Between The Rock and a hard place: Spain threatens to shut UK out of EU crime databases

The WSJ reports today that Spain is using its dispute with the UK over Gibraltar to hold up/block the UK's re-entry into a number of EU crime and policing laws. 

To recap, the UK has already decided to exercise its block opt-out of over 130 EU crime and policing laws and, at the time, it was announced that the Government would like to opt back into around 35 of them - but it can only do this after exercising the opt-out. The opt-out takes effect on the 1 December, so time is running out if the UK wants a seamless transition.

For the record, we have long urged the UK Government to use this opportunity to negotiate bi-lateral or intergovernmental cooperation outside the auspices of the ECJ, which these 'opt-ins' would fall under for the first time (i.e. they increase the power of the EU institutions over the 35 laws). Any fundamental rethink has seemingly been shelved for now (partly due to the constraints of Coalition) but Justice Minister Chris Grayling and Theresa May have indicated this will be part of a Tory renegotiation.

For the vast bulk of these 35 laws, including the controversial European Arrest Warrant (EAW), the European Commission is responsible for admitting the UK back into these arrangements and, in July, the UK reached agreement with the European Commission on re-entry. However, there are handful which require unanimous agreement from other national governments before the UK can re-enter. These mainly cover data-sharing arrangements related to the Schengen agreement, which are used to share data on wanted criminals, terrorists, etc, which the UK wants access to.

What does this mean? Well it's all getting extremely tight for time - the Government has promised a vote in Parliament on the 35 opt-ins, which is unlikely to be plain sailing by any means with many Conservative MPs opposed both in principle and on the detail of some these laws, the EAW in particular. The UK could conceivably opt back in to just those laws the Commission has agreed to, while negotiations on the remainder continue (Spain reportedly thinks the UK should opt back into a few more EU laws as part of the package). However, this would mean the UK had no access to security databases at a time when the threat of terrorism is high and, less importantly, only draw out a parliamentary process that is already likely to be uncomfortable for the Government.

In all likelihood a last-minute deal will be done, not least because other member states have all signed up to the agreement with the UK and are just as frustrated that Spain is using an unrelated bilateral dispute to potentially disrupt important EU cooperation on terrorism. Still, it looks like Spain is going to make this as uncomfortable as possible for the UK, and Conservative ministers will be under huge domestic pressure not to give into Spain's demands.

Viviane Reding: The EU Commissioner for Mars

Yesterday, Viviane Reding, the EU Commissioner for Justice and vice-President of the Commission, gave a speech saying she wanted to increase the EU's powers to intervene in member states where there is a "rule of law" crisis. Citing the "Roma crisis in France in summer 2010; the Hungarian crisis that started at the end of 2011; and the Romanian rule of law crisis in the summer of 2012", she said she wants to establish a "far-reaching rule of law mechanism, which would include more detailed monitoring and sanctioning powers for the Commission".

Reding also chose to cite in her speech the arrest of David Miranda at Heathrow airport by UK authorities using anti-terrorism legislation.

Reding's big idea is a treaty change to extend the reach of the EU's Charter of Fundamental Rights into member states' domestic legal systems and therefore the power of the Commission to intervene. She called for:

"A very ambitious Treaty amendment – which I would personally favour for the next round of Treaty change – would be abolishing Article 51 of our Charter of Fundamental Rights, so as to make all fundamental rights directly applicable in the Member States, including the right to effective judicial review (Article 47 of the Charter). I have raised this idea already in a speech at the FIDE Congress in Tallinn in May 2012. This would open up the possibility for the Commission to bring infringement actions for violations of fundamental rights by Member States even if they are not acting in the implementation of EU law. I admit that this would be a very big federalising step. It took the United States more than 100 years until the first ten amendments started to be applied to the states by the Supreme Court."

Currently, the Charter can only be used to interpret how EU law is implemented in member states - the UK's 'opt-out'/clarification on the Charter was meant to reinforce this point in the Lisbon Treaty negotiations (that clarification hasn't really worked).

Viviane Reding has long been one of the most far-out there EU federalists but this is a fundamental and outright challenge to national governments' authority. This would be a good time for member states to remind Reding, Barroso et al what their mandate is. If member states are ever to rest back control of the EU, this sort of thing should almost become a sackable offence.

As someone put it to us in Brussels recently: every time Reding opens her mouth, Nigel Farage gains another thousand votes.

Will a future Conservative government renegotiate ECJ control over criminal justice?

Theresa May MP may have committed a future Conservative
government to renenegotiate ECJ power over crime and policing

Yesterday the House of Commons voted to opt out of c.130 EU crime and policing measures and then seek to opt back into ones the Government judges to be in the national interest (c.35 at present). These 35 will for the first time become subject to the juristiction of the European Court (ECJ). Given the past history of the ECJ's rulings and the difficulty of amending EU law once (mis)interpreted by EU judges this is no small thing.

Many Conservative MPs were rightly concerned and presured the Coalition to first give more time for the Committees to examine these measures and then amend the motion to remove the specific list so as not to prejudge the outcome.

We have argued before that the Conservative part of the Coalition faces a difficult decision and given this, it should hold open the probability that ECJ jurisdiction would form a part of a wider Conservative renegotiation of the UK's EU membership terms. So did the Home Secretary do that?

Theresa May set out her position on ECJ juristiction claiming "we have pursued a policy of seeking co-operation not control” (incidentally the title of an Open Europe paper written by Dom Raab MP on this issue). She then went on to explain that a Conservative Government would revisit ECJ juristiction.

As part of that renegotiation, it would be odd indeed, and colleagues would question it, if the Conservative party, as part of its commitment, said, “We will renegotiate, but not these bits.” We will renegotiate the United Kingdom’s relationship with the European Union.

The issues involving justice and home affairs to which I referred earlier are being considered in the Government’s “balance of competences” review. Undoubtedly the jurisdiction of the European Court of Justice will need to be considered when, after the election, a future Conservative Government renegotiate Britain’s relationship with the European Union; but the choice that is before us now is binary. We are a coalition Government with no mandate to seek a renegotiation of our relationship with Europe..

