Uninterested as I am in the referendum, for reasons explained here…
http://hitchensblog.mailonsunday.co.uk/2016/02/the-eu-is-our-own-hotel-california-we-can-check-out-but-well-never-leave.html
And here http://hitchensblog.mailonsunday.co.uk/2016/02/why-i-wont-be-voting-on-referendum-day.html
…. I am still interested in the slow absorption of this country into the great python that is the EU. The other day the subject of English law came up – the absolute reason, for me, why Britain should not be in the EU, since our law is not compatible with Continental law and any convergence is bound to mean the disappearance of our traditions.
Bert the Pretentious refuses to believe that the EU has any influence over events in this country at all (he is *still* , after several years, searching for an explanation of the revolution in rubbish collection which does not involve its actual cause, the EU Landfill Directive) . He responded to this point by commenting (in response to contributions by others)
@young Aussie John, Alan Hill and David Taylor, No, you continue to be wrong. Young John - any evidence for your assertion that there is a 'clear drive to uniformity in law'? Specific evidence, I mean, not just vague stuff about how the EU wants to turn everything into greater Germany, or similar.
I replied***PH writes: the origin of this drive is generally understood to be the Tampere EU conference, held in that Finnish town on October (apologies for originally wrongly dating this in December 1999.PH) 15th and 16th 1999 'on the creation of an area of freedom, security and justice in the European Union.' http://www.europarl.europa.eu/summits/tam_en.htm gives details. The European Arrest Warrant, which overrides Magna Carta protections, is one product of this agenda. The justiciability of the European Charter of Fundamental Rights (not to be confused with the ECHR) at the European Court of Justice in Strasbourg (&&NB This was a stupid error on my part. I know perfectly well that the ECJ is in Luxembourg and is unconnected with the ECHR in Strasbourg. It just goes to show how the mind and the fingers may not always be fully linked&&) is a principal means by which law can be brought into line.
This creates by stages a European area of justice and convergence in civil law. There have also been discussions on creating an EU 'Corpus Juris' a European Legal Area, a European Public Prosecutor and a European Criminal Code. These are in fact logical developments of the Single Market. Perhaps coincidentally, English criminal law has been growing to resemble continental systems. On-the-spot penalties, or 'restorative justice' under which resort to the courts is discouraged, have replaced many magistrates court proceedings (in contravention of the Bill of Rights 1689 and the principle of the presumption of innocence). A huge number of, perhaps most, criminal cases never go to court but are tried bureaucratically by the Crown Prosecution Service, functioning as an examining magistracy on the Continental Model. The absolute right to Jury trial is ceaselessly whittled away, and juries themselves are eviscerated by majority verdicts and the inclusion of the wholly uneducated and inexperienced on jury panels. Once again, Bert demonstrates his profound knowledge of the non-existent alternative world (where, for example, the EU Landfill Directive has no bearing on rubbish collection) and his ignorance of the real world, where the EU increasingly takes over our lives. I hope he has an enjoyable evening trying to rake the Moon out of the nearest pond. ****
I sent the same reply (minus the sarcastic remark about moonraking) to Mr ‘Bunker’, who had written from his Teutonic fastness:
‘John, Alan and Thucydides - this intrigued me so I tried to find evidence of an EU drive to get rid of British common law. All I could find on the subject was a 2014 article by Brenda Hale, Deputy President of the Supreme Court of the UK in which she stated, inter alia: "After more than a decade of concentrating on European instruments as the source of rights, remedies and obligations, there is emerging a renewed emphasis on the common law and distinctively UK constitutional principles as a source of legal inspiration," She also said that there was a "growing awareness of the extent to which the UK's constitutional principles should be at the forefront of the court's analysis". Has anything happened in the meantime to change that? Or is all this just more anti-EU scaremongering?’
Bert, as is usual when he is challenged and rebutted, fell into a profound silence which has lasted ever since. He is not given to responding when it doesn’t suit him, but will pop up again soon with a completely different contradiction, prompted by his difficulty, a desire to oppose anything I say under any circumstances.
