New government position paper – cross-border civil judicial cooperation framework

The title of the latest government position paper is a bit of a mouthful. Importantly, it deals specifically with civil, not criminal law, so it does not touch on the contentious issue of the European Arrest Warrant.

The paper confirms that we will leave the jurisdiction of the European Court of Justice, on the basis that its jurisdiction over the UK will terminate because the EU treaties will cease to apply.

This makes perfect sense as far as internal legal issues are concerned, but what of disputes which cross national boundaries? A consumer resident in the UK may wish to take a German company to court. Actually, at the moment, even with the UK still a member of the EU,  Our  courts are already used for 40% of global commercial arbitrations, often involving companies from countries outside the EU.

The paper does not go into detail as to how judicial cooperation will be maintained between the EU and a newly-independent UK, it merely states the benefit of maintaining such cooperation. It does list a number of international agreements on civil judicial cooperation to which the UK is a signatory, no doubt  in the hope that these international agreements will smooth the way for ongoing cooperation after Brexit.  It does suggest, however, than an interim period may be necessary before the final model (whatever this might be) comes into operation.

As with the previous position papers, the objectives are set forth in a reasonably straightforward way, but little is given away about the means by which they can be achieved.

 

The proposed alternative to the European Arrest Warrant is not satisfactory

I am afraid that David Davis’s scheme for a new European Arrest Warrant is not at all satisfactory as it stands. Here is the essence of it:

__________

Under the proposal a new “ad hoc” legal commission would replace the European Court of Justice (ECJ) which currently rules on extraditions.

The new panel would have a Supreme Court judge, an ECJ judge and one from a third neutral country to rule on each extradition.

__________

This proposal as it stands is merely cosmetic, and here is why:

Any oversight by a superior body, whether our own Supreme Court or even more so by a new ad hoc mixed legal commission can only see and ensure that the current EAW legislation is applied by the lower courts.

And the main problem is that it is not proposed here to alter the current EAW legislation, which says that prisoners must be surrendered at a bald, unsupported, demand from the requesting State, with no examination by a court of the requested State of evidence of whether there is a serious case to answer or not.

It is – wrongly and wrongfully – ASSUMED by many in Britain that the EU states will all have assembled evidence of guilt and will be “prosecution-ready” before they issue an EAW (as is the normal practice in Britain). Indeed according to the Treaty we are bound to trust them blindly to have done so, under the doctrine of “mutual confidence and recognition”.

Our politicos and legal eagles, not to mention pundits, are still – willfully? – ignoring the fact that the practice in States ruled under the Napoleonic-inquisitorial dispensation is to arrest a suspect FIRST, and only AFTER they have him under lock and key, do they try to build a case and seek evidence against him. This often takes months, while the unfortunate rots in duress vile with no public hearing, as we have seen happen all too often.

This is not – as our own people assume – due to the sloppiness of continentals in applying standards that we in Britain consider to be right and normal; it is the way their system functions normally, and is supposed to function. They do not work to our standards,  but to their own, which are completely different from, indeed alien to, ours.

I have been through the historic reasons, going back 800 years, for this profound difference elsewhere and shall not do so again here.

Whether the grounds for suspecting, and for arresting, a particular person amount to serious evidence of a case to answer, or flimsy evidence that would not stand up to serious scrutiny, or no evidence at all but merely clues, or just a hunch, or even a prejudice, on the part of the investigators, is sorted out in Britain by our Habeas Corpus.

This provides a right for a prisoner to be brought into a public hearing in open court within HOURS or at most a few days after arrest. And there he can demand to be shown the evidence on which he was arrested. He must there be “charged”, and in Britain and other English-speaking nations a charge must be based on hard evidence, already collected, of a case to answer. No right to any such speedy public hearing exists in continental States, where six months, extensible, in prison “pending investigaton” with no public hearing, is considered a normal limit (for many categories of cases, not only extreme terrorism cases), as per the Corpus Juris proposal for a single unified criminal code for all Europe.

Some years ago an attempt by our own government to introduce 42-day detention without charge nor public hearing in terrorist cases was resisted and opposed on principle by none other than David Davis himself, who nobly resigned his seat and stood for re-election on this very point, and was returned again by his electorate who clearly shared his concern to keep our traditional safeguards of the liberty of the subject. Has he forgotten this? How can it have escaped his notice that the EAW as it stands brings in not just six weeks, but six months, in the case of Andrew Symeou eleven months, detention without charge or public hearing?

