Wednesday, December 23, 2015

A stunningly unclear judgement from the European Court of Justice

A regular commentator on this blog posted recently that

  "the best thing going for the leave campaign is the weakness of arugument being put forward by the remain campaign. Also. the greatest asset of the remain campaign are UKIP, Leave.EU and Vote Leave Ltd."

There are some honourable exceptions on both sides, and I hope none of my friends who are campaigning on either side are offended by this comment because they are all numbered among those exceptions, but I do think Jim has a point.

And probably the second best thing going for each side - certainly one of those which I as someone who has not decided which way to jump find most irritating - concerns the two systems of European justice, one of which IS part of the European Union, while the other IS NOT part of the EU.

Both the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) have been known to make decisions which many British people, including me, seriously disagree with. Admittedly both also sometimes get things right, and that isn't usually given nearly as much attention in the British Press as the daft decisions get.

I will admit to getting cross when I hear ignorant or disingenuous BREXIT supporters - quite often people who really should know better such as UKIP MEPs or parliamentary candidates - arguing for Britain to leave the EU on the basis of the latest daft decision by the European Court of Human Rights, which is nothing whatsoever to do with the EU. (It was set up by the Council of Europe, a different body.)

However the European Court of Justice, which IS part of the EU, has also made daft decisions, which can quite legitimately be quoted as part of an argument for reform or exit, and today's unbelievably unhelpful ruling by the ECJ on whether Scotland can impose minimum drinks prices was a case in point.

The ruling was promptly welcomed by both sides, both of whom appeared to think (or pretended to think) that the ECJ was supporting them. They cannot both be right.

The Scottish Parliament passed legislation in May 2012 to bring in a minimum alcohol price of 50p per unit. This was challenged by the Scottish Whiskey Association, which argued the Scottish government's legislation breached European law.

The European court ruling said: "The Court of Justice considers that the effect of the Scottish legislation is significantly to restrict the market, and this might be avoided by the introduction of a tax measure designed to increase the price of alcohol instead of a measure imposing a minimum price per unit of alcohol."

It added: "The court states that it is ultimately for the national court to determine whether measures other than that provided for by the Scottish legislation, such as increased taxation on alcoholic drinks, are capable of protecting human life and health as effectively as the current legislation, while being less restrictive of trade in those products within the EU."

Reacting to the judgement, the SNP first minister has tweeted that her side won because the ECJ opinion does not directly instruct the Scottish courts that they have to strike down the legislation.

David Frost, SWA chief executive, said: "The court has confirmed that minimum unit pricing is a restriction on trade, and that it is illegal to choose MUP [minimum unit pricing] where there are less restrictive ways of achieving the same end."

The issue now goes back to the Scottish Court of Session in Edinburgh who will have to decide whether there are, or are not, less restrictive ways of curbing alcohol abuse.

Professor Adam Tomkins who is Professor of Constitutional Law at Glasgow and the lead candidate for his region on one of the slates of excellent candidates which the Scottish Conservatives will be standing next year in elections to the Scottish parliament, tweeted that

Writing as an economist, I accept that lawyers and courts are qualified to tell us what the law says but am far from convinced that they are the best qualified people to make a decision on the effectiveness of competing policies to reduce alcoholism or on how restrictive they are. The one thing which is absolutely clear about this judgement is that it bounces the decision back to the Scottish courts with sufficient ambiguity that both sides can claim victory and it seems plausible to argue that the Scottish Court of Session could go either way.

Which makes the entire exercise of referring the matter to the ECJ look like a preposterous waste of both time and money raised from Scottish, British and European taxpayers and whiskey drinkers.

This is not a good advert for the EU. If Britain remains a member I believe we need to work for reform of the ECJ.


Jim said...

You are right that so long as we are a member of the EU (full on or associate member) we will fall under the jurisdiction of the ECJ. The EU is, by its very nature, a supranational organisation, not one based on intergovernmental cooperation.

More simply, EU law trumps a member states law, or even more simply we are subordinate to the EU, and always will be for so long as we remain a member state.

Trying to reform that is like going to the fishing club and trying to ban fishing. Its a bit like going to endless classes night after night to train your cat to bark.

And Yes, its one that I find particularly irksome, that is MEPs and MP's who refer to the ECtHR as part of the EU. Of course, as you rightly point out its not. Its second only, on my pet hate list, to MPs, MEPs, and Lords who insist on referring the EU as "Europe".

Jim said...

3rd on my list are those "leavers" who insist on referring to things like The EU SSR, or typing things like "Love Europe Hate the EU".

This sort of thing is neither big nor clever, and it certainly won't influence the minds of swing voters. What the leave campaigns should be doing is promoting the case for brexit, and showing how we can proceed safely into the global market place, as an independent nation, and why this option is attractive.

I just wish they would stop bellowing about how much they hate the EU, personally i think its just silly. I do firmly believe that the UK is better off not being a member state, but even as firm supporter of Brexit I don't hate the EU. I just want to leave it.

I don't hate the boy scouts either, but I once left that organisation as well.