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Wednesday, July 10, 2013

The coalition has missed a chance to debate the fundamental issue at the heart of cross-border crime and police co-operation

Our Research Director Stephen Booth has written a piece for the Guardian's Comment is Free section, where he argues:
The Home Secretary, Theresa May, has announced that the UK will opt out of 133 EU criminal justice measures, using a "block opt-out" negotiated by a previous Labour government. It will then seek to sign up again to some of them, including a "reformed" European arrest warrant (EAW).

As ever, the devil will be in the detail and we should reserve judgment on the government's reform proposals until we've had time to digest them. Nevertheless, there is much here to raise an eyebrow or two. For one, the coalition seems to have arrived at the number of measures it wants to sign up to (35) through a process of "split the difference" between Liberal Democrats who would rather the UK didn't exercise the opt-out at all and Conservatives who would be inclined to opt out of the lot, or only opt back into a handful. An arbitrary process such as this is hardly the model of principled policy-making.

No one seriously argues that the UK would be better off cutting itself off completely from international co-operation on crime and policing. However, there is a legitimate debate to be had about the institutional form it should take and how citizens' rights can best be safeguarded, especially given the current backdrop of transatlantic spying allegations. Governments and the powers that be will always be tempted to abuse their authority. The best antidote to this is democratic scrutiny and accountability.

The EU opt-out is not simply a decision about keeping 133 EU law and order measures. It is also about whether the European court of justice should have full jurisdiction over them for the first time – once the UK opts back in to these 35 measures, EU judges rather than UK judges will have the last word on how they are interpreted. This would have been an important debate, because amending EU law in the wake of an EU judgment that results in something our elected representatives did not intend is extremely difficult, as it can only be achieved through complex EU negotiations. Thus, the democratic link to citizens is broken. In the context of the UK's wider relationship with the EU, an opt-out could have provided the opportunity to debate this fundamental issue.

However, this opportunity has largely been wasted: the temptation to revert to type in any EU debate – be it pro or anti – is often easier than arguing about substance. There are few issues that galvanise Liberal Democrats like civil liberties. Lib Dem backbench home affairs spokesman Julian Huppert has argued that May's claim that "criminals, terrorists and paedophiles" would want MPs to vote against the UK data communications bill (or "snooper's charter") was misleading and the sign of "someone without a rational argument to make". However, in defending the EAW and other EU measures, Lib Dem politicians including Nick Clegg have used the spectre of "paedophiles, murderers and terrorists" to try to shut down the debate. In addition, the party's enthusiasm for keeping the EAW stands in stark contrast to its tough stance on the UK-US extradition treaty, particularly in the case of Gary McKinnon. This is despite the fact that, once the UK opts back in, the EAW is part of a permanent, supranational EU legal system and the UK-US treaty is a bilateral arrangement which, in theory, can be rejected by either party.

The Conservative side of the coalition has not covered itself in glory either. While it is clear that Conservatives are the driving force for taking the opt-out, there has not been a robust principled defence of this move by Conservative ministers, particularly on the role of the EU's court, and therefore, why the party's often cited robust stance on law and order at home could be compatible with exercising the block opt-out.

Poll after poll shows that the British public would like a looser relationship with the EU, including on crime and policing issues. My view is that the UK should return to a system of bilateral, practical crime and policing co-operation with EU partners, which does not involve ceding control to the EU institutions. Others may take a different view, but let's debate the issue.


Anonymous said...

The fundamental issue is that of seeking a mandate from the people.

Nothing else counts - the rest is just guff.

Europe's politicians have "known best" when it comes to the EU and the ECHR and have denied their people the proper mandate.

It is time to exit the mess that they have created and time to hold them to account and put them on trial.



Rik said...

The UK has no grand strategy (beyond reneg and referendum on the results before 2017) and you are likely to get this messy stuff because of that.

You need to have an idea what the future relation between the European bodies (like EP, ECJ etc) should preferably look like. And make one coherent set up of that. It simply looks like all things are merely arranged on an ad hoc basis. This is extremely likely to create a mess.

It is simply not taking the possibility that the UK might leave the EU into consideration. If so this stuff will have to be reneged via art 50 as well in case of an exit. And the reneg will be difficult enough.

From there and as OE states you need a proper platform to get back into EU regulation as it is simply highly sensible. Therefor it would be highly preferable that things are arrenged on a case by case basis and outside the EU framework. Which make getting out of measures when they get too sensitive much easier.
It looks as well pretty clear that the majority of the UK population has had it with the E-HR Court which makes things even worse.

From a legal pov the present set up also stinks. It is legally an opt-out followed by signing up to measures. Basically the latter would require a referendum. At least if you take a similar explanation of things as is done with Scotland.

Cameron is hardly in the position to state that effectively it is overall mainly a bail out. He messed it up (may be not legally but in the eyes of the public) already one time in a similar case. He simply cannot afford another blooper (discussion on being dodgy in this respect.
If this is looked at properly from a legal perspective and it is as I state and subsequently it becomes a legal issue you have another big problem at hand, politically and legally.

Anonymous said...

Having opted out we should stay opted out of all of the 133 measures, certainly we should not be giving away the decision making to foreign judges over our own the ECJ does not fit with our justice system, and its decisions make our system weaker, we are out of 113 measures we should stay out of those 133 measures.

christina speight said...

Given the balance of parties in the HoC now this will probably go ahead - revolts notwithstanding.

But the acceptance of the 35 'opt-ins' will require a parliamentary vote and as these involve ceding of power to the EU the obligatory referendum must follow? Or have I missed something?

clinihyp said...

