The
judgement by the European Court of Justice, which might not be a judgement at
all but that’s another story, on the issue of the EC giving Spain environmental
jurisdiction over part of Gibraltar’s British territorial waters is making
headlines across Europe.
It is
not the judgement itself that is raising eyebrows but the fact that one of the
judges on the panel was Spanish. Señora Silva de Lapuerta was appointed to the
Court by the Spanish Government. She was previously a Spanish State legal
beagle and even handled cases involving Gibraltar. Given that the Partido
Popular is in power in Madrid it is no surprise that she is of the PP. Indeed
her family has right wing links back to the government of Franco that closed
the border with Gibraltar in 1969 when daddy was the minister for public works.
It
would therefore seem obvious to anybody, let alone keen legal minds at the
European Court of Justice, that Señora Silva de Lapuerta should not have been
sitting in this case. Either she should have recused herself or the ECJ should
have sought her recusal. It was no more appropriate for a judge appointed by
the Spanish Government to have sat in judgement than one appointed by the
British Government.
Now
Gibraltar’s court system is based on the British courts where the judiciary is
totally independent of government. Our judges guard their independence
jealously and from time to time there are clashes between the elected
government of the day and the judiciary. However there is only ever one winner
and it is not Westminster.
If
you look at a British judge in his or her robes and wig you might say – there
sits a Tory. Not only that but a Tory who is a Freemason and a leading light in
the golf club. Indeed you might be right or totally wrong but the fact is that
the British judiciary over the centuries has handed down the law and totally
ignore the bleatings of government ministers or MPs.
Many
years ago I was told you knew a good football referee when both sets of fans
left a match moaning about his performance. May be a bit simplistic and the
world of football has changed but you will find that Britain’s judges have
upset Conservative and Labour governments over the years in equal measure
regardless of their own political leanings.
Which
brings us to the European Court of Justice. The ECJ is not independent even if
it claims to be simply because the European judiciary is not separated from
government. If London, Paris, Berlin or Madrid appoints a judge to serve at the
ECJ, because it is a political appointment, the judge will be expected to serve
his or her political masters. The ECJ might protest that a judge is a judge and
their nationality is of no consequence but you know and I know and even the
president of the ECJ knows that is baloney.
Given
what we know of Señora Silva de Lapuerta can you imagine the furore in Spain if
she had ruled in the ECJ on the side of Gibraltar rather than Madrid? It would
never happen because the Spanish judge is a daughter of the Franco regime and
the right in Spain have a very different view on justice than the court in
Luxembourg.
It is
that which is reverberating around the media across Europe because it is quite
obvious that judges appointed to the ECJ by politicians are political judges
and they are not independent. They might interpret the law but they cannot hand
down justice.
The European
Court of Justice can never live up to its name.