The European Convention on Human Rights provides no remedy. Its article 6 merely says that a prisoner must have a public hearing within a “reasonable” time after arrest, and the continentals will say that it is “reasonable” for them to take six months to investigate a person and assemble evidence against him of a case to answer.

One solution could be to force the continental States to hold a Habeas Corpus public hearing within hours of receiving a prisoner to show that there is a case to answer, or to release him. We have already seen that this would not be accepted by them for it goes against their whole legal culture. Indeed in 2002 the late Neil McCormick QC MEP presented a motion to the EU Parliament to set up a “Euro-Habeas Corpus” to go with the EAW, but it was overwhelmingly voted down.

So it will have to be our own courts who demand that an EAW, or indeed a warrant received from any foreign State, must be accompanied by evidence of a case to answer which can be examined by a UK court with the power to reject it if considered insufficient. This is what happened before the European Extradition Act of 1989. The delays complained about were largely due to the foreign authorities, who are quite unaccustomed to having to investigate first and arrest after. They prefer to do it the other way round. Under our previous legislation, they had to do it our way. Now we have to do it their way.

At present the UK is forced to conform to the continentals’ yardstick. This flies in the face of Magna Carta (clause 38).  But people on British soil (even if not British citizens) must be entitled to the protection of British laws. This always used to be the case, and it must be restored.

The renewal of border checks will enable the UK to keep out known foreign criminals whose identities have been flagged up to us by foreign authorities. So the garish scare-mongering about “Britain becoming the Costa del crime” and the “honeypot for criminals” argument can be laid to rest.

The practical argument that supporters of the EAW cannot answer is: if no substantial evidence of guilt is collected BEFORE arrest, how can the authorities know that they have got the right person to accuse? Indeed the record of the EAW’s application shows many cases where perfectly innocent people (including even a British judge – Colin Dines!!) were targeted and made to suffer forced transportation and often lengthy imprisonment, thus allowing the truly guilty parties to escape scot-free.

Even if we had our own Supreme Court to oversee the application of the EAW, it can only do so on the basis of the legislation as it stands. However sympathetic it might be towards an obviously innocent victim of a monstrous judicial muddle, or even of persecution on a trumped-up charge, as long as the doctrine of “mutual recognition” remains on our Statute book, the Supreme Court cannot do anything other than apply it. Willy-nilly. Judges in our lower courts have even been embarassed about EAW cases like this, but have been powerless to do anything other than apply the law as it stands. The Supreme Court would be in a like position.

So a reform of the EAW needs to insist that when foreign authorities send us a warrant to arrest someone on British soil, they must also send an indication of the evidence of a prima facie case to answer. Otherwise we cannot prevent them from using the EAW as a tool for fishing expeditions.

Is David Davis going to set us free from the EAW?

It is very good to see that David Davis, by raising the point about the supremacy of the ECJ’s jurisdiction over the EAW, has taken a first step to breaking us free from the shackles of the continental inquisitorial justice system, so alien from ours. I am hoping that he might now take a second step, viz, as follows:

In my speech on Alien Legal Systems, at the CIB event in the House of Lords on March 15th this year, I mentioned David Davis. Here is an extract from that speech, with my personal challenge to him which he might now answer, and indeed perhaps he will answer it:

 “For us in Britain, the preliminary public hearing in open court,  where the prisoner is formally charged, must take place within hours, or at the most a few days, after his arrest and detention.

Some years ago there was an attempt to extend this, in serious terrorist cases, to three months, then reduced to six weeks. An MP called David Davis fought a noble battle of principle against this – he resigned his seat and stood again for Parliament on this very point – Habeas Corpus. He won and was returned to his seat. In the end, Parliament fixed a maximum limit of 28 days of detention without charge, and only in exceptional cases of terrorism. This is what we in Britain consider to be “reasonable”.

But for many EU states, under their Napoleonic-inquisitorial jurisdictions, it is considered “reasonable” to keep a prisoner under lock and key with no public hearing for six months, extensible by three months at a time. These are the terms of the Commission’s Corpus Juris proposal for an embryo single uniform criminal code to cover the whole of Europe, including the British Isles. This is what is may be faced by anyone in Britain who is targeted by a European Arrest Warrant. And on a long list of crimes, not just terrorist cases.

