In the Daily Telegraph today, Boris says that we should insist on the primacy of British law. He begins:“It’s the democracy – or the absence of democracy. That’s what drives me nuts; that’s the hole in the heart of the European project. I mean, take this latest pronouncement from the European Court of Justice, the one about plumbers and other employees who tend to drive from job to job. The justices have just made a landmark decision that driving – or sitting on a train and doing sudoku – constitutes working.
These workers should not only be paid for their time doing the job, say the judges from their brown felt hall in Luxembourg; they should be paid for time spent in travel, from the minute they wipe the cereal from their lips and give their spouses a kiss, to the second they push the doorbell of their customer. It doesn’t matter whether they are stuck in traffic or sitting in a greasy spoon or whether they are parked in a layby reading a copy of Knave magazine; they don’t need to hurry – they are going to get paid for their journey time, because that is what the EU has decided.
And I want to stress, again, that it is not the substance of the decision that necessarily outrages me – I am all in favour of reasonable terms and conditions for hard-working people. The point is that this was not a reform that was in any way demanded by the people of this country. It was not the product of some TUC campaign. I have never once been lobbied on the question; no one has ever written to me or come to see me proposing that he or she should be paid for the time they spend commuting to work. It was a European Court of Justice decision that arose entirely from the peculiar circumstances of a group of burglar alarm installers in Spain.
Their company, Tyco, closed a lot of its regional offices – with the result that the Spanish burglar alarm installers were travelling for three hours, unremunerated, to fit their machines: driving up long dusty lanes and braving yapping Dobermans to fortify the villas of expat British gangsters on the Costa del Sol. And because the Spanish authorities failed to sort it all out, the case rose irresistibly to the European Court – which has just made a ruling that affects not just a bunch of Spanish home security experts, but everyone in 28 countries, including millions of people in this country, and thousands of small firms who had absolutely no idea that this was coming down the track. Nut. Sledgehammer. Hello.
Now, as I say, my objection is really about the principle and method – but I also believe that this is the kind of ill-thought-through legal activism on the part of the EU that is contributing to the chronic lack of European competitiveness; yet another non-wage cost that is piled on companies that may not be able to afford it. Is it the kind of measure that one would recommend for a continent still mired in economic gloom, and with painfully high unemployment? No. Is it right for Britain? Well, the Institute of Directors has accused the European Court of “tormenting” UK firms.
So let us imagine that we in this country wanted to do something – let’s suppose we wanted to pass some law to make it clear that it did not apply to British firms of a certain size, or whatever. Could we? No chance. It is a curious feature of Britain’s relations with the EU that we have chosen repeatedly – and more emphatically than several other countries – to emphasise our legal subservience to Brussels. It is there in the 1972 European Communities Act: every emanation of the Brussels legal system shall have primacy over the law of this country – and as the EU busies itself in ever wider areas of human activity, so it acquires an ever wider field of supremacy.
And as soon as an EU regulation emerges from the machine, that regulation exercises what is called “direct effect”: it beams down across the whole area like an instant force field, because Brussels le veult. The EU ruling is immediately enforceable not just in Luxembourg, but in every court in every country in the EU. Let us imagine that you are running a small firm of plumbers (or you are a local authority paying for home carers), and you decide to chance it. You know that it will seriously hurt your bottom line to pay for your employees’ journeys to work. It will force you to cut services, or to raise prices for your customers.
You fail to comply… and, pow, you get taken to court. And the court – inevitably – will take account of the European court ruling, and you will lose, and have costs awarded against you. There is not a darned thing that you can do about it; and there is not a darned thing that your elected politicians can do about it. Westminster can only look on in impotent bafflement. Are we going to continue to take this lying down, or are we going to do something to assert the rights of our parliamentary democracy? Surely it is time to do what several other countries have done in the past few years, insisting on the primacy not of the EU, but of their own legal systems.
The German constitutional court has said it, and so have the French, the Italians and the Danes. Britain is lagging behind, and all the while the European Court expands its prerogatives – declaring its right to decide whether prisoners should vote, or banning cheap car insurance for women. It is time to amend section 2 of the European Communities Act, so that we accept the primacy of EU law if, and only if, parliament has not expressly and subsequently decided otherwise, and passed clarifying legislation. Give the power back to MPs. They might not exercise it. On paying for journeys to work, they would look at both sides of the question. But at least the decision would be taken here.
Would it break up the single market? I doubt it very much. But it would be a check on the activism and interference of the European Court. And the beauty of it is you wouldn’t even need to change the Treaty.