Forget foreign policy, for-get the euro. The next major bout of European harmonisation will take place in the field of home affairs. Commission officials are no longer excited about the single mar-ket. Defence integration was yester-day's business. But even the most phlegmatic fonctionnaires come alive at the mention of a European criminal code. Ask their views on a common immigration policy and they positively quiver with enthusi-asm. Add in the idea of a European Charter of Rights and it is all they can do to stop themselves drooling.

The Commissioner charged with extending the EU's remit into. home affairs is a Portuguese socialist, Antonio Vitorino. As well as seeking to approximate the national systems of criminal law, Mr Vitorino would like to create a specifically European legal code, with its own public prose-cutor. This idea, known as corpus juris, is intended in the first place to apply to the narrow field of fighting fraud; but, if it proves successful, it will gradually be extended to other areas of transnational crime. What is envisaged, ultimately, is something akin to the two tier legal system that 'operates in the United States. Seri-ous crimes would be federal offences, while the nation-states would retain responsibility for lesser infractions.

Once you have a European justice system you' need European' police-men to enforce it. Enter Europol, 'until now. a pretty harmless body that allows national police forces to exchange information, but which is henceforth to have an operational role. Again, Euro-federalists have the American model in mind: Europol is meant to become a kind of European FBI, operating above and alongside the national police forces.

These and other ideas will be dis-cussed this weekend at the first ever summit of EU interior ministers, to be held in the Finnish town of Tam-pere. You might think that home affairs, by definition, would be the one area of government activity that has nothing to. do with Brussels. ("It's the best job in the Cabinet," Willie Whitelaw used to tell his suc-cessors at the. Home Office. "You never have to deal with any foreign-ers.") But this rests on a fundamen-tal misapprehension about what European politicians mean by "home".

Already, the EU has dismantled what it calls its internal frontiers. Once you have a border-free zone, it is a short step to establishing com-mon rules on who is allowed to settle within it. And, from there, it seems logical to give citizens within the zone legal entitlements which are equally enforceable throughout it.

Well, you might say, what's wrong 'with that? Actually, from a British point of view, a great deal. For we are not talking simply about' judicial co-operation (which already happens under the Hague Convention and' a web of extradition treaties). Rather, corpus juris means the creation of a superior EU code, with its own juris-diction and procedures. And Such a code, naturally enough, would be based on the Napoleonic and inquisi-torial systems of law prevalent on the Continent. There is nothing intrinsically wrong with the Napole-onic Code. It is just that Britain, as so often, is Europe's odd man out. England, Wales and Ireland operate on the basis of common law; and even Scotland follows an adversarial and jury-based juridical method. Adopting a European criminal code will mean violent and wrenching changes to our law, including the curtailment of trial by jury and habeas corpus.

The same is true of the proposed Charter of. Rights, which will affect the United Kingdom far more radi-cally than those states which already have written constitutions. We have always assumed that we are free in law to do anything which is not expressly prohibited; yet it is now proposed that we should be "given" our rights by European judges.

It is reasonable to ask why, when each of its members is already bound by the European 'Convention and the UN Declaration, the.EU should need its own human rights' charter. The answer is that federal-ists want the Union to have "a basic constitutional law" (as Commis-sioner Vitorino calls it), "justidable before the European Court. This would transform the EU from an international association into a state -  a state, moreover, founded on a series of rights that would then be open to interpretation by a highly activist court. What if the European Court of Justice were to decide that we have a right to, say, a particular minimum wage, or abortion on demand? Anyone who thinks that this is fanciful should look at some of its existing judgements, not least in the field of sexual equality.

Already, Euro-enthusiasts are queuing up to pooh-pooh the dan-ger. Habeas Corpus under threat? A European police force? What will these foaming sceptics try to scare us with next? This, of course, is a well-tried strategy. One minute, we are told that something is unthinkable; the next, that it is too late to complain, since the whole matter has already been settled.

It is fair to point out that Jack Straw, on behalf of the British Government, is cool towards corpus juris. And it is also true that he wants the proposed Charter of Rights to be no more than a political statement. But; perhaps because he does not want to be portrayed as "against" human rights, he will not oppose the principle.. Instead of opt-ing out of the whole home affairs programme, he is making the age-old British mistake of going along with it in order to water it down. I remember the Home Secretary from our time together as school gover-nors: he is an able man, and no feder-alist. But he is surely making a mistake in getting involved with this agenda at all. There is no doubting where the other states want to go. And the whole history of Britain's involvement with the EU suggests that, having failed to say no at the outset, we shall end up being dragged there, too.