Mr ‘Bunker’, by contrast, favoured me with a reply. He wrote : ‘I'm very grateful to Mr Hitchens for his interesting information. But I still have one or two questions: - The 1999 Tampere Conference - was the UK not represented at it? - The European Arrest Warrant - did the UK have no say in its establishment? - The European Charter of Fundamental Rights - was the UK not represented when it was drawn up? - The European Court of Justice in Strasbourg - does the UK have no participation in this body? - The proposed creation of "an EU 'Corpus Juris' a European Legal Area, a European Public Prosecutor and a European Criminal Code" - has the UK no opportunity to use its influence (veto) here?’
I responded : ‘***PH notes: A. Blair, Jack Straw and Robin Cook were all at Tampere, if he finds that reassuring. The Lisbon Treaty , signed by Gordon Brown in 2009, made the ECFR binding in EU law. Britain was represented on the 1999-2000 European Convention, which drew up the ECFR, by Timothy Kirkhope , a Tory MEP., Lord Bowness, a Tory peer with a background in local government, and the Attorney General, Lord Goldsmith of Baghdad (joke). The UK has no substantive veto in most EU decisions, having accepted 'qualified majority voting' in almost all areas of decision making, a system which gives the UK no special power to oppose the majority, which is of course already wedded to civil code, jury-free justice.
‘I believe that QMV is the agreed system in 'security and justice' and judicial co-operation' since the signing of the Lisbon Treaty. I believe the UK has lost most of the QMV votes on which it has sought to challenge the Commission on any subject. The EAW is an interesting case, as, thanks to a quirk of Lisbon, the UK was allowed (uniquely as normally the 'acquis communautaire' of past EU law cannot be reversed), to opt out of it. But last year the Cameron government ,as mentioned on this site, voluntarily decided to opt back in though it was free not to. The abolition of English justice has plenty of supporters in the English elite, as the Auld Report of 2002 shows. (See my 'Abolition of Liberty') . The European Court of Justice has 28 judges of whom I believe two are currently from the UK. But like all EU functionaries, they are required to observe and enforce the laws of the EU, not act as representatives of the country or rather member state' from which they come.***
Mr Bunker had continued: ‘In other words, if - as is claimed - common law is in danger of being superseded by European law - is this being done by a scheming pack of unelected, unaccountable foreigners in Brussels and Strasbourg, as some contributors intimate, or is it being done with the full compliance and collaboration of the UK? -- Or is it not really in danger at all?’
I replied ‘ ***PH asks: Who has referred to 'a scheming pack of unelected, unaccountable foreigners in Brussels and Strasbourg,'? (Strasbourg is the seat of the European Court of Human Rights, unconnected with the EU and part of the Council of Europe, a separate and distinct body). This looks like a pack of straw men to me. What has taken place is all perfectly normal EU procedure, the endless drive towards ever-closer union, accepted by us in 1972, which goes on 24 hours of every day and occasionally comes to light in a conference or a treaty. As for ' the full compliance and collaboration of the UK', one would have to ask whether, given the alarming and comically confident ignorance of these matters in the cases of Mr 'Bunker' and of Bert, one can really describe this process in that way. It has never been put to the British people as such, or debated fully in Parliament, and is rarely covered in the media. The compliance of the British state is not the same thing as the compliance of the British people. ***
Mr Bunker then replied again: ‘Again I must thank Mr Hitchens for those interesting facts, many of which were indeed unknown to me. I'm no expert on EU law and have never claimed to be. So I gladly take note of the fact that the UK doesn't always have a right to veto but - if I understand correctly - the UK quite freely relinquished this right, fully aware of its consequences. So I see no EU "drive" there And quite apart from that, why should the UK have "special power to oppose the majority"? If Britain's in the EU, it should abide by the rules and not seek special powers. OK, I know Mr Hitchens didn't say it should, but nor did I say that the EU was "ruled by a scheming pack of unelected, unaccountable foreigners in Brussels and Strasbourg", I said that is merely the tenor of quite a lot of contributors to this blog. That's all. I'm surprised to hear that the "abolition of English justice has plenty of supporters in the English elite". I wonder why! But I'm not surprised to hear that the British judges in the European Court of Justice "are required to observe and enforce the laws of the EU, not act as representatives" of the UK. That principle, I imagine, applies to all the judges and I believe it is right. Does anyone think differently? Strasbourg - it was Mr Hitchens, not me, that introduced Strasbourg into the discussion, so I reject any charge of "strawmen" here.’
