As the Queen’s speech places the focus on Britain’s EU membership, the government’s abandonment of some European directives must not be forgotten.

During, and ever since the election, the question of Britain’s place in Europe has been brought to the fore. The Queen’s speech puts the EU referendum bill at the top of the agenda, and this will be swiftly followed by a draft bill to repeal the Human Rights Act as the government looks to respond to a small but strident tide of antipathy towards all things European.

Away from this distraction, however, the rest of the EU continues to pursue its treaty objective. The UK’s position within that pursuit is a special one, having negotiated, along with Ireland, the ability to opt out of certain measures in the field of justice and home affairs.

In a clever move, the government has largely chosen to opt in to those measures which enhance its powers, whilst opting out of the measures that protect the citizen from the abuses of the state.

Measures the UK has opted in to include not only the measure that brought in the European arrest warrant but also other measures that also amount to a significant intrusion into the rights of the individual. Such measures are, for example, in relation to cross-border requests for the freezing of assets during investigation and trial and their subsequent confiscation; recognition of financial penalties imposed abroad, and increased powers for the police to share information across borders, including convictions and intelligence.

Measures the UK has opted out of include the directive on the presumption of innocence, and a directive which safeguards the rights of children in criminal proceedings. Unsurprisingly, given the restrictions on access to legal aid imposed by the last justice secretary, the government also indicated that it considered the proposal for a directive on legal aid to be both ‘unnecessary and unwelcome’.

All of these seek to establish minimum rules to protect the rights of all EU citizens. The use of the word ‘minimum’ in this context is not empty but is a reflection of the fact that the EU is looking for the lowest common denominator in terms of procedural rights across member states.

Rhetoric about being dictated to by Europe, and the threat of terrorism, has ensured an uncontroversial opt out of these measures. The Ministry of Justice’s justification is spun: ‘We don’t need these measures, we already have one of the finest justice systems in the world.’ See, for example, Chris Grayling’s statement on the opt out of the directive on legal aid, ‘[the government] considers that the UK’s current system on the provision of criminal legal aid is one of which we can be proud’ – made just a few weeks before a judge of the High Court ruled that his attempt to reform criminal legal aid was ‘so unfair as to result in illegality’.

The opt out of the directives does matter. For two reasons: first, because it undermines the credibility of the EU as a whole, which cannot now offer an area of freedom, justice and security to all of its citizens. Second, it matters because the UK is now set up to offer its citizens a lower standard of rights than other EU citizens.

In the context of the apparently dry area of EU law, the government is stealthily increasing its own powers whilst failing to protect minimum rights for the individual. Among all the talk of the Human Rights Act and its potential repeal, let’s not forget those areas of justice that have already been curtailed by a government in thrall to the vocal Eurosceptics. 

First they came for the directives, and we did not speak out…

Rebecca Niblock, solicitor, Kingsley Napley