cross that the Supreme Court recently held that his new restrictions on legal aid were unlawful.  In his first major Brexit campaign speech, however, his ire was directed elsewhere: to the EU courts in Luxembourg.

He made it clear he does not like them. 

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The EU courts, he contended, have been using the EU Charter on fundamental rights to ride roughshod over national law and that the “opt out” negotiated by the UK when the Charter was entered into was “worthless”.

He gave all sorts of examples and went so far as to put footnotes into his text which referred to cases about which he was particularly concerned.

It is to his credit that he was willing to give details of what he was relying on.  Too often we hear assertions and struggle to test them properly because we do not know the supposed basis. 

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The danger, of course, is that when you show your working, it is easier to tell why you got the answer wrong. 

One obvious way you can get it wrong is if you say something happened when it did not.  Some of the cases Gove relied upon have not yet been the subject of judgments by the EU Courts.  He might have wished that the judges had made rulings that drew back the metaphorical curtain and revealed the Courts to be the nefarious legal engine driving a Euro-empire power grab; but they have not.

Another way he went wrong was by misrepresenting treaties and the Charter in relation to the supposed UK “opt out”.  The United Kingdom did not opt out of the EU Charter so he was tilting at the wrong windmill.  Instead, the United Kingdom negotiated a treaty provision declaring what the Charter is: it is a document setting out rights which are part of EU law.  It makes them more visible.  The Charter is a handy way of looking up your EU rights.  It does not expand them. 

However, the more fundamental flaw in his approach was to deprecate the EU Courts as pursuing an agenda. 

Operating under the rule of law is not always a neat and tidy process.  Particularly for governments. 

We want courts to have a mind of their own.  It is in that way that the separation of powers in a democracy best operates to offer checks and balances to the excesses of power. 

In a world where global institutions have a significant impact on all of our lives, he failed to recognise that in the EU we have developed a system where courts do have oversight.  Courts which are independent of politicians; international courts to which individual citizens – not just states – can bring cases. 

Indeed,  Gove did not mention the fact that a huge part of the EU Courts’ work is dealing with challenges brought against the other EU institutions and in particular the European Commission.  

He also ignored the role they play in ensuring that we have a level playing field across the EU: they act as a discipline to stop member States cheating on the rules.  That is why the EU internal market offers a levelling that no other alternative trade arrangement proffered by Brexiteers can possibly provide.

Outside the EU we will not be able to bring challenges in the same way.  We will not be able to influence the way in which EU law develops.  Yet that body of law, that way of dealing will continue to govern our largest trading partner, affecting what we can do and how we can operate.

The UK is well capable of making sure that the EU listens. Indeed, Lord Neuberger, of our Supreme Court, recently commented that the  EU judges thought that UK representatives were by far the most effective oral advocates to come before them.  We should be proud of that.

Of course, there is always room for improvement. EU judicial processes could be faster, judgments better and scrutiny more refined.  There will always be cases we disagree with. 

It is good that the Brexit campaign has been willing to move beyond generalised abuse of EU institutions.  Looking in more detail, however, reveals just how unfair so many of their criticisms are. 

Gove’s footnotes are no evidence of a grand Euro conspiracy. 

Daniel Beard is a barrister at Monckton Chambers, and is widely regarded as one of the Bar’s leading specialists in competition, EU, regulatory and public law.