Woman on a mission

What role should justice play in the EU? That’s the topic for discussion at a conference on Thursday and Friday this week, organised by the European Commission. Vivian Reding, the commissioner responsible for justice, hopes it will lead to a ‘European area of justice which is complete and solid’. She recently explained: ‘Citizens and businesses will only reap the full rewards of our internal market if they are confident that their rights are protected everywhere.’

Back in the UK, our own justice secretary is still asking a subtly different question: what role should the EU play in justice? Chris Grayling told the Commons justice committee last month he was ‘very strongly opposed’ to what he called the ‘Europeanisation of justice’. Unfortunately for him, that was just what the Treaty of Lisbon did when it created an ‘area of freedom, security and justice’.

The treaty entered into force in 2009. However, the commission in Brussels and the court of justice in Luxembourg will not acquire their new enforcement powers under the Lisbon treaty for another year. So now is a good time to be debating how those powers should be used. True, the UK has six months left in which it can opt out of around 130 police and criminal justice measures that were adopted before the treaty entered into force. But it is seeking to rejoin some 35 measures that it regards as part of the fight against international crime. So the UK will also be affected by this new constitutional settlement from December 2014.

The starting point for any discussion of justice in the EU must be the rule of law. The EU can, after all, trace its history back to the early 1950s, when the nations of Europe resolved that never again would they allow law to be overwhelmed by war. But before we get too misty-eyed about equality before the law and access to justice, we should remember that there is a hard-edged economic reason for upholding the rule of law. As Reding made clear in the comment quoted above, companies are not going to invest in the EU’s single market unless they can be sure that any disputes will be resolved according to well-respected legal principles.

That approach has already been adopted by some of the benign dictatorships of the Middle East. Countries such as Dubai and Qatar have decided that commercial litigation will come before western judges applying principles of English law. For the same reason, efficient justice systems are seen by the European Commission as the key to economic growth. A discussion paper produced for the conference this week argues that creating a reliable environment for businesses and consumers – and removing obstacles to cross-border civil transactions – contributes to a legal framework relied on by more than 500 million consumers and more than 20 million small or medium-sized businesses.

Criminal law is bound to be more controversial, although it is hard to disagree with the principle that EU citizens should be protected against crime across Europe and that their fundamental rights must be respected when they come into contact with another EU criminal justice system. Across the EU, suspects and defendants can expect minimum standards – including access to a lawyer and, if needed, an interpreter.

But the EU justice commissioner wants to go much further than that. In a speech last week, Reding looked ahead to a time when European criminal justice would be administered in the  same way as other EU policies. ‘The European parliament should be the co-legislator in all legislative procedures,’ she said, ‘and the court of justice should have  full control over all EU criminal legislation.’

That sort of language is likely to give Grayling heart failure. Last month, he declared himself firmly opposed to Reding’s suggestion of a single European justice minister. But the UK is still keen to take advantage of existing agreements that have not yet been implemented by other EU states, such as one that would enable the UK to transfer prisoners who are nationals of other EU states to countries such as Poland, Ireland and Romania.

It is one thing for the EU to produce agreements of this sort; quite another to get them enforced across Europe. So the commission’s latest weapon is a justice scoreboard, designed to compare how well different EU countries deliver justice.

Figures published earlier this year show, for example, how quickly cases are resolved in court, the availability of alternative dispute resolution and perceptions of judicial independence. Countries that do badly will be expected to introduce improvements.

It all seems very admirable, though there were a few countries that failed to register on the scoreboard at all. The fact that there was simply no data available seemed little excuse for the UK’s consistent score of ‘nul points’.