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How the Coalition can repatriate 130 EU crime and policing laws overnight

29 Jan 2012

Open Europe has today published a new report setting out how the Coalition could, during the lifetime of this Parliament, use a one-off opportunity to unilaterally repatriate up to 130 EU laws on crime and policing, including controversial measures such as the European Arrest Warrant.

Under a complex provision in the Lisbon Treaty, the Government must decide before June 2014 whether a whole raft of EU police and justice laws, adopted before the Lisbon Treaty took force, will continue to apply in the UK beyond December 2014. Under this arrangement, if the Government opts out of any one of the existing laws, it has to opt out of the entire lot. It can though, in future, opt back in to individual laws.

However, in contrast, if it decides to keep these laws as they currently stand, ultimate and full jurisdiction over them will for the first time be irreversibly transferred from the UK courts to the European Court of Justice in Luxembourg. For example, EU judges would gain the final say over the mechanisms for extraditing British citizens to other member states, on the basis of a case brought against the UK by the European Commission.

It is therefore a clear choice between more or less EU control over the British justice system which the Government cannot avoid.

Open Europe’s Research Director Stephen Booth said,

“During this Parliament, the Coalition faces an unavoidable choice between repatriating 130 EU laws or increasing EU control over the British justice system. But despite this choice being of great political, legal and democratic importance it has barely been debated.”

“Deciding to keep these laws after 2014 – and transferring ultimate jurisdiction over them to EU judges – would be irreversible, while using the block opt-out would give the UK the flexibility to pick and choose the EU laws that are crucial to British security. There are clearly areas where cross-border European cooperation comes with benefits, but some of these are already covered by other international agreements outside the EU framework.”

“As much as the Government would like to put this crucial decision off until 2014, this is neither politically nor practically tenable. The body of law to which the 2014 block opt-out applies is reduced every time the UK opts in to a new EU law which either amends, repeals or replaces a law on the list. To date, the Government has chosen to opt in on every occasion it has had to make such a decision and has not required Parliament’s approval. No matter where one stands in the debate, this clearly marks a failure of democratic scrutiny.”

To read Open Europe’s report in full click here:

http://www.openeurope.org.uk/Content/Documents/Pdfs/JHA2014choice.pdf

Key points:

The UK Government must decide during this Parliament whether it wants to repatriate up to 130 EU crime and policing laws or whether to transfer full control over these laws to EU judges for the first time.

The Lisbon Treaty provides the UK with the option of using a ‘block opt-out’ to repatriate EU crime and policing laws adopted before the Treaty came into force. If the UK does not opt out, it must accept the European Court of Justice’s (ECJ) full powers of jurisdiction over these laws from December 2014, which would, for example, give EU judges the final say over the mechanisms for extraditing British citizens to other member states, on the basis of a case brought against the UK by the European Commission.

Examples of EU laws covered by the 2014 block opt-out include:

- The European Arrest Warrant: Since the introduction of the EAW in 2004, 193 British nationals have been surrendered by UK authorities to another EU member state, with the number steadily increasing. UK judges cannot block extraditions on the basis of the case against the person being deported, but only on procedural grounds, raising concerns over civil liberties. UK police forces and prosecutors are supportive of the EAW because it is a simpler and faster way of bringing suspects back to the UK. Over the years, however, EAWs have been issued by member states for minor offences such as the “theft of two car tyres” and “theft of a piglet.”

- Data sharing on DNA and fingerprints: The so-called “Prüm Treaty” is now enshrined in EU law, which allows national police authorities across the member states to exchange DNA, fingerprint and vehicle data. It has been described by the European Data Protection Supervisor as “a laboratory for cross border exchange of information, in particular DNA and fingerprints.” A House of Lords’ Committee has noted that the exchange of DNA data among the 27 member states is problematic because of the differing standards of data collection and retention in the member states. In the UK, since January 2006, it has been possible for persons arrested to have their DNA and fingerprints taken compulsorily even if they are not charged.

- The laws establishing Eurojust, the EU’s judicial body: Eurojust is the EU’s judicial cooperation body that oversees the exchange of judicial information and personal data. In 2010, member states requested Eurojust’s assistance in 1,424 new cases. The Lisbon Treaty allows Eurojust’s powers to be extended to give it the authority to “initiate criminal investigations”.

The UK’s right to opt out does not apply to EU legislation on asylum, immigration or civil law where the ECJ already has control.

Ultimately, the decision over the 2014 block opt-out is a matter of balancing expediency against national control and democracy. However, the risks of accepting the power of the EU institutions over these laws outweigh the downsides of using the block opt-out for several reasons:

- The ECJ has a record of interpreting EU laws in a way in which national governments do not expect or agree with. Accepting ECJ jurisdiction is therefore a gamble that could backfire on the UK’s justice system.

- There are various international agreements in place outside the EU’s legal framework, mostly Council of Europe conventions, including on extradition, which the UK could continue to use should it cease to apply EU crime and policing law post-2014. Although they do not cover all areas, and are often more cumbersome than the EU measures, the fact that the UK has a fall-back option means there is no need to ‘rush in’.

- Most importantly, if the UK uses the block opt-out, the rules would allow it opt back in to individual EU laws that it felt were vital on a case-by-case basis after 2014. However, under EU law as it currently stands, the UK could not opt back out again and the ECJ would have full jurisdiction over the law concerned.

Open Europe recommends that the Government should invoke the 2014 block opt-out, which would allow it to consider the following options post-2014:

- Remain outside the EU crime and policing laws it has opted out of.

- Opt back in to selected EU laws of particular importance, which would need the approval of the EU institutions and mean accepting the ECJ’s powers over the laws it opts back into.

- Or, seek to negotiate a new arrangement (a variant of Denmark’s position) whereby the UK could cooperate with other EU member states on crime and policing but outside the EU legal framework and therefore without the jurisdiction of the ECJ.

As much as the Government would like to put this crucial decision off until 2014, this is neither politically nor practically tenable. The Government has said it will give Parliament a vote on the 2014 block opt-out. However, the body of law to which the 2014 block opt-out applies is reduced every time the UK opts in to a new EU law which either amends, repeals or replaces an existing pre-Lisbon measure. To date, the Government has chosen to opt in on every occasion it has had to make such a decision and has not required Parliament’s approval. This is therefore not a choice for the distant future, but an issue of urgent legal, political and democratic importance.

A thorough and open debate must now begin in order to inject greater democratic accountability into this crucial decision. However, opting-out sooner rather than later would give the Government a greater chance of securing the best possible deal for the UK for the future.

NOTES TO EDITORS

1) For more information, please contact the office on 0044 (0)207 197 2333, Stephen Booth on 0044 (0)788 162 5889 or Mats Persson on 0044 (0)779 946 0691.

2) Open Europe is an independent think-tank calling for reform of the European Union. Its supporters include: Lord Leach of Fairford, Director, Jardine Matheson Holdings Ltd; Peter Cruddas, CMC Markets Plc; Lord Wolfson, Chief Executive, Next Plc; Hugh Sloane, Co-Founder and Chief Executive, Sloane Robinson; Sir Stuart Rose, former Chairman, Marks and Spencer Plc; Jeremy Hosking, Director, Marathon Asset Management; Sir Henry Keswick, Chairman, Jardine Matheson Holdings Ltd; Sir Martin Jacomb, former Chairman, Prudential Plc; Lord Sainsbury of Preston Candover KG, Life President, J Sainsbury Plc; Michael Dobson, Chief Executive, Schroders Plc; David Mayhew, former Chairman, JP Morgan Cazenove.

For a full list, please click here: http://www.openeurope.org.uk/about-us/supporters.aspx

 

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