Michael Gove claimed last week that if the UK stays in the EU it will be a “hostage” at the mercy of “EU bosses and bureaucrats”. Vote Leave’s campaign chief is particularly angry with the Charter of Fundamental Rights set out in the EU’s Lisbon Treaty and the way the European Court of Justice (ECJ) is allegedly using it to grab more power from Britain.
But Gove is wrong on the basic principles and misleading about their application to the UK. He made no fewer than six inaccurate statements.
“The ECJ has now informed us that our opt-out [to the Charter of Fundamental Rights] was worthless”
There was never an opt-out. The UK secured a declaration to the EU’s treaty making it clear that the Charter is part of EU law, and that it does not “extend” the court’s ability to find British laws inconsistent with fundamental human rights. In other words, it didn’t change the previous status quo. Tony Blair did describe this declaration as an opt-out, but in reality it never constituted one. It would be fair for Gove to criticise Blair for this. But Gove’s criticism of the ECJ is misplaced – this is not evidence of an ECJ power grab.
“The ECJ can now control how all member states apply the crucial 1951 UN convention on asylum and refugees”
Far from “losing control”, as Gove says, the UK has, using its prerogatives under the Lisbon Treaty, chosen to opt into some, though not all, EU asylum legislation. Gove is right that EU asylum law must, under the EU Treaties, comply with the UN convention. But national governments and courts decide how to apply the rules to any particular case. The UK is directly bound by the UN convention, and would remain bound even after Brexit – the UK’s own courts would be likely to continue to follow ECJ case-law.
“It can determine how our intelligence services monitor suspected terrorists”
The ECJ judgment to which Gove refers, known as Digital Rights Ireland, did not concern a UK law about powers to monitor suspected terrorists. Rather, the ECJ struck down an EU directive requiring service providers to retain telecommunications data. The ECJ would not be able to make judgements on how intelligence agencies operate, for example under the “Five Eyes” agreement mentioned by Gove, since national security falls outside the EU’s power.
Gove also cites a related UK case where MPs David Davis and Tom Watson sought to overturn the UK’s own surveillance law, the Data Retention and Investigatory Powers Act 2014. UK courts have referred that issue to the ECJ. While the ECJ’s final verdict will not be known until after the referendum, in the meantime the UK Court of Appeal has noted “it is … common ground that EU law has not harmonised the law on access to communications data by the police or intelligence services”, as this would fall outside the scope of EU law. We give the Court of Appeal’s view more weight than that of Gove.
“The European Court … will decide the issue of whether convicted felons can vote and if so how far this right should be extended”
The European Court of Human Rights – which is not part of the EU – has said that Britain’s current blanket ban on prisoners voting in general elections is contrary to the European Convention on Human Rights. But this is a separate institution irrelevant to the referendum.
The case Gove cites in a footnote refers to the ECJ, which is an EU institution. The ECJ held that the ability to vote in European Parliament elections was a matter of EU law, but upheld the French legislation that precluded a prisoner from doing so. It made no claim to have jurisdiction over rights to vote in national elections, which are clearly outside the scope of EU law.
“The European Court will decide whether we can deport Abu Hamza’s daughter-in-law”
There is as yet no judgment in this case, but the Advocate General’s opinion considers that there are public security grounds for deporting this person and suggests that it is up to the UK court to determine the issue.
The Court “has even used the Charter to increase the price of insurance for women”
That is tendentious: the case could equally well be characterised as reducing the price of car insurance for men. In reality, the ECJ struck down an EU Directive for violating the principle of gender equality.
Gove imagines himself to be a knight in shining armour leading the UK to a “liberating” moment of “patriotic renewal”. But, like Don Quixote, his mind has been addled by reading too much fantasy: in reality he is tilting at windmills.
George Peretz is a QC specialising in EU and public law. Andrew Renshaw is a lawyer and partner at Freshfields specialising in antitrust, competition and trade law.