Misconceptions about the EU

Naturally as a student, who studies English Law, I learn a fair amount about the EU but as my understanding of the EU grows, I get more annoyed by the media gives rise to all these misconceptions about it.

I'm sure anyone, who's studied UK law and quite possibly the law of a member state of the EU will be aware of the fact that the media always seem to amalgamate The Council of Europe (the body responsible for the European Convention on Human Rights and the European Court of Human Rights) with the European Union and therefore make out that the European Union is responsible for the decisions of the European Court of Human Rights. It's true that a member state needs a good record regarding respect of human rights to become a member state of the EU, so a member state is quite likely to be part of the Council of Europe but that doesn't make the Council of Europe a part of the European Union. This conception naturally gives people, who support anti-EU parties like UKIP, the wrong reasons to support such parties, when they hear stories about the ECtHR taking human rights too far by deciding that young men and young women should have to pay the same rate of car insurance, etc.

However, the misconception about the EU that annoys me most is the idea that the European Commission makes most of the EU's laws and so a lot of a member states rules are therefore made by an unelected body. It's true to say that the European Commission proposes most of the EU's legislation but what we aren't told, is that the Commission's proposals don't become law until the European Council (not to be confused with the Council of Europe) has agreed to pass such legislation and the European Parliament has had a chance to propose amendments (which the European Council agrees with) to the legislation. The European Council is made up of ministers from each member state and citizens of each member state vote for the European Parliament, so although the proposals are made by an unelected body, the content and legal status of the proposals are dependant on the decisions of elected bodies. There are also a fair amount of standing committees (and no doubt similar bodies in other member states) in Parliament that scrutinise the Commission's proposals and send their recommendations to the ministers of the European Council, so government and Parliament still play quite a big role in the legislation, which affects Britain. It is therefore ridiculous to use this fact to make it seem as though being part of the EU means that we've been taken over by a non-democratic body, although I agree that the European Parliament and perhaps the European Council should have a greater role to play in this legislative process.

Moreover, the role that Parliament plays in the passing of EU legislation depends on the type of legislation that has been introduced. There are 3 types of legislation: regulations, decisions and directives. Parliament has less of a role in passing decisions and regulations of the  EU because they are essentially decided by the process described in the paragraph above. Directives are also subject to the same process but Parliament decides how directives should be implemented because these are the sorts of laws, that cannot be decided in their entirety by the EU because the efficiency of such laws would be subjective to the individual country, so it is better to let the member state decide how these laws should be implemented in their country. This therefore means that when we see the directive embodied in UK law, it will be embodied in the form of an act, unlike the regulations and decisions, which have names that make it clear that they originate from the EU. Admittedly because of indirect effect, the directive can be used when it is passed by the European Council, without being developed by Parliament, if the meaning of the directive is clear and there is nothing further that must be clarified by Parliament, before it can be legally enforced. There is a particular problem as regards clarity because one judge could enforce a directive (which has not been developed by Parliament) because he thinks it's meaning is clear, whereas another judge might choose to not enforce it because he feels it is ambiguous, so this can cause problems with regard to the principle of the rule of law because a citizen could be unaware of the rule their case will be subject to. Nevertheless, it is still an example of how the EU doesn't always limit Parliament's role in passing legislation.

It should also be remembered that the principle of subsidiarity is an important part of the EU because it means that the EU will only pass legislation in a certain area of law because the extent or the effect of this area of law is such that the EU would pass a more efficient law than the individual member state. This principle is so important to the EU that they have published a document known as, the "Protocol on the Application of the Principles of Subsidiarity and Proportionality", which obliges the Commission to have a wide consultation before proposing laws. This means that the Parliament or Chamber has eight weeks to send the Commission a reasoned opinion as to why a proposal does not conform to the principle of subsidiarity, after they have received the particular legislative proposal. Nevertheless, there are problems regarding the extent of the principle, that have been raised by the Kompetenz-Kompetenz question because the European Court of Justice has at times been known to push the boundaries of subsidiarity, when making decisions about the extent of a law. All the same, this is still an important concept, which is given a lot of consideration by the EU, to the extent that there are certain competences they won't assume, so it means that no Parliament of any member state will lose their entire power to make laws.

So although the EU is a powerful body, it's not as powerful as it can be made out to be.

Should the European Court of Human Rights focus on a more select group of issues/claims?

