A little confusing

One gets rather confused with some of the replies HMG produces to questions put down by noble Lords in the Upper House. Take this example: Lord Stoddart of Swindon asked the following Written Question:

To ask Her Majesty’s Government, further to the Written Answer by Lord Taylor of Holbeach on 4 August (HL1114) [actually, September 26] about the European Arrest Warrant, whether they consider that habeas corpus can be applied in other European jurisdictions following extradition; and, if so, how.

The last few words seem to be crucial.

HMG, in the shape of Lord Bates replied as follows (and I doubt if Lord Bates fully understood what his officials wrote there):

Article 12 of the relevant Framework Decision (“Keeping the person in detention”) states that “When a person is arrested on the basis of a European Arrest Warrant, the executing judicial authority shall take a decision on whether the requested person should remain in detention”. This obliges the relevant judicial authority to take a decision on whether or not the person should remain in detention, and that must be taken in accordance with the law of the executing State. Therefore, each and every EU Member State must consider carefully whether a person can be legally detained or not. That is in keeping with the intention underpinning the principle of habeas corpus.

The Government has also introduced reforms to the operation of the Arrest Warrant that limit the unjustified detention abroad of individuals surrendered by the United Kingdom. For example, section 12A of the Extradition Act 2003 provides a bar to extradition on the grounds of “absence of prosecution decision”. This means that, in cases where the person is wanted to stand trial, extradition can only go ahead where the issuing State has made a decision to charge the person and a decision to try the person, or that the person’s absence from that State is the only reason for the failure to take the decision(s). This provision ensures that, where a State is simply not ready to try a person, extradition is refused and the person is not surrendered only to spend a potentially lengthy period in pre-trial detention.

Following our reforms, Section 21B of the same Act allows, with both the requested person’s and the issuing State’s consent, for the person’s temporary transfer to the issuing State or for the person to speak with the authorities in that State whilst he or she remains in the UK (for example, by video link). This provision ensures those who are subject to an Arrest Warrant have an opportunity to communicate with the issuing State without being surrendered. In a number of cases this may result in the issuing State withdrawing the Arrest Warrant (e.g. if it decides the person is not the person they are looking for), ensuring the minimum time possible will be spent in detention.

I think he is saying that Habeas Corpus remains important despite the European Arrest Warrant but I am not really sure.

Misdirection that is almost worthy of Agatha Christie

As every fan of detective stories knows, there are no misdirections like Christie's misdirections. One pootles along happily, convinced that one can at least guess what the solution of a mystery is going to be and then one is thrown for a loop. The solution is completely different and, what is so irritating, completely logical and fairly signposted. As Robert Barnard, another excellent detective fiction writer, once said, with other writers, the reader on being offered the solution, wants to kick them; with Christie the reader wants to kick himself. (Or words to that effect and himself includes herself.)

I am not suggesting that our not so beloved government is in the same league of misdirection but it is not doing badly. Take the Home Office and the egregious Home Secretary, Theresa May. (Well, OK, I'll take them for the time being.) Not only has that wretched woman banned a couple of American bloggers to make up for the fact that Abu Qatada has finally left these shores, not only has she or her Department been economical with the truth as far as the Magnitsky list is concerned (subjects that need a more detailed coverage) but she and her minions are busy misdirecting people's attention on the subject of the various EU agencies, directives and regulations that affect the UK.

To start with, as this blog has pointed out before, far from the UK opting out of anything (a more or less impossible action), it has been busily opting in to agencies and agreements that they had not been in before (here and here). They are playing that game again while trying to misdirect the voters's attention, no doubt, in order to show at some later date that they are capable of opting out or changing relationships or reforming something or other as long as the country votes to stay in the European Union.

The EUObserver reports

The UK wants to retain 35 EU-wide police and justice laws out of some 130 in its wider efforts to claw back power from the EU.

“We believe the UK should opt out of the measures in question for reasons of principle, policy, and pragmatism,” UK home secretary Theresa May told ministers in London on Tuesday (9 July).

Tory-right wingers want to repatriate all 133 laws, but May said the UK should retain its co-operation with the EU police agency, Europol, and the EU's joint judicial authority, Eurojust.

“We should opt in post-adoption provided that Europol is not given the power to direct national law enforcement agencies to initiate investigations or share data that conflicts with our national security,” she noted.

The European Arrest Warrant will also figure into UK’s provisional opt-in list but with added conditions to better protect British nationals of extradition to other member states in case of minor offences.