Daily Telegraph (11th October 1999)

Many people see Britain as being the home of FREEDOM as we created our unique system of parliamentary democracy backed by our COMMON LAW.  The latter has been adopted, in various forms, by the other English speaking nations, notably the USA, Australia, New Zealand, Canada, Ireland and Malta.  Our legal system is unique in that it embodies our concept of the individual’s freedom (Power of the People as embodied in our Common Law) and makes our laws quite different to those of our friends in Continental Europe.  These ancient rights are now under imminent threat from Brussels under a proposal known as ‘Corpus Juris’ (“CJ”).
How our law differs from that of Continental Europe
1. Our Common Law, as far back as 1215 with Magna Carta, states that a citizen can only be judged by his peers (Section 39).  These rights protect the individual against arbitrary conviction and imprisonment.  Our Common Law recognises several vital rights to the citizen:

• The right of Habeas Corpus (that the accused must be taken to a public court within a very short period of time, usually 24 hours, and the accusers must produce their evidence then and there)
• The right to Trial by Jury at which jurors can in fact even disregard the law if they think it would give an unjust conviction.  The jurors are thus ‘sovereign’
• If found innocent, the accused cannot be tried again on the same charge (‘double jeopardy’)
• In other words our process is 1) suspicion,2) investigation, 3) arrest, 4) charge

• No Habeas Corpus so one can be imprisoned for very long periods (weeks, months, occasionally years) without any evidence being produced against you
• No right to Trial by Jury as their system involves judgements being made by a career judiciary who are the judges and prosecutors and who are, to all intents and purposes,  ‘colleagues’ (a quite separate body of lawyers makes the defence and are often treated as inferiors)
• In most instances the accused can be tried a second time for the same offence, since the prosecution has the right of appeal against acquittal.

1. Introduce a single legal area with the European union
2. Introduce a European Public Prosecutor (“EPP”) with national public prosecutors being “under a duty to assist” him or her (Article 18.5)
3. There will be a “Judge of Freedoms” whose function is ostensibly to protect the citizen’s rights, which however do not include the right to demand that evidence be produced.  This means, of course, that an enforceable arrest warrants can be granted without there actually being any evidence at all, since there is no right to verify it at that stage.
4. A European Warrant of arrest shall be issued by a national judge on “instructions” of the EPP, and any police force in any member State can be required to enforce it.
5. A suspect can be imprisoned without charge for 6 months,  renewable for a further 3 months without any limit to the number of renewals
6. The ‘trial’ shall be heard by professional judges, specifically without “simple jurors” or “even lay magistrates” (a clear and specific reference to the British trial system where the crucial decisions are taken by ordinary people)
7. An accused can be retried on the same charge if found innocent (i.e. the prosecution can appeal against an acquittal)
8. How can it be imposed on Britain?
9. Speaking for the government in Parliament Kate Hoey stated that CJ proposals would infringe on civil liberties and could not be introduced into Britain as the government would veto any such move.
10. The House of Lords is the only public body in Britain to have reviewed CJ in detail (HofL 9th and 19th Reports, 1998/99 session).  Some of the findings were:
11. They interviewed two EU representatives who stated that CJ could, and will, be introduced under Article 280 of the Amsterdam Treaty (pages 84 and 85, 9th Report).  Article 280 provides for Qualified Majority Voting so Britain will have no veto.
12. Advice from the Law Societies of both England and Scotland stated that CJ was unacceptable
13. In the second HofL report on page 73 Jack Straw, Home Secretary, stated that he was unaware of any proposals for the introduction of Justice & Home Affairs measures by Qualified Majority Voting - presumably he never read the earlier report !!!

• Basically at any time now that the new European Commission has been established.
• In March the European Parliament “welcomed CJ” in principle with support from all Britain’s MEPs bar two Labour MEPs.  Subsequently the Conservative MEPs claimed that they had voted the wrong way by mistake! Presumably the Labour and LibDem MEPs meant to support the CJ proposals, although Blair has not yet been asked why his MEPs all flouted his government’s stated policy which is to reject CJ.  One of the motions approved stated that CJ could be applied to ‘serious crimes’, undefined of course, opening the door to CJ being applied to areas outside EU fraud.
• On 11th September the Wise Men, who had previously revealed fraud in the European Commission, recommended that CJ be introduced in a three step programme – clearly designed to sugar the pill so that the British will swallow it:

• The next European Council of Heads of State & Government takes place in Finland on 15/16 October 1999.  On the agenda is the creation of a “single judicial space” – i.e. all of the above.

