EU reform that sweeps British justice aside

Telegraph
09.11.2009
By Philip Johnston

Unfathomable EU proposals point to a single jurisdiction across Europe, warns Philip Johnston.

Can you imagine being tried in this country for something that is not a crime here? If this sounds like something Kafka might have dreamt up, it is actually a proposal before EU interior ministers that will soon be enshrined in UK law. It is the sort of legislation that, were it going through Parliament, would be exciting a good deal of comment and debate; but because it is being promulgated in the councils of Europe, hardly anyone knows it is happening.

The initiative, known as the Transfer of Criminal Proceedings, is the latest in a succession of pan-European reforms designed to speed up extradition, prosecution and conviction of criminals. You might think that is no bad thing – except that how a country organises its system of criminal law and sanction is the very essence of nationhood.

This is no longer about mutual co-operation to ensure the bad guys don’t escape justice by hopping from one EU country to another; this is about putting in place the trappings of a single jurisdiction.

As the European scrutiny committee of the House of Commons noted in its report on the proposed reform: “[This] is both novel and far-reaching: it gives national courts competence to try a criminal offence that is not prescribed by UK law or, put another way, that the Government has not proposed nor Parliament agreed should be a crime. Instead, jurisdiction comes from the EU Member State that is transferring the proceedings.” For instance, someone accused of holocaust denial, a crime in Germany and Austria, could be tried for it in an English court even though it is not an offence here.

This is indeed novel and far-reaching. It is also the shape of things to come. Another huge programme of reform is about to take place in this area and much of it is to be agreed in the coming weeks. It involves common access to crime databases, common asylum and immigration policies, new human rights laws and an extension of legislation for the protection of children and vulnerable people (as though we have not had enough of all of these already).

Much of this is being done with UK acquiescence, even if there are some aspects of the reform programme with which the Government disagrees. Alan Johnson, the Home Secretary, emphasises that “it is essential that the differences in Member States’ justice systems are respected and the Government will seek to ensure that this continues in the coming years”. It is hard to believe that a British minister even needs to make such a thing clear given the differences between the inquisitorial system that operates on the continent and the adversarial one here.

It is also difficult to reconcile Mr Johnson’s sentiment with the proposed Transfer of Criminal Proceedings: how would this work in practice given the different systems? How would the offence be defined, what would the sentence be, and would case law or common law apply?

The Commons committee concluded: “We find it hard to conceive of situations in which transferring jurisdiction to prosecute from one Member State to another would improve the efficient and proper administration of justice.”

However, this is not about making improvements; it is about establishing a common judicial area even though the two systems do not fit together. Other matters being pursued include common definitions of offences rather than the mutual recognition that has underpinned the system until now; and primacy for European action against terrorism and organised crime.

By 2014, it is envisaged that there will be a common asylum system and a target has been set to train a third of all police officers across the EU in a “common culture” of policing. In addition, now that Lisbon is operational, the EU will be able to develop the sort of surveillance powers with which we are so familiar in Britain. Maybe we can start exporting CCTV cameras.

All of these developments have taken place before the additional impetus that Lisbon will provide once powers over justice and home affairs policy shift to the EU level with little or no accountability to the citizens who will be affected and who are often blissfully unaware of what is being agreed in their name.

As Stephen Booth, of the think tank OpenEurope, said: “We are fast approaching a situation where the EU will have the full coercive machinery of a state but without the proper democratic controls or robust checks on power that citizens should expect. How can citizens expect their fundamental rights to liberty and independence from the state to be protected by unaccountable institutions which have a vested interest in creating more laws?”

The only elected body to oversee this is the European Parliament, which is almost entirely wedded to the integrationist agenda. When the Tories had the temerity to join the only anti-federalist grouping in the parliament, they were denounced for allying themselves with neo-Nazis, an allegation that is not only unfounded but is laughable given the anti-democratic inclinations of the accusers.

These, then, are some of the practical implications of what we were assured was just “a tidying-up exercise”. They are why we were entitled to have a say in the matter. But now it is too late.

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