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.