THE CHOICE IS YOURS.
REMAIN INDIFFERENT AND WE WILL LOSE 700 YEARS OF OUR HARD WON FREEDOMS.  ONE OF BRITAIN’S FINEST CONTRIBUTIONS TO HUMAN CIVILIZATION IS “LIBERTY UNDER THE LAW” ASSURED BY OUR COMMON LAW RIGHTS OF TRIAL-BY-JURY AND HABEAS CORPUS.
LET US DEFEND THEM

---

The storm clouds gather (July 99)
Nigel Spearing, ex MP, stated from floor at ERG meeting Friday, and confirmed to me in more detail afterwards, that the Dec  10th 1999 Helsinki (?) Heads of State EU Summit will deal wwith this issue. Detailed preparations and documentation are under way already, there will be a mini-summit a month or two before, also in Scandinavia. It is not yet clear  whether this is Dec 10th is the date on which Corpus Juris will be put foward for Commission approval, by CK or any other name, or whether the conference will just be putting in place the foundations on which CJ will subseqently be implemented.
________________________________________________________________________________________________________________________
HANSARD ON Corpus Juris 28 APRIL 1999

LORD STODDARD OF SWINDON asked her Majesties Government What is their response to the adoption by the European Parliament on 13th April of a Resolution supporting corpus juris and demanding the appointment of a European Public prosecutor with wide powers over criminal law in Member States and having control over Europol. (HL2074)

Lord Williams of Mostyn.: the Government notes that, although the European Parliament welcomed Corpus Juris as a possible example for future development, it said that it was not seeking the creation of a European Criminal Code. The Government fully shares the objective of fighting fraud against the Community budget, but disagrees with many of the recommendations of the "Corpus Juris" study including the proposal to establish a European public prosecutor. The Government also rejects the idea that the European public prosecutor should be given control of Europol. "Corpus Juris" has not been submitted the Council.of Ministers, but if this were to happen unanimous agreement would be needed for its proposals to be adopted and come into effect.

(Faxed by Law Socities Brussels Office)

"In their haste to appear open and democratic in the fight against the European union's greed and corruption, British MEPs have voted for one of the most totalitarian legal schemes ever devised by Eurocrats."

The article continues with a summary of the "secret plan called Corpus Juris", which "was quietly introduced as a magic formula for defeating EU fraud criminals - neatly forgetting that many of these were themselves Eurocrats."

The British MEPs who voted for the measure, in spite of the two main political parties being against it, did so because "our MEPs really are as embarrassingly pisspoor and badly organised as everyone makes out and simply don't read the documents they vote on."

Danny Finkelstein at Tory HQ confirmed that their MEPs had voted "for" when they meant "against", because "sneaky Eurocrats" had apparently concealed CJ in a list of other measures "which confused our MEPs completely.  William
Hague is to make a statement"

"At Millbank ... Labour spokesman Terry White said he had no information about matters European but he knew a man who did.  This was Nick Sigler, the party's "international" expert.  'You have caught me cold',  he said.  'I know nothing about a vote in the European Parliament and how our group might have voted.'  He did not know what Corpus Juris was nor what party policy on it might be."

The article concludes by citing Kate Hoey's response to Nicholas Soames, and similar claims by James Clappison and the Tory leader's secretary Ian Philps, concluding, "Shame no one told our cosseted MEPs."

Tory MEPs admit 'mistake'

Tory whips misunderstood the vote in the European Parliament The leader of Tory Euro-MPs has admitted his party voted in favour of European Union proposals it is supposed to be against. The mistake took place during a vote over plans to harmonise Europe's justice system.

The Conservative Party is firmly opposed to the plan to introduce a shared criminal justice system throughout the EU.

Tory MEP leader Edward McMillan-Scott said the person responsible for drawing up the whip for the vote last week had misunderstood the Corpus Juris proposals and told Conservative members to back them.
"There was a mistake," he told BBC News Online.  The vote came among hundreds of others on non-legislative texts in the context of plans to curtail fraud, he said.

"The Conservative whip was drawn up on the basis that since we were fighting fraud the assumption made was that we would be supporting some aspects of the consultation document."  Edward McMillan-Scott: "It was a genuine mistake"He confirmed he had been amongst the Tories voting for a measure they opposed. "Having discovered what it said, I changed my vote," he said.

Mr McMillan-Scott said the slip had attracted derision from right-wing groups, but played down its significance. "The European Parliament does do an awful lot of reports on things that have no outcome and this is one of them.  "I would prefer we voted against but we didn't and it was genuine mistake.  "In the European Parliament, if you choose to go over the record you will find all sorts of mistakes made."

A spokesman for the Labour Party in the European Parliament said: "I think the Tories should read the reports more carefully."

Tory embarrassment is compounded by the strong opposition against the Corpus Juris proposals from the top of the party in Britain.

Shadow Foreign Secretary Michael Howard has said the plans for a new legal area in Europe showed the real intentions of those backing a stronger role for the European Union. "It is called Corpus Juris - presumably on the basis that they think not a lot of people in Britain understand Latin. The proposals could eventually lead to the creation of a single legal area and single judicial system in Europe.

