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Tuesday, February 07, 2012

Can the UK cherry pick EU crime and policing laws post-2014?

Yesterday 102 Conservative MPs wrote to the Telegraph backing our latest report on EU crime and policing, which argues that the UK should take advantage of a one-off opportunity in 2014 to opt out of around 130 laws covering this area.

Under a transitional arrangement, the UK has a unique opportunity to opt out of these laws, which include the European Arrest Warrant and DNA data sharing, but, if they are kept, this body of law will fall under the full jurisdiction of the European Court of Justice for the first time.

The MPs wrote,

We need practical co-operation to fight terrorism, drugs, human trafficking and other cross border crimes – not harmonisation of national criminal laws...We want the UK Supreme Court to have the last word on UK crime and policing, not the European Court of Justice.

...The recent study by Open Europe offers a pragmatic alternative. Britain should exercise its 'opt out' from 130 measures under the EU's crime and policing plan by 2014. The UK would retain the right to opt back in to any specific policies deemed vital on a case-by-case basis...

You can read a summary of the report here, but its the last point the MPs raise in their letter that we'd like to elaborate on here: the UK's ability to 'opt back in' to individual laws it has opted out of using the block opt-out.

Fast forward to 2014 and after a UK opt-out. These 130 EU laws would no longer apply in Britain (if the UK opts out in 2014 it must opt out of all 130 laws covered by this arrangement) but the UK might wish to rejoin one or two of these laws because they are deemed vital to the UK's interests. Today in the FT for example, senior police offers have warned against losing the European Arrest Warrant.

Should the UK wish to 'opt back in' to an individual law, perhaps a reformed European Arrest Warrant, this would require the approval of the EU institutions. In her recent letter to the European Scrutiny Committee Home Secretary Theresa May noted that,

In respect of measures forming part of the Schengen acquis, this would be governed by the Schengen Protocol. The UK would need to make an application under Article 4 of that Protocol and the Council would decide on the request "with the unanimity of its members" and the representative of the UK. For non‐Schengen measures, Article 4 of the Title V Protocol would apply, which is the process for opting in to a measure post adoption and allows for conditions to be set by the Commission.

Now, you can see why this might present a potential problem with the approach of opting out and selectively opting back in. The UK could, in theory, be refused ‘re‐entry’ once it has opted out en bloc or individual opt-ins could become entangled in negotiations over other, unrelated areas of policy and get caught up in EU horse trading.

For example, James Brokenshire, Minister for Crime and Security, has stated, “We believe that the Commission would attach conditions, for instance they might only allow us to join groups of related measures, some of which we might like and others we might not.”

However, there are several reasons to believe that the Minister's concern is exaggerated:

First, the EU Treaty protocol that governs the block opt-out is quite clear that:

...the Union institutions and the United Kingdom shall seek to re-establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence.

It is very difficult to see how opting back into laws would adversely affect "practical operability". As Professor Steve Peers, a leading expert on the legal aspects of the opt-out, notes:

While the UK would need the formal approval of the Commission or, in a few cases, the Council to opt back in to the prior measures, in practice this will not likely be a problem. The UK and Ireland have in practice opted in to a number of Justice and Home Affairs measures without any difficulty obtaining approval from the Commission. For its part, the Council has been reluctant to approve UK participation in Schengen measures relating to border controls, unless the UK takes part in Schengen fully, but it has approved the UK’s participation in the criminal law and policing aspects of Schengen.

So, legally and practically, there seems to be little reason to believe the UK would be prevented from opting back in. What about the politics?

As Professor Peers notes, for the vast majority of the laws in the list (the 106 non-Schengen measures) the Commission's approval is needed - here at least political horse trading should not be a factor. If it is, there are likely to be far bigger problems to worry about.

For the rest (the 24 Schengen measures), unanimity of the Council of Ministers is required and political factors could come into play but, again, the UK would be able to point to the Treaty protocol and take the legal high ground. It would also be rather strange to see the UK prevented from taking part in further EU integration - after all opting back in would involve accepting the full powers of the ECJ. This was the concern that gave rise to the opt-out in the first place.

However, given that EU negotiations are very much about the art of horse-trading, it could well be that the bloc opt-out gets lumped together with a whole range of other issues. Given the turmoil in which the EU, and the eurozone in particular, finds itself at the moment, come 2014, who knows what new challenges the UK-EU relationship could face. It's conceivable therefore that other member states could use the opt-out to get some concessions from the UK, but that's very speculative. And in any case, that's a strong argument for exercising the opt-out and beginning the process now, in order to avoid unpredictable horse-trading down the line.

Making a decision sooner rather than later would provide a chance to thoroughly evaluate which laws the UK might truly want to keep. Using the opt-out could also provide the UK with an opportunity to push for reform of laws such as the European Arrest Warrant before deciding to opt back in to them.

So, while there is a very small chance that UK applications to opt back in to individual laws might become a hostage to politics, the UK would have a very strong legal argument in its favour. In the end, if the other member states don't want the UK to participate, then that probably signals that this has turned into something rather bigger than simply the level of EU police cooperation.

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