Now is the David Davis who resigned his seat to stop the six weeks’  detention bill on no evidence, the same David Davis now in charge of the government’s Brexit department? If so, does he share Ms Rudd’s wish to keep us subject to, not six weeks, but six months and, in the case of Andrew Symeou, nearly a whole year’s detention with no public hearing? If he opposes it, will he please say so openly?

This is no marginal matter. As I have shown, whoever controls criminal justice, controls the police and prisons, and thus holds the  ace of trumps in the struggle for power over a country. And that is precisely what Brexit is really about – who shall hold power in this land? Shall it be the unelected bureaucrats in Brussels? Or shall it be the people of Britain?

So we see that the European Convention is a very thin blanket,  designed to cover systems with Habeas Corpus as well as those without. It can only work if the woolly ambiguity of its use of words like “reasonable” [in article 6, referring to a prisoner’s right to a public hearing within a “reasonable time”] remains unchallenged.”

[For your ease of reference, the whole speech is here (7 pages)]

Magna Carta and Europe

Although written two years ago to mark the 800th anniversary of Magna Carta, this article remains very topical as our Brexit divorce begins. It is imperative for it to include a complete break with the Napoleonic inquisitorial legal system which dominates the EU if Brexit is truly to mean Brexit.

Magna Carta crossed the oceans. In all the lands where English is spoken, its principles are known and recognised.

But it never crossed the Channel.

In 1215, in England the Barons were confronting King John; in Rome Pope Innocent III was setting up the machinery of the Holy Inquisition.

A major purpose of Magna Carta was to limit the powers of the King – the central State authority.

In contrast, the Inquisition expanded and deepened the power of the authorities over the individual. Not only actions, and words, but even thoughts, were scrutinised and, if “culpable”, punished.

In ancient Rome, an accuser faced a defendant, and the case was decided by a judge, independent from both. Under the Empire, the Emperor’s word became law. The dark ages saw more primitive forms of judgement (trial by ordeal, by combat…)

As analysed by the late, great, Italo Mereu, Professor of the History of Law at Ferrara University, in his painstakingly detailed history of the Inquisitorial system from the origins to the 1970s, “Sospettare e Punire” (“To suspect and to punish”), the Inquisition brought together the functions of prosecutor and investigator with that of the judge, in the new figure of the Inquisitor. The Inquisitor’s job was to identify, seize, and interrogate a suspect, in order to arrive at the “truth”. Or, it might be said, at the desired result.

The arbitrary powers of the inquisitor, and of his superiors, were clearly vast. The machinery of the Law became a tool for the ruler to ensure complete command and control over his subjects.

Clearly Magna Carta constituted a potent obstacle to such arbitrary exercise of power. In fact the Pope was furious when informed about what had happened at Runnymede, and wrote to the English bishops and abbots who had helped set it up telling them they had done something “abominable” and “illicit”.

The specific constraints on the power of the State provided by Magna Carta include the famous and much celebrated clauses 39 “No free man shall be…. punished… save by judgement of his peers and by the law of the land”, and 40 “To no-one shall we deny, delay, or sell justice”. Clause 39 in particular removed from rulers a crucial power of government, the power to decide who should be punished and who not. This power was placed in the hands of a jury of the defendant’s peers, thus laying a foundation stone of democracy, and a bulwark against arbitrary punishments.

For eight hundred years since then, the English and the continental criminal procedures have gone off in different directions.

The Inquisition ravaged the nations of continental Europe for centuries, persecuting and prosecuting witches, heretics, and…. scientists. Initially an ecclesiastical institution, its methods were adopted by secular rulers, as a means of suppressing opposition of any kind.

England alone escaped its grip. We fought off the Spanish Armada, which would have brought the Spanish Inquisition to our shores. Elisabeth I rejected the inquisitional method – “I will not make windows into men’s souls”. A sort of papal “fatwa” promised a fast track to heaven for any Catholic who murdered her. Yet she did not outlaw those who followed the old religion, though subjecting them to some constraints.

The power of Parliament grew and in the mid-seventeenth century prevailed over that of the king in the civil war. Parliamentary supremacy – representing ultimately the will of the people – was then firmly consolidated with the glorious – and bloodless – revolution of 1688-89.

Meanwhile across the channel absolutism held sway. The King of France famously proclaimed “I am the State”.

