Judges and mainstream politicians profess to love the concept of the separation of powers. It is a cornerstone of democracy and was famously advocated by the great liberal thinker Montesquieu.
It was in honour of this principle that in 2010, the House of Lords, which for hundreds of years was our highest court of appeal was stripped of its judicial function and a new Supreme Court of the UK was established. Of course, this measure has little practical effect but so important is the separation of powers principle that we must make even symbolic moves to achieve it.
Yet one Court which has supremacy over our new so-called “Supreme” Court is the European Court of Justice (ECJ) . In the infamous case of Van Gend en Loos in 1963 the ECJ asserted that the EC Treaty created a ‘new legal order of international law for the benefit of which the states have limited their sovereign rights’. This means that, as the ECJ sees it, member states have collectively surrendered a portion of their sovereignty into a new legal entity.
There was certainly no legal precedent for the decision in Van Gend en Loos. The judges merely decided that a new European legal system should be created and they would be the ones to establish it. The case itself concerned a very obscure element of trade law so, at the time, nobody realised its full ramifications.
Of course, the ECJ is not the only “European court” which has been detrimental for British and European democracy, there is also its cousin, the European Court of Human Rights in Strasbourg. Most people now realise this in light of their many recent judgements which defy common sense, such as, the ruling that prisoners cannot be denied the right to vote.
But, what most people don’t know is that the European Court of Human Rights has a very specific agenda to promote.
The legal academic Francois Du Bois has explained that one of the reasons that English law has struggled so much to adapt to human rights law is that the European Court of Human Rights is based on a theory called “distributive justice”. The theory of distributive justice means that the Court should do what it think is right to achieve a ‘socially just’ result. This gives the court a very wide discretion about how the case should be decided and takes factors into account such as the parties’ positions in society or wealth.
The European Courts have no respect for the separation of powers and are unquestionably political institutions pushing their own agendas. For the ECJ, it is one of European integration and for the European Court of Human Rights it’s the distributive justice of John Rawls. Sadly, complex legal arguments and jargon are being used to blind the peoples of Europe from reality, but it is a reality more and more people are beginning to be able to see.
Julien Conway is Director of UKIP Friends of Israel