Dominic Grieve QC MP

British justice, both principled and … when it needs to be … pragmatic, remains internationally renowned, at a time when our economic fortunes are suffering. 

So the question I wish to address today is to ask why, if we continue to enjoy an enviable reputation in the world on account of  our commitment to the rule of law, liberty and justice, we are allowing those high standards at home to be steadily whittled away …… including it seems to me by the creeping jurisdiction of the European Union into Justice and Home Affairs?

This question is currently acutely relevant to Britain.

Under heavy pressure the Irish Government has had to agree to a second referendum on the Lisbon Treaty, the rebranded EU Constitution.

It was  Oscar Wilde, an Irishman who said that:

‘Democracy means simply the bludgeoning of the people, by the people, for the people.

Unfortunately, that has been taken a little too literally.

Still, at least the Irish people are being asked.

As you know, every major British political party promised the British people a referendum on the original EU Constitution at the last general election.

It was on that mandate that almost every MP currently sitting was elected.

As you also know, the Lisbon Treaty is in substance more than ninety per cent the same as the original Constitution, a fact most EU heads of Government have been happy to admit.

The Lisbon Treaty, is a document of profound legal importance yet the British Government and Parliament had absolutely no democratic mandate from the British people to sign up to it.

Whether it comes into force will, unless we have an early general election, be up to the Irish electorate, not the British voter, who has had no opportunity to give any opinion on the matter at all.

Why should this Treaty matter to this audience?

The Treaty would usher in important changes to the EU that are of little immediate relevance to the legal world – a new EU president, a whole package of new powers for the EU in foreign policy and the abolition of sixty or so national vetoes.

But it is the Treaty’s major expansion of the EU’s role in justice and home affairs that should command our attention, not least because the EU’s activity in this area is growing and has already caused some serious problems.

In any case, the impact of EU law – I say European Union not merely as a short hand for the European Community but because third pillar legislation is obviously relevant – is made more difficult because the majority of the EU’s members enjoy a different legal tradition to Britain and Ireland’s common law system.

Whether it is the quintissentially Common Law test of reasonableness, habeas corpus or the right to trial by jury, Common Law countries like Britain and Ireland have a distinctive and valuable legal tradition that has safeguarded our civil liberties for centuries, a tradition that is endangered by the homogenisation of European Justice.

These are serious issues, yet the present Government has felt no need to concern itself with what British voters might think of them.

Nor has it provided any leadership in Europe on this matter at all.

Now I say all this as a pro-European.

With a half French mother, a primary school education at the French Lycee and the imprint of bilingualism I don’t readily fulfil the characteristics of a little Englander.

If anything, I feel the virtues of the EU are too often invisible when they ought to be better perceived.

My Party supports the vision of an open, flexible EU that can continue to break down barriers across Europe.

The Four Freedoms … of goods, services, capital and people laid the foundations for the common market.

They have proved a powerful engine for prosperity and many of you as lawyers practising EU law have helped to oil the wheels of that process.

As barriers within Europe have fallen, trade within the EU has risen by 30 per cent since 1992.

Consumers now benefit from cheaper flights and telephone calls.

And all of us may take advantage of the freedom to work, travel and live wherever we like within the EU.

These four freedoms have brought Europeans of every nationality together.

Enlargement has been one of the greatest policy successes of our generation, rooting freedom in young democracies.

On climate change the EU has led the way for other regions in the world.

Of course there have been some downsides.

Heavy handed regulation has added unnecessary costs on business.

Legislation like the Working Time directive has created real problems for employers and public services.

Much of the EU’s budget is ill-spent, the Common Agricultural Policy has damaging anachronisms and the Common Fisheries Policy has been frankly a disaster.  

But, if the kind of Europe that breaks down barriers, respects diversity and fosters economic growth is what we want to see more of  and can and must work for….

…. so too the straitjacket promoted by those federalists who want the European Union to become a United States of Europe …

… that creates additional bureaucracy, promotes uniformity and brushes aside a pluralistic vision of Europe … must be resisted.

