Red lines for double standards?

There was no great surprise when Tony Blair announced ahead of last week’s European Council (21-22 June) that one of his ‘red lines’ on the new EU treaty was giving away power on justice and home affairs. "We will not agree to give up our ability to control our common law and judicial and police system," he said before the summit. His red lines were secured.

The UK obtained an opt-out from a treaty provision enhancing police and judicial co-operation between member states.

The UK has long had difficulties with the EU’s encroachment of powers in this area and the main argument used is that the British system is intrinsically different. Common law is also applied in Ireland, Malta and Cyprus and all four states have stood together in opposing legislation proposed by the European Commission in this area.

So is there a real problem for common law states and greater European integration in this area?

"For me it is not a legitimate argument but is rather used as a good excuse for not talking about the real issue which is the transfer of sovereignty," says Sergio Carrera, research fellow at the Centre for European Policy Studies.

Evidence for this is found in the UK’s acceptance of some proposals in the area of illegal migration while on the other hand choosing to stay out of laws on legal migration - and remaining outside the Schengen zone, says Carrera.

"They are more keen on co-operation in the security dimension of justice and home affairs and in principle this is no problem. But when it comes to more sensitive issues, like migration, they are really against the Europeanisation of the system and prefer to keep their special status," he adds.

Neil Walker, a professor of European Law at the European University Institute in Florence, also believes the UK has fundamental issues of trust. "One can point to certain areas of difference which are due to the common law/civil law divide, most prominently the UK adversarial rather than inquisitorial system of prosecution, but it is just too convenient for the British to label this as the main problem," he says.

"The fundamental problem is one of trust - does country A trust country B to apply the criminal law and related matters of due process fairly where there is a cross-border element?"

But there is a belief that there are intrinsic differences in common law which makes moves towards greater harmonisation difficult. Judges in common law systems rely heavily on judgements which have been handed down previously by courts whereas in law practised in the rest of Europe there is a greater focus on statute. "England simply doesn’t have a law on matrimonial property whereas the statute in France dates back to Napoleon," says one EU judicial expert. Judges in the UK and Ireland also have no powers of investigation whereas in France they do.

But the differences often cause cultural problems rather than legal ones. For example, EU regulations which allow divorce cases to be heard in member states where an applicant is the first to file papers have caused problems in Ireland because of the requirement in Irish law for a five-year separation for couples who want to end their marriage. An Irish man or woman who wants a quick divorce needs to live abroad for a year - in Sweden, for example, in order to obtain the right from a Swedish court to apply for an immediate divorce.

Jörg Monar, professor at Robert Schuman University in Strasbourg, says that there are fundamental differences with the common law system but adds that there are also differences between systems on the continent. Where the real issue lies, however, is in the sensitivity surrounding judicial systems. "It is a very sensitive domain dealing with the most invasive action public authorities can take. It is totally different from the internal market which covers the freedom of movement of goods, services and workers. This area touches on the heart of the rights of the individual," says Monar.

The common law countries are not the only ones with problems in this area, he argues. France is reluctant to give any operational powers to Europol or a European border guard body. Poland, the Czech Republic, Slovakia, Denmark and Sweden have often stood with common law countries on proposals which they felt would undermine their own systems. The European arrest warrant was put into doubt by a German constitutional court ruling which questioned the definitions of the list of crimes in the law.

What makes the UK different is its pragmatism, says Monar. "They [the UK] want to participate where they can see the benefits but where it interferes too much in their legal systems they hold back. It’s not good for European integration but maybe it’s not a bad policy," he says.

Where such a policy does complicate the European project is when it sets double standards, says Carrera. Member states which joined the EU this January and in 2004 must join Schengen, which the UK and Ireland chose to stay out of. "It is not fair to other member states that they play this game of opt-in only when it is advantageous," says Carrera.

There was no great surprise when Tony Blair announced ahead of last week’s European Council (21-22 June) that one of his ‘red lines’ on the new EU treaty was giving away power on justice and home affairs. "We will not agree to give up our ability to control our common law and judicial and police system," he said before the summit. His red lines were secured.