This is not clawing back (the latest dramatic phrase the government and its spinners like to use) powers but merely weighing up how to deal with matters that were decided in the Treaty of Lisbon.

The UK has to accept all 133 measures, made before the Lisbon Treaty was adopted in 2009, or reject them all. If it rejects them all, it can then opt back into individual laws it wants to keep.

The decision must be made by June 2014 or all the EU laws, as of December of the same year, will be subject to oversight by EU judges as well as the European Commission’s enforcement powers.

“Following our discussions in Europe, another vote will be held on the final list of measures that the UK will formally apply to rejoin,” said May.

Some senior government officials see the move as part of David Cameron’s push for an in/out referendum on its EU membership.

Presumably, there will be a vote to reject the 133 measures, as it is unlikely that any MP will have the time to read the 159 pages that explain HMG's plans and over the following months, with neither the media nor the electorate paying much attention, there will be wholesale opt-ins.

In the meantime, let us be quite clear: we shall not be rejecting the European Arrest Warrant, no matter what some over-excited Tories might say. According to the Guardian, the UK government will join with other like-minded governments in an attempt to reform the EAW. Good luck with that. After all, reforming the EU and its various aspects has been such a successful process for the UK and its assorted governments.

The Daily Telegraph is equally blunt:

Theresa May, the Home Secretary, is today expected to announce that Britain will continue to take part in more than 30 pan-European crime and justice programmes. These will include the European arrest warrant – which allows foreign police forces to summon Britons and for detectives in this country to extradite suspects from the continent.

Britain will also remain a member of Europol, the EU’s law enforcement agency, and Eurojust, the EU’s judicial co-operation unit.

However, a new “proportionality test” will be introduced which is intended to stop Britons accused of low-level offences from being sent abroad and potentially held in custody while they await trial.

MPs will be given a vote on the new EU deal next week – which is expected to be opposed by dozens of Conservatives who have demanded that Britain opt-out of all pan-European crime and justice measures.

Another "rebellion", eh? Well, I wonder how many will take part in it this time?

Must. Stop. Laughing.

News reaches us all that the great fighter for free speech, Julian Assange, has asked for asylum in Ecuador. It seems he walked into the Ecuadorian Embassy in London and "told diplomats he was being persecuted for political reasons".

This is the man who, proclaiming that truth mattered above all, unredacted US cables that he released, thus making the names of oppositionists in countries like Belarus known to the government agencies and is highly regarded in that freedom loving country, Russia (here, here and here) but has fought tooth and nail against his own extradition to Sweden on charges of rape. Sweden is not precisely Belarus or Russia in terms of its judicial structure and openness.

Some time ago, I suggested that Assange might think of asking for asylum in Russia.

If all these people's [Jemima Khan, John Pilger et al] worst suspicions should come true and the United States asks for his extradition, Mr Assange can, one assumes, apply for asylum in Russia. Of course, he will not be able to publish any material that might damage or seriously criticize the Russian government if he wants to stay alive and healthy, but he can, as the old Soviet joke had it, criticize the United States to his heart's content.

Maybe Assange took my advice and decided on going to Ecuador, instead, where as a friend of mine has pointed out, the chocolate, at least, is excellent.

As the Guardian points out,

By choosing Ecuador, he has alighted on a country that is clearly in accord with his political views, not closely aligned with the United States and, he will hope, beyond the reach of the European arrest warrant system.

It may be beyond the reach of the European arrest warrant but it may have an extradition treaty with Sweden, anyway. My guess is that the Ecuadorian authorities are rather unhappy about the situation though they talk bravely about analyzing the situation and taking a decision on the basis of that analysis.

There is another problem but that applies to that much derided group, the trendy luvvies.

Assange was granted bail on a surety of £240,000 raised and pledged by supporters. His apparent flight from the legal process could now place that money at risk of confiscation by the court.

One really does have to have a heart of stone not to laugh at the whole story.

Just a thought

Autumn is approaching and is, indeed, nigh, which would be easier to bear if we had had a reasonable summer. However, the end of August does mean that I really need to spend more time on actual work rather than pretend stuff. On the whole, this blog counts as work, though, obviously, not the paid kind.

Part of the week-end was spent reading various books to do with history of cooking and cookery books (there is method in my madness, as it happens), one being Kate Colquhoun's fascinating though at times slightly tendentious Taste - The Story of Britain through its Cooking. It is full of fascinating tit-bits of information.