"The government has failed to give a categorical assurance that it will oppose such ideas."

Mr McMillan-Scott insisted Conservative Euro-MPs would vote against Corpus Juris if it was put forward on a legislative basis.  "We would oppose anything on principle that seeks to harmonise criminal sanctions," he said.  "It's quite clear from the Labour votes that they are genuinely in favour. They voted very consistently and I don't think they would deny that is their intention."

He described the criminal justice system in other European Union states as "appalling", claiming "our own may not be brilliant but at least it's better than theirs".  He added: "My experience not only in fighting Costa Villa frauds and time-share scams, but also as the first person in the history of the European Union to take the European Commission to the Belgian fraud squad, means that I am the last person who would want to place British citizens under the jurisdiction of continental justice."

Corpus Juris is plainly looming on our horizon now. Its itinerary can be
mapped out with a fair degree of certainty:
Step 1: The E.P., in plenary session, in accordance with the "co-decision procedures" votes a Resolution calling for Corpus Juris to be introduced. That happened yesterday, 13th April.
Step 2: On May 1st the Treaty of Amsterdam comes into force, and with it the modified version of art. 280.4 which provides for "measures against fraud", such as Corpus Juris ostensibly is, to be brought in by QMV.
Step 3: Prodi's new Commission comes into the fulness of its powers, and proposes formally to the Council of Ministers that the EU should adopt Corpus Juris. (Not quite sure when, maybe not till September, but easy to find out).
Step 4: The Council votes on the Commission's proposal, and (as at the inter-Parliamentary Conference of November 9-10th) 14 States are in favour, and only Britain is against. Article 280.4, providing for QMV on "measures against fraud", is invoked, and so Britain's sole contrary vote is over-ruled.
Step 5 (optimistic scenario, but possible): HMG keeps the promise that Kate Hoey (Home Office) made to Parliament last December in response to the Parliamentary Questions tabled after the Telegraph's revelations. Hoey and her colleagues stick to their guns, invoking the one-line "safeguard" contained in art.
280.4 ("These measures shall not concern the... national administration of justice.") and saying that art 280.4 cannot therefore be applied to CJ which certainly would "concern" the national administration of Britain's justice. The Commission and our 14 partners insist that it can be applied (as the rapporteur at the E.P. has already announced, the "safeguard" can easily be circumvented). This dispute over the interpretation of the article has to go to the ECJ for adjudication. The ECJ (predictably) rules that the "safeguard" does not apply.

Paragraph 2
Welcomes the Corpus Juris, which sets out criminal law provisions relating to the protection of the European Union's financial interests, since it might serve as an example for future developments, and looks forward with interest to the Commission's report on the possible implications of the Corpus Juris for national legal principles;
In favour:            391
Against:               48
Abstentions:         38
In favour:
LABOUR
Gordon ADAM, Richard BALFE, Roger BARTON, Angela BILLINGHAM, David BOWE, Richard CORBETT, Peter CRAMPTON, Tony CUNNINGHAM, Michael ELLIOTT, Robert EVANS, Alex  FALCONER, Glyn FORD, Pauline GREEN, David HALLAM, Veronica HARDSTAFF, Lyndon HARRISON, Mark HENDRICK, Richard HOWITT, Glenys KINNOCK, Alf LOMAS, Arlene McCARTHY, Michael McGOWAN, Hugh McMAHON, Eryl McNALLY, David MARTIN, Tom MEGAHY, Bill MILLER, Eluned MORGAN, David MORRIS, Simon MURPHY, Clive EEDLE, Arthur NEWENS, Edward NEWMAN, Christine ODDY, Anita POLLACK, Imelda READ, Barry SEAL, Brian SIMPSON, Peter SKINNER, Michael TAPPIN. David THOMAS, John TOMLINSON, Carole TONGUE, Peter RUSCOTT, Sue WADDINGTON, Mark WATTS, Ian WHITE, Philip WHITEHEAD, Joe WILSON, Terence WYNN
TORY
Bryan CASSIDY, Ed McMILLAN-SCOTT, The Lord PLUMB, James PROVAN, Jack STEWART-CLARK
IND. LABOUR
Ken COATES
Against
LABOUR
Alex SMITH
LibDem
Robin TEVERSON
UUP
Jim NICHOLSON
Abstentions
LABOUR
Gary TITLEY
TORY
John CORRIE, James ELLES, Caroline JACKSON, Ed KELLETT-BOWMAN, Anne McINTOSH, Roy PERRY, Robert STURDY
LibDem
Graham WATSON

