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Tuesday, April 06, 2010

"Twenty years down the line, where will we be?"

Over the Bank Holiday weekend the Independent and the Telegraph both picked up on a lecture given by the aptly named Lord Chief of Justice, Lord Judge, last month, in which he warned of the growing influence of both the European Court of Human Rights (ECHR) in Strasbourg and the EU's European Court of Justice (ECJ) in Luxembourg. He concluded with a question that the Government has done everything it could to avoid: "Twenty years down the line, where will we be?"

Both papers chose to focus predominantly on his comments about the growing influence of judgements from the ECHR on the UK courts and how this poses a challenge to the UK's centuries old common law legal system. The answer, Lord Judge said, is to ensure "that statute ensures that the final word does not rest with Strasbourg, but with our Supreme Court."

The ECHR falls outside the realm of the EU, although, under the Lisbon Treaty, the EU as a whole formally acceded to the European Convention of Human Rights, which the Strasbourg court was established to uphold. And Lord Judge made some very interesting comments regarding this and the EU's growing role in UK criminal law more generally. They are worth repeating here as they went largely unreported at the weekend.

Lord Judge's first point was that "the [EU's] European Court of Justice is beginning to acquire jurisdiction over matters that would normally be regarded as matters not for Luxembourg but for Strasbourg."

He didn't expand much on this but it is an interesting point to watch in the future as there are clearly concerns that, with the EU acceding to the Convention, the remits of both courts has become blurred, with a risk of ECJ mission creep. The first practical example to which Lord Judge refers is that, "The EU has recently signed up to what is called a 'roadmap' of five areas of criminal procedure which must be addressed within the next 5 years to protect and guarantee the rights of EU citizens. I thought that was the job of the Convention."

It also raises difficult questions for the UK specifically, which can 'opt out' of much of the EU's new criminal legislation under the Lisbon Treaty but at the same time remains a signatory of the Convention of Human Rights - although David Cameron has said that he wants to review the Convention's impact on the UK. How will this work in practice, which will take precedence?

The second major point is that "The Treaty of Lisbon has brought criminal justice matters to the core of the EU and with it the jurisdiction of the Luxembourg court." This means that if the UK does opt in to new EU justice and home affairs legislation "decisions of the Luxembourg court on issues arising out of the Treaty of Lisbon, even to the extent that they involve criminal matters, would become binding on us all."

He concludes, "the development of the European Union, and the extended jurisdiction of the European court in criminal matters, will have a significant impact domestically. Twenty years down the line, where will we be?"

This is not just an interesting question but a very important one. You'd have hoped that it had been debated and answered long before the Government signed the Lisbon Treaty.


Julien Frisch said...

May I point to a blog post from Adjudicating Europe that, especially to the comments, has discussed some of the issues but where it is noted that it is not new that the European Court of Justice (the EU court) has been working with the Strasbourg court's jurisprudence for while - and vice versa.

And it is also worth noticing that the EU has not yet joined the European Convention of Human Rights but is right now in a longer process of trying to figure out how exactly this will function. But at least they have decided to include representatives of the EU court in the discussions right from the beginning.

Still, the marriage will be very difficult, and of of the issues discussed so far is exactly how the member states will be effected and how the roles of the ECJ and the ECtHR will be clearly separated.

Browned-Off said...

It sounds rather as though we, in the UK, can save a fortune in criminal court infratucture and staffing costs by closing the Central Criminal Court, regional Criminal Courts and the Old Bailey since all criminal cases will ultimately end up in Europe on appeal. Why not just try the case there in the first place and save the UK taxpayer £billions of costs? Our Judges, QC's, Barristers and other legal money pits might as well be fired as well and, as for the House of Lords, well this could clear a quite a few seats as well. This is what comes of not allowing the public to vote on EC referenda. When will government stop thinking they know best?