Lord Hoffman, the second most senior Law Lord, was right in his accusation this week that the European Court of Human Rights has been 'aggrandising its jurisdiction,' over-riding the decisions of domestic courts and attempting to impose uniform rules on states. He said the court -- set up in Strasbourg in 1959 as part of the post-war Council of Europe -- should not be allowed to intervene in the detail of Britain's law, nor in the details of the law of any other state.Lord Hoffman was all quite right, until he got to his charge that the court is trying to lay down a 'federal law of Europe.' If only that were all it is doing. What the court is up to is far, far worse than that. It is trying for a 'centralised' law of Europe: by its decisions, it appears to be trying to establish that there is no area of the law of the member states in which it cannot interfere.
At least in a federal system -- if by federal system, one takes as an example the United States -- the constitution lays down powers reserved to the states and the congress with which the court may not meddle, and to which it is subject.
For example, the appellate jurisdiction of the US Supreme Court allows the court to hear cases on appeal from lower federal courts and from the highest state courts -- much as the European Court of Human Rights hears cases appealed from courts in Britain. But the constitution limits the Supreme Court's power to hear cases on appeal by any 'exceptions and regulations' the Congress may choose to impose. Indeed, the Congress has the power to withhold all appellate jurisdiction from the Supreme Court, if it decides to.
In fact, in the midst of one famous appeal to the Supreme Court, ex parte McCardle in 1868, Congress actually repealed the act which allowed the appeal. The case was halted even as it was being decided.Then of course there is the ultimate congressional power of removal of Supreme Court justices by impeachment and trial. This has never happened, but there have been a few close-run episodes.
The Westminster parliament has no such powers, nor indeed any powers at all, over the judges in Strasbourg. That makes the court far worse than 'federal.'So why is Lord Hoffman, a man no doubt as careful with words as any senior barrister, talking about 'federal' law? It goes back to one of Mrs Thatcher's wobbly moments in the 1980s. Even in warning about the increase in European Union power, she could not bring herself to admit she was capitulating in the shift of Britain towards a centralised European state. So she warned instead about a growing 'federal' state -- knowing, no doubt, that most British really don't know the difference, and anyway 'federal' seemed less dangerous (that is, USA-style) than 'centralised' (USSR politburo-style).
The word entered the debate about powers shifting to Europe, and there it stays, seeping even into an otherwise excellent lecture by Lord Hoffman.