...Before I took a number of interventions, I mentioned the European Court of Justice. I also want to refer to the European Court of Human Rights, which contradicts laws passed by our Parliament, overrules judgments made by our courts, and interprets the articles of the original convention on human rights in an expansionist way. That is totally unacceptable. I therefore believe that we also have to consider very carefully this country’s relationship with Strasbourg as well as our relationship with Brussels.

Justice Minister Chris Grayling MP added later in the debate that:

I am clear about the fact that the Lisbon treaty paves the way for the creation of a European justice system. That system is now taking shape. A raft of new measures is emerging from Brussels, and the recent addition of a new justice scorecard creates a platform that will enable more to follow soon. My right hon. Friend the Member for Wokingham (Mr Redwood) and many others were right to say that the jurisdiction of the European Court of Justice was a key element... We have decided we do not want to follow a path that leads to a European justice system... 

To my Conservative colleagues, I say simply this: everyone knows my position on matters European—I believe that Britain’s position in the European Union needs, at the very least, to change pretty radically

So we seem to be reaching a clear commitment to renegotiate the ECJ's juristiction over EU crime and policing measures. We have long argued that this is right, necesary and achievable but, like the referendum commitment, will it survive any future coalition talks?

When it comes to giving the EU’s court power over crime and policing Conservatives should not “let matters rest there”

Open Europe's Christopher Howarth has written the following article for Conservative Home:

On Monday MPs will be asked to vote on the Coalition’s policy to opt out of 127 EU crime and policing measures and then opt back into 35 of them, including virtually all the significant ones. By opting back in the UK will cede ultimate authority to the European Court of Justice (ECJ) over all these measures for the first time. Of the c.100 measures the UK will now drop all (except for a measure on DNA data sharing), are of limited or no significance - as the Government (and the Liberal Democrats) readily acknowledge. We are not opting out of any important EU powers; we are ceding yet more authority to the ECJ. This is the last chapter in the ratification of the Lisbon Treaty.

Giving the ECJ power over this most sensitive of areas is hugely significant and fraught with risk. For the first time the UK could be taken to court by the European Commission if it refuses to follow other states’ requests on a wide range of crime and policing activities; sharing data and intelligence, implementing freezing orders, carrying out arrest warrants, and much, much more. Cooperation with other EU (and non EU) police forces is of course a good thing but does not require creating a new legal order and given the history of ECJ political activism, and the fact that these agreements were not written with the Court in mind, it is surely wise to protect the UK’s judicial system by keeping the ECJ out of it. Ceding control to the ECJ could ultimately be costly both financially and more importantly in terms of control over our own law. As the title of Dominic Raab MP’s report on these measures for Open Europe put it, we should aim for “cooperation not control”.

So why has the Coalition decided to opt in? To be fair to Theresa May she has had little room for manoeuvre. She has inherited a terrible hand as a result of David Miliband’s appalling negotiation of the Lisbon Treaty. The political genius that was David Miliband realised that ceding control to the ECJ was politically problematic but rather than negotiate a deal which excluded it (as Denmark did) he decided to settle for a time limited exemption. Yes we have a right to opt out but if we use our right we would be out of the existing legislation on cooperation altogether, as we have said: ‘an unavoidable choice’. The choice Miliband gave his successors was between full ECJ control over everything or being thrown out of existing cooperation – a master class in UK diplomacy.

To make matters worse Theresa May has had to contend with the Liberal Democrats. For the Liberal Democrats the decision should have been a difficult one. Traditionally in favour of civil rights - the Liberal Democrats campaigned against the UK / USA extradition treaty - you might therefore have expected that they would also have qualms about an EU extradition system under the jurisdiction of an unaccountable EU court. Added to that; freezing orders, evidence gathering and data sharing all at the bequest of a foreign state with not recourse to UK law? However, the Liberal Democrats belief in civil liberties conflicts with their passionate love of the EU integration. It was with no surprise that Danny Alexander, former director of communications for Britain in Europe, and Lib Dem negotiator when faced with a choice between two core Lib Dem beliefs plumped for EU integration over civil liberties.

So what can be done? There are two possible approaches. One is to accept ECJ jurisdiction but to attempt to reform some of the underlying measures. Of the 35 measures that will now be ceded to the ECJ, many are problematic but the measure most in need of reform is the European Arrest Warrant (EAW). I won’t bore you with stories of injustices inflicted on UK citizens by the EAW, UK citizens languishing in Greek jails, those tried without their knowledge etc. I will refer simply refer you to the thoughts of an MP who campaigned against it when it was first proposed and foresaw some of the problems if an EAW is presented:

“the Home Secretary would have to say, I am sorry. You may spend time rotting in a Greek or Spanish jail. Weeks may pass before you are even charged with an offence that is not a crime in this country. But there is nothing I can do about it.’

[David Cameron MP Hansard 9 December 2002]

And then again:

“our legal system is here to protect our citizens, and that that protection should be given up only if we can really trust the legal systems of other states.’

‘There certainly should be expeditious extradition arrangements between European countries but we should not get rid of fundamental protections. The House should include a backstop power for the Home Secretary in the Bill and then we should see what the European Court makes of it. We should not lie down meekly because Ministers signed things away in Europe without thinking them through and say that we have to go along with them with no further debate.’

[David Cameron MP Hansard 25 March 2003]

David Cameron was right. We should build protections into our legal system with regards to the EAW. The Coalition has now brought forward amendments that would attempt to do that in some limited cases. The problem is they have no superior force once the ECJ gets jurisdiction. We will be at the mercy of the EU court. The problem is no longer EAW reform it is the new EU legal order.

Conservative MPs are well aware of the threat. 102 MPs signed a letter requesting the Government activate the block op-out. They realise that co-operation with our EU partners is possible without getting the EU court involved. We cooperate with a range of states around the world and have done for decades. Crime and policing is not an area that requires EU harmonisation under the ECJ and is not an area the UK should seek to remain in after a renegotiation. To the Liberal Democrats the EU integration is an ‘article of faith’ and an end in itself. They have now got what they want.