I have briefly covered some of the reasons why the Conservatives opposed the Lisbon Treaty when it was considered in Parliament.

But it is the field of justice and home affairs that is of most concern to me and on which I believe lawyers should focus.

Of course, in recent years we have already seen a steady expansion of EU competence in the field of Justice and Home Affairs policy, at the expense of national governments …

… with greater EU control over immigration, asylum, policing and judicial cooperation. Most of this has passed almost unnoticed and undebated save in quiet committee rooms of Parliament.

We favour practical co-operation with our European partners where this produces real benefits.

Joint investigation teams of Europol – a coordinating and facilitating body for promoting cross border co-operation to fight crime is one example. So we have often been able to support such measures.  

Underlying this, the UK’s ability to ‘opt in’ to first pillar Justice and Home Affairs measures has given us – and Ireland, with whom we share the arrangements - a certain degree of flexibility.

But its practical operation has sometimes given cause for concern, as expressed for example by the European Scrutiny Committee of the House of Commons.  

It rightly highlighted that whilst it was clear that the UK was free to decide whether or not to opt in, it was much less clear if the UK had any right to “opt out” of a proposal should the negotiations produce a text that was unacceptable.

Indeed the UK has never opted out of a proposal after opting in to the negotiations on its adoption.

Nor, even more fortunately, have we had so far to consider what we do if having reached a concluded Third pillar agreement we discover that it is not working as we expected.

Such a problem could lead to having to withdraw unilaterally from the measure.

If we did this, it would doubtless produce a major spat with our fellow EU partners but it could not affect our participation in core EU functions because the third pillar was expressly devised to separate this area of co-operation from them.

And until recently, in examples such as Europol, the loose nature of the relationship has provided protection against such an eventuality.

The Lisbon Treaty will however entrench the authority of the EU well beyond anything we’ve seen before with a swathe of new powers over the criminal justice system and a new EU Charter of Fundamental Rights … despite the fact that we already have a pan-European framework  in the form of the European Convention on Human Rights and the Court in Strasbourg.

The door is opened for a European Public Prosecutor, the mere possibility of which was fiercely opposed by the present Labour Government when the text was originally negotiated.

Eurojust gains the power to initiate investigations, again despite this Government’s initial strong objections.

And Europol for the first time could gain powers in operational policing, yet again notwithstanding this Government’s initial severe and reasoned objections.

The legal implications may be fertile ground for legal debate and academic discourse.

But what does it mean in practice?

There must be a caveat here: it is not always clear what EU Treaty provisions will mean in practice.

That depends what use the EU’s legislative institutions make of them and what the European Court of Justice finds them to mean.

The current Government did not, perhaps, realise that by agreeing to the abolition of vetoes over free movement of workers in the 2001 Nice Treaty, the end result would be a directive that prevented the deportation to Italy at the end of his sentence of  Stephen Lawrence’s murderer.[1]

But that is what we are looking at.

Criminal justice, until now in the intergovernmental third pillar, becomes a community competence.

So the European Court of Justice has subject to the terms of the treaty jurisdiction over measures in this area, which will now be subject to co-decision with the European Parliament.

The legal basis for the European Commission to propose legislation in this area is also significantly widened.

Equally important, national vetoes have been abolished.

Britain has a somewhat complicated opt-in provision, but the crucial point is that once you’ve opted in you can’t opt out.

Let me give you a concrete example of the profound problems this could mean.

The European Commission has proposed legislation on procedural rights in criminal proceedings.

The British Government was initially enthusiastic.

No doubt if Lisbon were in force they would have opted in.

But as the legislation has evolved the Government’s enthusiasm has waned, primarily because there is a real danger that the legislation as currently drafted would set up a parallel and conflicting system of rights in criminal proceedings to the ECHR’s.[2]

The measure is now deadlocked because unanimity is required for agreement.

