UK LAWYERS have condemned the UK Government for attempting to curb the powers of the European Court of Justice, saying the move is
ambitious and fraught with difficulties.
They say plans by the Foreign Office to demand a restriction of the court's right to dictate domestic law run contrary to the ethos of the Treaty of Rome.
Chair of the Employment Lawyers Association, Baker & McKenzie partner Fraser Younson, said that the Government's proposal was “akin to saying you want the benefits of the European Community but none of the burdens”.
“The UK's proposal to limit the powers of the ECJ seems to strike at one of the principal planks of the Treaty of Rome,” he said. “It's almost suggesting that the European Court's decisions on community-wide directives should not be applicable in the UK.”
The Government plans to voice its demands at next year's inter-governmental conference on the revision of the Maastricht Treaty on European Union. It wants to halt Luxembourg's power to dictate UK domestic law, such as the recent high-profile part-time worker or pension rights cases.
“The Government's approach, while interesting, is fraught with difficulty,” said a Bar spokesman. “Every lawyer knows that there is an ever-widening body of statutory and precedential European case law which is being actively interpreted trans-nationally. To unpick all that would be ambitious to say the least.”
Patrick Oliver, Brussels representative of the Law Societies, said he would be surprised if the proposal was acceptable to other member States. “It would not be acceptable to have the ECJ subject to political interference,” said Oliver. “Each community institution should respect the functions of the others.
“It is up to the European legislature to legislate and it is up to the ECJ to adjudicate and uphold the rule of law without political meddling.”
Dibb Lupton Broomhead partner Paul Nicholls referred to a 1974 quote from Lord Denning: “The treaty is like an increasing tide. It flows into the estuaries and up the rivers. It cannot be held back.”
“Lord Denning was right,” said Nicholls. “The Government's response is in the finest traditions of King Canute.
“To stop the increasing tide it's not just European judges that would need curtailing, it's also our judges because they're interpreting European law.
“The only way of achieving this is a change in the treaty, which seems unlikely.”