Paragraph 3
Is not seeking the creation of a European Penal Code but calls for the gradual establishment of a European criminal law system in which account is taken of Member States' legal traditions and, on the basis of the latter, methods are found of combating and preventing international organised crime and, in particular:
(a)     gives priority to gradual harmonisation, as provided for in the second paragraph of Article 29 of the Treaty on European Union and in the Action Plan to establish an area of freedom, security and justice, of the approach to the following offences connected with organised crime:
- offences against children (especially sexual exploitation)
- trafficking in persons
- drug trafficking
- terrorism
- corruption and fraud
- money-laundering
crimes in respect of which the Union already possesses a common body of case-law,

                (b)     takes the view that additional efforts are required to define the Union's specific priorities in the following crime sectors:
- arms trafficking (Article 29 of the TEU)
- crimes against the environment (Action Plan) and trafficking in nuclear substances
- high-tech crimes (Action Plan), especially those committed via the
Internet
- doping in sport (conclusions of the Vienna European Council) in respect of which it is crucial to ensure continuity with the policies already being pursued at Union level, while at the same time extending the study of cross-border  implications and seeking a coordinated approach at international level;
In favour:           417
Against:              30
Abstentions:        17
In favour
LABOUR
Gordon ADAM, Richard BALFE, Roger BARTON, Angela BILLINGHAM, David BOWE, Richard CORBETT, Peter CRAMPTON, Tony CUNNINGHAM, Michael ELLIOTT, Robert EVANS, Glyn FORD, Pauline GREEN, David HALLAM,  Veronica HARDSTAFF, Lyndon HARRISON, Mark HENDRICK, Richard HOWITT, Glenys KINNOCK, Arlene McCARTHY, Michael McGOWAN, Hugh McMAHON, Eryl McNALLY, David MARTIN, Tom MEGAHY, Bill MILLER, David MORRIS, Simon MURPHY, Clive NEEDLE, Arthur NEWENS, Edward NEWMAN, Christine ODDY, Anita POLLACK, Imelda READ, Barry SEAL, Brian SIMPSON, Peter SKINNER, Michael TAPPIN, David THOMAS, Carole TONGUE, Peter TRUSCOTT, Sue WADDINGTON, Mark WATTS, Ian WHITE, Philip WHITEHEAD, Joe WILSON, Terence WYNN
TORY
Bryan CASSIDY, John CORRIE, James ELLES, Ed KELLETT-BOWMAN, Anne McINTOSH, Ed McMILLAN-SCOTT, Roy PERRY, The Lord PLUMB, James PROVAN, Jack STEWART-CLARK, Robert STURDY
LibDem
Robin TEVERSON, Graham WATSON
IND LABOUR
Ken COATES, HUGH KERR
Against
LABOUR
Alf LOMAS, Alex SMITH
UUP
Jim NICHOLSON
Abstentions
LABOUR
Gary Titley

Paragraph 5
Takes the view that, with respect to the medium- and long-term prospects for criminal procedures in the European Union, an independent European Public Prosecutor might be appointed who would operate in parallel with national public prosecutors and, initially, might serve to centralise judicial information on  transnational investigations under way relating to offences covered by the  European criminal law system so as to avoid duplication of effort and enable the competent investigating and legal authorities to participate and to make available their respective intelligence and expertise, in particular in order to ensure better coordination of the actual investigations;
In favour:             382
Against:                90
Abstentions:          10
In favour
LABOUR
Gordon ADAM, Richard BALFE, Roger BARTON, Angela BILLINGHAM, David BOWE, Richard CORBETT, Peter CRAMPTON, Tony CUNNINGHAM, Michael ELLIOTT, Robert EVANS, Alex  FALCONER, Glyn FORD, Pauline GREEN, David HALLAM, Veronica HARDSTAFF, Lyndon HARRISON, Mark HENDRICK, Richard HOWITT, Glenys KINNOCK, Arlene McCARTHY, Michael McGOWAN, Hugh McMAHON, Eryl McNALLY, David MARTIN, Tom MEGAHY, Bill MILLER, Eluned MORGAN, David MORRIS, Simon MURPHY, Clive NEEDLE, Arthur NEWENS, Edward NEWMAN, Christine ODDY, Anita POLLACK, Imelda READ, Barry SEAL, Brian SIMPSON, Peter SKINNER, Michael TAPPIN, David THOMAS, Gary TITLEY, John TOMLINSON, Carole TONGUE, Peter TRUSCOTT, Sue WADDINGTON, Mark WATTS, Ian WHITE, Philip  HITEHEAD, Joe WILSON, Terence WYNN
TORY
Bryan CASSIDY, John CORRIE, James ELLES, Caroline JACKSON, Ed
KELLETT-BOWMAN, Anne McINTOSH, Ed McMILLAN-SCOTT, Roy PERRY,
The Lord PLUMB, James PROVAN, Jack STEWART-CLARK, Robert STURDY
LibDem
Robin TEVERSON, Graham WATSON
IND LABOUR
Hugh KERR
Against
LABOUR
Alf LOMAS, Alex SMITH
IND LABOUR
Ken COATES
UUP
Jim NICHOLSON

