Mrs May must suspend the EAW now

By Torquil Dick-Erikson (c) 2016

In April 1997, at a specially convened seminar in Spain, the EU Commission unveiled its “Corpus Juris project”, for a single system of criminal law for the whole of the EU, based entirely on Napoleonic-inquisitorial principles. At that stage it was nothing more than an embryonic criminal code, but had it been inflicted on us, it would have swept away our own Magna Carta-based system, in particular our Trial by Jury and Lay Magistrates (art. 26.1), our Habeas Corpus (art. 20.3.g) and our protection against double jeopardy (art. 27.2). I happened to be among 141 European jurists invited to attend, as guests of the Commission. I was included in the Italian delegation, as a last-minute replacement. The head of the Italian delegation had read an article I had published in an Italian law journal and had been impressed enough to invite me to come along and fill an empty slot.

Since then, I have been following subsequent developments in the area of European criminal law, including the introduction of the European Arrest Warrant (EAW) and the establishment of its own paramilitary, lethally armed, police force, the European Gendarmerie Force (EGF). Six national gendarmeries are currently being trained and drilled side by side, in a location in Northern Italy, to weld them into a single European corps. They will then be deployed all over the European Union, in any state with its “consent” (art. 6.3 Treaty of Velsen, signed by EGF participant states).

In 2012, when she was Home Secretary, Mrs May said of the Eurogendarmerie, “Of course” we will call upon them, “onto British soil”,  “if we see the need”. Since she became Prime Minister, I can find no evidence that she has ever disowned this statement. What is more, no one, apart from Christopher Gill and myself, has been calling on Mrs May to refuse unevidenced European Arrest Warrants with immediate effect.

Mrs May has insisted that “Brexit means Brexit”. If she is serious about this, EU authorities must no longer be allowed to arrest and deport people from Britain at their whim – i.e., without shewing any substantive evidence.  The EAW legislation specifically states that the authority issuing an EAW should not provide any indication of evidence of a prima facie case and the country receiving a EAW is not allowed to ask for any evidence but has to trust the requesting country blindly. Past experience shows that we cannot do this as their systems of criminal justice are totally different from our own. They allow a suspect to be arrested and kept in prison for many months “pending investigation”, with no right to a public hearing nor obligation on the prosecution to exhibit any evidence during this time..

We live in a country that has been remarkably favoured – partly due to our island location, partly because of the protection provided by what was once the world’s most powerful navy. We have thus been spared the violent changes which our continental friends have seen to their governments within living memory.

For them, the concept of heavily-armed paramilitary police like the EGF is quite familiar. They see them every day on their streets. They will be less concerned that we would have been that policing in the EU will eventually look like, feel like, and be like a military occupation by a hostile armed foreign force.

In this year’s referendum campaign, little was made of the vast difference between the UK’s criminal justice and policing systems and those on the Continent. At first glance, it hardly seems like a winning argument as most people in the UK have never been before a court of law, do not have a criminal record and do not expect to. This is to miss the point.  We have had such a long and unbroken history of peaceful constitutional development that we have forgotten that, at the end of the day, criminal law is actually the handle granting complete control over a State and all its inhabitants.

Criminal law means police, handcuffs and prisons. It means the physically forceful, enforcement powers of the State over the citizens. It is under the criminal law that the State can (or cannot) send its officers into your home, breaking down the door, hauling you out of your bed and off to a prison. The State holds a monopoly of legal, even lethal, force over the citizens, and the exercise of this power is regulated by the criminal law. In our country, the State has exercised this power in a considerably more benign way than across the Channel. For 800 years its powers in England have been limited by Magna Carta. On the continent they have been enlarged and deepened by the Inquisition, with methods as adopted and adapted by Napoleon.

It is therefore critical, if Brexit is to mean Brexit, that the inevitable co-operation that will be needed between the UK and the EU on matters of criminal justice must grant no concessions to any aspect of EU criminal justice which violates basic safeguards of our own historic system. Any arrangement must include a repudiation of the European Arrest Warrant and the solemn undertaking that there will never ever be any invitation for the EGF or any other armed EU body to set foot on UK soil.

If the EAW is properly presented as “Arrest and lengthy imprisonment on no evidence and with no right to a public hearing for many months”, which is what it is, but which was not made clear when Parliament voted to reconfirm it in November 2012, it will be very hard for opponents to argue against its immediate suspension, as from NOW. And procedurally a case can surely be made for Parliament to reverse its earlier decision, with immediate effect. We could have remained opted out from the EAW without violating any part of the Lisbon Treaty.