The French Revolution swept away much of the old order. The “rights of man” were proclaimed. Then soon Napoleon took over the helm of France, and his armies set about invading most of Europe to export his notion of the “rights of man”. His codes of law to this day underlie the legal systems used on the continent.

Some of the original thinkers of the enlightenment, like Voltaire, whose ideas helped spark the French revolution, had drawn inspiration from the very different system of government they had seen in England. But Napoleon did not adopt Magna Carta, nor its principles, in criminal procedure. He adopted and adapted the basic elements of the inquisition, redirecting it to serve not the Church, but the State.

In the traditional English system, the powers of jurisdiction governing the different parts of criminal procedure are attributed to different bodies. Essentially, the police, divided into 43 independent local constabularies, investigate a case; the magistrates (mostly non-lawyers, unpaid volunteers working part-time) sign arrest warrants, and then decide bail and committal to trial in public hearings; a barrister is hired to conduct the prosecution in court, where he or she faces another barrister hired by the defence; the judge presides over the proceedings in court deciding procedural disputes between the parties, and handing down the sentence after a guilty verdict. And crucially, the verdict is entirely in the hands of a jury of 12 ordinary citizens, voters selected by lot from the electoral register, peers of the defendant, just as was establsihed by Magna Carta so long ago.

The distribution of these powers into different hands provides essential checks and balances, not just between the legislative, executive and judicial functions, as famously prescribed by Montesquieu, but within the judicial function itself, on whose delicate balance depends the individual freedom of each and every citizen from arbitrary arrest and wrongful imprisonment. The use of legal violence on people’s bodies, by arrest and imprisonment, is an exclusive prerogative of the sovereign State in any society. Its arbitrary use is a prime tool of tyranny. This is why effective legal safeguards against misuse are so necessary. Here lies the genius of Magna Carta, which 800 years ago in England provided the first legal safeguards against such arbitrary misuse.

Compare and contrast with today’s Napoleonic-inquisitorial systems, where a career judiciary, whose members are State employees, comprises prosecutors and judges, but excludes defenders. The prosecutor is nowadays no longer the selfsame person as the judge, but they are both servants of the State (though they may sometimes be institutionally independent from political control), and they are close colleagues, who can work in tandem together on case after case. The judges may have been prosecutors during the course of their careers, but normally they will never have been defenders.

Under the Napoleonic-inquisitorial dispensation used in continental Europe, all these powers are placed in the collective hands of one brotherhood – the career judiciary.

In Italy, for example, criminal investigations, prosecutions, assessments of evidence, decisions on arrest, bail or remand, the direction of courtroom proceedings, judgements of guilt or innocence and sentencing are all under the exclusive control of members of the career judiciary (“magistratura” – not to be confused with the idea of an English “magistrate” for which there is no equivalent).

After a law degree, young law graduates face three career alternatives: attorney, notary, or the judiciary (“magistrato”). To become a judge, they must pass a stiff State exam (set and marked by existing members of the judiciary), and then they are in. After one year’s “apprenticeship”

(“uditorato”), they are assigned to a judicial office as a prosecutor/investigator or a judge, where they sit, pen in hand, empowered to order criminal investigations, arrests, bail, committals, etc. They are not trained in detective techniques, relying on their book knowledge of the law. But they direct the police (who may have such training) in the conduct of criminal investigations. It is said that this separation between competence and responsibility in criminal investigations explains why numbers of cases are not investigated as fruitfully as might be hoped.

Trial by Jury – that great heritage of Magna Carta – has no place in the Napoleonic-inquisitorial dispensation. Most cases are dealt with by professional judges alone. Very serious cases are heard by what might look like a jury of ordinary citizens chosen by lot. Actually, the verdict and the sentence are decided by a mixed panel of six lay “jury-people” and two professional career judges. They all go into the jury-room together, where the “judge’s summing-up” is delivered in secret. Although the six jury-people can outvote the two professionals, the latter obviously take a leading role in guiding the verdict. They also have other means of ensuring that what they consider a “perverse” verdict can be appealed against. There are no safeguards against double jeopardy – the prosecution are perfectly entitled to appeal against an acquittal, even if no fresh evidence has emerged.

Two other direct legacies of Magna Carta are clause 40 – “to no-one shall we delay justice”, and the not-so-often celebrated clause 38. The latter is worth quoting in the original: “Nullus ballivus ponat de cetero aliquem ad legem simplici loquela sua, sine testibus fidelibus ad hoc aductis” – “No judicial officer shall initiate legal proceedings against anyone on his own mere say-so, without reliable witnesses brought for that purpose”.

