Monday, 8 December 2008

EU Salami-Slicing

Under the banner of "standardisation", we have this - if you can face poring through it:
"2008 No. 2986

Private International Law

The Law Applicable to Non-Contractual Obligations (England and Wales and Northern Ireland) Regulations 2008"

You just know with a title like that it's going to be a helluva read. I'm not big on law myself, but I had it explained to me thusly by LPUK leader Ian Parker-Joseph:
"These regulations concern Regulation (EC) No. 864/2007 of the European Parliament and of the Council on the law applicable to non-contractual obligations (“Rome II”). This instrument establishes uniform choice of law rules in the field of non-contractual obligations, that is principally in the context of proceedings in tort, but also proceedings for unjust enrichment and some other non-contractual obligations. These rules enable courts throughout the EU to select the national laws appropriate for the determination of these proceedings where the case has a cross-border dimension, for example a case where the parties live in different countries and the tort takes place in a third country. The aim of these uniform rules of Community law is that, in relation to a case falling within the Regulation’s scope of application, the same national law will generally be applied by courts in all the Member States.

The purpose of these regulations is two-fold. The first is to modify the relevant current inconsistent national law in England and Wales and Northern Ireland. Regulations 2 and 3 restrict the application of the general statutory choice of law rules in this area. These are contained in Part III of the Private International Law (Miscellaneous Provisions) Act 1995. Regulation 4 restricts the application of certain provisions in the Foreign Limitation Periods Act 1984 and regulation 5 restricts the application of analogous provisions in the Foreign Limitation Periods (Northern Ireland) Order 1985.

The second purpose involves extending the application of the Regulation to certain cases that would otherwise not be regulated by it. These are cases where in principle the choice of applicable law is confined to the law of one of the United Kingdom’s three jurisdictions, that is England and Wales, Scotland and Northern Ireland, and to the law of Gibraltar. These cases therefore lack the international dimension which is otherwise characteristic of cases falling under the Regulation. Under Article 25(2) of the Regulation Member States are not obliged to apply the Regulation to such cases. To maximise consistency between the rules that apply to determine the law applicable to non-contractual obligations, regulation 6 of these regulations extends, in relation to England and Wales and Northern Ireland, the scope of the Regulation to conflicts solely between the laws of England and Wales, Scotland, Northern Ireland and Gibraltar.

Under section 57(1) of the Scotland Act 1998 (c. 46), despite the transfer to Scottish Ministers of functions in relation to implementing obligations under Community law in relation to devolved matters, the function of the Secretary of State in relation to implementing those obligations continues to be exercisable by him as regards Scotland."
So basically, the Scotland Act, a milestone act passed by the elected, sovereign UK Parliament, contained within it the devolution of matters concerning Community Law within Scotland to the appropriate ministers in the Scottish Executive. The Scotland Act, you'll remember, was voted in initially by referendum of the Scottish people.

But out comes the EU Salami-Slicer, with about as much of a democratic mandate to run the continent as I do, arbitrarily deciding to override the Scotland Act by regulating that matters of Community Law within Scotland are in fact to be under the jurisdiction of Jim Murphy, the UK government's Secretary of State for Scotland.

Who voted for that?

Now I thought that maybe, just maybe, the SNP might have something to say about that. This is an area in which the devolutionary process has, at the whims of Brussels, suddenly been reversed. Do we get even a peep from our Nationalist friends?

Well, I tried to find something. I searched on the SNP's website for anything around that date, anything to do with the EU, or community law, or non-contractual obligations, or the functions of the Scottish Secretary in Westminster. I googled all that too. I even checked Sean Connery's website.


However, I can inform that on the same day these new regulations were laid before UK Parliament, Scotland's "only full member of the European Parliament's Agriculture Commitee", as the SNP's press release boasted, a Mr. Alyn Smith, hailed an EU vote granting a nice piece of fruit to every European schoolchild. Aww, bless.

As for that constitutional thingy ... nah, nothing.


John said...

Funded by the EU tax-payer, eh?

I'd love to know how much each piece of fruit will end up costing us.

Celteh said...

Does this mean that the EU can impose their crap on us via the Scottish office and bypass Holyrood altogether?

Dan Vevers said...

All things relating to community law, yeah. It's the whole idea of salami-slicing - first, they "standardise" community law, but what next? There are distinctive differences between Scottish and English law in a whole range of fields - what next? Are there other aspects of the Scotland Act that the EU could simply override, like conditions of the devolution settlement?

It's the precedent it sets, and the little to no response to it, that worries me.