If the government suspended the acceptance of unevidenced EAWs with immediate effect, this would show that Mrs May really is serious when she says “Brexit means Brexit”.

Unfortunately, last week’s online Express carries articles showing that the government is actually going in the opposite direction. I quote:- “Britain will remain a part of Europol despite our exit from the bloc,” Policing Minister Brandon Lewis has told Parliament. This is not only “until we leave”, for He added: “The Government is exploring options for cooperation with Europol once the UK has left the EU.”

We must remember that Europol is not just an extension of Interpol; it is the embryo of what Helmuth Kohl called “a European FBI”. Once they get their boots on our soil we shall never be able to get rid of them, except by force, for they will only take orders from Brussels. The government surely has a duty not to let matters reach a state of armed confrontation. If we get signed up to Europol’s extended powers as is now suggested, and  we remain subject to the EU’s power to have any of us arrested and transported with no questions asked, we shall be always under the heel of Brussels. If Brexit means Brexit, this is unacceptable

This matter must be publicised, far and wide, beyond just the readership of the online Daily Express. The people must be told!

Brexiteers in Parliament, of whatever party, should raise their voices and demand that Mrs May must:

1) give a solemn assurance that we shall never ever under any circumstances whatsoever allow armed EU units to set foot on British soil;

2) suspend with immediate effect any unevidenced EAWs that are received in Britain.

You don’t have to be a lawyer to spot a problem with the law

One of the most frequent jibes levelled at those of us who have raised questions about the recent High Court judgment on Article 50 is for Remainers to say “You’re not a lawyer, are you?” The clear implication is that those who are not lawyers have no right to have a view on the law.

But you don’t have to be an historian to know that it was unlikely that the Duke of Wellington deployed Spitfires to give his army air cover at the Battle of Waterloo. And you don’t have to be a lawyer to spot a problem with the law. In this case, you just need to have a long memory.

Back in 1993, Lord Rees-Mogg took the government to the High Court seeking to stop ratification of the Maastricht Treaty. Lord Rees-Mogg contended three things:

1 – That the Social Protocol was improper under UK law;

2 – That the Government was using its prerogative powers to change the law without Parliamentary approval; and

3 – That the Government was transferring some of its prerogative powers over foreign policy to the European Commission without Parliamentary approval.

Lord Justice Lloyd dismissed all three contentions. He ruled that:

1 – The UK was excluded from the Social Protocol;

2 – The Government was free to use prerogative powers to agree any treaty it liked, unless Parliament had specifically restricted its powers beforehand.

3 – The Government was not transferring any prerogative powers to the Commission, but was exercising them by allowing the Commission to make decisions on the Government’s behalf.

With hindsight we all know that with regard to point 1, the EU introduced all the social chapter rules by the back door anyway. With regard to point 3, I can only comment that Lord Justice Lloyd was stretching words to the limit of their meaning.

It is the second point that should interest us here. Lloyd ruled that the Government could agree to any terms it liked in a treaty, unless Parliament had specifically said it could not. Since Parliament had done no such thing prior to the Maastricht Treaty, the prerogative powers could be used.

But now we are asked to accept the ruling in 2016 by Baron Thomas that the Government can not use prerogative powers to trigger Article 50 because Parliament has not yet had its say. But if Parliament has not yet had its say, how can it (as per the 1993 ruling) have specifically told the government not to use these prerogative powers.

Now Baron Thomas is no doubt a very clever man and a highly experienced judge. I have no doubt that were this put to him he would be able to come forwards with some very clever reason why – no doubt couched in proper legal jargon – black was white and white was black.

But for us less lawyerly folks, it really does seem that it is OK to use prerogative powers to enforce “more Europe”, but not OK to use prerogative powers to ensure “less Europe”. One law for the Europhiles, another for the Eurosceptics.

A letter from our Chairman:- the High Court Brexit case

Sir, HIGH COURT BREXIT CASE

People who have spent all their political lives undermining the sovereignty of this country and its Parliament are now appealing to the doctrine of parliamentary sovereignty to delay and frustrate the exit of this country from the European Union. These are people who would echo the sentiments of Ken Clarke “I look forward to the day when the Westminster Parliament is just a council chamber in Europe”

They have now been joined by senior judges, including Baron Thomas of Cwmgiedd, Lord Chief Justice of England and Wales. His Lordship is a founder member of the European Law Institute, an organisation set up for the “enhancement of European legal integration” – that is, the ever increasing subjection of our law to the laws of the European Union.

