Britannia faces her judges

The European Court is a strange, quasi-monastic place where the rulings are as bland as a judge's Perrier and salad lunch. But the Euro- sceptics say the court is hell-bent on undermining our way of life. Sarah Helm reports
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The Independent Online
Under the brown-tinted glass of the Thomas More building, the judges' cars glide quietly in at the start of the day. Across the neatly clipped sidewalks of the Erasmus building, beige-macked officials are walking briskly to court. Inside the "Palais" itself, the ranks of translators are twisting the tops off their Perrier bottles. And behind closed doors, photocopiers are spewing the first draft of the court's ruling on whether British workers should work a maximum 48-hour week.

This is the European Court of Justice in Luxembourg. It is here, we are told by British Europhobes, that the core of the "European superstate" is being set up "by stealth".

Others think differently. Derek Merson, a garage-owner of Minehead, Somerset, had cause to thank the court when he defeated British Leyland in a legal battle over car imports. Thanks to the Euro-judges, Helen Marshall, a dietician, won a landmark claim for unfair dismissal from South West Area Health Authority, and then secured rights under Euro-laws to full compensation.

Until recently, it was the European Commission that bore the brunt of British anti-European attacks. It was the Commission that was accused of pursuing a federalist agenda.

Now, after a series of high-profile decisions from the court, such as the ruling refusing Britain the right to bar Spanish fishermen from British waters, the sceptics have switched their attack to the Euro-judges.

Patrick Neill, Warden of All Souls College, Oxford, warned in a paper earlier this year that the court was potentially dangerous and displayed "uncontrollable judicial power". This gave the sceptics a veneer of intellectual credibility. Now they are gearing for new efforts to clip the wings of the court, should the judges reject Britain's challenge to a directive imposing a maximum working week.

In Luxembourg, the attacks are monitored with increasing frustration. David Edward, the British judge on the court, has recently spoken frankly about the debate.

"My difficulty with the British attitude is that the attack on the court is being used as the focus of a general hate campaign against the European idea and everything that tries to make it work. The court is a nice easy focus for attack. Fifteen foreign judges, sitting in a foreign country, are said to be overruling the decisions of the British parliament and the British courts. However much you try to explain that that is not so, that is the way it is represented."

Little Englanders bemoan the end of British legal tradition. Meanwhile, the crudest attacks on the court deploy the all-too-familiar tactics of outrageous factual distortion to whip up hatred. What causes particular anger in Luxembourg is that the British Government itself spreads lies about the court to buy off its critics. As one senior official said: "Not only has the attack on the court become a weapon in the hands of Euro- sceptics, it has also been used by the Government as a sop to please the Euro-sceptics."

The aspect of the court's work most loathed by the Europhobes is its role as Europe's supreme court. The court is empowered to decide on the distribution of powers between individual member states and the community institutions, and as such is a form of constitutional court, making rulings which are beyond the control of the British courts or parliament.

The surrendering of such national powers has had far-reaching effects on the British courts, and the constitutional implications are hotly debated in other countries too, particularly in Germany.

But what British Euro-phobes fail to acknowledge is that the bulk of the court's work involves enforcing the single-market rules, for example, on fair competition - which serves the cause of British business. Italy has recently had to drop taxes on luxury cars which were costing Britain pounds 80m a year in lost sales. Spain had to change its rules on additives to allow the sale there of British chewing gum.

In this area, Britain has often been the leading advocate of a strong court and likes to present itself as Europe's model law-abiding nation, accusing "slippery southerners" of not playing fair.

Judge Edward says: "It is difficult for people in other countries to understand a situation in which, on the one hand, the British Government says that it believes in having a strong court, and yet, in unattributable briefings, what ministers appear to have told the press represents British Government proposals as being intended to clip the wings of the court. That does not seem politically credible to those countries."

The most dishonest claim levelled by the sceptics is that Britain has somehow been conned into accepting the supremacy of European law. In fact, it was the political leaders of member states who surrendered powers to the European Court in their founding treaties, because they knew that a workable community had to adhere to a common set of laws.

Britain agreed to accept European community law, and the role of the court, when it signed up 24 years ago. British fishermen, who found that their government was blocked by Europe from preventing Spaniards registering to fish in British waters, would not have been surprised if someone had pointed out that ever since 1957 the Treaty of Rome has outlawed any discrimination on the grounds of nationality.

