On EU Crime and Policing the UK lost an opportunity to negotiate a new deal

Open Europe's Christopher Howarth wrote the following article for the Telegraph. For more information as to the UK's crime and policing opt out please also see Open Europe's An Unavoidable Choice

Why is the European Arrest Warrant so controversial?

MPs are being faced with two equally unpalatable choices

To those unaware of the tortuous nature of EU treaty negotiations, it may seem odd that MPs are being asked to vote to opt into the European Arrest Warrant – and not just because it may cause ructions within the Conservative Party ahead of the Rochester and Strood by election. Weren't we in it already?

Actually, the EAW is only one of a package of 35 EU police and crime laws that the Government wants to opt into by December 1. And here's why it matters so much, both to the Government, and to its opponents:

Where did it all start?
It all goes back to the Lisbon Treaty. Prior to that, all EU crime and policing laws were dealt with "inter-governmentally". However, the architects of the Treaty were keen to place these measures under the remit of the European Court of Justice (ECJ) and the enforcement powers of the European Commission.

Realising that signing up to the ECJ’s jurisdiction would complicate its desire to avoid a referendum on the Treaty, Britain's Labour government brokered a deal. The ECJ would get jurisdiction in 2014, but in return the UK would get a "block opt out" on around 130 crime and policing measures.

This opt-out could have provided the basis for Britain to negotiate a new deal, perhaps using a bilateral UK-EU treaty, thus solving some of the underlying concerns. But this opportunity was lost - possibly as a result of internal Coalition politics.

But why does the vote have to be now?
Last summer the Prime Minister finally exercised the opt-out – which takes effect on December 1. But, having done so, the UK has until then to decide whether to opt back in to some of these laws on the new terms.

Having decided not to renegotiate a new deal, the Government is presenting Parliament with a choice of two bad options: stay out of the 35 measures the Government argues are essential to fight crime, or go in on terms that hand over ultimate authority over these laws to the ECJ and the European Commission for the first time.

But why is the European Arrest Warrant so important?
Of these 35 laws, the EAW is the most controversial for several reasons. On the one hand, there are obvious concerns about handing over British citizens to another EU state without giving that person the right to ask if there is a case against them. On the other hand, the police argues it is vital to protect the public from crime.

If the UK opts in, it will forfeit to the ECJ the ultimate ability to say no to the extradition of its citizens – a step that even states within the US are able to take. Stay out, and we will fall back on previous arrangements that were slower, less reliable and therefore may allow some criminals to escape justice. And yes, the UK Government has made some welcome domestic reforms to how the EAW operates, but time will tell whether these will withstand future ECJ interpretation.

What does this all mean?
It means that, unfortunately, MPs have been presented with an unenviable choice. However they vote in the coming weeks, many Conservative MPs will certainly want to revisit this issue in any EU renegotiation.

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.

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?

Is the Government shutting the book on EU crime and justice reform?

MPs are today being asked to back the Government’s plan to opt-out of 133 EU crime and justice laws but opt back in to 35 of them, including the European Arrest Warrant. As we’ve pointed out before, opting back in means accepting full European Court of Justice jurisdiction over these measures for the first time – a major transfer of power in the wrong direction for Conservative MPs which stood on a manifesto promising to “work to bring back key powers over legal rights, criminal justice and social and employment legislation to the UK.”

The Government has promised more time for Parliamentary committees to report on the proposed ‘opt back ins’ and there will be another vote on opting in, after negotiations with the European Commission and other member states are complete. The Government has also proposed a series of domestic reforms that would improve the functioning of the EU Arrest Warrant.

Nevertheless, the Government’s proposal to opt back in to 35 laws, which includes the three most significant – the EAW, Eurojust and Europol – does raise serious question marks about the Conservative leadership’s pledge to renegotiate EU powers. More time for scrutiny is welcome but the risk is that Parliament is presented with a fait accompli after EU negotiations - will MPs be able to vote on individual opt-ins or be presented with a final list as they have been this time? As a statement of intent in future negotiations about EU involvement in this area, opting back into 35 measures seems rather weak.