Surely he must be aware of the principle that no man should be judge in his own cause – “nemo iudex in causa sua debet esse”. Yet he ignored it when he decided to sit on this case. The maxim was firmly established in the case “Frome United Breweries Co v Bath”, in which the then Lord Chancellor made a decision favourable to a canal company whilst, unknown to the parties involved, he was a shareholder of the company. His decision was set aside. “This will be a lesson to all…tribunals to take care, not only that in their decrees they are not influenced by their personal interests, but to avoid the appearance of labouring under such an influence.” Perhaps this partiality in London is the reason for the High Court’s decision being opposite to that in Northern Ireland..

Even local authorities are more careful. I recall that a lady, who campaigned to preserve the old Derby bus station, became a councillor and was disqualified from voting on the matter because her campaign was ruled to be “an interest”.

Over decades, independence campaigners have approached the courts to oppose increased subjection to the EU. On each occasion, they were summarily rebuffed on the grounds that the EU treaties were matters of Royal Prerogative – beyond reach of the courts .

There are even Europhiles who fantasise about this case going to the European Court of Justice.

It is an activist organisation, dedicated to promoting “ever closer union”. In case c-274/99 the Advocate General stated “Criticism of the EU is akin to blasphemy and can be restricted without affecting freedom of speech”.

It is unlikely that the case will go there because the relevant EU treaty specifies that countries invoking Article 50 to leave the EU do so “in accordance with their own constitutional requirements” – certainly not something which the judges just made up!

Yours faithfully

Edward Spalton

This letter was sent to a number of local papers in the East Midlands area

If the judges feel victimised, they have only themselves to blame

I will admit that when I first heard the news that our High Court judges had ruled that Article 50 had to go to Parliament, my instinct was to reach for a copy of Shakespeare’s Henry VI to check that the correct quote really is Jack Cade: “Let’s kill all the lawyers”.*

On reflection, however, I thought that this might be a tad harsh.

Then I began reading some of the comments being rushed out by the usual suspects.  “A strong independent judiciary is essential to a functioning democracy and to upholding the rule of law,” said the Bar Council. Anna Soubry MP said that criticising the judges “is inciting hatred”. Nick Baines, Bishop of Leeds, said “The last time we saw things like this was in places like Nazi Germany, in Zimbabwe.”

Strong words.

Wrong words.

In fact, the judges have only themselves to blame for the attacks that they have been suffering over this ruling.

There was a time when judges were Olympian figures who sat in robes of red, bedecked with wigs and handed down magisterial judgments on what the law meant. They did not get mixed up in current affairs and eschewed politics with commendable impartiality. In return for this self-restraint their views and opinions on the law were treated with deference and respect.

But these days judges seem to think that they should get involved with politics. Most of us now know that Baron Thomas of Cwmgiedd, one of the judges who ruled on the Article 50 case, is a founding member of European Law Institute, which works towards the “enhancement of European legal integration”.

Some lefties would say that what Baron Thomas does in his own time is not our business. But what judges do when they are on the bench most certainly is our business. For decades now judges have been using their positions and powers not to interpret the law, but to make it. They have interpreted old laws to mean what they think they should mean, not what they actually do.

Take the obscure 1975 Inheritance Act. That had a provision allowing a will to overturned if it failed to “make reasonable provision” for a child. Last year the Appeal Court ruled that this meant a will could be overturned even if the “child” was 47 years old and the parent had made it very clear that she wanted no money at all to go the estranged daughter.

And “judicial review” no longer turns on whether a decision was made properly and legally. It now hinges on whether the judges think it was a good decision – not the same thing at all. Of course the judges don’t have to live with the consequences.

As for the Human Rights Act, don’t even get me started.

The judges have chosen to enter the political fray, but now squeal that they should be treated as above politics.

“Too late, chum,” as Great Uncle George used to say.

Rupert Matthews is a freelance writer and historian. This is the first of a series of articles he will be writing for this website. During the recent EU Referendum campaign he served as Campaign Manager for Better Off Out and spoke at meetings from Penzance to Aberdeen, Belfast to Dover. Rupert has written over 100 books on history, cryptozoology and related subjects. He has served as a councillor for 8 years and has stood for both the Westminster and European Parliaments. You can follow Rupert on Twitter at @HistoryRupert or on Facebook as rupert.matthews1.

* The quote is, in fact, “The first thing we do, let’s kill all the lawyers” and is said by Dick the Butcher, not by Jack Cade himself.