"More than 95 per cent of what is now being criticised was known to anybody who could read when Britain joined back in 1972," says Judge Edward.

Another growing irritation for the anti-Europeans is the increasing tendency of the court to take up human rights cases, separately from the European Court of Human Rights in Strasbourg, which is not an EU body. Again, however, the court's power to uphold certain human rights was clearly inherent in the treaties, signed by Britain. And if Britons want to go to Luxembourg to ask for the kind of justice that is not dispensed by the British judiciary, who is to stop them?

Terry Perkins, a British sailor, dismissed by the Navy for being gay, is hoping soon to challenge his sacking in Luxembourg, under the equal treatment directive. A victory would mean that the Ministry of Defence would have to give up its cherished, sovereign right to discriminate against gays.

Critics claim the court is run by a cabal of judges with federalist missionary zeal. Yet it is the member states who make the appointments, "chosen from persons whose independence is beyond doubt", says the Treaty of Rome. Only two of the current 15 judges have held political office.

It is hard to imagine a less politicised place than the environs of the European Court. Politicians almost never come here (although Sir Nicholas Lyell, the Attorney General, did stalk the benches arrogantly during the beef ban hearing).

Journalists rarely come either, and "the public" is almost never seen, which means that the judges work in quasi-monastic solitude, unsettled by "politics" only if they happen to see the British press headlines at the court newspaper stand.

"The British papers seem to write things that bear little relation to reality," says Leif Savon, the Finnish judge, looking quizzically out from his window across a grey Luxembourg sky, as if the antics of British Europhobes were a distant tribal ritual.

Anyone who walks around the European court complex could be forgiven for feeling uneasy. It is a strange, sanitised world, where everything is carefully weighed, down to the salad in the court cafeteria.

The court, like the rest of European government, is in the business of finding compromises in order to harmonise 15 nations' ways of life. Compromise can be tedious, and the results often bland - like the brown-tinted architectural compromise of the court buildings themselves.

This is the road Europe has chosen to travel, and there are no signs of wings being clipped. Rather there is evidence of constant expansion. There is a strong expectation that areas of decision-making that are now beyond the court's scope will soon be brought under its jurisdiction. European justice and home affairs policy is expected to be placed partially under the court's supervision by the end of next year. The operation of some areas of the single currency may also be overseen by the court. In anticipation, the Luxembourg complex is growing fast.

"Superstate" may be a loaded term but the fact is that when the EU takes in new member states from Eastern Europe, there could be as many as 27 Euro-judges here, harmonising the laws of 27 European member states.

Accusations that the European court has a political agenda will be redoubled if, as expected, Britain loses its challenge to the working-week directive. The directive, agreed by a qualified majority of member states, is said by John Major to have been a back-door attempt to force Britain to accept Europe's social laws.

The directive was issued under a health and safety provision of the treaty, and not under the Social Chapter from which Britain has an opt-out. However, the Prime Minister's assertion is another piece of blatant distortion, because the working-week directive was proposed before the Social Chapter opt-out had even been thought of.

The simple issue for the court is whether it was possible for the Council of Ministers to take the view that the length of time that people are required to work has something to do with health and safety at work.

Speaking generally, Judge Edward said: "Our function is not to say politicians are wrong. Our only function is to say whether politicians did, or did not, have power to do that."

In order to buy off the Euro-sceptics in the case of a defeat, Mr Major may repeat his promise to "repatriate" the powers of the European Court. However, the fact is that the Government knows there can be no repatriation of court powers because all other member states would resist such a move, knowing that dismantling the community's legal order would lead to the dismantling of the community itself.

"Of course you can change the treaties, you can cut down the powers of the court, change its composition or even abolish it. You can theoretically do all of this. The question for me is whether there is the least political prospect of actually doing so.

My impression is there is not," says Judge Edward.

When he recently met members of the Conservative backbench home affairs committee in London, the judge found himself in surprising agreement with the arch anti-European Teresa Gorman. "What she said was that the short choice for Britain was to stay in the EU on existing terms, or get out. I said, `Yes, that is absolutely right.' "