So what should the Conservative part of the coalition do? Well for now the Conservatives have been snookered by David Miliband’s stunning diplomatic incompetence and a Liberal Democrat party that has forgotten its attachment to a liberal belief in civil liberties or democratic control over our justice system. But there is no reason the Conservative party should accept this as a fait accompli. The Conservative party is committed to EU reform, renegotiation and a referendum. Surely removing the ECJ from crime and policing must be a part of this renegotiation? As the Prime Minister said of these measures at the time of the Lisbon Treaty:

“The third area where we will negotiate for a return of powers is criminal justice. We must be sure that the measures included in the Lisbon Treaty will not bring creeping control over our criminal justice system by EU judges.”

And if it was right then so let’s say so again now. We should not in William Hague’s words, “let matters rest there."

So when it comes to Monday, let’s understand the importance of what is being done, not rush things, give the appropriate amount of time to “line by line scrutiny” of the measures that are being ceded to the ECJ and most importantly when the time comes for a wider renegotiation the Conservative part of the Coalition should make it clear we will not let the EU court continue to have control over our justice system.

Theresa May to announce EU crime and justice opt-out this week

In January 2012, we published An unavoidable choice: More or less EU control over UK policing and criminal law. A year and half later, and it looks like decision time has arrived.

According to the Sunday Telegraph, Theresa May will announce this week that the Government plans to take its 'block opt-out' from around 130 EU crime and justice laws - negotiated as part of the Lisbon Treaty by the previous government - and then apply to opt back in to those considered of vital national interest.

The opt-out boils down to this: In the first instance, the block opt-out is a choice between accepting all the laws and rejecting all of them. Accepting them also means accepting the full powers of the European Court of Justice over them for the first time. The decision to opt-out or accept the ECJ's jurisdiction has to be made by June 2014 and will take effect in December 2014.

However, once the block opt-out is taken, the rules allow the UK to apply to opt back in to individual EU laws. Opting back in also means accepting full ECJ jurisdiction over the law concerned and the UK cannot opt back out again in future.

In our 2012 report, we concluded that:

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.

It looks overwhelmingly likely that the Government will take the second option. Given the constraints of the existing EU treaties (option 3 would require EU treaty change) and the Coalition (the Lib Dems have been fighting the opt-out tooth and nail), this is the pragmatic decision to make.

Significantly, and symbolically, it would be the first time that powers flowed back from the EU to the member states - which is a good thing. However, it is also true to say that by opting back in to some measures the UK will be accepting the power of the ECJ over thee laws. The key issue will be the European Arrest Warrant - the likelihood is the UK will seek to opt back in to a 'reformed' Arrest Warrant, but the question is whether there is genuine reform - some things can be done domestically but more fundamental reform requires negotiation with other governments and the European Parliament.

In our view, in the long-term, one of the priorities for David Cameron’s reform and renegotiation strategy should be to return to a system of bilateral, practical crime and policing cooperation with EU partners, which does not involve ceding control to the EU institutions (option 3).

A ComRes poll for Open Europe in May found that just over 30% of respondents selected “Allowing the UK to have control over police and criminal justice laws” as one of their top four priorities in any UK-EU renegotiation, the fourth most popular option. A subsequent poll for Sky News found that 45% of respondents specified policing and criminal justice powers as an area of EU policy that they wanted returned to the UK, the second most popular option after immigration.

No one is opposed to practical co-operation between Europe’s law enforcement authorities. But the UK does not have to cede the same level of national control in order to cooperate with other important non-EU security partners around the world. Therefore, imposing EU-federalist solutions on an increasingly sceptical public simply increases the chances of the electorate throwing the baby out with the bathwater – rejecting the EU entirely.

New light shed on Tony Blair's Charter of Fundamental Rights 'opt-out'

Was Tony Blair arguing for a Charter opt out or not?

Following five years of wrangling the European Commission has finally given in to requests from the European Citizen Action Service and the European Ombudsmen and released documents concerning the UK's negotiation position on the Charter of Fundamental Rights - you can read them here.

Were they worth the wait? Well it has been known for some time that Tony Blair's opt-out from the Charter of Fundamental Rights was not what it was originally billed to be. In fact  the 'opt-out', listed as one of Gordon Brown's celebrated defensive "red lines" was derided at the time as a 'Maginot line' defence.  However these documents do shed some light on how the UK Government presented its manoeuvring to different audiences.

Tony Blair in the House of Commons 25 June 2007:  

"It is absolutely clear that we have an opt-out from both the charter and judicial and home affairs. Those were the reasons why people like the right hon. Gentleman were saying that they wanted a referendum."

Well was it an opt-out? And was Tony Blair actually arguing for one? Apparently not, according to the new documents released by the EU's legal service. On 21 June 2007 in the privacy of the European Council the UK Government changed its mind and decided not to argue for an opt-out after all:

So was the UK arguing behind the scenes against an opt-out while in public saying it had secured one and where does that leave us now?  In the end the UK secured a clarifying protocol to the Lisbon Treaty rather than an opt-out.

The Protocol states that the Charter “does not extend” the ability of the ECJ to find that UK law is inconsistent with the rights and principles elucidated in the Charter. Indeed subsequently the Europe Minister Jim Murphy admitted: “It is clear that the UK does not have an opt-out on the Charter of Fundamental Rights.”

As we noted a while ago now, the ECJ cited the Charter extensively in its ruling to ban gender discrimination with respect to insurance, which illustrated that the Charter is very much alive.

Clarke's loose talk illustrates Government's predicament on EU crime and policing

Ken Clarke, as he is prone to doing, has let slip a morsel of information regarding the Government’s thinking on how to approach the 2014 EU crime and policing block opt-out, which, according to Theresa May last year, the Government is ‘minded’ to exercise.

Speaking to BBC Radio 4’s Today Programme, Clarke said that ministers will “opt back into” around 30 “essential” EU measures that will impact the UK’s justice system following a block opt out. We should note that Clarke was later slapped down by a senior Liberal Democrat source, who accused him of “getting ahead of himself.” There are ongoing negotiations between the Government and the European Commission about potential opt-ins or other arrangements.

However, Clarke’s assessment is broadly how the Government is likely to approach the issue – exercise the opt-out, which covers at least 130 EU crime and policing laws, and then seek to opt back in to a (yet to be determined/negotiated) number deemed vital to national security and the fight against cross-border crime. Or, as Clarke put it:

“We’ve actually just exercised a right that Tony Blair got after Lisbon to opt out of a whole lot of justice and criminal regulations – we’re going to opt back in to about 30 of them which are essential but…well over 100 can be dropped.”