The wider question many Tory MPs will have is whether this closes the book on this area of the UK relationship with the EU for good? They will want reassurances that, after this messy legal and Coalition compromise, a majority Conservative government would seek to reopen the issue and remove all ECJ jurisdiction over crime and justice and return to a voluntary system of practical cooperation.

We hear that most Conservative MPs will vote for the Government motion today, and the rebellion is likely to be limited mostly to the usual suspects. The question is: will Tory MPs vote with the Government today because they have faith in Conservative leaders to deliver changes to EU crime and justice cooperation in future, or because they don't want to kick up a fuss?

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.

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.

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.

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.

How to make Cameron's EU veto threat actually count

On the Telegraph blog, we argue,

Europe has just sailed up the agenda at the Tory party conference, with Theresa May suggesting curbs on EU immigration and David Cameron hinting at another EU veto. Speaking of the ongoing talks over the EU’s long-term budget (2014-2020), Cameron said: "If it comes to saying no to a deal that isn't right for Britain, I'll say no." 

The problem for Cameron is that unless anything changes, the EU budget talks will almost certainly generate a bad deal for Britain, both in terms of content and cash contribution. 

For various reasons, EU budget talks are always biased towards the status quo, as special interests – such as the farming lobby – block meaningful reform through individual member states’ vetoes. Therefore, on its current path, the UK will keep its rebate from the EU budget, but the EU’s odd spending priorities will remain. This means that around a third of the EU budget will continue to go towards subsidising landowners – irrespective of whether they’re engaged in any meaningful economic activity. 

Another large portion – the so-called structural funds – will continue to see cash pointlessly recycled between some of Europe’s richer regions and countries and spent on projects with little, no or negative impact (though another chunk goes to Europe’s genuinely poor regions). 

The EU’s new long term budget could account for roughly €130-140 billion a year – not a huge amount in the grand scheme of things – but with Europe facing a solvency, competitiveness and banking crisis all at once, this money could still make a big difference if targeted properly. It’s therefore absolutely maddening that the EU budget remains unreformed on its content. 

At the same time, even if the UK manages to get what it’s pushing for – an inflation-adjusted cash freeze (based on 2011 payment levels) – the UK’s net contribution will still increase, since more money will (rightly) go to newer member states which aren’t covered by the UK’s rebate. In turn, any actual increase – and it’s heading in that direction in the ongoing EU talks – will naturally mean an even larger net contribution for the UK. 

 Therefore, Cameron is a very unenviable situation: even if he gets what he wants in negotiations, UK taxpayers will still be forced to cough up more cash to pay for the EU (in net terms). Clearly, this could be politically damaging. 

So how can he get out of this? 

As I’ve argued before, he should instead use the veto to seek the repatriation of the structural funds for richer member states (with a GDP of 90 per cent or above the EU average). This would reduce the UK’s net contribution substantially – possibly by several billions over next budget framework. At the same time, the UK would remain committed to support Europe’s poorest, as all post-communist member states that joined in 2004 and 2007 would do better from the funds (for how to deal with Italy, Spain and Greece – the only countries in the EU actually losing out under this proposal – see here). 

UK regions and urban areas also need far better tailored and targeted cash than what is offered by EU funding. In addition, as this was originally a Labour policy, it has the potential to gain cross-party support at home.

Now, as ever in EU politics, this isn’t uncomplicated. If Cameron insists on the veto, it won’t necessarily stop the process. At worst, it could lead to an ad hoc deal decided on a year-by-year basis through Qualified Majority Voting. But most member states have a huge incentive to avoid this happening. It would be extremely messy and most of them would lose out substantially compared to a new deal. 

Therefore, targeting the structural funds for reform remains the best option for Cameron – by far. Beyond party politics, it’s the right policy to pursue, as it would benefit both the UK and Europe – and finally inject some common economic sense into the EU budget.

Birmingham: Three things Cameron should say on Europe and three he should not

Over on Conservative Home, we argue,

Conservative Party conferences are too often overshadowed by Europe. This has, in the recent past, led the leadership to attempts to avoid discussion, clamp down on debate and hope nobody notices. Given the changes currently going on in the eurozone I think it would be a mistake to try that again this year. If the Conservative leadership does not set out a strong narrative it will be in danger of again being held hostage by those who do. So here are three things David Cameron should do to take the initiative and set out a distinctive Conservative position on Europe and three he should not. 

