Firstly, a public get well soon message to Steven Woolfe, to reinforce the private message I have already sent. It seems that he is on the mend, thank goodness. It’s a matter for him and UKIP, but I cannot see any reason why he could not stand in the new leadership election. Punch-ups of this sort happen in the best-run parties. You should see the fights we have in the Tory Party! At least chairmen of UKIP branches are not ending up dead in portaloos at Glastonbury.
One EU policy which received little mention at the recent Tory conference, unsurprisingly, since the government hasn’t got a policy on the policy, is the European Arrest Warrant (EAW). This was effectively part of the EU/s notorious Corpus Juris programme, the idea of which was to have a common civil and criminal legal system across the EU.
The sole purpose of Corpus Juris was to dismantle the legal systems of member states as part of the process of transforming them into a single state. The EAW is a watered-down part of the original policy.
The EAW still treats the member states as a single state, in that it by-passes most of the safeguards inherent in extradition proceedings. The judicial authorities in the receiving state have very limited grounds, such as age or specialty (requesting state cannot add additional offences) on which to decline to act on a warrant. In practice, in the UK these are essentially limited to arguments based on the European Convention of Human Rights (ECHR). The other so-called safeguards are so minimal as to be almost meaningless.
The ECHR is a dead-letter in the UK, unless you’re a murderer or a terrorist. Few if any warrants have been rejected on ECHR grounds.
The upshot is an exceedingly dangerous system, given the inadequacies of the legal systems in other member states, except the Republic of Ireland. As the farcical trial of Geoffrey Boycott in 1998 demonstrated, French justice, with respect, is a contradiction in terms. The conviction rate in French courts is ludicrously high – it’s even worse than speeding cases in the Uxbridge Mags!
I blame Napoleon. The civil legal system he set up, which built on Roman-Dutch foundations, is illiberal, as one would expect of any system set up by little dictator, and favours the prosecution. Only lip-service is paid in continental jurisdictions to the concept of innocence until proven guilty. In practice, over in Europe, once you are charged with an offence you are presumed to be guilty.
European judges are almost all salaried. They tend to see themselves as legally-qualified civil servants, rather than judges. At any rate, that’s how they behave. There are some signs of judicial independence in Eastern Europe, doubtless a reaction against communist tyranny, but justice as a concept has largely died in Western Europe.
Defenders of the EAW point out that most requests are in respect of a country’s own nationals. That is true, but a warrant can be issued in respect of a national of any member state. Thus a French court could issue a warrant to try a German in France, on the basis of an allegation made by an Italian. The risks of abuse are enormous.
Had we decided to stay in the EU we would undoubtedly have seen greater use made of the EAW. It is so controversial that its use has been restricted for political reasons. Hauling a British subject on trumped-up charges before a European court would have generated even more anti-EU sentiment in this country.
Scrapping the EAW must be a priority. There is no particular reason to wait until 2019, although this government isn’t going to start untangling us from EU regulations, directives and decisions until then, and only half-heartedly after that. The mechanism for withdrawal from the EAW is straightforward – we just repeal Part 1 of the Extradition Act 2003.
That could most conveniently be done by including Part 1of the 2003 Act in the Schedule of Repeals in the so-called Great Repeal Bill. In practice District Judges will be a little more careful how they apply the Act once they know it will be repealed from the commencement date of the GRB. The process of withdrawal from the EU has already started – the tide of community law is ebbing.
Post-EAW arrangements should be straightforward. We just go back to the pre-existing extradition arrangements. The old treaties worked well, indeed there was hardly a controversial extradition case from 1870 until the EAW came along. I am not saying they worked perfectly – no legal system ever does or ever will – but they worked well enough.
In particular the old arrangements contained the most vital safeguard of all – the need for the requesting state to show a prima facie case. This allowed a magistrate (District Judges are a recent invention) to examine the evidence. It did not have to be sufficient to persuade the ‘stipe’ of guilt, but there had to be a case to answer.