One of the most regularly cited facts about the EU is that it generates the majority of Britain’s laws. As well as the flow of individual pieces of legislation, there is heated debate about movement towards a more European legal system and potential clashes with the British legal tradition. The latest extract from Ten Years On delves into the legal arena…

We talk to Jane McAlister, a prominent lawyer, about how things are different today.  She sees changes in the way both civil and criminal cases are handled.

‘You have to appreciate,’ she says to us, ‘that the European and British approaches have always been very different; they have a quite separate history and they’re founded on dissimilar concepts of what law and justice are about – and how they should be pursued and administered.  What I’d call the European basis of law and justice has tended to be imposed from top down.  Codes and written regulations form much of the framework.  Here, it’s been more organic, and it’s been less state-driven as a result.

‘I’ll give you an example,’ she says, ‘from before 2010. When a judge in another country signed a European Arrest Warrant, as long as the paperwork had been filled out correctly and if the subject was in the UK, our police were responsible for picking up and delivering him or her to some overseas jurisdiction, no matter what.  It took until 2009 for the paperwork to change so the issuing authority signed off that an attempt had been made, during a trial in absentia, to notify the defendant that he or she was due to appear in court.  Astonishing, if you think about it – several years just to consider whether the subjects of deportation orders had even been told there was a case against them and they might want to defend themselves.’

We ask her whether the issues around Human Rights still cause as much sound and fury as they did a few years back.

‘Ah,’ she says, ‘the first thing you have to do is remember your institutions.  The Strasbourg Court of Human Rights was never a part of the EU.’ 

We express some surprise.

‘It wasn’t.  It was created after the War to provide legal remedies against totalitarian regimes repressing their citizens as they’d done in the 30s and 40s.  But it has inspired so many of the institutions in Brussels, including the European Court of Justice, and it’s been used to influence social policy-making in the EU, mainly from the position of neo-liberal ideology.  Its interpretations were allowed to arch over politicians responsible to their electorates, and those who objected were anathematised as enemies of reason.  The best thing we did was to withdraw from the European Convention on Human Rights and then voluntarily re-subscribe but with new protocols that defined clearly what were the “basic rights”.  By enunciating those and helping to draft a Guiding Statement of Basic Principles, we’ve stopped “Human Rights” being the engine driving the boat into uncharted waters and transformed it into an anchor.  It was no bad thing to be concentrating on responsibilities and freedoms rather than on spectrally-silhouetted privileges.

‘Mind you,’ she goes on, ’a lot of lawyers were very put out about all that.  I know several of them, well.  Some firms made a lot of money – public money – fighting cases they themselves had identified as worth pursuing.’

We ask what’s changed in the way criminal justice is dispensed here.

‘After 2010, we had this big national debate over the criminal justice system.  A lot of people felt it had leant in favour of the criminals, big and little, for a long time past and the stimulus for that had come from the EU.  The debate resulted in a set of compromises, mixing education and opportunity for reform for early offenders with some startling ideas about dissuasion. These ranged from limiting television in prisons to five channel black and white sets unless good behaviour earned you something better, down to testing those perspex “dis boxes” on high streets, you remember them, very popular locally though civil liberties people complained it was like bringing back the stocks.  Still, no matter where you stood in the argument, it was undeniable that many of these proposals would have been impossible under the direct influence of the EU system, and under the Strasbourg courts too much about Rights rather than wrongs; all carrot and no stick.’

Has law enforcement changed?

‘In some important ways, not much,’ she says. ‘We’ve had close co-operation for years between our police and their counterparts in the EU member states and that didn’t stop when we changed the relationship.  Maybe you recall when the Sorensen Gang hit the headlines in 2014. There were three of them, wanted in three EU countries for armed robberies and wounding.  They made a break for it over here.  They’d got fake Euro-IDs, which at the time were recognised as passport equivalents – thank goodness those were discontinued once it was clear the continental ID card system was just as forgeable as the €500 note – but they forgot that, even though we’re outside the Schengen and Europol systems, we’ve always cooperated closely with their institutions in sharing intelligence. Once they’d been tipped off, ENSIS identified the gang’s location; Special Branch and CO19 moved in for the arrest; a judge reviewed the case for removal; the three were extradited.

‘What’s important is that cooperation’s under British management on British turf. In a global economy, with globalised criminal networks operating across borders, and hiding their stash in investments and bank accounts around the world, global, not just European, cooperation is the key.

‘But, yes,’ she ends, ‘because we’re no longer a party to the old Treaties, we’ve avoided some of the nastier scandals that law enforcement has got involved in over there, like travel details of critics of the European Commission being stored on the Europol database, which were accessed on several occasions by the Belgian Police who relayed them to the European Commission’s security people.  Or the time Europol took the lead in breaking down the wrong door during a joint operation. Individual rights sometimes seem to take a walk on the wild side in the EU today’