Why the FCO are wrong

Why is it always on the busiest days that really complicated things crop up?

The Foreign Office sent this “rebuttal” round the lobby journalists today. We will quote it in full then respond below.

What they say

From: xxxxx.xxxx@fco.gov.uk
Sent: 13 December 2007
To: xxxxx.xxxx@fco.gov.uk
Subject: note to Lobby from FCO Press Office - Reform Treaty and immigration

• The Charter of Fundamental Rights will not change the rights of asylum seekers or refugees to take their cases to the European Court of Justice (in Luxembourg, not Strasbourg). They only have existing rights where we have already opted in to EU law. Last year only ten cases were referred to the ECJ from UK courts.

• The Treaty will allow courts to make references for preliminary rulings to the European Court of Justice in cases concerning EU law on asylum. Currently such references can only be made by the House of Lords. References are about points of EU law - for example interpretation of EU rules. It does not mean the ECJ deciding whether people should stay or go. That will always be for national courts.

• And clarifying points of law with the ECJ quickly is strongly in the UK interest. It means we can decide on cases, and deal with the asylum seeker faster than if we wait for the case to get to the House of Lords, and then the ECJ, as happens now. So this should speed up the processing of asylum claims - without extending the ECJ's powers.

• This is only relevant to the UK in relation to EU measures we have opted into. Where we do not opt in to a measure, ECJ jurisdiction will not apply. And we have preserved an across-the-board right to choose whether or not to opt in. We can already choose not to participate in EU asylum proposals, and we will keep that right to choose under the Treaty. However, all Member States agree that working together improves our asylum systems. European co-operation can substantially help to stop the problems of "asylum shopping".

• There were quotes in one of today's papers from "EU Treaty Rules" (sic - in fact articles from the Charter of Fundamental Rights). These merely cite existing rights which, in some cases, the UK has been committed to since well before its EU membership (e.g. the Geneva Convention of 1951 and the New York Protocol of 1967). It is therefore not true to suggest that these provisions provide any new rights or competences for the EU.

• What is more, the UK protocol to the Charter puts beyond doubt that it cannot be used, either in the European Court or the UK national courts, to create any greater rights than already exist in UK or EU law or to strike down any UK laws.

xxxxx xxxx
Head of Europe Team and Press Officer for the Minister for Europe
Press Office
Foreign and Commonwealth Office

What we say

This is a typical FCO attempt to throw up a load of dust to distract from the significant changes that are being proposed here.

Basically there are two very significant things re migration and asylum in the revived Constitution.

1) The fact that the ECJ gets full jurisdiction over third pillar issues for all member states (previously it was optional and the UK chose not to give the Court these powers).

2) Various rights set out in the Charter which might make a difference in asylum / immigration cases.

Regarding the first point, what is is particularly hypocritical is that the Government themselves raised several of the same concerns they are now trying to rebut back when they were still opposed to these proposals.

In terms of the expanded jurisdiction of the Court, they were concerned that it would lead to a lot more requests for rulings, which (given that the ECJ takes 20.4 months on average to respond) could really gum up the system.

At the end of last year when the same proposal was mooted (via the use of the passerelle) Peter Hain said: “There is clearly a risk that adding what is in effect an avenue of appeal at a very early stage in the process might be an opportunity of further complicating our existing asylum and immigration processes.”

In a letter dated 12 December 2006 the minister responsible (Joan Ryan) said that the Government "recognises the difficulties in accurately estimating the potential numbers of cases that could be involved, especially because new Community laws under Title IV will only come into effect over the next year".

The Government also argued that "the Government is concerned that allowing all courts to refer cases for preliminary rulings could have an adverse impact on the speed of decision-making at the ECJ [NB the exact opposite of what they are now saying] and consequently on the length of time it takes to resolve domestic cases. Implementation of the proposal as it stands could result in significant numbers of referrals from lower courts. We recognise that even a relatively modest increase in referrals in each Member State could create large backlogs of cases at the ECJ and consequential delays in domestic decision-making, especially if similar domestic cases were stayed pending an ECJ preliminary ruling."

In other words, as well the individual cases being thrown up to the ECJ, these would affect other people's cases if they touched on similar points of law. Meanwhile people will be waiting on benefits, unable to work, or even in custody.

In fairness to the Government they did try to amend the Constitution to answer these concerns, but they were not successful. Hain pointed out that "The United Kingdom is concerned that there would be a much greater number of preliminary rulings in asylum and immigration cases in particular, which the Court of Justice is not equipped to manage, if it was open to any court or tribunal to refer a case."

Regarding the Charter, the Government make two points. Firstly they say it "merely cites existing rights" and secondly they say that the UK protocol means that it will not be used by the Court "to create any greater rights than already exist in UK or EU law."

On the first point, the Charter clearly does not just cite existing rights. The UK Government would not have been trying to stop it from getting legal force for the last seven years if it didn't change anything.

A quick look at the text of explanations (drawn up at the insistence of the UK by the Praesidium of the European Convention) makes it clear that these rights are not just copies of those found in other agreements. Even where there is overlap, the rights in the Charter are often wider, and we are only likely to discover how much wider after a series of court cases.

Take just one example at random - Article 19.2 of the Charter: "No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment."

Now that all sounds fair enough - though of course it is just stating the core problem in the difficult business of deciding asylum cases.

According to the text of explanations it is not just a copy of an existing UK agreement but instead "incorporates the relevant case law from the European Court of Human Rights regarding article 3 of the ECHR". To what extent it widens or could be used to widen that case law is one for the lawyers of the future.

But it is certainly not just "copying" an existing text to which the UK is a signatory. Actually the original article 3 ECHR just says "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." There is nothing there, for example, about not deporting people to a country with the death penalty.

The problem is that trying to "consolidate" case law into a few words of primary legislation or treaty law can easily then lead to further rounds of case law "building on" the consolidated, paraphrased text.

The point about the UK protocol is just question begging: The Court should not use it to create "greater rights than in UK" or EU law. (our underlining). But the whole point is that it will be up to the ECJ to decide what rights "exist" in UK or EU law.

Remember that this is a court which has a well established track record of "discovering" new rights and powers for the EU. For example the "rights" which allowed Learco Chindamo to stay in the UK were based on the free movement directive, but this was itself based on a series of rulings from the ECJ.

Some would say, well, we can trust the Court to behave sensibly. But can we? Remember this is the Court which "discovered" that the Commission's has the power to propose some criminal laws by majority vote, despite the opposition of 18 member states.

In the end handing over powers to the Court over these controversial areas raises the problem that if you don’t like what it decides there is no comeback. There are good reasons why the UK and other member states did not agree to do this in the Maastricht treaty, and there are good reasons not to do it now.