These provisions are ensured by Habeas Corpus. Under Habeas Corpus, a suspect if arrested must be brought into open court within hours (or at the very most, a few days), and there charged formally. And the charge must be based on enough hard evidence, already collected, to shew that there is a prima facie case to answer.

It is perhaps taken for granted in English-speaking countries that any proceedings must be based on evidence. Not so however on the continent. In Italy, for example, a person may be arrested on the orders of two members of the judiciary (one acts as “prosecutor-cum-investigator” and the other as “judge of the preliminary investigations”), at the outset, on mere suspicion based on clues (“indizi”). Hence the title of Professor Mereu’s book. The prisoner becomes a “person-under-investigation” (“indagato”), and can be kept in prison during the investigation, which can last months, before the authorities are ready to commit him. There is no right to any public hearing during this time. Within hours of arrest, the prisoner is interrogated by the two judges who ordered his arrest, in a secret hearing. He is assisted by his lawyer (or by a lawyer appointed by his interrogators if he cannot afford his own), and he can try to persuade them that they have got the wrong person, but he cannot see any evidence against him until much later.

All this directly violates clauses 38 and 40 of Magna Carta. Yet this is what happens to British subjects and others who are subjected to the European Arrest Warrant. Under the EAW no British court is allowed to ask to see any evidence of a prima facie case. Presumably the Parliamentarians who voted for this measure must have believed that the foreign judicial authority issuing the EAW would already have the necessary evidence, to be exhibited in a public hearing soon after extradition took place. Yet numbers of innocent Britons can testify that this is not the case. Famously, Andrew Symeou spent 11 months in a Greek prison before his first appearance in an open court hearing, where the case was dropped, owing to lack of any serious evidence.

It is thought that the European Convention of Human Rights offers adequate safeguards for the innocent. It does not. The ECHR makes no provision for Habeas Corpus, let alone Trial by Jury. Article 6 vouchsafes an appearance in a public hearing within a “reasonable” time after arrest, but does not specify what is “reasonable”. For us it is a matter of hours or at most days. In Europe it can be months or even longer.

Our forefathers, in their wisdom, laid down these safeguards for our freedom. Their words have rolled down eight centuries, to protect us. Yet today, we are abandoning them, for an illusion, based on wishful thinking.

This 800th year after Magna Carta is also the 200th anniversary of Waterloo. How ironic if Napoleon should have the last laugh after all.

 

For anyone wishing to study this subject in more detail, this submission to the House of Lords Committee on opting out of various criminal measures in the Lisbon Treaty is worth reading.

Photo by bekra

Criminal Justice – further reasons to distance ourselves from the EU

On the day that voters in the UK go to the polls, the European Council has announced that 20 member states have agreed on the details for setting up the European Public Prosecutor’s Office.  (It is easier to list the non-signatories: Ireland, Malta, Poland, Hungary, Denmark, Sweden, the Netherlands plus, of course, the UK.)

Plans for a European Public Prosecutor’s Office (EPPO) go back to the 1990s as part of a proposal to address budgetary fraud in the European Union.  Indeed, today’s announcement from the European Council emphasised its determination to tackle fraud:- “The EPPO will have the authority, under certain conditions, to investigate and prosecute EU-fraud and other crimes affecting the Union’s financial interests. It will bring together European and national law-enforcement efforts to counter EU fraud.”

The EPPO would operate under a European legal framework based on the inquisitorial Napoleonic law principle and applicable in all member states. The setting up of a mechanism initially to prosecute individuals for one specific class of offences was seen, in a consultation document dating from 1997 as “the embryo of a future European criminal code.” In other words, it was to be the first step in the harmonisation of legal systems across the member states.

Although the UK is leaving the EU, these developments are of more than academic interest. The EPPO will be empowered to issue European Arrest Warrants against people in the UK, as confirmed by the QC’s Opinion commissioned by Christopher Gill and Stuart Wheeler. The EPPO chief will surely be a political nominee (beholden to the Commission, doubtless), and can thus be used, on ostensibly “financial-crime” pretexts, to arrest and incarcerate political opponents of the EU project.

If we are to keep our distances from the EPPO, it is therefore more important than ever for us to dissociate ourselves from the European Arrest Warrant.