But if Lisbon were in force we could find ourselves outvoted.

Legislation on our criminal procedures could be imposed on Britain which neither the British Government nor Parliament assented to.

That would be a danger to our system and traditions of justice and to our democracy.

It has been argued that in these circumstances we would be able to invoke the “emergency brake” clause that allows a member state to refer a matter relating to a fundamental aspect of its criminal justice system or policing to the European Council.

But it is not clear how the differences would then be resolved.

The EU has along tradition of negotiated outcomes and trade offs but it must be questionable that these are appropriate mechanisms to deal with fundamental differences over criminal procedure. History has shown that the EU is adept at breaking down the resistance of states by exerting pressure elsewhere.

…

These changes are not taking place in isolation.

At home, many of our basic principles of British liberty have been under siege since 1997.

The underlying principles of Habeas corpus have been under sustained attack, as the government cites terrorism as a pretext for proposals for ever longer periods of detention without charge.

Free speech has been curtailed on a range of false security premises … that cannot conceivably justify fining the sellers of ‘Bollox-to-Blair’ T-shirts, prosecuting peace activists for reading out the names of British soldiers killed in Iraq, or detaining an 82-year old man for heckling “nonsense” at a government minister.

And the government has tried to chip away at the ancient right of trial by jury, first set out under Magna Carta some 800 years ago.

This erosion of our fundamental freedoms has been compounded by the government’s zeal for the wrong kind of European integration.

Like Ireland, we have suffered from the relentless ebbing of authority from Westminster to Brussels in the field of Justice and Home Affairs …

…. creating a significant democratic deficit touching on a range of policy areas, including policing, asylum, immigration and judicial cooperation.

This will be further exacerbated by the Lisbon Treaty.

The irony is that for a long period now, those promoting this development have tended to regard themselves as pursuing a ‘progressive’ agenda … part of the EU’s civilising mission as a pioneer of the international rule of law.

Yet this supposedly enlightened movement is increasingly running into direct conflict with long established domestic principles of justice.

Take the operation of the European Arrest Warrant.

It was introduced after the 9/11 terrorist attacks on the United States.

The EU Framework Decision was incorporated into UK law via the Extradition Act 2003.

The legislation’s goal was well intended. Most would agree that extradition proceedings were in some cases taking far too long. But the changes implemented have had too little regard for civil liberties.

The idea was to facilitate fast-track extradition between European partners, particularly in light of the changing security climate.

But with this in mind, exceptions were then incorporated in the directive to the double-criminality rule, allowing – in fact, requiring – participating countries to extradite those suspected of terrorism and other serious crimes, without the need to show that the particular conduct was a criminal offence under domestic law.

The list of exceptions to the double criminality rule is not short.

It includes 32 crimes, including comparatively less serious and astonishingly ill-defined offences such as ‘swindling’, ‘computer-related crime’, ‘motor vehicle crime’ and ‘xenophobia’.

When Parliament considered implementing the Directive through the Extradition Act 2003, the Government incorporated some safeguards if the Act in question occurred in whole or in part in the UK and also imposed a minimum threshold of 12 months imprisonment for an extra territorial offence. The government said it was able to introduce these qualification under Article 4(7) of the European Arrest Warrant.

As is now well known however, this has not prevented a request being made by Germany to extradite Dr Gerald Toben, an Australian academic, accused of holocaust denial who was arrested as he transited through Heathrow Airport.

That is of course not a crime here … nor in Australia where it was alleged to have been committed. The German claim to jurisdiction arose from the dissemination of his views via the internet.

Holocaust denial is viler than it is stupid, but our tradition of free speech suggests that, unless you are inciting violence, such obnoxious views should be shot down in the crucible of critical public debate, not the subject of criminal prosecution.

Whilst this case failed, for evidential inadequacies, the fact is that we have unnecessarily sacrificed the broader double criminality rule, which is an important safeguard against frivolous prosecutions in foreign courts, in a range of scenarios well beyond the context of counter-terrorism.

