The European courts have been causing controversy (again). Judgements handed down in Brussels and Strasbourg have left conservatives (small “c”) aghast and Liberals (big and small “L”) defending the rights-based approach. But scratch beneath the surface and, often, it’s not the rights that objectors object to. The problem is that, so often, the rights awarded in Europe aren’t what we were led to expect when those rights were introduced.
Thirty years ago, I had cause to follow the progress through the European Courts of a dispute between Lloyds Bank and two of its employees, Susan Worringham and Margaret Humphreys. These two ladies sought to establish equality of pension rights and benefits under European law. Not a problem, you might think. Anyone familiar with pensions law and practice might expect that the court gave them a resounding yes, because gender equality is, indeed, an EU requirement.
But the 1981 Court ducked the wider issue and ruled solely on the specifics of the Lloyds bank scheme and the inequality endured by these employees. Several more cases followed in which the equality rights were extended in piecemeal fashion. It was fully ten years before the European Court decided (in the well-known Barber case) that the Treaty of Rome had always required pensions equality.
But the court ruled that equality was enforceable only with future effect. If an English court were asked to interpret an English statute, the interpretation would apply from the effective date of the statute. An English court would not normally say: “In future, the legislation means …” But that is what the European courts so often do. The effect is a judge-led change in the law.
Lawyers may well disagree. They will say the court didn’t introduce new law. It merely interpreted existing law. But the practical reality is that the court granted rights of enforcement that didn’t previously exist. To the ordinary person, a law that cannot be enforced is not a law. Viewed in those terms, the court created new law.
Witness, too, the recent Test-Achats case which decided that gender discrimination in insurance contracts were contrary to the fundamentals of the European Union Treaty. But only with effect from 21 December 2012. (The judgement is an extraordinarily tortuous piece of logic. It has to be in order to arrive at the conclusion, because there is a specific EU Directive which exempts insurance premiums from gender equality if the differences are based on actuarial and statistical considerations. So the court found a way to rule that the Directive was invalid … but only from a date 22 months into the future.)
The European Convention on Human Rights came into being in 1951, inspired by Winston Churchill and his contemporaries, and is, as we are often reminded, quite separate from the European Union. But the court has the same European tendency to reinvent long-established principles in a manner which is often wholly unexpected.
And yet the introduction to the Convention refers to “fundamental freedoms which are … best maintained … by an effective political democracy and … a common understanding and observance of the human rights” [emphasis added].
Who among the signatories in the 1950s would have imagined that their commitment to “hold free elections at reasonable intervals by secret ballot” would later be construed as a right to allow prisoners – but only some of them – to vote at those elections? What has happened in the intervening years to make this a human right when it so plainly wasn’t understood to be one sixty years ago?
There are powerful arguments which can be developed in favour of votes for prisoners and arguments, too, for equality in pensions and insurance. But they are arguments of politics and policy. In the UK, we expect to vote on such matters.
And we expect to have the right to vote on them.