This is going to continue to be a political hot potato for the Government, given that the major concern with opting back in to these measures is not necessarily the law itself (although in the case of an unreformed European Arrest Warrant it is) but the prospect of the ECJ gaining full jurisdiction over them – something that will continue to be deeply unpopular among Tory MPs and could make for an interesting vote(s) in Parliament.

As the Government has told an ongoing House of Lords inquiry:

“The practical effect of the ECJ gaining full jurisdiction in this area after the transitional period is that the ECJ may interpret these measures expansively and beyond the scope originally intended. This concern is compounded by the fact that the ECJ has previously ruled in the area of Justice and Home Affairs in unexpected and unhelpful ways from a UK perspective.”

The Telegraph write-up of the story notes another two potential flash points on this issue. The Commission is due to present proposals to amend Europol and Eurojust in the coming months – and the Government could be forced to either opt in, or out of these measures altogether. The Government is likely to want to opt in but, again, this is likely to be controversial, because it means removing them from the scope of the block opt-out and accepting ECJ jurisdiction.

In the wider context of David Cameron’s recent speech, police and criminal justice is an obvious candidate for a re-balancing of the UK’s relationship with the EU i.e. a deal that would return the UK to an arrangement based on intergovernmental practical cooperation with EU member states rather than an EU-wide system with the Commission and the ECJ as arbiters.

Reassuring his MPs that this is the eventual aim could make life less awkward (if not easier) for the Conservative part of the Coalition.

The UK’s opt-out of EU crime and policing law and what happens next

Home Secretary Theresa May today indicated that, in the coming weeks or months, the Government will formally exercise its right to opt out of around 130 EU crime and policing laws. The list of laws subject to the block opt-out includes several contentious measures such as the European Arrest Warrant, those establishing the EU’s judicial and policing agencies Eurojust and Europol, and databases to share criminal records and DNA between member states.

The opt out must be taken en bloc: either the UK opts out of all EU crime and policing measures on the list or it must continue to accept all of them and, from December 2014, the European Court of Justice (ECJ) will have full jurisdiction over them for the first time. So, it is important to remember that this is not simply a choice between the status quo and opting out, but between opting out and granting EU judges the final say over how this body of around 130 laws is applied in the UK.

This year, in An unavoidable choice, Open Europe recommended that the Government take the opt-out as soon as possible, in order to start the process of reconfiguring the UK’s cooperation with other EU member states in the field of crime and policing. Subject to successful negotiations and with adequate checks and balances in place, the UK could then choose to opt back into individual measures considered to be absolutely vital. The UK Government has committed to a vote in both Houses of Parliament on whether the UK should take the block opt-out. Given that over 100 Conservative MPs have already signed a letter in favour of exercising the opt-out and backing Open Europe's report, it would be virtually impossible for David Cameron to get a decision to opt in through Parliament without either the biggest rebellion to date or it being struck down, should Labour also decide to vote against the Government.

What happens next?

The UK retains the right to apply to the EU institutions to opt back into individual measures that it considers to be in the national interest. The UK is likely to want to continue to cooperate in the EU’s criminal databases and perhaps a reformed European Arrest Warrant that contains greater safeguards for individuals facing extradition. Therefore, today’s announcement kicks off a process of negotiation both between the Coalition parties and between the UK and the EU institutions over what the UK opts back into. If the UK opts back in, this is irreversible and the full powers of the ECJ apply.

It is this issue, the potential role of EU judges, which it is vital to consider. The ECJ has a record of interpreting EU laws which centralise power at the EU level and in ways in which national governments do not expect or agree with. In other policy areas this has included banning insurers’ distinction between male and female drivers to price insurance premiums, for example. Once these rulings are made, the EU’s ‘democratic deficit’ really kicks in because overturning such a ruling usually requires a qualified majority of member states and the agreement of the European Parliament. Accepting ECJ jurisdiction is therefore a huge gamble that could backfire on the UK’s justice system.

The UK could, in theory, be refused ‘re-entry’ once it has opted out en bloc. This could happen if, for example, individual opt-ins became subject to conditions from the European Commission or entangled in negotiations over other, unrelated areas of EU policy and the UK needed to horse-trade over an opt-in. The European Commission has pointed that the UK could be faced with a bill for the “direct financial consequences” of the mass opt-out, although there is a degree of scaremongering involved as the cost is not likely to be overly large and, more importantly, it would be a huge own goal for other countries to be seen to put a disproportionate price on democratic choice and debate.

In addition, those that fear the UK’s loss of influence ignore the strength of the hand that the Government has in negotiations to opt back in. The UK is a big destination for other member states’ nationals, Britain receives the biggest number of EU extradition requests and the EU treaties state that the UK and the EU institutions, which in the majority of cases will be the European Commission, “shall seek to re-establish the widest possible measure of participation” in crime and policing.

We also should not forget that the opt-out was negotiated with the other member states by the previous British Government, precisely because it was concerned about the power the ECJ would have over this area of EU law. These concerns remain and, ultimately, the decision over the 2014 block opt-out is a matter of balancing operational expediency against national control and democracy.

The current level of integration in this hugely sensitive area has so far been subjected to a worrying lack of democratic debate in the UK, as it has tended to occur in a piecemeal fashion and outside the glare of media scrutiny. Politicians, the policing and security community and civil society now have the opportunity to debate the issues properly for the first time. This debate will enhance the democratic legitimacy of whatever is agreed and should therefore be welcomed by all involved.

When debating the merits of opting back in to various EU crime and policing laws in future, the Government should be satisfied that it has correctly weighed the following:

1) That the right balance has been struck between civil liberties and national security;
2) The downside risks of how the law concerned might develop in the hands of the EU court;
3) And, most importantly of all, that the decision is in the best interests of British citizens and not the Coalition.