Firstly, and most importantly, David Cameron should set out an overall vision of the UK in the EU post-eurozone crisis. This should be based on being in the single market but not in the Euro, with new membership terms that recognise the UK is not headed towards further integration, whatever the speed may be. He should be honest about the need for re-negotiation, the chances of success and the timescale, but set out that as the EU is changing there is no other option - the UK cannot cling to the status quo. 

Secondly, he can build credibility for his renegotiations by re-emphasising that the UK will use its right to opt out of 130 crime and policing measures and will not opt back in to any of them while the threat of ECJ jurisdiction remains. He should explain that as the UK is not on route to becoming a part of a unified EU political entity it cannot allow the European Court of Justice to have a role in this sensitive area. He can be open to further cooperation, but given recent history not within the current EU legal structure. 

Thirdly, David Cameron should set out the case for a new EU budget that recognises the need for fiscal responsibility and shares the tough decisions being made in some parts of Europe. We have argued before that this should involve the repatriation of regional policy, saving the UK billions, an idea other donor states like Germany would also appreciate. If no reform is initially forthcoming David Cameron should say he will use the UK veto to force the pace. 

There are also three things that David Cameron should avoid doing. 

Firstly, David Cameron should neither promise an in/out referendum nor rule one out. Promising one will, split the Conservative Party, close down all sensible discussion of reform and potentially lock the UK into an unreformed EU if it votes to stay in. Ruling one out would equally be wrong; we cannot prejudge the UK’s renegotiation of its membership terms nor know the future direction of the EU. 

Secondly, David Cameron should avoid talk of Coalitions beyond 2015. On this more than any other subject the Coalition agreement has already been overtaken by events. When the time comes for an election the Conservatives will need their own distinctive policies based on renegotiation and giving people a say. If discussed in the context of a ‘continuity coalition’ they will lack all credibility. 

Lastly, he should avoid the pitfalls of insulting those who have strong view on the EU. Terms such as “bastards”, “nutters, fruitcakes and racists”, “head bangers” or simply “nasty” (or as Nick Clegg would have it "insular", "chauvinistic" and "short-sighted") are not only deeply unfair to those who have often been proven right, but will further polarise the debate, acting as a recruiting sergeant for UKIP.

David Cameron should instead reach for the middle ground, and say something like, "I want an EU that concentrates on trade, fiscal responsibility and structural economic reform and want it to stop doing everything else. You want it to stop the EU doing everything else but will need to come to an agreement on trade, so we share a similar end point, the difference being I wish to use this opportunity to see if the EU is capable of reform." 

UK Government to announce repatriation of EU crime and policing laws (as recomended by Open Europe)

The Sunday Times yesterday claimed that David Cameron will soon announce that the UK government will repatriate some 100+ EU crime and policing laws. According to the paper, the announcement could come before the Corby by-election, expected to take place on 15th November. The idea is to lure Conservative voters away from UKIP (but that's not the only reason for the timing, we might add).

To recap: Under the Lisbon Treaty, the UK has the right to use a ‘block opt-out’ from around 130 EU crime and policing laws, including the European Arrest Warrant, Eurojust and rules on data sharing, or see ultimate jurisdiction over these laws transferred to the ECJ. An unavoidable choice, in other words, between more or less Europe. After using the block opt-out, the UK can then choose to opt back into individual laws on a case-by-case basis.

In a report published in February, we argued in favour of the UK taking the opt-out and then having an honest and open debate about the most crucial laws that it wanted to keep, possibly seeking to renegotiate these so that the ECJ - whose rulings are almost always in favour of 'more Europe' - is left out of the mix. Our recommendation was subsequently backed by over 100 MPs, in a letter to the Telegraph. We have since argued in favour of taking the block opt-out on numerous occasions, calling on the government to announce it this year (giving them enough time to negotiate opt-ins). Absent a major U-turn, the UK government will now follow our recommendation. In truth, it was always going to be difficult for it to avoid taking the opt-out, given the political climate.

