Sunday, 27 January 2013

Harry Potter and the Colliding Worlds of the EU

The Real Harry Potter
To some Harry Potter is a fictional character in a rather successful series of children's books. Harry Potter is also one of England's finest Barristers (although he is Scottish) and presented a staggeringly good BBC TV series of documentaries on the development of English Common Law. In this he explains that Common Law, despite being a bit loose fitting at first, slow to react and notoriously non-prescriptive develops into a solid body of law with checks and balances to see justice done "beyond reasonable doubt". What's more he explains the story of English Law is never ending and self repairs where faults are found. My final Harry Potter point is that our system of Law is unique in Europe. The majority of the EU operates under a more codified and prescriptive framework. The European system is tested not by an adversarial "one verses the other" system but by inquisitive examining magistrates. I'm not suggesting one is better than the other. Both serve their purposes having been developed from their different histories. I am saying, though, that when they are pushed together one is not compatible with the other. When the embryonic European Community came into being back in the 1950's it only comprised 6 nations. With Britain's membership vetoed in the 1960's the whole membership remained under one fundamental codified legal system and so the European Directives, Regulations, etc which were drafted were easy to assimilate into their national law. In 1973 the EEC welcomed its newest members including, for the first time, a Country whose legal system was based on Common Law with its adversarial courts and binding court judgements. We hear much criticism of 'new European Regulations'. Much of these regulations are nothing of the sort as we are often referring to European Directives. Contrary to poplar belief Directives are not laws which us individuals need to comply with, they act as instructions to member states to bring in regulations through their respective national Parliaments. This works well in most of the EU which have codified, prescriptive laws and is exactly the way Directives are written. European Regulations are direct regulations on EU citizens and are merely brought in with a rubber stamp Act of Parliament which we are treaty bound to enact merely stating that it is an offence not to comply with the EU Regulation, no separate regulations are required. The system of Directives and Regulations are completely incompatible with Common Law and this must be the key negotiating point for David Cameron in the run up to a Referendum. Firstly, the European Regulation as a legislative tool must be scrapped altogether. It is wrong that binding legislation can be made for imposition on a Sovereign nation. Secondly, the UK must be permitted to apply Common Law principles when complying with European Directives. Working in Environmental Health I see a plethora of European Directives being 'enacted' as regulations all too literally. The prescriptive nature of Directives is an affront to our broad based system of primary statutes shaped by events through Judicial precedent. The UK must be allowed to demonstrate compliance with European Directives without having to bring in prescriptive legislation. Existing legislation, perhaps backed by robust codes of practice, must be allowed to be considered as compliance with Directives without the need for new regulations. A great deal of Health and Safety Regulation would never have become law had this been the case. The detailed, prescriptive regulations we now have can almost all be replaced with the single 1970's Act of Parliament, the Health and Safety at Work  Act, which is still in force and doing rather well. Such a fundamental amendment to the way the EU harmonises its legal requirements would require a leap of faith by those countries which are unfortunate enough not have Common Law. But it was a blind leap of faith taken by the UK all those years ago in which we shaped our legislation using codified law. Future negotiations by David Cameron need to put this right and make Common Law relevant in a Europe where it is just not that common.

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