Saturday, 29 November 2003

Criminal Justice and the draft Constitution

This article first appeared on the website of the Bruges Group.

The Rt Hon. Oliver Letwin MP

MR HAIN HAS told us that the draft Constitution is a tidying up exercise. I believe that Mr Hain is wrong – and the sections of the draft on Criminal Justice provide an interesting and important indication of just how wrong he is.

In Chapter IV Section I of the general provisions, we have the following text in the English language: “The Union will take measures to prevent and combat crime, racism and xenophobia”. I take it that we are all in favour of preventing and combating crime, racism and xenophobia. But the text does not stop there. More is to come. It goes on to tell us that the Union will aim at “the approximation of criminal laws”. This statement, in the general conditions, is of great interest. For those who are not familiar with the way in which the judgements of the ECJ have used preambles, it should be pointed out that statements of a general character in preambles or general provisions in treaties have persistently been used by the Court to enlarge the sphere of competence of the Union.

Then we come to Chapter IV Section IV and this is where the text begins to be even more interesting. We are told that: “judicial co-operation in criminal matters in the Union…shall include the approximation of the laws and regulations of the Member States”. We have the approximation of criminal laws in the preamble and now we are told that judicial co-operation, that fine sounding innocuous item, turns out to involve the approximation of the laws and regulations of the Member States. This is, on the face of it, an odd thing for the draft to say, because judges, on the whole, when they co-operate, co-operate in interpreting laws that already exist. You would think that two judges getting together to co-operate would not normally be able to approximate the criminal laws if the laws pre-existed the judges and were made by legislatures. But we are told that, when the judges co-operate, they should aim at approximating the laws. Presumably, the point is meant to be that, when judges make law – and, of course, to an extent they do – judicial co-operation should involve efforts to approximate criminal laws. I think this is, in other words, a pretty clear steer towards the idea that, in making judgements about particular cases, the judges in Member States should have it in their minds to try to achieve an approximation of criminal laws between those Member States. This is, in other words, a document that begins to put the local judiciaries in the position of working towards the approximation of the criminal laws between the States – I don’t think that implication has been spelt out by Mr Hain if, indeed, he has remotely noticed it.

I move on. “A European Law or Framework Law shall establish measures to:” for example, “prevent and settle conflicts of jurisdictions between Member States.” A very interesting idea. In Britain, there is a law that you drive on the left; in France, there is a law that you drive on the right; these are criminal laws with significant potential impacts on inter-State travel. Is this a conflict of jurisdiction between the Member States? I don’t know; you don’t know; no one will know until some judge begins to interpret them, but I can guess that the ECJ faced with such cases will take conflicts of jurisdiction to include differences. This is because they will look at the preamble and see that the approximation of criminal laws is one of the purposes of the Constitution and the purposes guide the reading of the innards of the text.

Next, a European Law or Framework Law is “to facilitate co-operation in criminal matters between judicial and equivalent authorities in relation to proceedings and the enforcement of decisions.” Now we are to have co-operation not just in the effort to approximate the criminal laws but also in relation to proceedings and in the enforcement of decisions, i.e. in policing. The text continues: “a European Framework Law may establish minimum rules concerning admissibility of evidence, definition of the rights of individuals in criminal procedure, rights to victims and” (just in case anything has been left out) “any other specific aspects of criminal procedure which the Council has identified.” So the new European Framework Laws are to come into effect in such a way that they achieve not just the approximation of the criminal laws in the sense of the substance but also in the sense of court procedures in the criminal courts. We are to have an approximation of criminal law in respect of the rules of evidence, in respect of the definition of rights of individuals, in respect of the rights of the victims of crime and in any other aspects of the criminal law chosen by the Council.

But let us pause a moment and consider the beginning of the phrase: “a European Framework Law may establish minimum rules.” The concept of “minimum rules” may sound like a minimal rule, a small rule, an unimportant rule. Nothing could be more misleading. A “minimum rule” means a binding rule, a rule which is a minimum in the sense that you can’t get out of it. It is, in other words a harmonisation principle – law in a member state has at a minimum to conform to this framework. What are these “minimum rules” to cover? We discover that they are to cover, inter alia, the definition of criminal offences and sanctions in relation to any serious crime where the Council determines that there is “a special need” for the EU to enact a “minimum rule.”

The authors of the draft are not, however, content with conveying these wide and uncertain powers to the EU to pass framework legislation on the definitions of, and sanctions for, serious crime. They continue: “these areas of crime are terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.” This is a very wide list, indeed. Almost every serious financial crime is in some way or other a computer crime; almost every serious non financial crime that isn’t a murder or a rape, and many that are, is a form of organised crime. Criminals are pretty organised beings. But the authors of the draft don’t regard that as a limit, because they go on to tell us that the Council can add “to the list”.

So what do we have here? We have a draft which establishes a general principle – the approximation of criminal laws. We have a draft which specifically entitles and commends the judges in the various Member States to achieve that effect without the help of their legislatures. We have a draft which allows and, indeed, compels the central legislature to pass new European laws that achieve the general principle of approximating the criminal law by setting procedures, defining crimes, defining sentences, and defining witnesses’ rights and victims’ rights, in relation to almost any serious crime.

