Brexit's bogeyman: The much-maligned Court of Justice of the European Union

Fear stalks the debate on the UK’s membership of the EU. But just as Michael Gove accuses the Remain campaign of treating the UK’s voters “like mere children” by attempting to scare them off the possibility of Brexit, in the very same speech he conjures up the dark spectre Court of Justice of the European Union (CJEU) and its insidious plans to dominate the UK’s legal systems.

As Gove told Radio 4’s Today Programme last week, the CJEU “can now control how we apply asylum rules, how our intelligence services monitor suspected terrorists, and even who we can deport”. He followed up these claims with the assertion that the CJEU, fuelled by petty jealousies over the UK’s intelligence sharing arrangements with the United States, threatened to undermine this cooperation by ruling that they are contrary to EU law. He even threw in the old canard about the CJEU deciding to increase the price of car insurance for women.

The role and power of the CJEU must be understood in light of the relationship between EU law and the domestic law of member states. Eurosceptics charge that the EU has changed beyond all recognition since the UK joined the then- European Economic Community (EEC) in 1974. And it is true that the range of EU competences has expanded, largely through treaties that successive UK Governments have signed up to secure the benefits that flow from integration. The key doctrine whereby certain EU measures enjoy “supremacy” within national legal systems, meaning that they are given priority over conflicting domestic rules, have however been in place since the 1960s; before UK membership. There are good reasons for having some directly effective measures. The EU simply could not function if its 28 national systems could ignore binding EU rules within areas of competence which the member states have transferred to the EU.

In other words, for all of the feigned outrage at the CJEU’s judgments, its decisions do not amount to some secretive and undemocratic project. It is a court, doing its job by applying long-established legal doctrines which UK policymakers have always understood as operating in areas of EU competence. As one Law Lord declared in the 1990 Factortame judgment, ‘it has always been clear’ under the legislation bringing the UK into the then-EEC that enforceable rules of European Law would have priority over conflicting domestic law.

The Vote Leave website fulminates that because of the CJEU ‘our Government cannot require migrants from other EU states to have a permit issued by UK authorities’. In making this claim it links to the Court’s 2011 decision in Shirley McCarthy v Secretary of State for the Home Department. This case related specifically to a dual Irish-UK national who had always lived in the UK and indisputably had a right to do so and the CJEU accepted the UK Government’s argument that such an individual, who had not exercised her freedom of movement rights, could not use her status as an EU Citizen to secure UK residence for her Jamaican spouse. In short, the case relied upon bears no relation to the legal claim Vote Leave are making.

Instead, Vote Leave meant to cite the completely unrelated 2014 case of SeanMcCarthy v Secretary of State for the Home Department. In this case the UK Government had hoped that relying on general assertions that some EU Residence Permits were fraudulently issued, would be enough to argue that it should not have to respect a genuine Residence Permit issued by Spain. Put simply, the CJEU ruled that the UK can continue to prevent fraudulent migration by checking the validity of permits issued by other EU countries, but cannot force families who have fulfilled the required legal processes to jump through unnecessary additional hoops. This misidentification of the relevant case and parsing of a judgment’s effect isn’t mere carelessness; it prevents voters from being able to follow Vote Leave’s argument. All that they are meant to accept is that the CJEU is a malign influence.

When Vote Leave complains that the reach of the Court has been extended by the “new” EU Charter of Fundamental Rights, he is also playing fast and loose with the facts. The Court has acknowledged that fundamental rights have been guiding principles of the European legal order since the 1970s. Indeed, the Charter’s enumeration of specific rights potentially limits the Court’s creativity, and the UK received assurances prior to the Charter entering effect that it would not apply in areas of UK law which did not involve an EU element.

The Charter builds upon pan-European commitments to human rights that date to the agreement of the European Convention of Human Rights and Fundamental Freedoms (ECHR) in 1950. But those human rights arrangements predate the EU treaties and operate under a separate international organisation, the Council of Europe. The UK’s decision over membership of the EU does not affect its membership of the Council of Europe. But this does not prevent the Vote Leave website from lumping these arrangements together, claiming that the CJEU is using EU Citizenship to ‘to take more and more powers from the UK, including … expanding prisoner voting rights’ and that ‘EU judges have already overruled UK laws on whether prisoners should be allowed to vote’.

The CJEU, unlike the European Court of Human Rights, has not ruled that prisoners should have the right to vote. If it did, it could only do so in respect of elections for the European Parliament as this is the only point of connection between national electoral arrangements and EU law. When the issue came before the CJEU last year, in the case of in Delvigne v Commune de Lesparre-Médoc, the Court accepted that EU law was not breached by French law continuing to deny the vote to a convicted murderer over a decade after the end of his incarceration.

The Vote Leave campaign is making fundamental mistakes in its account of the CJEU’s role. This is either because it does not understand the relationship between the UK and different international legal orders, or because it is cynically engaged in whipping up anti-EU fervour by blaming the EU for the unrelated operation of the ECHR.

Which brings us to Gove’s claims that the CJEU is on a mission to undermine the UK’s intelligence gathering. In the 2015 Schrems case, the CJEU did indeed find that legislation permitting general access to electronic communications could be seen as ‘compromising the essence of the fundamental right to respect for private life’. This decision clearly impacts upon bulk-data gathering, but the Court was obliged to take this position because the arrangements allowed the United States’ authorities to disregard individuals’ protections. A scheme with adequate safeguards would not have fallen foul of the Court’s judgment.

It is also inaccurate to claim that Brexit would allow the dubious practices of sharing bulk-data identified by Edward Snowden’s leaks to continue unabated. The right to privacy will remain protected by the UK’s obligations under the ECHR. In Zakharov, the European Court of Human Rights has reinforced the CJEU position by affirming that authorisations for interceptions of communications must be specific.

To reach the ends Brexit’s supporters desire, withdrawing from the European Union would have to be accompanied by unravelling the UK’s place in the Council of Europe. This fact sits uneasily with Vote Leave’s determination to portray the CJEU as an all-powerful bogeyman that Brexit will vanquish. But even if Brexit doesn’t come to pass, Theresa May’s intervention in the debate indicates that we can expect a renewed assault on the European Convention on Human Rights, as the Brexiteers search out alternate “European” dragons to slay.

Colin Murray is Senior Lecturer in Law at the University of Newcastle.