And in the process, we are tolerating the erosion of freedom of expression in order to facilitate the prosecution of non-violent views.

To what end?

This strikes me as a classic example of individual liberty being traded without any conceivable security gain in return.

Nor does the matter stop there. The European Commission has made clear that it dislikes the way the UK has retained some protections from extradition in cases punishable by less than 12 months imprisonment and which are extra territorial to the UK and to which the European Arrest warrant applies. It has argued that we should abandon it for at least some of the crimes  covered by the warrant. In it’s report of July 2007 it states specifically that the UK has failed in it’s opinion to transpose the Directive into national law. It wishes to see both modification of the minimum sentence thresholds and states that the UK is guilty of the reintroduction of double criminality checks where part of the offence is committed in its national territory.

In response The Parliamentary Under secretary at the Home Office Meg Hillier  has accepted that this is the case but argued it would have no operational impact as it was very unlikely that such crimes would not carry a 12 month sentence.

The Commission has also argued that the UK has kept the principle of dual criminality in cases where part of the offence has been committed in our territory. It is clear that the government accepts that Parliament has not implemented the directive as intended. But it was as parliament intended.

At present these arguments are academic. We can do as we choose. But sometime in the 4 ½ years after the Lisbon Treaty comes into force the UK will have to decide whether or not it wants to allow this provision to be included in the main structure of the EU treaty, along with all other un-amended third pillar agreements.

If we refuse we will be compelled to leave the Framework directive on extradition and lose its benefits. If we stay we must accept the possibility of ECJ jurisdiction over its interpretation. We thus may face the prospect that our interpretation of the dual criminality provisions could then be overturned by the ECJ as incompatible with the directive.

In suggesting this, I am conscious that there is a lack of clarity as to whether or not these potential disagreements become justiciable before the ECJ. I have read the latest edition of European Advocate and the discussion on the scope of Article 276(3) TFEU. But this seems to me to make clear that while the courts jurisdiction in relation to third pillar matters remains fettered in not being to overrule the decision of a national court it would not prevent this area being part of EU law and thus compliance with a Directive reviewable by the ECJ.    

Similar issues apply to the provisions of the Extradition Act allowing fast-track extradition to face punishment abroad of those who have been tried in their absence.

The Act provides that a UK court can refuse extradition if it is not satisfied that a person will have a right to a retrial at which they can be present.

The Commission has made clear that this represents “additional conditions, not envisaged in the Framework decision”.

So if the ECJ gets jurisdiction the Commission could bring enforcement proceedings. British courts will then be duty-bound to rubber stamp requests to send British citizens to foreign jails …. when they have been tried without having been present in court to defend themselves.   

It is worth bearing in mind Transparency International’s description of the flaws in one new EU Member State’s justice system … and I quote:

… ‘lack of authority for the judiciary’ …

… ‘lack of real independence’ …

… and so much ‘politicisation’ that the judiciary has ‘grown to be perceived as among the most corrupt institutions.’

It would be wrong to single out any one Member State. There are real concerns about standards of justice in a number of EU countries.

Unsurprisingly Liberty and Fair Trials International have been highly critical of this legislation in its present form.

It is a fundamental principle of British justice that if you are accused of a serious criminal offence, you get your day in court, your opportunity to defend yourself … and the chance to rebut the allegations being levelled against you.

My fear is that we have progressively  magnified the risk of British citizens becoming the victim of miscarriages of justice ... that take place abroad ……. but have effectively been sanctioned by their own government at home.

The case of the European Arrest Warrant also exemplifies another problem with legislation at the European level: that once agreed it can be very hard to change. Given the sensitivities in this area, it is all the more extraordinary that the Government has agreed to a process under Lisbon that abolishes national vetoes over criminal justice.

Then there is the steady erosion of personal privacy. In the UK, we have seen the introduction of a national identity register coupled with ID cards,

The last 10 years has also seen a massive growth of databases hoarding personal information on each and every citizen, but losing it just as readily.