Cameron needs credibility on Europe – here are two things he can do immediately to get it

Over on Conservative Home, we argue, 

The Coalition has already done some good work on the EU, the ‘referendum lock’ and the recently launched ‘audit’ of the EU’s influence on the UK to name two. However, the constraints of coalition government have tested the loyalties of Conservative MPs, party members and potential voters who wish to see substantial changes to the UK’s EU membership terms. As a result, Europe could damage the electoral coalition the Conservatives need to muster in order to win an outright victory. This is borne out by recent polling by Lord Ashcroft, which shows that 10% of Conservative voters say they would now vote for UKIP. Of course this may not happen, those who say they will vote UKIP may, when it comes to it, vote to keep the Labour party out. But it would be foolish to advocate complacency, not least as this also links to general trust in politicians. So what can be done?

Some talk of deals with UKIP, some talk of promises of a referendum, some talk of the need for a better defined Conservative vision for a post-2015 Government. These proposals all have specific problems and one major problem: Credibility. Would anyone (including in the first instance UKIP-inclined voters) believe them? Increasingly, the answer is no.

For this group of the electorate and party base, the Conservatives’ credibility on Europe has been hit by a series of forced and unforced errors. Whether perceived or real, the overselling of the Lisbon Treaty ‘cast iron’ guarantee, the revelations that before the election David Cameron’s policies may have been framed with Coalition in mind, the CCHQ prohibition on candidates campaigning on Europe, the opting in to EU crime and policing laws, lecturing the French and Germans on the need to create a Fiscal Union and now Cameron ruling out forever leaving the EU, all chip away at his credibility. In short, Cameron could promise to spend every waking moment committed to achieving new, improved EU membership terms, jump over the EU parapet, look back, and see his troops have opted to stay in the trenches.

Fortunately for David Cameron he has two great opportunities to address these concerns and reassure the electorate he means business, two opportunities where he can either act unilaterally or use a veto. Importantly both these opportunities come before the next election.

Firstly, David Cameron should use a quirk of the Lisbon Treaty to activate the 2014 block opt-out and repatriate around 130 EU crime and policing laws, rather than allowing them to fall under the jurisdiction of the European Court of Justice. He should then avoid squandering this gain by resisting pressure from within the coalition to opt back into them piecemeal. He should instead argue for either a better deal, under which the European Court has no jurisdiction in the UK over criminal law, or stay outside permanently.

Secondly, the UK should demand root and branch reform of EU regional policy, repatriating responsibility for regional funding to the UK and other richer member states. Limiting EU-managed regional funds to poorer countries would mean that 23 out of 27 EU countries pay less into the EU budget than at present, saving the UK £4bn net over seven years (in addition to the £8.7bn it currently gets back through the EU regional funds). This is achievable but Cameron must make it clear that he is prepared to veto the next multi-year EU budget, currently up for negotiation, in order to make this demand more credible.

These two measures would achieve several objectives simultaneously – a reduced EU budget contribution, repatriation of two areas of power from Brussels and limiting the powers of the EU judges – an early opportunity to get some ‘balls in the net’. If Cameron takes these two opportunities, this would be a substantial down payment for future electoral credibility which he will need when he promises a wider renegotiation with the EU. Without it, any future manifesto promise may be skilfully crafted but will not sway many voters’ minds.

 

A useful lesson as to why the EU shouldn't decide who has access to our phone and internet records

So, the Coalition seems to have backed down on imposing new powers over internet surveillance, opting for a 'consultation' on draft plans, rather than pushing for a full Bill.

Although the exact proposals remain unclear, the Coalition seemed to be gearing up to extend the current rules on the retention of and access to communications data (the destination of phone calls, emails and websites visited, but not their content, is already recorded and stored for 12 months by UK law).

So what's the EU angle, because invariably there is one?

The requirement for service providers to retain this data are laid down in the EU's 2006 Data Retention Directive. We looked at the Directive and various other surveillance-type EU proposals in this report in 2009. But it should be noted that the previous UK Government was a co-sponsor of the initial EU proposal when it was first tabled in 2004 and, following the 2005 London bombings, was a strong supporter of the rules.

The Coalition's new proposals, which it seems likely to continue pushing after this storm has died down, would use additional UK legislation to extend the data collected to cover contacts made via social networking, and potentially even online video games. But, arguably the most controversial proposal is to allow intelligence officers to access emails, calls and texts as they happen in 'real time', without a warrant, rather than retrospectively.

This all goes beyond the current EU Data Retention Directive, which is basically limited to the retention of data on landline calls, mobile calls, emails and web history. The current Directive also leaves it up to member states to decide how and when law enforcement authorities can gain access to this data. So don't blame the EU in other words.

But this is not necessarily the end of the story. The European Commission plans to make a proposal for an amended Data Retention Directive this year.

And crucially, the Commission's 2011 evaluation of the current Directive stated that:

The Commission will assess the need for, and options for achieving, a greater degree of harmonisation with respect to the authorities having and the procedure for obtaining access to retained data. Options might include more clearly defined lists of competent authorities, independent and/or judicial oversight of requests for data and a minimum standard of procedures for operators to allow access to competent authorities.

In other words, law enforcement authorities' access to retained communications data could be something that will be regulated by the EU in future, if the Commission opts for this approach and gets support from member states and MEPs.

What this would mean for the UK in practice is not entirely clear because the UK is often rather more keen on state snooping than other EU states (e.g. Germany, which doesn't implement the original directive after its Constitutional Court struck it down). It is therefore unlikely that the EU minimum standard for law enforcement access to data would go beyond current UK practice or what the Coalition is trying to do in future.

However, this week's media storm over how much access the state has to our personal data shows that the principle of allowing the EU to determine which authorities have access to our personal data, and when, could create huge political issues in the future. How would politicians like to tell their voters that in fact it is the EU that decides on who and how police forces can access their data?

One thing that this week has surely taught us is that this is something that should be decided nationally, where if the one government decides to make authoritarian assaults on civil liberties they can at least be overturned by future governments or rethought due to public pressure. Not so once an EU directive is in place and it requires the re-opening and successful conclusion of negotiations between 27 member states and 736 MEPs.

It will interesting to see, following this week's storm in Britain, what the Commission will propose.

Coalition rope pulling - the European Arrest Warrant

Yesterday's news that a British man has been served with a European Arrest Warrant (EAW) in a high profile case he was cleared of by a Portuguese court in 1995 has again raised the issue of the malfunctioning European Arrest Warrant (EAW).

The problems with the EAW are well documented and mostly flow from the flawed assumption that all European justice systems are broadly of the same quality and tradition - the reality is that they differ - as well as an absence of civil liberties checks and a proportionality principle, some hand down better justice than others.

