EU Constitution

Letter 10:
From http://www.timesonline.co.uk/tol/comment/letters/article1826278.ece

May 23, 2007

Sir, Bill Cash correctly points out that the European Court of Justice in Luxembourg (ECJ), not any national judicial body, would decide the legal status of the Charter of Fundamental Rights in the proposed European constitution (letter, May 21 ).

As well as the consequences for the status of national law and security that Mr Cash points out, serious confusion would result from the similarity between the charter and the already legally binding European Convention on Human Rights (ECHR). The ultimate judicial body for the ECHR is the European Court of Human Rights, based in Strasbourg, a quite distinct court from its Luxembourg counterpart. The incorporation of the ECHR into our domestic law via the Human Rights Act 1998 has already introduced uncertainty; adding a sister document to be interpreted by a different body would be a disaster.

It may be that the charter is expressed as a declaration, rather than as a binding legal document, but the ECJ has in the past been ready to assume powers not conferred explicitly by any legal provision, with far-reaching consequences. One example is the Francovich decision, in which the ECJ decided unilaterally that failure by national governments to implement EU directives gave rise to individual claims for compensation, which carried the potential for substantial claims in compensation.

Both Gordon Brown’s suggested written constitution and David Cameron’s proposed British Bill of rights would be likely to add to the confusion, rather than lessen it.