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Sunday, October 05, 2008

The perils of EU agreements "rushed through without proper thought"

In a welcome development, the Lib Dems have called on the Government to renegotiate the European Arrest Warrant, to tighten it up so that it cannot allow for people to be extradited from this country for actions which do not breach British law.

Responding to the warrant issued by Germany for the arrest of Holocaust denier Dr Toben, Home Affairs Spokesman Chris Huhne said some of the "sloppy drafting" of the agreement needed to be tightened up. He said the agreement was "rushed through without proper thought as a knee-jerk reaction to terrorist offences."

The basic problem is that EAW does not recognise the principle of 'dual criminality'. The European Court of Justice has already been challenged on this by Belgian courts, and upheld that the list of 32 areas where 'double criminality' ia abolished were all serious offences. They include 'racism and xenphobia' under which category Germany has invoked the EAW against Dr. Toben, meaning he faces extradition from Britain for Holocaust denial, which - however unpleasant that may be - is not a crime in this country.

"The case with Dr Toben exposes a problem in terms of freedom of speech and I come to this as a good, classic liberal." Huhne said. "It is a fundamental part of our system that we believe in freedom of speech... I don't think it is appropriate for a member state to be pursuing an arrest warrant when it's not in a core category like that."

There are other issues with this particular case. Dr. Toben faces extradition for actions he carried out outside Germany and using an Australian website. Huhne told the Today Programme: "I think it is a pretty dodgy case that the Germans are bringing, both in terms of German law and in terms of the reach of it, because in fact Dr Toben didn't actually commit this offence in Germany."

This is the latest in a long list of problems that have arisen with the EAW since its introduction a couple of years ago. But instead of rengotiating the terms of the agreement as Huhne suggests, the EU is more likely to use the problems to justify moves towards the establishment of EU-wide criminal procedural standards, which will be made easier by the Lisbon Treaty, as we've argued before.

Indeed the problems with the EAW should be a warning to those - such as Chris Huhne - who hope to see the Lisbon Treaty eventually implemented across the EU.

Changes to the European Arrest Warrant and other bits of JHA legislation that the UK has opted into would in future be decided by qualified majority voting - including, for instance, a decision to add to that already controversial list of 32 areas where dual criminality is abolished.

If the UK wishes to use its so-called 'safeguard' in this area, and opt out of the future developments on something like the EAW, it will be thrown out of participation in the legislation altogether. The Treaty effectively puts a gun to the head of the Government - saying it must accept changes to legislation it has already opted into, even if it objects to them - or be thrown out of participation in the legislation in its entirety.

It is highly unlikely the Government would want to give up any form of agreement wth other member states on extradition, given the security climate, which means it would be forced to go along with measures amending the EAW. Clearly some changes to the EAW rules might be welcome - but why corner ourselves in and take the risk that some will not?


Edward said...

Mr Huhne is both brave and right to stand up for freedom of speech.

However, Mr Huhne could have put right the "sloppy drafting" he now sees in the European Arrest Warrant during his time as an MEP. I for one wrote to him in April 2003 asking him to resist this measure, precisely on the grounds that it might oblige us to extradite people for what in Britain were not offences but ideas or opinions, under the fig-leaf of "xenophobia". It took him five months to give me a reply, which consisted in a copy of the Lib Dem European Group briefing note on the EAW; this found that the EAW was, by and large, a jolly good thing.

He now wants to have it both ways.

Open Europe blog team said...

Yes - thanks for this - that paper is available here:


It even makes a special point of defending the inclusion of 'racism and xenophobia' in the list of areas where 'dual criminality' is dispensed with.

And anticipating problems, it also calls for an "EU common definition of serious crimes" as well as "effective EU-wide fair trial safeguards".

Anonymous said...

First they came for the holocaust deniers... *

* Niemoller is used here for satirical purposes and no offence is intended.