That being the case, there is a need for stronger safeguards before the UK hands over its own citizens to other countries. Reform has been spoken of for years (the need for it even admitted by the European Commission) so why the muted British response? As with much of the Government's programme it comes down to internal Coalition horse-trading. Here is how the parties stack up:

Conservatives:

• As a backbench MP, David Cameron described the EAW "highly objectionable":

"I find the European arrest warrant highly objectionable because of the problem of dual criminality... let us be clear about what it means. One of our constituents goes to Spain on holiday, commits an alleged offence, and returns home. All that is necessary for him or her to return is that the warrant is correctly filled out… and that a district judge in the UK sees the warrant and judges that the offence falls into one of the 32 categories. At no time is it asked whether the offence is a crime in this country."

• 102 Conservative MPs backed the conclusions of Open Europe's recent report which argued for the block repatriation of EU powers on crime and policing, with the option of opting back in to selected measures.

• Conservative MPs and MEPs have long campaigned for reform of the EAW. Conservative MPs, including David Cameron, voted against the EAW in the House of Commons and made EAW-reform a part of their last European Parliament Election Campaign saying “Conservative MEPs will uphold civil rights, and will work to avoid a repeat of the lack of safeguards in the European Arrest Warrant.”

Liberal Democrats:

The issue of the EAW cuts across two Liberal Democrat core beliefs; a commitment to European co-operation and Civil Liberties.

• Nick Clegg recently defended the EAW as "indispensable" though also admitting that it needed reform.
• Liberal Democrat MEPs helped to shape the EAW in the European Parliament; Sir Graham Watson MEP was the Parliament's rapporteur (Nich Clegg and Chris Huhne were both MEPs at the time)
• Ed Davey, now a Business Minister (then Lid Dem Europe's spokesman) was keen on the EAW at the time of the Lisbon Treaty debates, arguing the Conservatives wished to create a “Costa del Crime”.
• Curiously Nick Clegg has also championed reform of other extradition arrangements, such as the US/UK extradition treaty calling it "lopsided and unfair".
• In fairness, Lib Dems have also called for reform of the EAW, with MEP Baroness Ludford highlightingd the EAW's problems (she is also a patron of Fair Trials International).

So what will happen when a decision is forced on the Coalition in 2014?

As we have highlighted in a recent report, under the Lisbon Treaty, the UK will have to decide by 2014 whether to accept the jurisdiction of the European Court of Justice (ECJ) over the EAW and 130 other EU Crime and Policing measures. At this point (or preferably before) the Coalition will have to decide whether it wants the ECJ to have permanent jurisdiction over an unreformed EAW or leave the EAW altogether.

The Conservatives and Liberal Democrats have long held opposing views on the EAW that will be difficult to climb down from and make the collective decision very tough. In the end it is likely the loudest voice will prevail - and this could well turn into a loud and noise debate.

But perhaps there is another way forwards. There is a growing consensus that the EAW and extradition laws generally need to be reformed, something the Liberal Democrats recognise with regards to the UK/US extradition treaty when the wider issue of Europe is not at stake. It should therefore be possible to find a middle ground. This would be for the Coalition to opt out of ECJ jurisdiction over the unreformed EAW and argue for reform in order to make it possible to rejoin it later. For this to happen it would be best to make the decision now in order that the substantive negotiation is completed in time for 2014.

Internal coalition disagreements aside, surely this is an area where all sides stand to gain from EU reform?

This Government cannot be trusted on EU crime and policing

The torrent of EU justice, police and immigration laws keeps on coming and the Government keeps on signing up to them.

Home Office Minister James Brokenshire today told the House of Commons that the UK has opted in to the EU's cyber-crime directive. Now leaving aside the merits or drawbacks of the new law in question, this decision demonstrates the complete lack of democratic accountability that we've been highlighting over the past weeks and why we've been pushing for MPs and the public to be given more power under the EU Bill.

Not only did MPs not get to vote on whether the UK should sign up to this particular directive, the Government broke the European Scrutiny Committee's 'scrutiny reserve' to do so. MPs on the ESC considered the proposal late last year but did not clear it because they felt there were still questions for Ministers to answer about the plans. The directive sets "a maximum term of imprisonment of at least five years" for certain cyber-crime offences.

But there is another technical but hugely significant point. We've explained before that in 2014 the UK has the right to opt out of around 90-100 EU policing laws that came into force before the Lisbon Treaty took effect. On the other hand, if the Government decides to remain opted in, these laws will fall under the full jurisdiction of the European Court of Justice for the first time. The Government has said it will put this hugely important decision to a vote in both Houses of Parliament - something that we welcome.

However, the directive the Government opted in to today 'repeals and replaces' a pre-Lisbon law, meaning that there is now one less EU law the UK can opt out of in 2014. It also means that the Government has today handed jurisdiction over the area of cyber-crime from the UK courts to the ECJ. And all without Parliamentary debate or approval.

The Minister said that by giving an oral statement to the House he was acting in the spirit of Parliamentary scrutiny but this is, quite frankly, nonsense. What use is scrutiny after the event? The Government has made a decision and there's nothing anyone can do about it. Today's statement was just to put that fact on record.

Last month, Europe Minister David Lidington made a statement committing the Government to observe Parliamentary scrutiny and give MPs more opportunity to have a say on EU justice and home affairs opt ins. On today's evidence it doesn't seem the Home Office got the message.

To make matters worse, the Government also looks set to opt in to the EU's plans to make the telephone numbers, addresses, credit card numbers, email and other details of British air travellers available on demand to police forces across Europe. The Commission's current proposal covers flights between EU and third countries but, not satisfied with this, the Coalition wants the proposal stretched further to cover data collected on all flights within the EU as well.

MPs have again been sidelined and the Government is fast losing any trust that Lidington has been seeking to build on this issue.

This is why the EU Bill should be amended

The Government on Friday published an annual report that reveals which, and how many, EU crime, justice and immigration laws the UK signed up to between December 2009 and December 2010.