Report as whole:
In favour:        399
Against:           48
Abstentions:     35
In favour
LABOUR
Gordon ADAM, Richard BALFE, Roger BARTON, Angela BILLINGHAM, David BOWE, Richard CORBETT, Peter CRAMPTON, Tony CUNNINGHAM, Michael ELLIOTT, Robert EVANS, Alex  FALCONER, Glyn FORD, Pauline GREEN, David HALLAM, Veronica HARDSTAFF, Lyndon HARRISON, Mark HENDRICK, Richard HOWITT, Glenys KINNOCK, Arlene McCARTHY, Michael McGOWAN, Hugh McMAHON, Eryl McNALLY, David MARTIN, Tom MEGAHY, Bill MILLER, Eluned MORGAN, David MORRIS, Simon MURPHY, Clive NEEDLE, Arthur NEWENS, Edward NEWMAN, Christine ODDY, Anita POLLACK, Imelda READ, Barry SEAL, Brian SIMPSON, Peter SKINNER, Michael TAPPIN, David THOMAS, Gary TITLEY, John TOMLINSON, Carole TONGUE, Peter TRUSCOTT, Sue WADDINGTON, Mark WATTS, Ian WHITE, Philip  WHITEHEAD, Joe WILSON, Terence WYNN
TORY
Bryan CASSIDY, John CORRIE, James ELLES, Ed KELLETT-BOWMAN, Anne McINTOSH, Ed McMILLAN-SCOTT, Roy PERRY, The Lord PLUMB, James PROVAN, Jack STEWART-CLARK, Robert STURDY
LibDem
Robin TEVERSON, Graham WATSON
IND LABOUR
Kenneth COATES, Hugh KERR
Against
LABOUR
Alf LOMAS, Alex SMITH
UUP
Jim NICHOLSON
Abstentions
TORY
Caroline JACKSON

What lies behind it?  In line with the Treaty of Rome, the EU has edged towards becoming a federal state.  Community law was established as federal (in the sense that the laws of the state can be overruled) by the European Court of Justice in a series of rulings starting in the early Sixties and accelerating in the late Eighties and early Nineties.

This drive to convert a federal system into a federal state has a legal obstacle.  The EU has two fundamentally incompatible legal systems, the inquisitorial and the adversarial.  No state has ever succeeded with such a dichotomy of legal procedure.  The UK has two systems, but the Scottish legal system could scarcely be described as inquisitorial and provides for trial by jury.  With only two adversarial states (the UK and Ireland) it was not hard to see which would lose out when the choice came to be made for a European legal system.  While economic and monetary union drive the process of economic and political integration, the Community treaties do not provide a similar mechanism for "harmonisation" of legal systems.  Community law is not organic but superimposed, with varying degrees of success.  In the UK it is not even entrenched, since the European Communities Act 1972 can be repealed.

The problem has been recognised by both the European parliament and the EC.  In 1995 a directorate of the EC set up the European Legal Area project, the same directorate that was implicated in the Euro-sleaze scandal.  The project led to a seminar in San Sebastian in Spain on April 17 and 18, 1997, from which emerged Corpus Juris.  What would it do?  First, it is true that it would "harmonise" criminal prosecutions for fraud against Community funds.  But as the documentation makes clear, Corpus Juris has been conceived as "the embryo of a future European criminal Code".  Jose Maria Gil-Robles, the President of the European Parliament, has talked of the creation of "a common European judicial space".  Article 18 of Corpus Juris provides that "the territory of the member states on the Union constitutes a single legal area".

It is proposed to appoint a Director of Public Prosecutions, and European delegated public prosecutors in each state, who may exercise their powers beyond state borders.  The Euro DPP may "request" detention without trial for up to six month at a time, renewable for three months at a time, with no maximum limit.  Detention across borders is permitted and European arrest warrants would be valid across the entire EU.  Whether the authors of Corpus Juris understood the immense constitutional implications for the UK of their proposals is doubtful, but perhaps the Europeans have never understood our attachment to liberty and the rule of law.

Article 26 Indent 1 is perhaps the most controversial, excluding "simple jurors or lay magistrates".  Trial by jury would be shut out entirely, as would Habeus corpus.  As for fraud, Corpus Juris could be brought in by majority voting under Article 209a (280) of the Treaty of Rome as amended by Amsterdam.  Britain believes that it has a veto but that view is not shared.  If the lamp which shows that freedom lives is not yet extinguished, it is flickering.
© The Times

On February 12th 1999, “in a sparsely attended Friday morning session of the European Parliament” an amendment to the 1976 Directive on Mutual Assistance for recovering tax was passed “on a show of hands” [Press Release, Graham Mather 12.2.99]. This amendment “under a misleading title which suggested that it concerned only the European Agricultural Guidance and Guarantee Fund” was introduced as “a single market measure requiring only a Qualified Majority” and not as a taxation measure where unanimity would have been demanded by Art.93 (new numbering) of The Treaty.