For example, we find this on page 111, as part of a chapter on the vast amount of sugar consumed by the Tudors and the presentation of the many and varied sweetmeats that became an enormous part of their dinners and banquets:

Silver or gilt bowls were used, and English green glass and valuable imported Venetian glass were prized - vessels beautifully etched with mottoes and devices or rolled over water while being blown to produce a fine tissue of lines.

Nothing too unusual there: Venetian glass was highly prized and many attempts - some successful, some less so - were made to create local industries that would compete.

The interesting detail is found in the notes where Ms Colquhoun explains:

Venice protected its lucrative glass-blowing industry by forbidding its artisans to work abroad, on pain of death. Realising the profit to be made from an appreciative British market, and taking his life into his hands, the first Venetian did establish a glass studio in London in 1572.

How interesting, I thought to myself, if somewhat badly edited, particularly the note (once an editor, always an editor). Of course, if we had had the European Arrest Warrant at the time, things would have been very different.

Worry not, the government looks after you

Just recently people have realized that the European Arrest Warrant and the European Investigation Order is not just a silly boring joke but real encroachments on our legal and judicial system. Of course, neither of them constitutes a surrender of major powers to the EU; otherwise we would have had a referendum on, say, the EIO. Would we not? Oh stop giggling at the back.

It's not a particularly new subject, having been covered on numerous occasions by EURef (a few examples: here, here and here plus many more by the Boss) and a couple of times on this blog (here and here) but better late than never or so one keeps saying about eurosceptic organizations and supposedly eurosceptic politicians. As it happens, the subject came up in the House of Lords in which there are a few (just a few) genuine opponents of Britain's membership of the EU.

Yesterday Lord Vinson (who had, on Tuesday, also chaired the somewhat ill-fated meeting of Better Off Out) asked

Her Majesty's Government to what extent the European Arrest Warrant and European Investigation Order conform with the principle of habeas corpus.

Readers will be glad to know that HMG, represented here by the egregious friend of Douglas Hurd and Slobodan Milosevic, Baroness Neville-Jones (here and here) is not worried in the slightest. Well, maybe in the slightest. But only just.

The UK's transposition of the European arrest warrant complies fully with the concept of habeas corpus. UK implementation of the European investigation order will also be fully compliant. However, I understand that the noble Lord's principal concern is the separate issue of European arrest warrants being issued for trivial offences. The Government share this concern and are talking to other EU countries, bilaterally and through the European Union, to stop this happening.

There followed a discussion that the noble Minister might not have appreciated as she was attacked on all sides and was shown up to be somewhat ignorant of all matters, including the exact title of certain EU legislative documents. What do they have advisers for?

HMG seems to put a lot of faith in Sir Scott Baker and his panel of wise individuals who will be looking at the operation of the European Arrest Warrant (and it is perfectly clear from her shifty responses that habeas corpus does not protect anyone who has been detained wrongly under the EAW) to suggest changes and improvements. Exactly how is HMG going to change and improve European legislation that has already been transposed into British legislation.

Lord Tebbit's interesting suggestion has caught some amused attention:

My Lords, could my noble friend not take some advantage of the provision of European arrest warrants? We also have the problem of control orders. Perhaps she could get some friendly European country to take those who are currently subject to control orders and bang them up in a jail somewhere, without the need ever to bring them to trial. That would seem to be a most convenient solution.

Baroness Neville-Jones was not amused. Nor was she impressed by the perfectly sensible question put to her by Lord Stoddart of Swindon:

My Lords, I am sure that the noble Baroness will agree that one of the prime duties of government is to protect the interests of the citizen, particularly when abroad. She will be aware that members of the British public have been extradited to other countries without the production of any prima facie evidence at all. Moreover, they often go to countries that do not have the same respect for law and individual interests as we do in this country. The Government were warned about this when the Bill was discussed in Grand Committee. It is a serious matter and I hope that the Government will understand the level of concern about it throughout the country.

She replied:

My Lords, the point that the noble Lord makes about the Government having been warned at the time of the passage of the legislation is perhaps to be directed at the other Benches. We are concerned about the operation of the European arrest warrant, which is precisely why we believe that it needs to be looked into. I would add one point about the European supervision directive-I may not have the title quite right. There is a framework agreement on an arrangement that will come into operation whereby individuals who have been summoned for jurisdiction can nevertheless return to their country of origin during the period of bail and, if sentence is passed on them, can also serve that sentence there. Extra remedies are coming into operation to protect people's rights.

In other words, we know it is a mess and a destruction of the English (and Scottish) legal system but do not worry: we shall look into it and .... errrm .... well, that's it really.