Tory Brexiters should be careful what they wish for. They seem to have regard for neither the Conservative past nor the country’s future. Several aspects of the UK government’s positions on BREXIT are either quixotic or dishonest. First amongst them is the quest to leave the jurisdiction of the European court.
Actually there is more than one European court. But for political effect they are frequently conflated or confused. Which one is supposed to be most objectionable to a true patriot is unclear. Is it the Court of Justice in Luxembourg which adjudicates on the correct reading and implementation of EU laws and treaties by national governments, or is it the European Court of Human Rights (ECHR) in Strasbourg overseen by the Council of Europe, not the EU, that rules on alleged infringements of the human rights of citizens in member states?
The Court of Justice gives judgments on disputes about the EU regulation of a wide range of matters reflecting the wide areas regulated by EU member States: customs duties, fisheries and so on. The idea that Britain can leave the EU to emerge into a strong and beneficial relationship with its European partners outside the existing regulatory system and the supranational jurisdiction of the EU, its standards and its Courts, is frankly nonsense. Even after the BREXIT referendum the UK expressed its intention of joining a new Unified Patent Court being set up under the jurisdiction of the EU Court of Justice. Transnational space in Europe has too many vital things going on in it not to require transnational legal bodies enabling common standards and practices to prevail. In the real world, Britain cannot vacate this space and prosper.
The origins of the European courts hold surprises. The Court of Justice and the Strasbourg ECHR were set up in the early 1950s at a time of profound distrust of totalitarian regimes and their disregard for civil liberties. Winston Churchill broadcast a call for European unity in a speech at the University of Zurich on 19 September 1946: “If Europe were once united in the sharing of its common inheritance” he declared in a romantic vision, “there would be no limit to the happiness, to the prosperity, and glory which its three or four hundred million people would enjoy”. Churchill’s fear that the Atlee government would impose its state-heavy socialism on the citizens of Britain lay beneath his promotion of a noble inheritance like an unwanted ice cube in his whisky. Churchill saw a European supranational juridical body as a necessary protection of civil liberties because it would defend “fundamental personal rights” as the lynchpin of “European democratic civilization”.
Marco Duranti sheds much light on this post-war period in his The Conservative Human Rights Revolution Oxford University Press, 2017. He analyses the European ideological mix, both NGO and governmental, that led to the creation of the Council of Europe, the writing and adoption of European Convention on Human Rights and the establishing of the ECHR that enforced it. Calling this process a revolution is no exaggeration. It was the first time individuals and groups could petition for their human rights in a supranational court. The rights in the European Code were individual rights or civil liberties. There was no mention of social rights beyond the right of parental choice in education – thanks to a strong Catholic lobby. In comparison, the UN’s – more extensive and global - rights regime had no such body to legally ensure compliance. The establishment of the ECHR was an extraordinary achievement. Here was a firewall against the state over-reaching itself, creating an imagined Europe defining itself in distinction to the Soviet Union and its satellites. Socialist Parties worried it would impede the state’s economic planning and their domestic agendas. To understand what people see as desirable transnationally, always factor in domestic circumstance and historical experience
So why are a clique of right-wing conservatives so desperate to turn the clock back demanding that we “take back control of our laws”? Clearly not back to 1950s and Churchill. Could it be that the European Research Group simply wish for elites to have greater freedom to accumulate wealth and privilege? I cannot believe that Mr. Gove enjoys being referred, with five other European states, to the Court of Justice by the European Commission for the UK government’s dilatory approach to air pollution. Effective action would reduce company profits. The Court of Justice fined Google $2.4 billion for abuse of its position as the world’s dominant search-engine. It has the power to do so. Alone, we don’t.
The mass media’s refrain is “unaccountable bureaucrats” reveling in petty regulation. But who was being petty when UK prisoners got back the vote? I recently bought a new freezer. It was the same overall size but much smaller inside; stuff had to be chucked out or defrosted and eaten. The helpful installer told me this was “all down to the EU”. It sounded petty. But he explained why: they had ruled that insulation had to be much thicker to preserve energy and a shield was required at the back to stop fires.
Will control taken back by an extreme right-wing government increase national investment in curbing air pollution, or deter the great cyber-corporations behaving more or less as they like, or come to that , result in better insulated freezers to save energy and avoid fires? Yes, we have a distinguished Supreme Court but, observing the USA, will ours always remain as un-politicised as today? Is upholding what the French Catholic Europeanists in the 1950s called “the rights of persons and communities”, not least those of workers, safe in the hands of BREXIT extremists?
Many rashly assume so. But, like Churchill, however unfairly distrustful of political opponents, I think it is wise to hedge our bets. We need the safety valve of the European courts and the values that they try to reflect in their judgements. Yes, Conservatism has come a long way since the Eurocentric 1950s. But where is it going?