“The constitutional significance of this decision can hardly be overstated”


         The ever vigilant Bill Cash MP raised the issue of Mr Justice Mostyn’s remarks in the Commons this  evening, as captured in the headline to this item. I supported him and added to his Point of Order.

          In  a case where the UK government won, the Judge said that a Luxembourg court judgement had overturned the Protocol to the Lisbon Treaty designed to  mean European Charter Rights are not enforceable in the UK unless they are put into UK Statute law by Parliament.  The Judge argued that the Charter is now fully operational in the UK, whatever the will of Parliament and Statute law says.

          We are pressing  for  government and Parliament to make clear we do not accept this challenge to UK Parliamentary and court authority. The Lisbon Treaty was sold to Parliament with this crucial protection which is now being undermined. As one who voted against Lisbon, we pressed at the time for the government to be even clearer in defending Parliament’s supremacy to define our human rights, and UK courts supremacy to settle these cases under Statute law. They assured us they had done so with the Protocol.


  1. me
    November 12, 2013

    “They assured us they had done so with the Protocol.”

    You believed them? That was your first mistake.

    Cameron is lying to you too.

  2. uanime5
    November 12, 2013

    How exactly did a judge overturn a protocol? I’m fairly certain that these judges don’t have the power to modify treaties.

    1. outsider
      November 13, 2013

      Dear uanime5, That was my reaction too so I did some google digging. It seems that this protocol was merely a sop. In effect, it was a clarification for the UK, Poland and the Czech republic that the Charter of Fundamental Rights was limited to EU-inspired laws. (The Czechs and Poles were worried that German civilians driven out of their countries after WW2 might be able to claim their confiscated homes back).
      The protocol was sold as an opt-out but was not. Exactly who was pulling the wool over whose eyes is something that should be investigated thoroughly, starting with Hansard at the time.
      If it could be shown with evidence that the British government of the time was deliberately misled, then I would have thought that gave a prima facie case to reopen our signing of the Lisbon Treaty, not that this or any currently available government would wish to do so.
      The ECJ made this judgment two years ago but neither parliamentarians nor Mr Justice Mostyn seem to have noticed until he brought it up in his judgment. So some people in the machinery of government must have known that it was a sop and not a serious opt-out.
      If there is any difference, it is that the protocol confirms that some of the newer indicative rights, such as “the right to work” cannot be enforced in law here. In practice, however, we know that the millions of frustrated jobless young people across the EU cannot enforce this right anywhere else either. If the right existed in practice, rather than just in theory, then all those troika-enforced austerity policies in Greece, Italy etc would be illegal under EU law.

  3. Richard1
    November 12, 2013

    People should be reminded that it was the Labour Govt which signed the Lisbon treaty and reneged on its referendum promise, and that the UK signatory, Gordon Brown’s principle henchmen were Ed Miliband and Ed Balls. No-one who doesn’t want eurofederalism shoilkd vote Labour.

  4. Tad Davison
    November 12, 2013

    And the pro-Europeans denounce we sceptics as swivel-eyed loons and fruitcakes!

    They just don’t get it. They just don’t see how dangerous and unaccountable the EU is. We are consistently being ridiculed for standing up to them. They call us ‘little Englanders’. In truth, we are for ethics and good governance, with representatives putting our case who are fully accountable to the British people who voted for them.

    This cannot be allowed to stand. It is far too important to let it ride, just as so much chicanery that has gone before it was allowed to go without concerted effort to stop it.

    Tad Davison


  5. alan jutson
    November 12, 2013

    I am not aware of the detail of which you speak, but suffice to say your comment about the EU once again taking presidence over our Parliament does not surprise me in the least.

    Good job someone is trying to look after our interests, but how come the majority (in Parliament) appear not to care.

    Yet another nail added to the coffin, the lid is slowly closing John.

    Do you think it will be shut tight before we get our promised referendum or so called re-negotiation ?

    Me thinks we will just simply have to walk away in the end.

  6. livelogic
    November 12, 2013

    Indeed this is very important – where does Cast Rubber Cameron stand on this issue no comment one assumes?

  7. John Wrake
    November 12, 2013

    “The Lisbon Treaty was sold to Parliament”. Too true and Parliament ignored that age-old stricture ‘Caveat emptor’.

    When will those who were elected to represent us and who have a duty to act in the interests of the British people begin to discharge that duty. If they are incapable of acting within the Constitution, for whatever reason, they should resign, or take such action as will return Parliament to the Rule of Law.

    This is just another case of the reduction of Parliament to an irrelevance by those who continue to remove our freedoms bit by bit, while honest Members protest ineffectually, constrained by the niceties of Parliamentary procedure.

    If someone is bent on your destruction, your concern with upholding a one-sided set of Rules of Engagement may massage a sense of self-righteousness, but it will not save you, nor will it save those for whom you bear responsibility.

