An elaborate deception

The Supreme Court opens for business today, taking over the role and responsibilities of the House of Lords. Tristram Hunt writes a sneering piece in The Times, lambasting those who object to it on the basis that it "marks a further, wretched Americanisation of the British constitution".

Hunt happily chirps away about the history of the concept, and the constitutional role, citing the views of Walter Bagehot in 1867 in support of the idea. Like so many clever-dicks of his ilk, however, Hunt ignores our more recent history and the profound constitutional changes that occurred in 1973 and have developed progressively ever since.

Thus, he misses the most important reason why the idea of a supreme court is fatuous – and misleading. We already have a supreme court. It is called the European Court of Justice and it is based in Luxembourg. If the Trade Descriptions Act could be brought to apply to Jack Straw, the progenitor of the pretend supreme court in London, a conviction would most certainly be secured.

The idea, therefore, is a cruel joke – an elaborate deception which perpetuates the idea that we are still an independent country, with an independent court system. Notably, though, much expense has been lavished on a logo for the court (which, incidentally lacks the royal crest). The government could have saved a great deal of money if it had been more honest and just used the yellow ring of stars.

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Subject to some malfunction

The Daily Telegraph runs a lead item today (with a very similar piece in The Times), reporting that workers who fall ill during their holidays could now claim the time back from their employers.

Open Europe attributes the original story to People Management, but the Telegraph version says that this new situation follows "a landmark European Court of Justice judgement", although the report does not confirm that this is the case.

It is, we are told, an extrapolation from a judgement in favour of an employee who claimed that he should be able to shift his scheduled holiday because he had fallen ill just before he was due to go on leave, claiming sickness entitlement until he was fit enough to go on leave.

If the interpretation is correct, this means that the system can be abused, as the newspaper claims it can be. Someone actually on holiday, where self-certification is in force, can go down with a cold for a few days, or some such (or pretend to do so), and claim those days as sick leave, thus extending their holiday entitlement.

Experience, though, warns against taking anything a newspaper might say about an ECJ judgement at face value, without first reading the judgement on the court's website. Reference to the site, however, tells us that publication of case reports "... may be subject to some malfunction during the month of September." That prediction seems to have been accurate. There is no record of the case to which the newspaper refers.

But the ECJ is more accurate than it perhaps intended. If the Telegraph is even close to reporting the truth, there is indeed "some malfunction" ... in the whole system by which we are governed. On the face of it, the court is saying that sickness is a one-way bet. Leave entitlement only applies if you are healthy. If you are sick while on leave, the employer pays.

Maybe that is fair – maybe not. But it does add yet another burden on already hard-pressed employers. Such a decision, to impose yet more burdens, should be taken by our Parliament, after due consideration and debate. But these issues are no longer decided by our MPs. We have a supreme court in Luxembourg which tells us what we must do.

That is unacceptable. We all know it is unacceptable. But that is our system of government. And that is another reason why we must leave the EU.

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What kind of EU are we going to have?

A delicious conflict is emerging over the fate of the Finnish passenger ferry, Rosella, setting two supposedly core principles of EU law at odds with each other.

This arises, according to the Financial Times, because the ferry, operated by the Viking Line on the three-hour crossing between Finland's capital, Helsinki, and Tallinn, the Estonian capital, is crewed predominantly by Finnish nationals and the owners want to re-flag the ship and replace the crew with cheaper Estonian labour.

Predictably, the Finnish Seamen's Union – with the backing of the International Transport Workers' Federation (ITF) - is threatening industrial action and Viking is seeking an injunction to prevent this.

It is that which is pitting the core EU principles against each other. On the one hand, there are the "freedom of establishment" rules invoked by the shipping company, allowing businesses to set up wherever they wish in the EU. These are embodied in Article 43 of the Treaty.

On the other stands the EU's social policy which the unions are claiming conveys a fundamental right for workers to take collective action, including strike action.

The issue has already been to the UK Courts, where Viking's application for an injunction was first heard and it is now in front of the European Court of Justice, where there are to be oral hearings today in front of an unusually large panel of 13 judges.

The issues at stake go far wider than the shipping industry, and could affect businesses wherever they seek to replace existing workers with cheaper staff from another EU member state.

Because of this, the ECJ is simultaneously considering another dispute, this one referred by the Swedish courts concerning a Latvian construction company called Laval un Partneri.

Through its Swedish subsidiary, it won a contract to refurbish a school at Vaxholm, Sweden, but the company sought to use cheaper Latvian workers, a move blocked by the union.

This same problem almost came to a head last year, over Irish Ferries, but the EU commission ducked the issue and a dispute between the Irish union Siptu and the ferry operator was resolved without commission intervention.

However, the Financial Times reports that the UK is seeking to rain on the unions' parade, arguing that there is no principle of EU law that gives social policy rights any primacy over other provisions in the EC Treaty, and that taking collective action does not, in itself, even amount to a fundamental right protected by Community law.

If that is the case, then it is not beyond the ECJ to invent such a fundamental right – or find that it existed all along – which the ITF wants it to do, thus making "a judgement to be made on the relationship between human rights and economic rights".

It will be some many months before the ECJ rules on this but, whichever way the answer falls, it is bound to be entertaining. At stake claims the ITF is "what kind of EU we are going to have in the future". "Will it be one that gives priority to the rights of companies," asks the Union, "or one that supports the rights of workers to defend their interests?"

Not for the first time, the EU is going to find that it cannot have it both ways.

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