The amendment deals with the collection of EC funds which have been xpended on Common Agricultural Policy guarantee payments, customs duties, VAT and some excise duties. It introduces four new principles into the laws of the member states: EC claims to have superior ranking to member state claims in the event of the bankruptcy of the debtor (Amendment 7); EC claims to be preferred over member state claims where there is competition for the funds from a debtor (Amendment 7); identical treatment of EC claims in member state law, as if they were the member state’s own claims (Amendments 3 and 7); direct enforcement
of EC legal instruments specifying claims in all member states’ law (Amendment 6, unaltered from that drafted by the European Commission). The amended Directive is aimed at “fraud and tax evasion” and covers “both national claims and claims payable to the Community budget” (Amendment 2). Its rapporteur, Otto Bardong, states that under the amended Directive “no recalcitrant taxpayer should be able to find shelter in a ‘tax haven’ which protects him from pursuit” [Explanatory Statement B 2.5]. ‘Taxpayer’, explains Bardong, now includes the payer of any and all taxes, whether indirect or direct. “The Commission ......... proposes to widen the scope of the Directive to cover direct taxes” thus bringing it into line with the 1977 Directive on mutual assistance between the member states in the field of direct taxes. Bardong heartily approves of this extension:
“Quite obviously, Member States must cooperate fully in combatting all forms of tax evasion and tax fraud, and it would be unacceptable for havens allowing tax evasion to continue to exist within the single market (Amendment 5).”

Many of the implications in this amendment of the 1976 Directive are plain to see, and Graham Mather points them out in his press release. The Channel Islands and Isle of Man will find it extremely hard to maintain their present tax structures for non-residents, and with the advent of withholding tax on interest paid across member state borders, either at 20% or 15%, there will certainly be a flight of capital deposits from the Islands to jurisdictions outside the reach of Messrs. Santer and Co. In addition, the UK Inland Revenue will become merely a
tax collecting agent for France and Germany, where high tax rates have forced their nationals to deposit funds in the UK. In some cases, French and German nationals living in the UK will be targeted by their native tax collectors, even though they may in the meantime have become resident for tax in the UK. French tax rules, for example, are much more opaque even than UK ones, and investigations are often continued into a tax payer’s affairs long after he has settled in another tax jurisdiction - by means of telephone taps and analyses of credit card transactions if necessary.

Yet, however damaging the amended 1976 Directive will prove to British fiscal independence, it is when its powers and scope are looked at through the medium of the draft laws and procedures known as Corpus Juris, that the real import of the amended Directive becomes clear. Corpus Juris - for advance knowledge of which the UK owes an undying debt of gratitude to Torquil Dick-Erikson - is a set of “penal provisions for the purpose of the financial interests of the European
Union” [Corpus Juris, publ. Economica 1997, p.146]. The first 8 of its 34 Articles set out the crimes within its scope, the next 9 deal with the penalties to be inflicted on those convicted of these crimes and who such people might be, and Articles 18 to 34 recount the procedures to be adopted for investigations and trials under the Corpus Juris criminal code.

The crimes listed in Articles 2 to 6 are those that EC officials and contractors have been committing for many years, and which are the subject of the Van Buitenen affair - market rigging, corruption, abuse of office etc. Article 1 attacks “fraud in the Community Budget” and specifically, in subsection (a): “in connection with .............. the settlement of a fiscal debt, presenting the competent authority with declarations which in important respects are incomplete, imprecise, or based on false documents, in such a way as to risk harm to the Community budget” [op. cit. p.146]. Article 7 states that “it is a criminal offence to launder the fruits or the profits of offences described in Articles 1 to 6”. Article 8 declares that “a conspiracy which harms the Community budget constitutes a criminal offence” and defines conspiracy as “two or more persons working together ............ with a view to carrying out ......” one of  the offences listed in Articles 1 to 6. It is therefore clear that the amended 1976 Directive and Corpus Juris have common purposes. Tax defaulters - very widely defined - are undoubtedly their shared targets. Their methods of dealing with those whom they define as criminals are also remarkably similar.
 Both set aside the separate legal jurisdictions of the member states. The amended Directive places the EC in a privileged position throughout the EU in relation to the member states when tax claims are made and recovered. For Corpus Juris “the territory of the Member States of the Union constitutes a single legal area” [Article 18, op. cit. p.158]. Both set up machinery to ensure automatic enforcement of legal instruments. The amended Directive proposes “that the legal instrument permitting enforcement of recovery should be directly recognised and automatically treated as an instrument of the requested Member State” [Explanatory Statement B 18]. In addition the Directive will “make the
instrument [of recovery] legally enforceable with effect from receipt of request”. Corpus Juris envisages each of its prosecutors, capable of “acting on [his] own initiative” [Article 19, op. cit. p.160], co-opting the prosecuting authorities in the member states, since “National Public Prosecutors (NPP) are ..... under a duty to assist the EPP [European Public Prosecutor]” [Article 18.5, p.160]. Article 19.1 requires that “the EPP must be informed of all acts which could constitute one of the offences defined above (Articles 1 to 8)” so that it may determine
whether to prosecute.