    John Wrake

  8. Brian Tomkinson
    November 13, 2013

    Looks as though you were duped. You know that the EU and its minions amongst your colleagues will brook no opposition to the elimination of government by the nation state and its replacement by EU rule. Have you had the blinkers taken from your eyes at last? When are you going to take decisive action instead of playing along with Cameron’s mendacious and duplicitous EU renegotiation?

  9. Narrow shoulders
    November 13, 2013

    This truly was a shocking pronouncement from Mr Justice Mostyn. Please do all you can with your colleagues to bring this specific creep of EU interfence to the attention of the mainstream. The Evening Standard made editorial comment on it so you may have an ally.

    Please also keep us abreast of our government’s response to this creep. Will they just tell us we are overreacting and do not comrehend such small implications or will they take meaningful action?

    In this week of remembrance of those who fought for our liberty I do hope action is the response.

  10. Mark B
    November 13, 2013

    Unfortunately the ECJ have set a precedent and her before over ruled that the commission and national laws. There is very little that we can do about it.

    Only now is the power of the European union being felt. When you sign away as many powers as you have been, then this is what is going to happen.

    European union law take precedence over national law and judges in the ECJ can amend treaties.

  11. Acorn
    November 13, 2013

    According to Commissioner Reding: The European Union Charter of Fundamental Rights brings together in one single and coherent text all the rights that were conferred to EU citizens in several documents such as the founding Treaties of the European Union, national constitutions or constitutional traditions, the case law of the European Court of Justice and of the European Court of Human Rights.

    Since the entry into force of the Lisbon Treaty the Charter has become legally binding. All EU institutions and bodies must respect the rights enshrined in it. The same applies to all EU countries when they implement EU law.

    The European Convention for the Protection of Human Rights and Fundamental Freedoms is a fundamental document that has been signed and ratified by all members of the Council of Europe. One of the objectives of the Commission is to seek the European Union’s accession to the Convention in its own right. The European Union Agency for Fundamental Rights (FRA) provides EU institutions implementing European Union law with expertise on fundamental rights.

  12. John Wrake
    November 13, 2013

    Mr. Redwood,

    I left a comment on this post late on 12/11. Although it is now 11.10 on 13/11, my comment hasn’t appeared. No doubt you are busy and that is the cause.

    I hope that my comment will appear, as although it may be uncomfortable reading for some in Parliament, I believe it is on topic and needs consideration.

    John Wrake.

  13. Peter van Leeuwen
    November 13, 2013

    Let us take one example: “the right to strike”. If the UK can (after negotiation of a new relationship etc.) have a bill of rights in which this right to strike doesn’t feature, that would constitute an unfair competitive advantage, which I think should bar you from the Single Market. Otherwise said: also in a future environment in which no ECJ verdict could override UK law, I suggest that you’d be still forced to offer at least the same level of worker-rights. The Single Market requires a level playing field.

    1. Denis Cooper
      November 13, 2013

      Well, then, bar us from the Single Market if you like, and we will bar you from our market if that is how you want to play it; personally I couldn’t care less if I never eat another mouthful of Dutch cheese, I could certainly manage without that and in view of your attitude I think I’ll start on that now and make sure that I buy nothing from your country; in any case the economic importance of the Single Market is massively overplayed; even if it had increased GDP by the projected 5% that would only be equivalent to a couple of years natural economic growth at the long term trend rate, a pathetically small mess of pottage for which our politicians have sold our birthright.

      1. Brian Tomkinson
        November 14, 2013

        Well said, Denis.

      2. Peter van Leeuwen
        November 14, 2013

        @Denis Cooper: Why “my attitude”? I just discussed the issue of principle (the UK achieving a position of not being overruled anymore by the ECJ) and related it to the Single Market.
        I will certainly keep eating all kinds of British cheeses (pity they aren’t exported very successfully, I need to go to a specialist shop in, believe it or not, Gouda, to get my “Wensleydale with cranberries” adn for the “Stinking Bishop” I’d even have to travel to the Midlands. Pity that the English don’t make more effort in exporting such delicatessen. They could take a lesson or two from the Scotts (whisky)

    2. outsider
      November 13, 2013

      Dear Peter van Leeuwen: In a free country anyone can strike, unless one specifically signs away that possibility, as in the armed forces. The “right to strike” is really a protection for individuals and trade unions from being sued for breach of contract or business losses when one strikes. This was enshrined in the UK by the Trade Disputes Act 1906. So your teasing example is rather academic.

