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Andrew Tettenborn: Asylum-givers sacrificed on the EU altar


STOP PRESS: After this blog was posted, Carles Puigdemont and his aides surrendered to Brussels police.

Anthony Hope would have appreciated the end of the slightly Ruritanian debacle that unfolded in Catalonia over the last two weeks. There was the unobtrusive exit of president Carles Puigdemont and others from the Generalitat building in Barcelona; their secret drive at high speed across the Franco-Spanish border to Marseilles airport to evade the eagle eye of the Guardia Civil; their subsequent arrival in Brussels; and on Monday night the broadcast on Spanish TV from Brussels of an interview with Sr Puigdemont, where he said (in very good French, incidentally) that the fight was not over, that he was happy to co-operate with Belgian justice, but that he was not prepared to face what he saw as the politicised courts in Spain.

What was the attitude of the EU to all this? Officially, at least, a non-intervention: this was a matter of Spanish internal politics on which it could not take sides. On the other hand, there is an underlying EU dimension to this case which has has immensely strengthened Madrid’s hand, not to mention that of the EU itself – much, one suspects, to the joy of M Juncker and others.

In years gone by a situation like this would have given rise to a genteel stand-off. Spain would have got on with governing Catalonia, while the unsuccessful proponents of Catalonian independence such as Sr Puigdemont would have sat the matter out in honourable exile in Brussels. But no longer. Madrid has issued a European Arrest Warrant (EAW) against him, alleging that the events surrounding his declaration of independence amounted to the crimes of sedition, rebellion and misuse of public funds. As a result, a major difficulty with the EAW system has now become apparent: it seems clear that by overriding EU law the Belgian government has no choice but to obey it. Whatever people in Brussels or other European capitals might might feel about the way unsuccessful rebels should be treated, Sr Puigdemont must be sent back to Madrid in handcuffs. The EAW regime, loudly trumpeted by the EU as a summary remedy aimed at undesirables such as gangsters, drug-dealers and people-traffickers, has now by a side-wind taken away the right of EU member states to offer political asylum to anyone from any other EU country. Unless failed rebels can prove a likelihood of discrimination or bias, the fact that the only offences for which they are wanted are, effectively, finding themselves on the wrong side of a national power-struggle (what used to be called an ‘offence of a political character’) is irrelevant.

The moral is clear: it is now indisputable that Brexit must involve escape from the EAW. Never mind the regular difficulties with people despatched from the UK willy-nilly to face courts of doubtful probity in Eastern Europe under the regulations of an EU that simultaneously coos that it constitutes an area of freedom, security and justice while insisting that two of its members, Hungary and Poland, have abandoned the rule of law. If a latter-day Kossuth or Napoleon III were to find himself in the UK having ended up on the wrong side of a regime change in Hungary or France, it would be simply intolerable that the UK government should not have the ability, if it so chose, to allow him to live here in exile.

But the status quo in Europe, one suspects, is exactly the way the EU likes its relations with its member states. Nation state boundaries are a source of liberty and diversity; the unwillingness of states to do the dirty work of others in suppressing domestic opposition, and their preparedness to an extent to allow dissidents to have their say without the threat of penalties, is a powerful force against top-down international uniformity. No wonder that the EU wants to reserve all this to the EU Commission, and that it regards the sovereign right to give asylum as yet another attribute of nationhood to be quietly sacrificed on the altar of bien-pensant supranationalism.

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Andrew Tettenborn
Andrew Tettenborn
Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as Ukip’s candidate in Bath.

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