And the expanded use of powers under the Regulation of Investigatory Powers Act, not simply to catch terrorists and criminals, but also so that local councils can monitor rubbish bins and follow children home from school to check their catchment area.

All these measures impinge on our privacy.

And their effectiveness as security measures has been exposed to serious doubt.

That is bad enough.

But, the government has also signed up to the incorporation of the Prüm Treaty into EU law.

This EU measure signed in June 2007 facilitates the sharing of DNA, fingerprint and vehicle registration details across Europe on what is called a “hit no hit” basis.

If a hit is registered the member state is then required to pass on he case file and data which it holds on that subject.

Any data supplied is supposed to be protected by national laws to the standard of the European Convention for the Protection of Individuals with regard to Automatic Processing of Personal data.

If no further action is taken it should be deleted immediately.

But if the government cannot safeguard our data in Whitehall, what chance is there of this happening once it’s sent to Bucharest?

And since we have the biggest DNA database in the world … including samples at present on a million innocent people … this will have a disproportionate impact on Britain.

If Bulgarian police find DNA at a crime scene at a local holiday resort, which produces a match when checked against the UK police’s DNA database, it may well raise suspicion.

Not least since other countries do not mix together the DNA of the criminal and the innocent on anything like the same scale as we do here in Britain.

So what, some might say?

Nothing to hide, nothing to fear.

But, the practical implications are serious.

There is a real risk that a disproportionate number of innocent British citizens will be sucked into foreign criminal investigations.

Once you add in for consideration the new rules on fast-track extradition and trial in absentia, this development becomes even more sobering.

These trends are clear.

They are worrying …

And they are set to continue.

Traditional principles of British justice are being damaged by EU legislation, damage that would become a real threat if Lisbon were to come into force.

And as I explained earlier the disappearance of the Third

Pillar means that in future any difficulties in this area will be argued out against the background that all this is now part of the main architecture of the EU.

A serious disagreement or failure to observe the terms of the directives made hereafter will threaten our participation and indeed membership of an institution which is of paramount importance to our national interest and prosperity.

This seems to me to be a very strange and foolish hostage to fortune.

…

Before I close, I would add one further point about the Charter of Fundamental Rights … which is part and parcel of the Lisbon Treaty.

The impact of the Charter on UK law has been left deliberately opaque, an exercise in strategic ambiguity that itself generates mistrust and erodes confidence.

But my question is perhaps rather more fundamental.

For those of us who support the European Convention on Human Rights, and – although not uncritically – the Strasbourg Court …. it is difficult to understand the point of the EU Charter.
Either it is intended to displace the Convention, for which no conceivable justification has been presented.

Or it is intended to add to the Convention, in which case it risks the kind of rights inflation that is diminishing the currency – and credibility - of rights in this country.

Or … it is mere cosmetic duplication …  in which case it risks unnecessary legal confusion, by creating a third tier of judicial decision-making in Luxembourg.

On any of these three alternative grounds, it marks an unnecessary, unhelpful and potentially counter-productive development.

It would have been far better to have ensured that the institutions of the EU were legally subject to the ECHR and left it at that.

Ladies and gentlemen, the debate on Europe in this country has often been as polarised as the debate on human rights.

But amidst the strong attachments to particular views on all sides of the political spectrum...

And beneath the murky legal detail….

It is quite possible to be both committed to human rights, and well disposed towards Europe, whilst pointing out the flaws in the particular institutional mechanisms designed to promote either agenda.

Developments in the field of Justice and Home Affairs in the EU ought not to be dismissed without due consideration.

But nor should they be accepted uncritically.

The legal authority of the EU in this area has spread well beyond any justification that can be found in terms of its effectiveness in strengthening UK security.
And it is increasingly posing a very real threat to the fundamental liberties and principles of justice that we have struggled so long and hard to defend in this country.

Thank you.