Juries, Democracy and the European Union

When it becomes serious, you have to lie. Jean-Claude Juncker President, European Commission

Whilst we recognise the role of juries in dispensing justice – namely establishing the truth and working together with the state, their role in facilitating democracy is less well known. Without juries and jury trials our understanding of democracy, especially the concept of the sovereignty of the people, would be very different. Perhaps our ‘democracy’ would have already come to resemble the European Union’s version – a figment of the ruling establishment’s imagination under which the sovereignty of the people something that, if it is recognised at all, can be ignored when inconvenient to their aims.

Alexis de Tocqueville wrote about the influence of jury service on the education of citizens in social responsibilities towards society in his book in Democracy in America. Yet jury service goes further because it is an acknowledgement that the state cannot operate alone. The citizenry are required to  participate actively and the collective decision of the jury (about truth and therefore, guilt) is the correct one. The state in particular recognises the skills (listening, analysis and consensus evaluation), trustworthiness (honesty and integrity) and commitment (to justice and the rule of law) of the people.

The electorate is a somewhat larger jury, whose ability to determine the right political party (or parties) to form the government is largely accepted by everyone. Without this longstanding tradition of an active, participatory citizenry forming juries, whose collective judgement is ‘truth’ (hopefully based on factual evidence) and respect for the rule of law, there can be no functioning democracy as we understand it.

Historically there is also a close connection between a ‘jury’ and the limitation of state power. In Magna Carta (1215), in the forerunner of a rudimentary Parliament we find a council of 25 nobles established to keep the sovereign in check. There was also a real jury (of fellow men) to prevent abuse of absolute power through imprisonment of freemen.  In time, as jury trials evolved, the need to review evidence and establish the facts became the foundation of determining guilt or innocence and therefore of dispensing justice.

The Roman law, which had considerably more influence on the Continent, was somewhat different from our common law in establishing guilt or otherwise. It amounted to listening to the rhetoric of the ‘for’ and ‘against’ orators (lawyers etc.) and accepting the better presented argument. The classical definition of rhetoric was ‘the art of pleading well’. Establishing ‘facts’ as such did not come into it. Our modern understanding of ‘facts’ became commonplace only after 1660 with the founding of the Royal Society.  Previously ‘facts’ were deeds, derived from the Latin facio ‘I do’, and this older usage of the word still occurs in expressions such as ‘accessory after the fact’.

Currently, the electorate cannot operate as a jury in determining the most appropriate form of government and rule of this country in the EU Referendum (UK-based democracy or Brussels-based authoritarian corporatism) because it is being denied the necessary factual evidence.  The state, in the form of the government apparatus has prejudiced its judgement by distorting the evidence, instead of working with the jury (the electorate) to further democracy,. Consequently we are left, as in Shakespeare’s, works to establish the truth for ourselves through tokens or signs and the rhetoric or claims being proposed by the advocate, as in the Roman law tradition.

In summary, our view of democracy, sovereignty of the people and the need for the electorate to be able to judge on the basis of facts is not necessarily shared in the ruling establishment of the EU because of their different historical evolution and precedence. Part of this difference comes from the world of Roman law and the reduced role of trial by jury which, where they exist, is much more limited. Electorates can in the EU’s strange world be legitimately misled by rhetoric (or deceived by lies) since the most eloquent are the final arbiters of truth. And as we regularly see, the will or sovereignty of the people can be ignored in a way that is naturally alien to us arising from our longstanding traditions.

Could we ever change this different EU vision to more closely align with ours? In effect, to achieve a paradigm shift of assumptions, objectives, knowledge and experience amongst the ruling elite? Mr Cameron’s brilliant Oxford-educated rhetorical skills (the triumph of style and superficiality over logic and substance) have failed so far.  So he, his cronies, fellow travellers and the ruling elite have turned on us, spreading fear and despondency in order to get their way and in doing so are prejudicing the operation of democracy.  The jury can no longer have any reasonable doubt – the facts so far don’t speak for remaining.

That booklet!

We have received a number of e-mails from people very angry about our money being spent by the government producing the booklet which landed on our doormats last week.

Some people have very kindly responded by making a donation to us, for which we are most grateful. “I don’t want my taxes used on propaganda… so I have to do my bit to redress the balance” said one kind contributor.

But what of the booklet itself? It has been criticised  – and with good reason – both for its style and content. Rosalind Moffitt, an inclusive communications consultant at Inklecomms, said of the former, “I….am astounded by the long and complex sentences within the leaflet. It also uses many unnecessarily difficult words. The leaflet is written at a complex level for average-low literacy readers, so it will be difficult for many to read and understand” Good news for the Brexit campaign!”