      1. Peter van Leeuwen
        November 14, 2013

        @outsider: I actually had no intent to tease this time round, and was surprised myself. Allow me to just copy it from the article from the Daily Mail yesterday:
        “The Charter, which contains a bewildering 54 new ‘rights’, including the right to strike, a ‘right to marry and found a family’, a ‘right to collective bargaining’ and a ‘right to fair working conditions’. It was attached to the EU’s Lisbon Treaty which was signed in 2007 and Tony Blair told MPs that it was ‘absolutely clear that we have an opt-out’.”

        Personally I didn’t see these rights as bewildering and assumed it was about a matter of principle (not to be overruled by the ECJ) and that is how I looked at the reported issue.

  14. Brian Tomkinson
    November 13, 2013

    We want nothing to do with laws, directives and rules imposed upon us from on high by an anti-democratic foreign organisation. We want freedom and self-governance for the UK not serfdom in the EU.

  15. Denis Cooper
    November 13, 2013

    Some rather desultory thoughts.

    1. There is no question of Parliament having been misled over this; when the Lisbon Treaty was being approved parliamentary committees warned that the opt-out from the EU Charter was unreliable, and especially that it was vulnerable to attack by the ECJ.

    MPs and peers knew that when they nonetheless voted to approve the treaty, and likewise Cameron knew it when he announced that he was going to swallow the treaty whole.

    2. It has been pointed out that the coalition government has already given in and quietly accepted that the EU Charter does apply to the UK, notwithstanding the opt-out protocol, as long ago as July 2010:


    “7. The reason we mention this point is that the Secretary of State no longer seeks to support that finding, as is clear from paragraph 8 of the respondent’s notice, which states:

    “8. Contrary to the Judge’s holding, the Secretary of State accepts, in principle, that fundamental rights set out in the Charter can be relied on as against the United Kingdom, and submits that the Judge erred in holding otherwise (judgment, paragraphs 155 and 157, first sentence). The purpose of the Charter Protocol is not to prevent the Charter from applying to the United Kingdom, but to explain its effect.”

    Mr Robertson QC, who appears for the EHRC, makes the point that, in the absence of something being said in this court, what Cranston J held in paragraph 155 may be cited in other cases. As my Lord, Laws LJ pointed out, another High Court judge is not obliged to follow what one of his colleagues has held, but comity and consistency normally represent strong arguments to support the contention that he should do so. Accordingly, it is only right that there is a record of the fact that Cranston J’s conclusion on this point is not supported by the respondent in whose favour it has been made.

    8. It is also right to mention that the respondent Secretary of State does not contend in relation to the exercising of her discretion under Article 3(2) of the Dublin regulation, that that exercise does not fall within the scope of the EU law and that the Charter does not accordingly apply to it. That point had been hotly contested by the interveners, Amnesty International and UNHCR and, EHRC, as well as by the appellant, and it is only right to record that that is the respondent’s position now.”

    3. I heard something about a case of this nature some time ago and when I google around I find this recent blog article:


    and at the bottom there are references to earlier blog articles, including this one from March 2011:

    “The EU Charter: are we in or out?”

    and that in turn refers to a House of Lords Select Committee Select Committee Report from February 2008, quoting this passage:

    “The Protocol is not an opt-out from the Charter. The Charter will apply in the UK, even if its interpretation may be affected by the terms of the Protocol.”

    4. In view of the preceding points, it seems doubtful that the government will seek to challenge this most recent judgement.

    5. The reaction from Madam Deputy Speaker to Bill Cash’s point of order is not very impressive, but maybe she was aware that the government has little stomach for this fight.

  16. Denis Cooper
    November 13, 2013

    And now it seems that something similar is about to happen:


    “The conclusion is troubling. The European Scrutiny Committee, of which I am a member, is critical of the process. The Government promised to inform Parliament of its intention in February but delayed until July. At that point there was much urgency which has hindered the efforts of the House of Commons to hold the Government to account. The claims made for the block opt-out and opt back in are exaggerated. Theresa May, the Home Secretary, says that the block opt-out is “first and foremost…about bringing powers home” and Chris Grayling, the Lord Chancellor, views it as “part of a process of bringing powers back to this country” yet many of the 94 measures that will be permanently opted out of are defunct or trivial while the 35 to be re-entered bring the full authority of the Court of Justice of the European Union, the Commission and the European Parliament to bear.”

    Is this any better than the way that the Labour government behaved?

    1. Brian Tomkinson
      November 14, 2013

      The answer to your question is ‘NO’.

  17. APL
    November 16, 2013

    Where are they now?: The firebrand ‘thorn in the side of the Tory leadership’ and leader of the vanguard of Tory eurosceptics.

    Was bought off by a ministerial post in the Cameron administration.

    From wiki.

    On 7 October 2013, as part of Prime Minister David Cameron’s Government reshuffle, Eustice was appointed Fisheries Minister. He said he wanted to “loosen the EU stranglehold on the British fishing industry.”

    Well, Eustace has said many thing but done little.

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