The report states (p4) that the Coalition Government has opted in to eight new EU justice and home affairs laws since coming to power in May 2010, including the hugely controversial European Investigation Order, a new "IT Agency" to oversee the EU's vast crime and immigration databases (with start-up costs of around €113m), and granting United States' authorities access to European citizens' banking data under the so-called SWIFT agreement.

These are all transfers of power from the UK to the EU but Ministers were free to sign up to them without any democratic checks - Parliament had no say.

The Coalition has said it wants to operate a case-by-case policy of deciding whether to opt in to new EU justice and home affairs laws. Well last week's report shows what that policy amounts to in practice. Of 13 decisions whether to 'opt in' or not, the Government opted in 8 times. That's an opt in percentage of 62%.

The Government's record so far would suggest then that the UK will continue to play a major part in the EU's ever-expanding role in justice and home affairs. But under the current EU Bill, Parliament and voters have no say over the steady steam of laws that are transferring power over British justice and immigration policy to the EU level.

This is why amending the EU Bill is so important. Allowing the status quo to continue simply widens the democratic deficit between the Government and the general public on these crucial issues. Crime, justice and immigration are important to people and voters do not expect their Government to have free reign to hand over powers to the EU in these areas.

We hope that as many MPs as possible make their voices heard when these issues are debated tomorrow and that they impress on the Government the need for Parliament and voters to have more say over this crucial aspect of the UK's relationship with the EU.

The EU in 2011

For those of you who can't wait to see what 2011 has in store for European politics, Open Europe has published a briefing looking at the issues facing the EU - and most importantly the eurozone - next year. Read it here.

Let's put it like this: EU leaders better be ready to hit the New Year running...

Parliament needs to get a grip on EU justice and home affairs laws

At a time when MEPs are trying to grasp every possible opportunity to extend their own powers (and give themselves more cash), it’s about time that national parliamentarians showed some assertiveness over EU decision-making – or they risk becoming even more marginalised in EU affairs. The Lisbon Treaty shifted substantial control away from national parliaments to MEPs (hardly credible protectors of democracy in Europe), the Commission and EU judges. As a result, the UK Parliament was weakened (and the Lisbon Treaty’s yellow card procedure did not make up for this, as now is becoming increasingly clear).

But MPs now have a chance to claim some of these powers back.

How? In a new briefing published today, we argue that by a series of simple amendments to the Government's proposed EU 'referendum lock', the UK Parliament could turn itself into one of the most powerful chambers in Europe, insofar as EU policy is concerned. These amendments would require Ministers to seek the approval of Parliament before signing up to any EU laws in justice and home affairs. If the answer is No, the government can’t opt in.

This may seem like a boring detail, but on the contrary – it’s absolutely vital.

For the first time, this would give Parliament, and voters, a real democratic check on the extension of the EU's powers – although it would still fall far short of repairing all the damage caused by the erosion of democracy through successive EU Treaties.

Policing, crime, immigration and asylum are issues are hugely politically sensitive and any decisions to sign up to new EU laws in these areas need to be thoroughly debated and democratically accountable. This should be Parliament's job. As the German Constitutional Court argued in its ruling on the Lisbon Treaty:

Due to the fact that democratic self-determination is affected in an especially sensitive manner by provisions of criminal law and criminal procedure, the corresponding basic powers in the treaties must be interpreted strictly - on no account extensively -, and their use requires particular justification.

As it currently stands, the Government's proposed Bill, although a significant step forward, fails to address the day-to-day transfer of crime, policing and immigration powers from the UK to the EU. So any decision to opt in to a proposal like the controversial European Arrest Warrant will not be covered by the lock.

And the thing is, justice and home affairs is the area in which the EU gains the most new powers under the Lisbon Treaty. The EU now has two Commissioners rather than one, 17 databases and a rapidly expanding budget to fulfil its ambitions here.

Most importantly, European judges will have the final say over any law that the UK Government decides to opt in to. By definition, this is a transfer of powers.

In other words, it's a zero-sum game: every new justice or policing law the Government signs up to gives more power to the EU institutions at the expense of MPs, Parliament and the British courts. This is a big decision, which currently rests solely on Government Ministers' discretion.

The EU's growing ambitions in justice and home affairs deserve Parliament's undivided attention. It is perfectly reasonable for MPs to demand the power to vote on these crucial decisions that the Government makes in the name of their constituents. In fact, it would be a dereliction of duty not to.

Why UK justice safeguard cannot be watertight

In the House of Commons yesterday Frank Dobson MP raised the "injustice" done to one of his constituents, Joseph Mendy, under the provisions of the European Arrest Warrant. Mendy was arrested in the Canary Islands in November 2003 on suspicion of counterfeiting €50 euro notes despite the fact he was never found in possession of a counterfeited note. He and his friends were released and heard nothing more from the Spanish authorities until March this year when he was served with a European Arrest Warrant. Mendy appealed the extradition but as Dobson stressed, "this involves the UK courts doing nothing more than going through the motions, because there are virtually no grounds on which to challenge a European extradition warrant."

Dobson continued:

"At the subsequent court appearance in Madrid, Joe Mendy was denied bail on the bizarre grounds that he was a flight risk. By this time, the Spanish judicial holidays were commencing, so my innocent constituent of exemplary good character was held in the Spanish jail over the summer." "After spending almost two months on remand in the Spanish jail, Joe appeared before a Spanish judge on 15 September. His Spanish lawyer advised him that if he continued to plead not guilty, he was likely to be held in jail for at least a further year before his case came to trial. If, however, he pleaded guilty, he would, because of his exemplary record in Britain, get a suspended sentence and a small fine. Understandably in such dreadful circumstances, he pleaded guilty and got a two-year suspended sentence and a €600 fine."

"The treatment of Joe Mendy is a disgrace; it is exactly the sort of incident that brings European institutions into disrepute. What happened to the warrant between June 2004 and March 2007? Was it mislaid? Sadly, the law that we passed does not require the authorities to use their common sense or to have a sense of proportion. Having being passed by the House on the argument that it would speed up extradition, our law does not demand that the authorities proceed expeditiously. Instead, it demonstrably permits them to take nearly four years to crank up this draconian machinery."

Home Office Minister Meg Hillier responded saying:

"We have to have faith in our European partners, and there are safeguards in place to ensure that each European country has a proper legal and judicial process to take such decisions. We have heard that Mr Mendy’s case has been concluded and that he is back in the UK having received a suspended sentence. I am pleased to hear that he can now start at Liverpool University next year and begin to get his life back on track."