EU security and counter-terrorism control after Brexit

Dominic Grieve, the Conservative Chairman of the Commons Intelligence and Security Committee, argues that the UK must retain membership of the EU’s law enforcement agency (Europol) after Brexit, even if this means “accepting EU rules and judicial oversight for the European Court of Justice (ECJ).” This is not real Brexit and nor will it make us safer, in fact quite the reverse.

Security is the new defining issue of both British and European politics. Even the United States is concerned that Europe’s problem is a danger for us all. It will also form the key issue in the Article 50 Brexit negotiations, or at least so the Government hopes. According to The Daily Telegraph, the Cabinet meeting of 7th March 2017, which approved the strategy for PM Theresa May’s opening gambit in her soon to be sent Article 50 letter mentioned security no less than 11 times.

This was seen as using ‘blackmail’ and ‘threats’ and taking advantage of the fear of Russia. The governments thinking is that security is the ‘defining issue for the EU.’ And that the government believes that this issue gives Britain a ‘very strong hand’ in its forthcoming negotiations with Brussels.[i] It is surprising that a Conservative Government would see benefits in the fact that the EU’s eastern frontier is unstable and, in the view of some, vulnerable to Russian aggression.

Theresa May has not been alone in taking a robust approach to the EU and playing the security card. The Home Secretary, Amber Rudd, has said that the UK could stop co-operation with Europol. Perhaps the British government may even come out of the European Arrest Warrant… but that may be too much to hope for.

The flip side of the Government’s perceived threats not to participate in security measurers if no trade deal is forthcoming, is that if the EU does acquiesce to Britain’s demands then the UK will support and participate in Brussels ambitions in this area.

The benefit of the European Arrest Warrant and EU led police, judicial and intelligence cooperation is itself highly questionable. There are other ways with which a post-Brexit UK can still cooperate with other nations, and attempt to keep its citizens safe. Click here to read a recent article which details how this can be achieved.

There is a presumption that intelligence and data sharing via the EU is a good thing. This is not necessarily so. Compelling the UK to share information breaches the cardinal rule of intelligence, control over that information. Indeed, the US intelligence agencies drew the ire of the British government after they leaked information on the Manchester terror attack. The BBC reported that police stopped passing America information on the Manchester attack.[ii] Yet, even bigger issues are at stake. The effectiveness of how best to protect people is at stake and the independence of our security services from Brussels.

Dominic Grieve, the Conservative Chairman of the Commons Intelligence and Security Committee, argues that the UK must retain Europol membership after Brexit, even if this means “accepting EU rules and judicial oversight for the European Court of Justice (ECJ)”.[iii] In these times, the European Union is being touted by some unformed remainers as an answer to Europe’s terror threat.

In the referendum, they warned that Brexit will mean that the UK will be outside of Europol. This would not be a bad scenario as its officers are ‘immune from legal proceedings in respect of acts performed by them in their official capacity’. Yet, the Director of Europol, Rob Wainwright, recently stated that a post-Brexit UK can indeed still cooperate with the EU’s law enforcement agency. So, the arguments used by Remain in the referendum were clearly false. Yet, is the EU and coordination of security the answer to our safety? Some would argue that it has exacerbated the terrorist problem we now face.

EU Freedom of Movement was described by Ron Noble, the Head of Interpol, as “like hanging a sign welcoming terrorists to Europe.”[iv] He is not alone in his criticism. Sir Richard Dearlove, the former head of MI6, stated that Brexit is a security gain as it will allow us to have “greater control over immigration from the European Union.”[v] Indeed EU Directive 2004/38 stipulates that an immigrants criminal record is not grounds to refuse entry to the UK.

Sir Richard’s assessment of EU security agencies is that “…though the UK participates in various European and Brussels-based security bodies, they are of little consequence.” Ultimately his assessment is that these bodies have no operational capacity and are mainly forums for the exchange of ideas.

Just because these bodies are ineffectual is not the only problem. The even more significant issue is that EU led intelligence will detract from Britain’s participation in global bodies such as the ‘Five Eyes’ Intelligence-sharing partnership.[vi]

Another layer of EU bureaucracy taking over intelligence is no substitute for effective national control. Yet this emerging bureaucracy, indeed it has several new tiers, is exactly what Brussels is putting into place. And perhaps even keeping a post-Brexit UK tied into their structure. The EU has created Eurojust, the European Union’s Judicial Cooperation Unit, and in 2010, as a part of Europol, they established in 2010 the European Cybercrime Task Force (EUCTF).

