Tuesday, 10 February 2009

European corruption of law

One of the worst aspects of both the Human Rights Act and European law generally is that they encourage disreputable behaviour. Much European law consists of vague statements of principle that are concerned with ideals rather than practicalities and in doing so leaves scope for spurious claims by those keen to bask in the bright sunshine of victimhood or who see the chance to enrich themselves with an unearned buck. It might just be that I am too deeply immersed in the English common law to understand the European way of doing things, but I am not so immersed as to be unable to see a style of law that is more concerned with political gestures than with freely agreed individual relationships.

In The Times today my eye was caught by the report of a claim based on an EU political diktat. It is not so much the particular law that interested me, but the fact that the claim was made by a retired part-time judge. There are lots of part-time judges in this country. Some are practising or retired barristers and solicitors who sit for a few weeks each year for a fixed fee per day and some do it as their job. This particular case concerned a practising barrister who sat part-time until he reached the compulsory age at which part-time judges must retire, 65. When he was appointed there was no scheme for part-time judges to be paid a judicial pension, unlike full-time judges who are paid an annual salary and are entitled to a pension calculated by reference to the number of years they served. Despite there being no scheme in place when he was appointed, and despite there being no scheme in place when he retired, and despite there being no scheme in place now, his claim was that he was entitled to benefit from a principle of European law that part-time workers should have the same rights as full-time workers. Because full-time judges have a right to a pension, he argued, so he should have a judicial pension calculated according to the time he served as a part-time judge. For reasons I need not go into his claim failed on both procedural and substantive grounds (the full judgment is reported here).

What I find utterly astonishing is that such a claim would be made at all. This was not a poor downtrodden serf being forced to take on a thankless menial task for peanuts to avoid starvation and being treated like dirt by a manipulative employer. The man was a barrister with many years of successful practice behind him who applied for a part-time judicial post because he wanted to, in full knowledge that he was being offered a daily fee and not a bean more. As the Court of Appeal's judgment discloses, he is not the only one who has made such a claim. I could, perhaps, understand a test case being brought by the barristers' and solicitors' professional organisations so that the law could be clarified, but for an individual to make a claim strikes me as thoroughly dishonourable. If you enter into an arrangement with full knowledge of what it involves and voluntarily accept the limits to the financial benefit you will receive it would require a lot to persuade me that it can be right for you to turn around later and claim more.

There have been many examples under the Human Rights Act of people seeking to escape from obligations voluntarily entered into. I find it a very troubling consequence of so many laws emanating from Europe that old-fashioned straight-dealing can be undermined in this way. Perhaps I am influenced by my great interest in contract law which puts emphasis on people sticking to the bargain they have made even if it turns out to be a bad bargain. However, to me that is not just at the core of the law of contract, it is at the core of civilised behaviour. People we deal with rely on us to be true to our word and we rely on them. It allows us all to organise our lives in reasonable expectation that we will be treated in a predictable way.

Much of the debate about the EU revolves around the inability of the democratic process to affect decisions taken in Brussels. That is something about which I write rarely, although it is a matter of huge importance. But it is not only in the democratic deficit that I find the EU a dangerous entity. Once it has spewed forth its latest broad statement of political ideal coupled to a requirement to apply it throughout the EU countries, we find existing arrangements which have operated well and fairly for decades being challenged by (and sometimes overturned in favour of) those who knew exactly what they bargained for when they entered into those arrangements. The mere fact that EU law operates in a way that allows such challenges undermines reliance between people, it requires us always to look up to the almighty power in Brussels for approval of what we have agreed is a good and fair deal for us.

As someone who believes the most stable and civilised society is one reliant on trust and cooperation between individuals, I have a dislike and a distrust for unanswerable and over-powerful government. The case I have discussed here is a good illustration of how untested ideals dictated by an unanswerable government can undermine trust between people by giving an opportunity to break agreements in the name of that ideal. When ideals trump deals we are only a short step from dictatorship.


The Great Simpleton said...

We seem to have got ourselves between a rock and a hard place. From the EU we get the principles you describe and at home we get hastilay drafted bad law (RIPA springs to mind).

One thing we can rely on is that the lowest common denominator will be applied and we will suffer the worst of both worlds.

PS Even the word verification sounds sinister - dromen

Anonymous said...

Didn't we sign a contract for the eec,not the eu.So from the start the contract was broken.We were asked to vote on a trade agreement only not an unelected dictatorship..
I think this lie more than any other started the publics contempt for parliament,it certainly did for me.