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Thursday, January 31, 2013

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.


Rik said...

For several of the opt-ins probably also a possibility to opt-in via a seperate agreement/treaty between the EU (representing the rest of..) and the UK. You keep the kangaroo courts out that way.

Unknown said...

I believe that if we opt back in to any of these measures - we are permanently giving up control of those matters to the EU, why would anyone want to do that? Cant we just co-operate with the EU on these matters. It's a proper stitch-up, this is how the EU works! Pathetic, where's Nigel Farage?

Rollo said...

This buffoon made a cock-up of everything he was in charge of. Why on earth is he given air-time? In what way would leaving the EU be a catstrophe? Would our 4Billion Pound Per Month trade deficit with the EU suddnely increase? When rats leave a sinking ship, they are the clever ones. To stay on board while it sinks would be the catstrophe.

Ray said...

Daft question Rollo, he is on BBC Radio 4 for exactly those reasons. He is a loose cannon that needs to be stowed back in the hold before he does any more damage.

Anonymous said...

Out of the EUSSR.


Denis Cooper said...

Does anyone fully understand any of this?


In 1998 I was one of what the Teleghraph called "a small number of concerned individuals" who forced into daylight the EU's Corpus Juris plan to force through a single legal system for the EU, inevitably based on the Napleonic "Investigating Magistrates" model, at the expense of our far better and safer (for defendants) common law, adversarial system.

Everything we read now derives from that slowly slowly cathchee monkey effort to trash our system, and with it habeas corpus, jury trial, separation of powers system in favour of their own, explicitly allowing imrprisonment without charge for 6 months, extendable for three months at a time.

If anyone here wants to live under such a system, with no jury as we know it, magistrates who both investigate and determine guilt or innocence, indefinite detention without trial, forced pleas of guilty because the prison term resulting is a lot shorter than waiting in jail for a trial - why do you not push off immediately to the Continent and enjoy it there, leaving those of us who believe in our system, developed over 800 years since Magna Carta, with its protection of the common man agains an over-mighty executive, here to live in peace and freedom?


Anonymous said...

Justice and Home Affairs covers criminal justice and policing, ie the power to put people in prison. This is the area of state "competence" with the power to exercise physical force over the bodies of the citizens.

JHA is therefore the heart of state power. If a private person puts you in a prison, that is kidnap. If the State puts you in prison, that is "law-enforcement".

Once this area has been definitively ceded, taking it back will be not just a political issue, but a military problem.

There is Corpus Juris as Idris you say below, and there is also the European Gendarmerie Force, a continental-style European armed, paramilitary police force equipped for crowd control and the maintenance of "public order".
In continental countries the national "gendarmeries" act as a sort of internal army of occupation - a military force to be used against their own people. They are military, but they are categorised as "police", so we would think them relatively harmless, which they are not.

The Treaty of Velsen requires the "agreement" of a member state for the EGF to be deployed on its territory. But once they are in the country, their only allegiance is to their masters in Brussels, so they would not leave if ordered by our Queen in Parliament, but only if ordered to by their own masters, who are not HM servants.

In effect, we would be under foreign military occupation, for the first time since the Norman conquest.

To avoid the above it is ESSENTIAL that we put maximum pressure on this government to make sure it does exercise the opt-out and repatriate the 130 JHA powers, and then not hand any of them back, certainly not the ones that involve granting the EU or the ECJ any power in this area.