This is the sort of thing that sends shivers down Eurosceptic spines. A couple of weeks ago the European Commission came out with this proposed Directive on suspects’ right in criminal proceedings.
Draft Directive on the right to information in criminal proceedings
Some of the rights the proposal aims at guaranteeing are uncontroversial in themselves: article 3 seeks to ensure that
any person who is suspected or accused of having committed a criminal offence is provided promptly with information on his procedural rights in simple and accessible language
while article 4.1 provides that
Where a person is arrested by the competent authorities of a Member State in the course of criminal proceedings, he shall be promptly provided with information about his procedural rights in writing (Letter of Rights). He shall be given an opportunity to read the Letter of Rights and be allowed to keep it in his possession throughout the time he is deprived of his liberty
and article 4.3 that
Member States shall ensure that, where the suspected or accused person does not speak or understand the language of the proceedings, he receives the Letter of Rights in a language he understands.
These requirements largely reflect current practice in England and Wales – you can see here copies of the “notice of rights” the police have prepared for non-English speakers. Some of the provisions such as article 7 on “access to the case file” do not reflect the practice at least in England and Wales on disclosure, though, and would certainly need work if the UK is to sign up.
But more important is the fact that this Directive would lay down rules of UK criminal procedure: our own law about how suspects should be informed of their rights would be subject to these overriding EU rules. Inoffensive as the rights might be, this proposal would mark the first really substantial incursion of EU law into the British criminal justice systems. It’s true that the UK has already agreed to be bound by a proposed Directive on translation and interpretation rights – but that was a decision taken before the government changed, and involved even less controversial rights.
What’s also interesting is that the proposal applies to all criminal suspects – regardless of whether they’re EU citizens or not. Article 82.2 TFEU (i.e. of the Treaty on the Functioning of the European Union, as the main EU Treaty is now called, post Lisbon) permits the European Parliament and Council to legislate
To the extent necessary to facilitate … police and judicial cooperation in criminal matters having a cross-border dimension
which sounds less wide in scope. The Commission justifies its approach on the basis of (para. 14 of the Explanatory Memorandum)
the importance of the rights of the individual in criminal proceedings as a fundamental value of the Union and an essential component of mutual trust between Member States and of public confidence in the EU. Protecting individuals’ fundamental rights will also remove obstacles to free movement.
Mm. The theory seems to be that these new EU law rights must apply to all cases – including those involving British suspects or, say, Chinese ones – in order for EU states to have confidence in each others’ systems. There may be something in that, but I’m afraid it also reflects the Commission’s tendency to interpret the Treaty expansively, as giving the EU the maximum possible power over the maximum number of cases. The principles of subsidiarity and proportionality – whether the EU really needs to regulate every arrest on a Saturday night in Kingston Bagpuize or Kleindorf – have as so often received word-processing service, rather than being taken seriously.
The government has two options on this. First, it can decide not to take part in negotiations at all, and therefore not to be bound by the proposal. That would no doubt be the option preferred by most Conservative MPs – but I would have thought not by most Liberal Democrats, or perhaps by the Lord Chancellor Ken Clarke, whose policy area this is. Second, it could decide to take part but activate the “emergency brake” in article 82.3, suspending the normal qualified majority voting rule, effectively asserting a veto until consensus agreement can be reached. I’d have thought that a bad option given that the real aim would be to rewrite the document entirely, rather than to negotiate out one unacceptable provision.
If it does neither, I predict trouble when the proposal comes to the House of Commons when national parliaments are asked for their view on subsidiarity. It’s a pity David Heathcote-Amory’s no longer in the Commons: he was the most perceptive and articulate arch-Eurosceptic on the Tory benches. But I suspect we’ll hear from Bill Cash, who’s on the European Scrutiny Committee again.
IMHO the British government will “opt-in” as it has done with regard to European Arrest Warrants, Sharing of Criminal Conviction Information and the recent opt-in to European Investigation Orders (planned for 2011). There has always been a determination among our elected representatives at Westminster to be on board most of these European initiatives and, at times, scant regard has been paid to the civil liberties of the British people.
Having said the above, I think that the minimum rights to information in criminal proceedings is necessary if one looks at some of the “justice” systems across the EU. [I am far from saying that ours is perfect]. The trouble with setting out minima is that they become just that. Politicians do not usually offer the citizen more if they can get away with less!! However, I am pleased to see that there is a non-regression clause in the proposed directive.
The EU claims to be respecting “subsidiarity” and “proportionality”. Nevertheless, they always seem very adept at finding words to justify EU action rather than leaving matters to member States.
[…] a higher degree of influence over a higher number of cases. As legal commentator, Carl Gardner, has noted: “The principles of subsidiarity and proportionality – whether the EU really needs to regulate […]