I responded ‘ ***PH writes: Mr Bunker is correct. I was trying so hard to say 'Luxembourg', where the ECJ is in fact based, that I did the opposite of what I intended and wrote 'Strasbourg' . My apologies, both for the error and for blaming Mr 'Bunker' for it. But I am baffled by his general drift. No opponent of the EU in Britain is under any illusions about the support of many members of his own country's elite for British absorption in the superstate. And Mr B will have to read Booker and North's 'Great Deception' for the details, but the abolition of the veto (which Mr Bunker himself still seemed to think existed) was of course done in quid pro quo negotiations, in which there was little realistic hope of escape from QMV short of walking out altogether. Either the veto was an important argument or it wasn't. But Mr Bunker raised it as it was - and now, having learned it is dead and gone, he pretends that he never thought it mattered In the first place. Personally I think its abolition very significant, and I doubt if the 1975 referendum would have gone the way it did if voters had known the veto would ultimately be abolished***
Mr Bunker had continued :’The "endless drive towards ever-closer union", Mr Hitchens tells us, was actually accepted (!) by the UK back in 1972, so I see no reason to blame the EU. True, the British people may not be in agreement with the idea of the EU, but if they aren't they should blame their own representatives (MPs) whom they elected to act in their interests, and not the EU.’
I replied :’ ***PH writes: On this we agree. I have never blamed anyone else but our own rulers’***
Mr Bunker had continued :’I'll ignore the charge of comical ignorance and explain that I speak from direct personal experience of almost half a century of life in the EU and having a passable interest in its workings. And as for Common Law, which is what this discussion was originally about, I have seen no particular advantage in it over the legal system of the European Union. But I'm always willing to learn. As I have done from Mr Hitchens' kind interventions.
****
AS far as I know this is the end of MR Bunker’s responses. While his reaction ( as always in his case good-natured and personally generous) is infinitely preferable to Bert’s unresponsive silence, I note that he hasn’t really allowed himself to be influenced by the facts and arguments presented to him.
The original question was ‘is there a convergence’? And then ‘is it driven by the EU?’. Well, I think the very existence of the Tampere conference (whose aims came as something of a surprise to many attendees, as far as I can find out) is evidence that it is. Opponents of the EU have never claimed that their fellow-countrymen have been guiltless in entangling us in this thing. Rather the contrary. Some secessionists ( not I) even claim to have been misled about the nature of the project, thinking it to have been a free trade area. I don’t think this stands up. Several opponents of the original Common Market, including Hugh Gaitskell from the mainstream, pointed out from the beginning that it was a political project. Anyone who didn’t know that by 1975 hadn’t been paying attention and wasn’t qualified to vote.
But rather than accept that he was ill-informed, and the EU is indeed seeking a convergence of legal forms, Mr Bunker swam off into a bog of irrelevance, making up stuff about ‘a scheming pack of unelected, unaccountable foreigners’ so as to caricature, rather than consider, my case. He then kept asking whether British representatives had any role in these changes. Well, of course they di, thiough you will struggle to find much coverage of the event in British media, or discussion of it in Parliament for – like much of the EU – it is poorly understood and poorly reported here. The main purpose of political journalists in EU meetings is to write stories claiming that the British premier of the day has ‘;triumphed’ in some way or other, whether he has (seldom) or has not (usually).
As in interestingly explored in Professor Robert Tombs’s recent book reviewed here http://www.nytimes.com/2016/01/03/books/review/the-english-and-their-history-by-robert-tombs.html?_r=0
by me, the rejection of Roman Law was important in the development of English liberty, as (this is my interpretation) Roman Law tends to side with authority, whereas Common Law tends to insist on the law being above all. Which is often very inconvenient for authority.
Mr Bunker, leading his blameless life untroubled by authority, will never have had cause to discover the difference, and so no doubt he sees no great advantage in the English system over the continental one. Well, the difference between a safe car and an unsafe one only becomes evident in a collision or a storm. But one is still safer than the other, even if neither ever encounters a collision or a storm.
But I would be obliged if he ( and Bert) would have the generosity and civility to concede that they were ill-informed, and that the EU does indeed have an active policy of bringing about convergence in matters of law and justice.
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