It goes without saying that this is a totally unacceptable outcome for a system that was originally intended to expedite the fight against serious organised crime and terrorism.

Sadly, it is likely that this case is far from unique. As leaked Commission documents revealed this summer, EU Arrest Warrants (EAWs) have been frequently issued for trivial crimes - including the theft of two car tyres, and a single case of piglet rustling. The EU report admits that the arrest warrants are being used "disproportionately" to the seriousness of offences.

It is clear from this case that serious inconsistencies in standards can arise between different legal regimes across different member states. But this sits uneasily with the basis of the EAW: judicial mutual recognition. For this reason, it is almost certain that we’ll hear increasing calls for legislating for EU-wide criminal procedural standards – in other words, the problems arising from mutual recognition creates the impetus for full harmonisation.

The revised EU Constitution provides the avenue for such harmonisation, with the dropping of national vetos in justice and home affairs. It is unlikely the UK will be immune from these developments, despite the Government’s claim to have an ‘opt-in’ arrangement in this area.

In short, the nature of the UK ‘safeguard’ on JHA puts a gun to the head of the Government if it wishes to opt out of future developments based on existing legislation which already applies to the UK, like the EAW. If the UK doesn’t want to accept the amending legislation to something like the EAW, then it will be thrown out of participation in that legislation in its entirety.

Given current the current security situation, it is highly unlikely that the UK Government would be prepared to give up any form of agreement with other member states on extradition, such as the EAW. It would therefore be highly problematic for Britain not to opt-in on measures amending the EAW.

If, as seems probable, the EU does choose to move towards criminal procedural harmonisation in order to address the issues raised by cases such as that of Joe Mendy, it would be unlikely the UK could in practice exclude itself from such moves under the revised Constitution.

Should the Constitution be ratified, existing UK participation in European extradition agreements will be a powerful lever to force the UK to opt in on future EU justice and home affairs legislation.

The Human Sandbag

In the Independent today Simon Carr returns to what is becoming one of his favourite games - lampooning Home Office Minister Joan Ryan. He writes:

"The Joan Ryan Club, a small but exclusive band of obsessives, will appreciate the following. There are some low minds who question the use of Ms Ryan. I've done so myself, I fear, in years gone by. But she is an essential figure in government. She is a sandbag. When a grenade is lobbed into the government trench she throws herself over it. Or maybe she gets thrown on to it. That is her talent. She is a blast-absorber."

The reason he returns to taunt Ryan is that the European Scrutiny Committee has just released a new report which is highly critical of her decision to agree to new EU legislation even though the Committee had not yet approved it and was still holding it under scrutiny reserve.

Ryan's defence was that she had just agreed to a "general approach" with other EU ministers rather than reaching full agreement before consulting the Committee. Some of her arguments are a reassuring reminder that the spirit of Sir Humphrey is alive and well in Whitehall:

"When we talk about "agreement on the text", that is in the common usage of the word "agreement". It is not in relation to political agreement as a definition of a final decision subject to the linguist lawyers at the European Union. Perhaps I can say that maybe usage of the word "agreement" has caused some confusion, and certainly, if that is the case, I would apologise for that and it is regrettable and that is one of things I will take back. When I mentioned issues such as working with the officials and staff training and trying to better monitor the match between our process here and our process in the EU, that is precisely one of the issues I will feed in."

"It is the case when you reach a general approach that one would expect substantive issues to be agreed upon around the Council table, or I think it would be very difficult to be able to reach a general approach. So if as a government we were not satisfied in relation to the issues within the proposal, if others round the table were very dissatisfied, then I think it would be difficult to reach a general approach, and I think that was the case in December. But is still remains the fact that when you reach a general approach, although there probably is agreement around the table on substantive issues, it is still subject to scrutiny reserve, the issue can still be reopened, and there are examples where in fact this has happened. There are not many, I agree. The reason there are not many is that the likelihood is substantive issues are agreed upon, or there is general agreement in the common usage of the word "agreement", before a general approach would be reached at a Council."

EU to harmonise environmental crimes

According to the FT the EU Commission will tomorrow put forward a proposal to require member states to punish environmental crimes with harmonised penalties. The new law is the result of the controversial ECJ ruling in September 2005, which said for the first time that the European Community is able to set criminal penalties and offences if it is necessary to achieve one of the fundamental objectives of the treaties.

It will be interesting to see what happens to this proposal. 11 of the then 15 EU member states fought in court against giving the EU Commission the power to set criminal law for member states. After the ruling the British government’s line was: “We firmly believed it was inappropriate to harmonise criminal law at EU level. We believe criminal law is a matter for member states co-operating intergovernmentally.” Either the UK and others will be forced by the majority to back down from this stance, which would be a major u-turn and a watershed in EU politics, or this proposal will end up in deadlock in council.

Slowly but surely...

... the EU is expanding its control over member states' criminal justice systems.

Two good examples from the agenda of today's meeting of EU interior ministers :

1) EU Justice Commissioner Franco Frattini is proposing to create an EU-wide criminal offence of selling computer games to children. Back in November Frattini publicly criticised a computer game Rule of Rose in which a girl is bullied. Originally he spoke of creating a voluntary code for computer games companies. But now it seems as though he's been emboldened by some favourable publicity in unfamiliar places (such as the Daily Mail) and is being much more ambitious. This is another obvious example of the Commission's current tendency to champion populist causes (price caps on text messages and footballers' salaries etc) - as part of its "Europe of results" agenda.

2) The German Government is keen to reach agreement on a proposal for an EU-wide criminal sanction for racism and xenophobia. In particular the Germans want to impose prison sentences for holocaust denial and ban the use of the swastika across Europe. This proposal is unlikely to be approved as it would require unanimity. Several governments -including the UK - are unsure. The British Government is unlikely to want to have to repeat the rows over the Racial and Religious Hatred Bill which was passed last year. The amendments which were secured by campaigners and the opposition to that Bill could well be overturned if the EU's proposals go through.

We hate to be boring, but what about the idea of subsidiarity? What exactly is the case for these political decisions being made at an EU level? Anyone?