Sooner or later this was going to happen

Never did I think that I would find myself even partially in agreement with Chris Huhne, the Lib-Dims' spokesman on home affairs. But one must give credit where credit is due and the man is protesting against the arrest of the Holocaust denier, Dr Frederick Toben, at Heathrow.

Let us set aside all thoughts of Holocaust denying and the sad individuals who do it (as opposed to the highly regarded writers and historians who continue to deny Communist crimes) and think about the European Arrest Warrant under which this arrest happened.

Some of our readers may recall that we have written about the subject before and even listed the crimes for which the Warrant may be used, by-passing the normal extradition procedures. Very few of them concern terrorism, the supposed target of the EAW and the European Evidence Warrant.

It was inevitable that sooner or later there would be a case of somebody's arrest being demanded for behaviour that is not crime in this country and it was almost inevitable that this would have something to do with racism and xenophobia, more specifically Holocaust denying.

Dr Toben is a German-born academic, according to the Daily Telegraph, or former school-teacher, according to the BBC, and, according to everybody, a naturalized Australian citizen. He also runs a website, presumably from Australia, on which he is alleged to have published material "of an anti-Semitic and/or revisionist nature".

Here we run into a serious problem that has no precedent in the pre-internet days, one that is of great relevance to the subject of libel tourism (on which more in a later posting, honestly), and that is the fact that material published anywhere is now available instantly all over the world. This allows those German or any other authorities, in this case, a district court in Mannheim to claim jurisdiction and demand the man's arrest, which was duly carried out at Heathrow, presumably on British soil by British police as he was travelling from the United States to Dubai.

I have argued before on this blog (with my colleague's agreement) that it is probably time for the Holocaust denial laws to be abolished in countries where they exist. What may have been right for Germany and Austria in 1946 is out of date for those countries, which are no worse as democracies than other countries where political consensus rules, in 2008. However, that is up to them.

What is not up to them is to try to impose this outdated and ludicrous legislation (there is no event in history that should not be discussed and debated and none that cannot be lied about) on other countries. When Germany held the EU presidency there was much talk of making Holocaust denial a crime across the European Union. (We wrote about it here and here.) That plan, fortunately, came to nothing.

We are still left with the European Arrest Warrant under which Australian citizens can be arrested by the British police on British soil and taken to British court for writing something on Australian websites that is not illegal either in Australia or, more to the point, in Britain. Dr Toben is now in custody, awaiting a full extradition hearing on October 17.

We don't like saying we told you so, but in this case (as in so many others) there is nothing else to say: we told you so.

Now we get Chris Huhne announcing that this was not what the European Arrest Warrant was supposed to do and changes will be necessary. Indeed, he is calling on Jack Straw and Jacqui Smith (the Home Secretary) to lobby in Brussels in order to rewrite the "rough edges" of the EAW.

I think the time has come to ensure that the European Arrest Warrant's scope is effective. Some of the sloppy drafting does need to be tightened up. It was rushed through without proper thought as a knee-jerk reaction to terrorist offences.

The case with Dr Toben exposes a problem in terms of freedom of speech and I come to this as a good, classic liberal.

It is a fundamental part of our system that we believe in freedom of speech and, like Voltaire, I may disparage what you say but I will defend to the death your right to say it.

I, on the other hand, think that the time has come for politicians to stop trotting out that saying of Voltaire's. If Mr Huhne really believed that business of defending to the death the right of people to say what he disagrees with, he should have made his opinions clear when the European Arrest Warrant was being pushed through, allegedly as part of the fight against terrorism. Plenty of other people opposed it.

Inclusion of racism and xenophobia as crimes was not sloppy drafting but a deliberate act and it was pointed out at the time and subsequently that these are "crimes", which are very hard to define. Where was Mr Huhne?

Meanwhile,

The Crown Prosecution Service (CPS), acting for the German authorities, argues that agreements signed in 2003 between the UK and other European countries mean that Britain is duty-bound to assist the German authorities.

We shall find out what our courts think on the 17th.

It is, probably, too late

There is nothing wrong with Philip Johnston’s article in today’s Daily Telegraph, “Who will defend our free speech?”, except for the fact that it comes too late. In fact, his description of the House of Commons Scrutiny Committee, which gave Joan Ryan, the Home Office minister responsible for European matters, rather a hard time makes one feel that the whole meeting was too late.

Let us get one basic point out of the way. Scrutiny is not the same as legislation. When Michael Connarty, chairman of the Scrutiny Committee, fulminated that “the privileges and rights of Parliament were being ignored”, he was talking through his hat.

The privileges and rights (and, allow me to add, duties) of Parliament to legislate and to hold the executive to account have long ago disappeared. Partly, the problem lies in the excessive use of secondary legislation and, partly, naturally enough, with the fact that European legislation supersedes national. In other words, just in case some journalist or politician reads this, Parliament cannot throw out legislation that originated in Brussels and went through the often years-long process there until it became law.

This process pays no attention to such insignificant matters as elections either at the national or the European level. If a particular piece of legislation is stuck somewhere in the European Parliament when there is an election, the new and, possibly, different body simply picks up where the previous one left off. Incomplete legislation does not die with elections.

In any case, the only body where legislation can originate, according to the Consolidated Treaties, effectively this country’s constitution, is the Commission, which puts together a Work Programme every year and proceeds to put as much of it as it can into place. Anything that is pushed over, is put into the following year’s programme.

This whole process is so boring that most journalists, even very sensible ones like Philip Johnston, cannot be bothered to write about it. Even if they wanted to, it is unlikely that their editors would agree, citing terminal boredom and fall-off in readership.

Politicians are even less likely to pay attention. Some time ago I attended a Bruges Group meeting at which Gisela Stuart fulminated, with a great deal of justification, at the con-trick that the Convention she was part of, which was supposed to put the ideas of the Laeken Declaration into some form of an agreement, was turning out to be.

During the discussion she showed some interest in the whole process of European legislation and, therefore, I was a little surprised to discover that she did not think debating the Commission’s Annual Work Programme was a good idea but preferred the pointless and blood-pressure raising debates to take place when the legislation has passed all the EU hurdles and was being implemented in Britain, by which time it is way too late.

Mr Johnston is, of course, absolutely correct in his statement that if there is a scrutiny reserve placed on a particular subject, the minister in question has not right to agree to it. However, this particular rule is honoured more often in the breach than in the observance.

In any case, once we have signed up to the European Arrest Warrant and the European Evidence Warrant, both subjects covered by this blog a while ago, the details become less relevant. The time to stop it is when the European legislation is still being discussed, but apart from several insistent questions in the House of Lords, little was made of the two pieces of legislation.

By the time we get down to individual agreements, it is way, way too late to argue about implementation. We are duty bound to do so and all the Scrutiny Committee can do is to fulminate.

In another posting I shall cover the work of the House of Lords European Union Select Committee, whose indefatigable work is not even known, let alone appreciated.

For the time being I should just like to point out that Philip Johnston makes the very common mistake of assuming that European legislation consists of directives only, that have to wing their way through Parliament, however fast. I am afraid, the bulk of it is regulations that do not necessarily touch that building in Westminster at all. The situation is even worse than Mr Johnston thinks though some of us have known that for some time.

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