Turning to the content. Lord Wemyss did not mince his words, calling it “senseless twaddle – insulting to the intelligence of the recipients.”

This is indeed a good summary. If the “twaddle” can be categorised, most of it comes under three headings:-

  1. So-called “benefits” which aren’t actually very beneficial.
  2. Benefits which we don’t actually need to be in the EU to enjoy
  3. Untrue and misleading statements.

In the first category comes the European Arrest Warrant, which is mentioned under “keeping us safer”. Since 2004 (when the EAW was first introduced), we are told “over 1,000 suspects have faced justice in  UK courts and over 7,000 have been extradited.” Fine. You try telling people like  Andrew Symeou or  Edmond Arapi how wonderful the EAW is. These men suffered gross miscarriages of justice, being exposed to judicial processes on the Continent which do not include the legal safeguards we are accustomed to in the UK. It is so easy to forget that Magna Carta may have crossed the oceans, but it never crossed the Channel. One consequence of this is that you can be tried in absentia, tried on hearsay evidence or kept in detention for ages without being charged. The EAW potentially exposes any one of us to all these horrors.

Also sold as a benefit, on page 12, we are told that “the EU is leading the world on tackling climate change”. Try telling those made redundant in the now defunct UK aluminium smelting industry what a good thing this is! Perhaps when we suffer blackouts because our government has signed up to unachievable emissions targets we will console ourselves with how virtuous the EU is being!

Turning to the second category, the phrase “Single Market” comes up no fewer than eight times. There are probably few regular visitors to our website who aren’t aware that we can retain access to the Single Market on leaving the EU by re-joining EFTA and availing ourselves of the European Economic Area agreement.  The booklet boasts how the EU “guarantees many employment rights” without mentioning, of course, that most employment legislation originates with global organisations like the International Labour Organisation. These benefits would not disappear if we left the EU.

“EU reforms in the 1990s have resulted in a drop in fares of over 40% for lower cost flights”, proclaims the booklet.  Once again, one has to question whether this benefit would disappear if we left the EU. to help us answer this question, guess which airline won the “Best low-cost airline in Europe” award in 2015? It was called Norwegian and furthermore, this airline which seems to hoover up awards, flies to a number of European destinations but isn’t based in the EU.

What about the untrue and misleading statements? It’s hard to know where to begin. Going back to the Single Market. we are informed that “No other country has managed to secure signficant access to the single market without having to follow EU rules over which they have no real say /pay into the EU”. Shoddy work here. As we have pointed out, Norway is widely consulted  in the framing of EEA relevant legislation (which amounts to less than 25% of the total Acquis)  and the price it pays to access the singel market is peanuts compared with how much we pay per capita to the EU as a memebr state.

The first page proclaims that “the UK has secured a special status in a reformed EU.”  Oh really?  The legality of the agreement has been widely questioned, with Alexander Graf Lambsdorff, the vice-president of the European Parliament, describing it as “nothing more than a deal that has been hammered out down the local bazaar”.

Part of the “deal” is that “we will not join the Euro” Didn’t we secure that opt-out over 20 years ago? What about the “tough new restrictions on access to our welfare for new EU migrants”? Well, suppose that, say a  Latvian decorator moves over here after 2016, falls off a ladder and breaks both legs after living here for three years dyring which time has only worked for 29 months. In theory, he shouldn’t get much out of our system under Dave’s new deal. In practise….?

Keeping our own border controls is another benefit which is part of our “special status” so we are told. Once again, if this means that we are not part of Schengen, this is not exactly a show-stopper. We secured an opt-out here many years ago.

The biggest criticism, however, is that nowhere in this booklet does the word “sovereignty” come up. The  EU’s unique selling point is that it requires member states progressively to hollow out their national institutions and surrender soverignty to supranational institutions. These other issues are peripheral. the creation of a federal superstate is the EU’s raison d’être. Failing to mention it is rather like a supplier of fruit trees illustrating its products with lovely pictures of apple blossom but failing to show a single picture of a nice ripe apple or to mention that the reason you buy an apple tree is to eat of its produce.

To be blunt, this reluctance even to mention what the EU is all about is just plain dishonest. If the referendum is won by the “remain” side without this issue being at the centre of the debate, it will have been a pyrrhic victory which will leave us stilll being the EU’s awkward partner, always dragging our feet and being outvoted more than any other member state.

Is this really what Mr Cameron  wants? it will be a most unsatisfactory legacy. Best for his sake and for our country if we deny him such an opportunity by securing a vote to leave.