Ethics is an objective, metaphysical necessity
of man’s survival.

This week Open Europe published a new report that shows how the Government could repatriate 130 EU laws on crime and policing, including the controversial European Arrest Warrant.

The Government must decide before June 2014 whether a whole raft of EU police and justice laws, adopted before the Lisbon Treaty took force, will continue to apply in the UK beyond December 2014. Under Lisbon, if the Government opts out of any one of the existing laws, it has to opt out of the entire lot.

If it decides to keep these laws as they currently stand, ultimate and full jurisdiction over them will for the first time be irreversibly transferred from the UK courts to the European Court of Justice in Luxembourg. For example, it would give EU judges the final say over the mechanisms for extraditing British citizens to other member states, on the basis of a case brought against the UK by the European Commission.

The EU document relating to these powers was debated on the Floor of the House on 25^th January, during which the Justice Minister, Crispin Blunt, said that:

It is clear that the Government and the European Scrutiny Committee are of the same view: we consider that European legislation in the field of criminal law should be contemplated only as the last resort and only where action at the European level is absolutely necessary.

However, words of caution were given by my colleague, Dominic Raab:

The document before us has all the hallmarks of a massive and substantial power grab from Brussels in the area of EU criminal law. We might have ad hoc opt-outs, but the direction of travel has very serious implications for this country. The clear ambition in the document is for a pan-European code on what the Commission calls “Euro-crimes”, backed by EU penalties and jurisdiction… This is a fork in the road: it is time to decide whether Britain will retain our unique justice system and common-law tradition. This is one of the most serious constitutional challenges the House will face in this Parliament.

Commenting on Open Europe’s report, their Research Director, Stephen Booth, said:

As much as the Government would like to put this crucial decision off until 2014, this is neither politically nor practically tenable. The body of law to which the 2014 block opt-out applies is reduced every time the UK opts in to a new EU law which either amends, repeals or replaces a law on the list. To date, the Government has chosen to opt in on every occasion it has had to make such a decision and has not required Parliament’s approval. No matter where one stands in the debate, this clearly marks a failure of democratic scrutiny.

Finally, the wording of the Europe Commission’s official communication on this issue is of particular concern:

In cases where the enforcement choices in the Member States do not yield the desired result and levels of enforcement remain uneven, the Union itself may set common rules on how to ensure implementation, if necessary, the requirement for criminal sanctions for breaches of EU law.

Regarding sanctions, “minimum rules” can be requirements of certain sanction types (e.g. fines, imprisonment, disqualification), levels or the EU-wide definition of what are to be considered aggravating or mitigating circumstances.

In their haste to use ever greater state power to solve the problems caused by excess state power, the European nations intend, it appears, to use an EU institution, the ECJ, to arbitrate disputes under a non-EU treaty.

This may seem arcane, but EU matters always are. It’s one of the reasons democrats and lovers of liberty keep losing. The world long since ought to have learned that politicians must obey the law, in crisis as in routine. And yet it suits our masters to bend their own rules.

I look forward to the PM’s statement today.

Please note: this post was written at my request by Michael Dowsett, after yet another European policy which breached the Rule of Law, as classically understood. – Steve

The rule of law is a phrase which is widely used but perhaps little understood. Far from being merely the sum total of all the laws passed by a particular central or local administration plus courts to enforce them, the term ‘the rule of law’ draws on a higher concept of laws and practices which promote equality before the law, general and abstract rules for citizens and an independent judiciary.

So, where did the rule of law originate? What does it mean? And why is it relevant to the conduct of politics today?

‘An unjust law is no law’:

The principle was first seen in Ancient Rome and Ancient Greece that the laws under which citizens live should evolve gradually over time and not merely be decreed by sources of arbitrary power. For this reason, greater trust was put in the hands of the judiciary to develop law, through a process called common law: law developed through ‘case and precedent’ established through various cases. This approach was formed from a number of principles:

Accountability:

All are able to be equally held to account under the law, regardless of power status within the particular jurisdiction. As such, rulers are as liable to be held to account as ‘the ruled.’

Natural justice:

Natural justice implies that all laws are predictable so that an individual can be sure how they will be treated under the law, should they proceed with a particular action. In conjunction with this, the law should be clear and stable. It should also avoid retroactivity; that is judgement on the basis of laws which were only passed after the act in question was committed. As Bastiat states in The Law, the law of the land should be ‘negative,’ and not perpetuate injustice through retroactivity; or indeed the confiscation of liberty or property through regulation or redistribution of wealth.

The rule of law in practice

The application of the rule of law is multifaceted, and ranges from an independent judiciary to the conduct of economic policy. However, the core principle advocates of the rule of law would embrace is the assertion that its principles are incompatible with a planned society. As Hayek said in The Constitution of Liberty, although a person in a planned society “…is not fundamentally deprived of the use of his capacities; he is deprived of the possibility of using his knowledge for his own aims.” Fundamentally, the rule of law and a free society go hand in hand.

Defenders of the rule of law also advocate the adoption of written constitutions, such as the United States Constitution, to formally codify the duties and restrictions on the power of particular parts of government. In the absence of such formal written constitutions, a gradual creep towards an arbitrary use of power can occur, thus undermining the rule of law. The threat of such a development is only increased by the greater power now enjoyed by supra-national organisations, such as the European Union. The lack of democratic legitimacy and accountability the EU has helps to explain why it consistently seeks to acquire new competencies and powers through ‘ratchet clauses’ and similar mechanisms, which undermine the principles of predictability and generality at the heart of natural justice.

In conclusion, the rule of law is crucial to the functioning of a free and prosperous society. It is as relevant today as when the principles at its heart were developed in Ancient Greece and Rome. Governments should be vigilant that their actions and approaches to policy do not undermine the principles of ‘natural justice’ and should avoid the temptation to wield arbitrary power in the pursuit of political gain.

You can read more on these fundamental principles by downloading: Principles for a Free Society by Dr. Nigel Ashford.

In the Daily Mail, Quentin Letts reports that I called for the UK to quit the EU altogether at PMQs yesterday. Some colleagues also thought I said “leave” not “lead”.  Hansard reports my intended words:

Steve Baker (Wycombe) (Con): Does my right hon. Friend agree that it is time for this country to lead Europe into the hope and potential of a new post-bureaucratic age?

The Prime Minister: I think that there are opportunities for Britain in Europe, and we should start from the premise that it is in Britain’s interest to be in the single market. We are a trading nation, so we need those markets open, and to be able to determine the rules of those markets. As Europe changes, of course there will be opportunities, but the first priority at the end of this week must be to ensure that the eurozone crisis, which is having such a bad effect on our economy, is resolved. At the same time, however, we should be very clear about the British national interest: safeguarding the single markets and the financial services, and looking out for the interests of UK plc.

I was quoting the Prime Minister. He made the following remarks in Prague in 2007 in relation to the EU, according to the BBC:

And he added: “It is the last gasp of an outdated ideology, a philosophy that has no place in our new world of freedom, a world which demands that we fight this bureaucratic over-reach and lead Europe into the hope and potential of a new, post-bureaucratic age.”

I agree that the philosophy of the EU has no place in our new world of freedom. What Europe needs – free trade, peace and fundamental liberties – could be arbitrated under a much more limited institution such as the Council of Europe.