It's just the usual fare whch reflects the obsession the coalition has with announcements about forthcoming announcements, followed by announcements about what they've announced, followed by 'modification', retractions and u turns. All of which are bundled up in a parcel of smoke, spin rhetoric and mirrors!

Let's be clear, Cameron, May Osborne, Clarke,together with the entire Lib and Labour party, as well as the vast majority of so called Tory MPs are hell bent on keeping us in the corrupt, fraudulent and expensive EU because that suits their interests, which they hasten to assure us is our interests. Codswallop!

They know full well that they cannot under EU law, renegotiate or repatriate powers already ratified under EU law which we have already surrendered, or to use their preferred euphemism "opted into".

What they're doing now is spinning the spin and playing for time in the futile hope that they will fool enough people to ensure they're re-elected.

As the Nazi war criminal Goeballs put it:
“There is no propaganda to great, no half promise too outrageous that
with sufficient repetition cannot become the mantra of the masses."

"If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.”

Anyone who votes for this bunch of shysters. cares not for his/her country or democracy!

Anonymous said...

Interpol has worked just fine for years.

the entire EUSSR policing infrastructure is dangerous and oppressive and it needs to be abolished.

Denis Cooper said...

Opt out of the lot and stay out of the lot and do not open the door to the eurofederalist ECJ deciding our policy on extradition.

Rik said...

Fully correct. A point everybody except yourself seems to have missed.
It simply looks legally a referendum is necessary.

Not even to mention politically (to avoid another collision with the backbench exit-Taliban and the voters in general (on this topic and on Cameron's credibility in general).

Anonymous said...

We were promised a referendum on the constitution how to get out of it and sign up change its name to the lisbon treaty and say it is something else, this will be enacted without a referendum.

Ray said...

It's part of what has become classic behaviour patterns with the EU and the UK. Cameron is desperate to be seen to be doing things without actually doing anything, that way he can keep both his bosses happy. The UK boss which he detests, ie the public, and the EU boss that he worships. He opts out of 130 laws, big number, but signs up again for 30, small number, the fact that more than half of the 130 they parade are already non functional is not mentioned. The end result is that they opt of a few and sign up again for most of them. Not the impact it once had.
Once again we are being stitched up by lying politicians.

Denis Cooper said...

I may be wrong but I've quickly scanned through the so-called "referendum lock" Act and I don't immediately see anything that relates to this scenario.

Again I may be wrong but I have a suspicion that Hague deliberately excluded it from the scope of the Act.

christina speight said...


Thank you - I'm glad I got it right . They cannot wriggle out of this - the Act of Parliament which guarrantees no transfer of powewrswithout a referendum is the Coalition's Act and the courts if asked will enforce it.

Open Europe blog team said...

@ Christina, Denis, Rik

The 'referendum lock' does not provide for a referendum for these opt-ins.

This is something we highlighted at the time the Bill was being debated:

See pages 4-6

Denis Cooper said...

Thanks for clarifying that.

So as Open Europe identified this as one of the many loopholes in the Bill and publicised it at the time, there can be no doubt that Hague also knew about it but took a deliberate decision to leave it as a loophole.

Rik said...

@OE blogteam

1. Link doesnot work.

2. As said in my first remark it has a political as well as a legal dimension. For the former it is basically irrelevant whether it is legally correct or not. The main thing is how the general public thinks, probably better feels about it. Cameron was probably officially correct with the referendum earlier. However that didnot help him much at the end of the day it considerably hurt his credibility with large and important groups of voters.

3. I didnot look at the legislation.
But it is hard to see that opt-ins (and especially this specific opt-in)are explicitly excluded. Simply doesnot fit in the picture of technically proper legislation.
Which makes it likely a something that merely was discussed or a statement at that time. Such things have dubious legal working.

Rik said...

Anyway in your later article on the ECourt you yourself state that powers are transferred to these courts that are the UKs now.
Is this also not covered?

Rik said...

Finally been able to get to your report. Didnot look into the text of the legislation itself. Doesnot look really necessary your report looks fine.

First of all the report looks like a fine piece of work.
And I fear I have to agree that this is indeed an area not covered by the bill.

Furthermore it is pretty clear from your report that there a lot wrong with the present legislation. Not only on this issue.

In that respect and on the issue discussed here itself, eg the folowing questions come up:

1. What is that guy Farage doing (same for backbench bunch)? Pure from a legal point of view this is an ideal opportunity to bring the issue (inadequate referendum legislation) into the public domain?
Likely this (also from a legal pov)is more important than the referendum 2017 bill (which can more easily be reversed).
Cameron could go for the legal text, but politically it is hard to see him getting away with that. Providing of course the issue gets political (iso legal like now).

2. Looks as well that seen in a reneg climate it simply needs amendments to make it palatable for the voter. Hard to see how this fits in a freetrade zone plus scenario.

3. Also for the government an extended referendum requirement probably would be helpful. In the way that it gives them more leverage in future negotiations on issues. The EU is hardly a big referendum fan, in fact they try to avoid them like the plague.
It makes the possibility of an unwanted transfer of powers much smaller. And it is no rocketscience that any such unwanted transfer would be an electoral disaster for Cameron. When mainly IP plays that card, no certainty on that (see here)but one has to assume they will (the Murphy's law thing).

Utterly strange how the UK approves EU legislation (and has done that in the past). It concerns legislation which is often more important than UK's formal laws and basically of higher order, while the appoval requirements are less. Simply makes no sense. One would expect things like a qualified majority or a double approval, like many countries have for constitutions and from their constitution deriving treaties.
Simply a big flaw in the set legal set up of things.

Interestng point, thank you for bringing it to my attention.

Patent Attorney said...

Really well written and interesting post, worrying to think that crucial moments to debate these topics are being missed.