In effect the EPP is given the power to take over all fiscal prosecutions from the member states’ prosecuting authorities where there is an EU or Commission interest in the outcome. Since the amended Directive makes evasion of tax (conflated in Belgium and France, and now in Gordon Brown’s Britain, with tax avoidance) an EU competency, tax compliance thereby becomes an EU-regulated activity. Nevertheless, Corpus Juris has yet to be adopted as EU law. Its proponents talk about it as just a discussion paper, and Kate Hoey, a
Home Office Minister, has stated publicly that her Government will veto its adoption in the UK, given the extent to which it infringes basic legal rights and customs - such as the right to a jury trial for a serious offence, and habeus corpus - which are part of our traditional freedoms and which are unknown on the Continent. However, the  investigation into fraud in the Commission established in the wake of the Van Buitenen revelations, is due to report on the Ides of March
1999. It is almost certain to identify as crimes the kinds of activities which are listed in Corpus Juris, Articles 2 to 6. Inevitably, a system of investigation, trial, conviction and sentencing for such crimes will be demanded by the European Parliament - if no one else. Corpus Juris is at hand, a ready-made, perfectly fitting remedy to punish the Cressons, Marins and other ne’er-do-wells of Brussels. (Incidentally, Corpus Juris would also punish Van Buitenen for blowing his whistle - Article 6, Disclosure of Secrets pertaining to one’s Office - and it is a fair bet that he would be punished before, rather than after, those whom he
identified as crooks).

The amended Directive was considered by the European Parliament’s (“EP”) Committee on Budgetary Control, chairman Mrs. Theato. She is a well known advocate of Corpus Juris, which has been produced under the aegis of DG XX, Financial Control. Francesco de Angelis is head of Section C. He launched the European Legal Area Project in 1995 [inside cover note, Corpus Juris 1997] of which Corpus Juris is a part. Section C supervises the Agricultural Guarantee Funds for whose benefit the amended Directive was “smuggled through” [Graham Mather’s press release] the EP on 12 February 1999. As they say in Private Eye: ‘How they are related’!

These connections explain the one really curious aspect of Bardong’s commentary to the amended Directive. Heading 3.6 details the “new supporting administrative measures and future proposals for the harmonisation of national recovery powers” - or so it says. Actually, it is concerned with “the use of electronic or computer-based systems” and a “programme of training for officials in the member states to be developed in the context of the FISCALIS programme” [Para. 32]. Could these ‘electronic systems’ be connected with the procedures authorised under Article 20. 3(d) of Corpus Juris - “telephone tapping ..........on authorisation from a judge or with his subsequent permission”? Could
the training to be given be that training envisaged by Corpus Juris to ensure that its courts have judges who “specialise, wherever possible, in economic and financial matters, and [are] not simple jurors or lay magistrates”[Article 26.1]? Could these trained individuals also act as “official accountants” [Article 32.1(d)] whose evidence (and none others’?) will be admissible in Corpus Juris proceedings? An official  accountant is to be “appointed by the competent court from individuals or corporations appearing on a European list approved by the member states on the proposal of the EPP” [Article op. cit]. The consequence is
that the EPP will chose the accountants that he favours to submit admissible evidence to the courts, just as he will chose his assistant prosecutors to work his cases throughout the member states. What the status will be of the defendant’s accountant as well as barrister in such a case, is hard to say. ‘Negligible’ is the word that springs to mind.

It is possible to demonstrate that some of the provisions in both the amended Directive and Corpus Juris are with us in UK tax law already. The system of Special Commissioners for direct taxes and VAT Tribunals for indirect taxes has many of the characteristics laid out in Corpus Juris, especially the exclusion of truly lay assessors and tribunal members. However, our present system is still subject to the higher courts where ancient British freedoms can be adduced in legal argument. The combination of the amended Directive and Corpus Juris - almost certain to be instituted as part of the Van Buitenen-inspired reforms -
will rule these freedoms out forever. We are being warned - before our very eyes.