The Long Arm of European Law

Posted on December 8, 2010


From a guest blogger:

One of the most surprising decisions of the new Coalition government has been its choice to opt-in to the new European Investigation Order (EIO) proposed by the European Union (EU). This directive would replace the current system of mutual legal assistance (MLA) with a system whereby one member state can require another to carry out criminal investigations on its behalf, and is intended as a complement to the European Arrest Warrant which has been heavily criticised by, amongst others, the human rights charity Fair Trials International.

This is part of extended EU competence in the sphere of criminal justice since the coming into effect of the Lisbon Treaty. Previously, the EU’s competence in criminal matters was ‘intergovernmental’, meaning essentially that State sovereignty took precedence over the powers of the EU institutions. Although intergovernmental elements still remain, important powers were transferred to the institutions by Lisbon, including the possibility of majority, as opposed to unanimity, voting among the member states in adopting new legal instruments, compulsory jurisdiction of the European Court of Justice (ECJ), and, likely, the standard application by the ECJ of the European legal doctrines of direct effect (limiting the importance of national parliamentary incorporation) and supremacy over national law.

The UK and Ireland, wisely, chose to retain the right of opting in or out of the new legal regime, yet the Coalition has chosen to opt in to the EIO proposal. This decision is surprising in several respects.  Firstly, it concedes powers to the much less accountable European level in matters traditionally seen as a keystone of national sovereignty, especially given the distinctiveness of the cherished UK common law tradition relative to continental legal systems (and the common law system’s  relatively greater protection of individual rights in the criminal process).  Secondly, it does not sit well with the Coalition’s general sensitivity to the problem of overreaching state powers in security matters (as evidenced by its dropping of national ID cards, for example). Most importantly, the serious significance of the EIO seems not have been properly appreciated.

Inside the European Court of Justice

The merit of the EIO is far from obvious relative to the threat it represents to the careful balance between individual rights and the collective interest reflected in the UK criminal process. First, the order applies to most investigative measures, so it potentially applies across the investigative phase of police work. This of itself is not new, but what is new is the extent of the powers given to other states.  The EIO represents, as one commentator has aptly put it, a ‘bonfire’ of the traditional grounds which states have reserved to themselves to limit their involvement in MLA in criminal matters. No longer can participating States refuse cooperation on the grounds that it relates to activity that was committed in the territory of the states whose help is requested, that had already been investigated and prosecuted in the UK, or that was not illegal when carried out in the UK. Potentially, any Member State in the EU can request that UK police investigate matters that occurred entirely lawfully, in the UK, when even the UK police themselves could not investigate under the UK’s own criminal process.

What most justifies concern is the vague way in which protection for the individual has been addressed, in the context that many of the traditional protections exercised by states seem to have been abandoned. It is provided that the Court of Justice is to protect the rights recognised in the EU Charter of Fundamental Rights and also that the process is subject to national constitutional rules relating to the media and freedom of expression. The problem with ECJ jurisdiction is that that court has always been willing to sacrifice other legal interests to its sense of mission to enhance integration, at the expense of national legal traditions and autonomy, and even of individual rights in the criminal process. The reference to national constitutional law in Article 1(3) might be thought to have re-introduced the kind of protections traditionally present in MLA, but bizarrely, this only extends to media and freedom of expression, which are not even the most relevant rights in this context. If such national constitutional rights are to be protected, why not criminal process rights (which are actually by implication excluded by the express reference to rights only relating to the media and freedom of expression)? It as if the drafters were hoping to make, superficially, a nod to protecting national constitutional law, in order to placate potential criticism on sovereignty grounds, but in a way that will make little or no difference in practice.

Overall, this measure presents in an alarming manner a conflict increasingly facing national decision-makers. How far should vague, generic pretexts of a need for cooperation in the context of globalisation be permitted to erode decision-making power, and democratically based protections for the individual, at national levels, in favour of European and international decision-making? Unfortunately, at the European and international levels, accountability can all too easily become dispersed due to the increasing role of largely unchecked European and international institutions (the EU institutions, for example, studiously avoid accepting a separation of powers, instead preferring a largely meaningless notion of ‘institutional balance’). The worry that the EIO example presents is that these important decisions are being taken with very inadequate scrutiny and consideration at national level, but with seemingly more careful planning by a relatively remote and unaccountable European elite.

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