Would a Constitution save Britain from the EU? The European Arrest Warrant would be given short shrift if we had a modern Magna Carta By Philip Johnston 8 Jul 2014 Do we need a written constitution? This question is to be the subject for public debate over the next six months in the run-up to the 800th anniversary of Magna Carta in 2015. On Thursday, the Commons political and constitutional reform committee will publish a number of options, including a fully worked-up draft of a new constitution. I thought we already had a written constitution, because I have been to see it in Victoria Tower, part of the Palace of Westminster. The building houses an archive containing more than 1.5 million Acts of Parliament passed since 1497. They include some of the seminal laws of the land, the very essence of nationhood: the Petition of Right 1628; the Habeas Corpus Act 1679; the Bill of Rights 1689; the Act of Union 1707; the Great Reform Act of 1832; the Parliament Acts of 1911 and 1949; and, for good or ill, the European Communities Act 1972. One document that is not in the Westminster archive and whose originals are held in the British Library (along with Lincoln and Salisbury cathedrals) is Magna Carta itself. However, while many of the rules and common understandings that make up this nation’s constitution are committed to paper (or vellum, to be accurate), what we don’t have is a codified version that we can readily consult for a precise interpretation of what we should and should not be doing. Conservatives tend instinctively to resist the idea of a written, codified constitution, preferring the mix of conventions and statute law that has evolved over hundreds of years to produce a system that works, if by no means perfectly. By contrast, the liberal Left incline towards a US-style constitution, enshrining in one place what they would consider to be the basic rights of the citizen. Yet if we had a codified constitution today, I suspect the Right would be its greatest champions – as they try to stop some of our ancient liberties being eroded by membership of the EU. Indeed, there is a connection between this issue and another event taking place in Parliament on Thursday: a debate and possible vote by MPs on whether the UK should opt in to a number of justice and home affairs measures, including the European Arrest Warrant (EAW). Under the Lisbon Treaty, previously sovereign judicial matters were brought within the ambit of the EU’s institutions for the first time, giving the European Court of Justice full powers of jurisdiction from the end of this year. Britain negotiated an opt-out, with the proviso that we could choose the measures we wanted to be part of – hence the vote on Thursday. Yet if we had a Constitution with a big C, I doubt that we would have got this far. It is surely inconceivable that any written constitution would not contain measures to prevent British citizens being extradited into a jurisdiction where habeas corpus does not exist, or being arrested without prima facie evidence of criminal behaviour. These are among our most basic and precious liberties; and yet on Thursday, our Parliament will give them away. The EAW has been sold to the nation as a law enforcement tool that helps bring bad people swiftly to book. That may well be its effect. But it is at odds with what we previously understood to be a fundamental constitutional principle – that no one can be arrested and incarcerated arbitrarily. Suspects surrendered under an EAW to France, for instance, may spend years in detention before they can appear in court to establish their innocence. If we had a written constitution, the legislation enacting the EAW would doubtless have been struck down by the courts right at the outset, since it would almost certainly have infringed one of its articles. The EAW also conflicts with another of the mainstays of British justice – that a person should not be extradited for something that is not a crime here. This old double criminality safeguard was dispensed with when the EAW was agreed by the last government, but it is hard to believe that this provision would not also have been knocked back by a constitutional court. Since we don’t have such a court, we rely entirely upon Parliament to provide our constitutional protections. Yet in this case, it is not performing its function. The contention that the EAW is an effective crime-fighting mechanism that allows alleged criminals to be swiftly dealt with is beside the point: the same could be said for mass round-ups of suspects and internment. We don’t allow those, because they run counter to ancient legal principles that date back 800 years to Magna Carta. It is true that, as all the proposed justice and home affairs opt-ins have been agreed by Parliament and enacted in statute, they are constitutional. That is how we do things here. But our membership of the EU is gradually chipping away at judicial protections that would have been inviolable had they been enshrined in a written constitution – or certainly much more difficult to change. Instead, the EAW went through Parliament as part of the Extradition Act 2003 with barely a murmur about its constitutional implications. On Thursday, more than 60 Tory MPs may vote against readopting the EAW. Inevitably, they will be accused of abetting criminal behaviour. Yet the real issue is whether a supra-national court should have the final say over British judicial decision-making for the first time. If that is not unconstitutional, I don’t know what is. telegraph.co.uk/news/worldnews/europe/eu/10951442/Would-a-Constitution-save-Britain-from-the-EU.html magnacartaworldheritage/would-a-constitution-save-britain-from-the-eu/
Posted on: Wed, 09 Jul 2014 12:34:57 +0000
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