This is, in short, a clear charter for the progressive transfer of control over the criminal law of the UK and other Member States from our and their Parliaments to the Council, the Commission, the ECJ and the European Parliament. If Mr Hain believes that such a transfer is a “tidying up exercise”, it is difficult to know what Mr Hain would regard as serious.

But I want, as I mentioned, to go on and ask the question that really is not yet being asked: “Why?”

I have always assumed that in much of the development of the EU’s Constitution, over the period I’ve been concerned with – which is now twenty years – at least part of the motive was genuinely the completion of the single market.

One thing we can be sure of is that this motivation, even to the extent it existed in other respects, cannot account for an effort to transfer power over the criminal laws of particular Member States to the central authorities in Brussels. I don’t know anyone who would argue that the Single Market or Free Trade Area in some way demand that there be, in general, identical criminal laws or even similar criminal laws in the various countries. Of course, if one were arguing for a common market in corruption, or for a common market in computer crime, one would wish for such approximation, but I don’t think it can be part of the motive of the authors of this draft to encourage a common market in those phenomena.

So if the motive isn’t to create a common market, is the motive to address a democratic deficit? Are people wandering around Britain dissatisfied with our system of law and order? Yes, and in abundance. There are many deficiencies of our criminal justice system. No doubt there are deficiencies in the criminal justice systems of other Member States. But I have yet to meet somebody who tells me that the source of the dissatisfaction with the system of criminal justice in this country is that it is different from that in France or Belgium or the Netherlands. In fact, I venture the suggestion that there are relatively few people in this country who would be able to say what the criminal justice systems are in any other European Member State, or vice-versa. There is no evidence of any great desire on the part of the peoples of Europe to see their criminal laws approximated one to the other.

So this hasn’t got a single market motive and it hasn’t got a democratic motive. Has it a huge advantage in efficiency? Will there be some economy of scope or scale which can be gained by the approximation of criminal laws?

Let’s take corruption. Corruption is a fairly live issue and I suppose it could be argued that the Member States have not been efficient in pursuing corruption; or that the degree of efficiency in the pursuit of corruption is uneven as between the Member States; or that the degree of efficiency with which corruption would be pursued would be greater if the Member States were to act collaboratively than if they were to act singly. But I have to say that I am unaware of any reason to suppose that collective EU action against corruption will be more effective than the actions of individual Member States against corruption. Why is corruption in London or Frankfurt less likely if the laws which govern what it is to be corrupt in London are the same as those in Frankfurt, or if the process for dealing with witnesses and sentencing in corruption trials are the same in the one place as in the other? Indeed, to the extent that the approximation of the laws involves changing the laws, it can be anticipated that, for a period at least, they will be less efficient as it is more difficult to administer a law that you aren’t familiar with than one that you are familiar with. So I find it difficult to believe that the motive is to make the system of justice more efficient.

Now, if the motive of the authors in dealing with criminal justice is not to complete the single market; if their motive is not to answer to a democratic desire; if their motive is not to make the system more efficient, what is their motive?

There is, I believe, an answer. If anyone rational were to set about trying to make of the EU a State, that person would wish to attribute to it the powers which are fundamental to a State.

A rational person with this motive would want to make sure that the EU ran a foreign policy; he would want to make sure that it ran its defence forces; he would want to make sure that it ran its economy; and finally, of course, and perhaps most importantly, because it is the defining characteristic of a State, he would want to make sure that it controlled criminal justice within its own area. You cannot have a State if you have not the control of the criminal justice system. This is the control of the relationship between one citizen and another, which is the defining moment of the modern State. The modern State has, as its primary purpose, to protect one person against others. In our own case, this conception goes right back to Magna Carta and beyond. It is because of this primary relationship of State to individual in the criminal law that Maitland told us that the freedom of the British people exists in the interstices of the law. Our freedom was established when Henry II set about the creation of the common law; when the Barons brought King John to Runnymede to force him to act in his court and not arbitrarily. Right back to the foundations of the modern State which grew in this country, what our ancestors have understood is that the foundation of statehood is the ability properly and with due process to protect one citizen against others. Everything after is built on that.

What this draft is doing – and the only plausible motive for the people who have drafted this draft – is to lay one of the principal foundations of statehood. The authors have built into the Constitution the basis upon which, progressively, the combined forces of the Council, of the ECJ, of the Parliament, and of the judiciaries of the Member States, will transfer power over the criminal law from the Member States to the central authorities, and thereby help to establish those central authorities as the primary State.

This is not a tidying-up exercise. To transfer power over the criminal law is, on the contrary, one of the most fundamental things that could happen to this country’s constitution. It is bad enough that such a thing should be put forward by a Prime Minister of this country. It is unspeakable that he should suggest it is something about which it is not necessary to vote in a referendum and for which it is not necessary to obtain the full-hearted consent of the British people.