Now that I've covered issues relating to university life and my course, I'd like to write more about current issues within the British and European legal system.

I'm sure many of you will be aware of the fact that some minister's are currently trying to suggest that the European Court of Human Rights should merely focus on "major issues of principle". Clarke believes that the ECtHR should focus on what the Daily Telegraph refers to as "major issues such as freedom and torture and not minor compensation claims". 


Words cannot express my anger at this suggestion from Britain and Switzerland. I was angry enough, when the Conservatives said that they had plans to repeal the Human Rights Act 1998 because this appeared to be a way to win votes from those, who have been convinced by rubbish written by newspapers such as the Daily Mail that rapists have been allowed to leave jail early because of this act. 
The main point of the Human Rights Act is that public authorities have to behave to act in a way that is compatible with this act. Nevertheless, it only affects judges' judgements in the sense that they have to interpret the laws so that they are in line with this act. As can be seen in the case of Ghaidan v Mendoza, this power that section 3 of the act gives judges allows judges to modify the meaning of legislation that affects their judgement, so long as it does not conflict with the purpose of legislation. Section 4 of the act makes it quite clear that judges can only declare legislation as incompatible with this act, if they cannot find a way to interpret legislation in such a way that it is in line with the act whilst simultaneously fulfilling the purpose of the incompatible act. So the Human Rights Act is clearly not the reason for scenarios such as rapists getting out of jail early, etc.


Furthermore, as Tom Bingham said in his article about this act (which was published shortly before his death in 2010), it would take us back to a time, where individuals had to pay £30,000 (this pre HRA 1998 figure could very well have increased with inflation) in order to make sure that the outcome of their case was the result of judgement that was in line with the European Convention on Human Rights. So repealing the Human Rights Act 1998 would mean that the poorest people in our society would be less likely to be able to ensure that the judgements of their cases were in line with the convention.


As you can imagine, I was relieved when the coalition with the Liberal Democrats stopped the Conservatives from repealing the act. But it seems that the grounds for my relief had weak foundations because limiting the power of the ECtHR is inherently worse. 


The whole reason why the convention was drawn up was to limit the likelihood of dictators like Hitler from being able to being able to have such power in the future. So naturally the ECtHR was set up to make sure that countries, who signed the convention, adhered to the rights enshrined in the convention.


Kenneth Clarke might claim that this has led to a culture of people claiming compensation on the grounds that "something has been done to your dog" but I'd love to know which case he's referring to when he says this, because it sounds an awful lot like the rumour started by Theresa May that an illegal immigrant couldn't be deported because he had a pet cat in the UK. I find it hard to believe that someone would spend so much money on taking a case to the ECtHR because something had been done to their dog.


Moreover amongst issues that he defines as "minor compensation claims", he includes the issue of people challenging the blanket ban on full time prisoners being able to vote. The notion of this issue not being worthy of scrutiny from the ECtHR disgusts me. The right to fair representation is something that many people such as Emeline Pankhurst have suffered for. What's more, many people such as those currently holding protests in Russia are an example of how many people still suffer for the right to fair representation. Indeed countries of the European Union criticise countries like Russia for not holding fair elections, so how can Clarke then describe the right to representation as a right which is merely used to claim compensation? In general, if we start saying that it's more important for the ECtHR to uphold some rights in comparison to others, then that is to say that some of the suffering, which people endured under the Nazis, other dictatorships, and so on, is less meaningful.


Furthermore, what one might define as a "major issue" is subjective to the person. For example, (I don't want to focus too much on the right to fair representation) nowadays the good majority of us would think it cruel to deny women the right to vote but I'm sure that at the time of the protests by suffragettes many people thought that the suffragettes were just campaigning about the "minor" issue of women not being able to vote, so I think we can conclude that there are a lot of serious issues regarding human rights, which could potentially be defined as "minor". We could therefore destroy the efficiency of the convention, if we categorised some alleged breaches of the convention as "minor compensation claims".


It naturally suits a country's government to say that ECtHR to focus on what they deem to be "major issues" because it means that they don't have to pay so much in compensation to victims of human rights abuse and it gives them a better image because there'll be less cases in the newspaper of the ECtHR saying that a right enshrined in the convention was breached. But if we change the role of the ECtHR so that a country's laws/legal system are less open to foreign scrutiny then we would be destroying the purpose of the establishment of the court, which was to make sure that the courts and laws did comply with the convention.