In the Brexit campaign leading up to the June 2016 referendum, not much reference was made by Remainers to the European Courts. Neither the European Court of Justice (ECJ) nor the European Court of Human Rights figured much in pre-referendum debate.
The courts were certainly not sold by Remainers as a significant advantage implicit in EU membership. Irritation with those courts did, however, run in the background to the “John Bull is done with being dictated to by Europe” side of the argument. If you scratch many Brexiteers, you find that the notion of a European judicial institution having primacy over UK equivalents unacceptable to them. British law, and the courts enforcing it, has a sacramental significance to older Tory voters.
The agreement hammered out last week addressed, inter alia, the rights of the 1m British citizens currently living within the EU and the rights of 3m EU citizens living in the UK, setting out to protect both. Michael Gove, in Saturday’s Daily Telegraph, worked hard to diminish any perception his readers might have about the importance the European Court of Justice would actually have, as Brexit happens over the next decade.
“On this issue,” he wrote, “the UK and EU are protecting each other’s interests by accepting that EU citizens, who feel their rights have been infringed, can bring their case to a court in the UK where it will be for British judges to decide the answer, having regard to EU law. Should our judges feel the case law is unclear, they may apply for a ruling from the ECJ. But it will be a voluntary process, with British judges making the decision to make a referral. And, in any case, the ECJ’s role will end after eight years. The Prime Minister has secured her explicit goal to end the jurisdiction of foreign courts and restore the supremacy of our laws.”
He was specific on the power this would restore to British courts when it comes to immigration. The UK will not be “fettered” by EU law on this.
“We will,” Gove stated, “be strengthening our democracy by giving control of our country back to its citizens.”
It would be fair to interpret his column as portraying the European judicial institutions as constraining and damaging UK freedoms and as serving, not as safety nets, but as handcuffs. Which is not how a former MP and Cabinet member portrays them.
Before she got into politics, Harriet Harman was legal officer with the National Council for Civil Liberties (NCCL), where her work included taking up the case of distruptive prisoners. The Home Office at the time decided that unruly inmates of Her Majesty’s prisons were not sufficiently deterred from their violent ways by a month in solitary, and put in place an experiment which would see such prisoners confined on their own for up to six months.
That was in the unenlightened late 20th century. In the marginally more enlightened 21st century, we know that solitary confinement for more than a couple of days can deliver lasting destruction to the prisoner’s mental and emotional capacities. Even back then, however, it was pretty clear that such draconian measures were counter- productive and cruel. Prison medical officers expressed concerns to the Home Office about the dangers to their charges. Prison chaplains protested. The Labour home secretary at the time asked for assurances that the new experiment was not going to be inhumane. The NCCL took a case to the High Court on behalf of the prisoners, and, as a consequence, had discovery on documentation related to it.
A Guardian journalist contacted NCCL to ask if they had the documentation and if so, could he have sight of it, because material had been read out so quickly in court, accurate lengthy note-taking might have been difficult. Harman agreed, but “was emphatic that he should see only the parts of the documents which had been read out in court. My view was that these were in the public domain and so it wouldn’t be a breach of the discovery rules to show them to him.” They were enough to provide the paper with a “devastating” two-pager on what had been going on in the prison areas known as Control Units.
Even though all this material had already been read out in court and so could have been reported on, all hell broke loose. The Home Office was livid. The Attorney General launched a case against Harman for contempt of court. Even the body from which she might have expected support failed her:
“The Law Society, of which I was a member and which should have defended me, cravenly took the government’s side and embarked on disciplinary proceedings against me to take away my practicing certificate,” she said.
A friend bluntly told her that the courts, faced with a choice between the Home Office and her, would choose the Home Office. He was correct, not least because NCCL in Britain had annoyed the powers that be by raising questions about internment in the North and by setting up an independent commission of inquiry into Bloody Sunday, which — rightly — kicked holes in the official (Widgery) inquiry.
The young lawyer was, understandably, terrified. Yet when the government’s lawyers pitched up a few days before the case was due to go to court, offering to drop the case if she admitted, in public, that she had done wrong and apologised for it, she refused, on the basis that she was in the right. Accordingly, the case was heard in the High Court, which gave a guilty verdict. Her organisation appealed the verdict, and three months later, the appeal was heard by Alfred Denning. Denning’s judgement was that the use of the documents was “highly detrimental to the good ordering of our society… the danger of disclosure is that critics — of one political colour or another — will seize on this confidential information in order to seek changes in government policy, or to condemn it. So the machinery of government will be hampered or even thwarted.”
The judgement, read today, has an oddly archaic ring to it, with its presumption that the use of the courts as a last resort against a government perceived to be repressive, is anti-democratic.
The NCCL appealed again, this time to the House of Lords Judicial Committee, which ruled in favour of the Home Office. The last resort was the European Court of Human Rights in Strasbourg. It took four years to rule — in a common sense way — that Harman couldn’t have breached confidentiality, “because, having been read out in court, the documents were already in the public domain.”
Harmon was just one of many EU citizens in the UK and in Ireland who has depended on one of the EU courts to over-rule national courts taking a narrow and system-protective view of their issues. Michael Gove may be happy to see an end to UK subservience to these judicial institutions, but the damage to the freedom of the individual so cherished by Britons may well be the worst longterm outcome of Brexit.