FEATURE5 And in Canada?
Bad King John is a largely forgotten figure, banished to a bit part in Robin Hood films as the man who told the dastardly Sheriff of Nottingham to soak the poor as well as the rich. But the document his barons forced him to sign on the island of Runnymede continues to prick consciences wherever justice is denied.
The most famous clause of what was known as the Charter of Liberties when John signed it in 1215 says: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, nor will we proceed with force against him, except by the lawful judgment of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice.”
Thanks to Magna Carta, citizens may take their governments to court if they believe they have misapplied the law in Britain, the United States, and in the vast majority of other countries. They may not do this, however, in the European Union, something most of its 500m citizens do not realise. When they do realise, they are shocked.
Let me shock you. From the outside, it certainly looks as though individuals and citizens’ groups are entitled to their day in the European Court of Justice, but this is an illusion. In practice, since a first test case concerning the import of clementines in 1962, the court has applied a rigorous and narrow test, insisting that all who wish to challenge an EU decision must demonstrate that it is of “direct and individual concern” to them. It has proved difficult for individuals to argue in practice that a law applies uniquely to them. And it has been almost impossible for non-governmental organisations (NGOs) to test whether the law has been applied correctly on behalf of their fellow citizens.
Perhaps it is because we British have come only slowly to the realisation that we are EU citizens, destined to walk through the blue channel with Czechs and Austrians, that this absence of Magna Carta rights in the EU has taken so long to come to a head. Or perhaps we needed events to wake us up.
This year, two environmental groups, the WWF and Greenpeace, tried to put the EU on the spot over the application of its own laws, contending that they had not been applied correctly in the handing out of quotas for overfished North Sea cod and bluefin tuna. (The quotas vastly exceeded those advised by scientists.) Both cases were turned down by the European court on “standing” — the right to participate — one at the beginning of the process, one on appeal. In another case before the court, campaigners are challenging an EU regulation that will increase the levels of pesticide allowed in food. The pesticides case also rests on “standing” as to whether the court will hear the case at all, which is unlikely. As EU law moves tortuously slowly, an appeal is unlikely to conclude before 2014.
There is virtually no other jurisdiction in the world where the decisions of unelected officials affecting the environment and vital resources such as fish, food or fuel are immune from challenge in this way. The super-bureaucrats who set up the European Coal and Steel Community long before Britain joined wanted to close the floodgates to vexatious claims from single-interest pressure groups. But in continuing to deny citizens and their organisations the opportunity to review whether the executive is behaving lawfully in important matters — whether administering the EU budget or the reformed common fisheries policy — the European court now appears to be undermining democracy, accountability and, yes, rule of law.
This Wednesday promises to be the EU’s Runnymede moment. An obscure committee in Geneva is charged with applying an equally obscure treaty, the Aarhus Convention, which deals with the right to information and access to justice on environmental matters and applies to members from 43 countries in Europe and the former Soviet bloc. The compliance committee of the treaty must decide whether the European court was right to deny WWF access to court over the cod quota, particularly as the WWF was a member of a statutory EU body, a regional advisory committee, at the time. The discussion promises to be lively.
Aarhus says that NGOs should have the right to go to court to challenge decisions on “specific activities” if the NGOs have played a part in the decision-making process. The European commission’s lawyers have been primed to counterattack with impenetrable technicalities, but it looks as though Aarhus may have the court over a barrel. And a jolly good thing too.
On my travels around the world to study the mismanagement of the oceans, it became clear that United States waters were better managed than those of Europe (29% of stocks overfished compared with 88% in the EU). Why? Because citizens’ groups had improved the law by bringing action against the government whenever national fisheries law was not applied or was worded ambiguously. There is no reason to suppose this kind of improvement should not happen in areas other than fisheries, such as the EU’s lumbering agricultural policy and even its budget. It just needs the King Johns of Brussels to be kept up to the mark this week by the barons of Aarhus.
(charles clover, The Sunday Times, 20September2009)