Charles Michel, the Prime Minister of Belgium has called for “A European CIA (Central Intelligence Agency).” This is just the beginning the European Commissioner for Migration and Home Affairs, Dimitris Avramopoulos, also called for a pan-European spy agency.[vii] The President of the European Commission is also in favour of the EU coordinating member states secret services.[viii]

What is not realised by many is that these plans are already underway. The EU Intelligence and Situation Centre (EU INTCEN) came into being in 2011 and is the intelligence body of the European Union. It operates under the European External Action Service (EEAS). Along with the European Union Military Staff (EUMS) which handles military intelligence, EU INTCEN is part of the EU’s Single Intelligence Analysis Capacity (SIAC). These bodies are not effective.

Richard Wilton, Head of Counter Terrorism Command at New Scotland Yard from 2011-15, is adamant that EU led intelligence sharing matters not and Britain’s counter-terrorism capability will not be harmed by Brexit.[ix]

Sir Richard Dearlove dismissed the relevance of Brussels security bodies such as Europol, stating they were “of little consequence”. In fact, they are worse, as the fear of leaks is ever present. According to Sir Richard Dearlove British information is not shared throughout the EU as its members are potentially a “colander” for intelligence.[x]

The EU does not have a great track record on security. The EU’s Focal Point Travellers initiative, which seeks to coordinate investigations into foreign terrorist fighters in Europe from places such as Syria and Iraq only has information on 2,000 suspects which is less than half the foreign fighters known to individual EU member-states security services. And of course, this is just a fraction of both the number of people who have recently arrived in Europe from the middle-east and those homegrown people that sympathise with the jihadis. There is an intelligence black hole at the heart of Europe Union.[xi] Europol’s European Counter Terrorism Centre is not making us any safer.

Currently the dead hand of the European Union has been of little benefit tackling the problems that emerge out of places such as Molenbeek, Malmö and the suburbs of Paris, and clearly in the UK as well. Our safety cannot be outsourced to the EU as the likes of Dominic Grieve suggest. Nor is there the need. The UK is an intelligence leader and does not need the control of the European Union. Other states will, and do, want to share intelligence with Britain.

Britain’s intelligence services, along with our armed forces, are areas where we have an important resource which the EU is seeking to co-opt. Brussels is not stopping at the EU developing an intelligence arm. It is also building its military capacity, to back up its foreign policy[xii] and no doubt to establish its power at home and abroad. The plans are already underway.[xiii]

In the Brexit negations, which start on 19th June, the British Government must stand firm against EU attempts to take a measure of control over our excellent military and intelligence resources, and certainly not offer them up as part as some deep and special arrangement with Brussels. We can cooperate with global bodies and individual nations, but more EU bureaucracy in this important area is an unwelcome distraction.

[i] http://www.telegraph.co.uk/news/2017/04/01/revealed-cabinet-plotted-exploit-eus-defence-fears/
[ii] http://www.bbc.co.uk/news/uk-politics-40040210
[iii] https://www.theguardian.com/politics/2017/may/27/eu-theresa-may-combat-terror-brexit-europol
[iv] https://www.nytimes.com/2015/11/19/opinion/europes-welcome-sign-to-terrorists.html?_r=0
[v] http://uk.reuters.com/article/uk-britain-eu-security-idUKKCN0WQ0NE
[vi] http://www.pbs.org/newshour/rundown/an-exclusive-club-the-five-countries-that-dont-spy-on-each-other/
[vii] http://www.euronews.com/2015/11/30/belgium-s-pm-michel-calls-for-a-european-cia
[viii] http://www.euractiv.com/section/global-europe/news/juncker-warms-to-the-idea-of-an-eu-intelligence-agency/
[ix] https://www.thesun.co.uk/news/3676254/former-counter-terror-chief-says-britains-security-wont-be-harmed-by-brexit-because-of-our-spooks-global-reach/
[x] http://www.telegraph.co.uk/news/2016/03/24/quitting-the-eu-would-help-our-security-former-mi6-chief-suggest/
[xi] http://www.politico.eu/article/europes-intelligence-black-hole-europol-fbi-cia-paris-counter-terrorism/
[xii] http://www.bbc.co.uk/news/world-europe-31796337
[xiii] http://www.consilium.europa.eu/en/infographics/eu-global-strategy/