The debate has now shifted to what, exactly, the UK government should seek to opt back into, with the Lib Dems and Tories currently in talks, with the former naturally wanting to sign up to more laws than the latter. According to the Sunday Times, "dozens" of measures are on the table - we'll return to what we think the UK should remain part of, in the very near future.

In the meantime, in an exceptionally well-timed debate, Open Europe, alongside Centre Forum, organised a fringe event on Saturday, at the Lib Dem conference in Brighton, looking at this very issue. The debate featured our very own Stephen Booth, Lib Dem MP Tom Brake, Tory MP Nick de Bois and Lib Dem MEP Sarah Ludford. A write-up of the event can be found here.

What does the reshuffle mean for Europe (clue: police and crime)?

In any major Government-led event, there’s always a Europe sub-story. The Government reshuffle today is no exception. So what does this mean for the Coalition’s EU policy? Well, there’s one area to look out for: EU police and crime law. With respect to Europe, here are the significant moves so far:

• Europe Minister David Lidington stays (as expected – the speculation that he was going to replaced was mostly bogus).
• At Justice, Ken Clarke is replaced by hard-line EU reformer Chris Grayling, which could prove significant for the 2014 ‘block-opt’ out from EU police and crime laws, and also struggles over the ECHR.
• Owen Paterson – also with strong views on the EU - has moved to DEFRA, taking responsibility for EU-dominated Fisheries and Agriculture.
• Baroness Warsi replaces the veteran Lord Howell as FCO spokesman in the Lords
• Both Cabinet Treasury Ministers remain.
• No EU-related game-changing movement on other areas under heavy EU influence such as environment, energy or business.

By accident or design, the most significant move is Chris Grayling, as it sets up the Coalition to take the 2014 EU JHA block opt-out, perhaps announcing it at the October Conservative Party Conference. Indeed, as we’ve argued before, this is precisely what David Cameron should do in order to get some much-needed credibility on Europe. To recap: this opt-out, included in the Lisbon Treaty, means that the UK must decide before June 2014 whether to remain inside 130 EU Crime and Policing measures, including the European Arrest Warrant (EAW), and transfer the ultimate jurisdiction over them to the European Court of Justice (ECJ), or whether to opt out of them altogether – which would significantly reduce the EU’s influence over policing and crime law in the UK. The Government then will have the chance to opt back into these laws on case-by-case basis. 

In other words, this is a huge choice between a lot more, or a lot less, Europe. Expect a dog fight. Cameron will no doubt come under pressure from the Police and Liberal Democrats to stay inside the lot or, at least, opt back into as many laws as possible, no questions asked, including the EAW, Eurojust and measures on data sharing, for example. Chris Grayling could well add a lot of weight in opposing such moves (contrast and compare to Ken Clarke) and could perhaps argue for a deal whereby the UK opts back into some vital measures if the EU agrees to give the UK an exemption from ECJ power over this sensitive area. Grayling could also add momentum to Tory demands to restrict the jurisdiction of the ECHR, in particular prisoners' votes. The Government has to announce by November how, exactly, it intends to implement the ECHR's ruling, so this is another imminent issue.

This could work out for the best: As we argued in a report published in January – a recommendation which drew backing from 100+ MPs - David Cameron should take the block opt-out and only opt back into the absolutely vital laws on a case-by-case basis. And the party conference would be the perfect place to announce this.

The second most important move is Owen Paterson’s transfer to DEFRA. Paterson is one of the most trenchant EU reformers and a supporter of some sort of EU-related referendum. He has now been given responsibility for two policy areas – fishing and farming – which are almost entirely decided in Brussels. Paterson was the shadow fisheries minister under Michael Howard, when he called for the repatriation of the Common Fisheries Policy. This could set Cameron up for a second announcement at the conference – or at least an attempt to show his party that the Coalition is achieving EU reform – since, as we speak, the Common Fisheries Policy could, possibly, be moving in the direction of more ‘regionalisation’ , i.e. neighbouring member states being given more discretion to sort out quotas amongst themselves. Still a long way off from Patterson’s proposals though and amongst backbench MPs and the grassroots, it is likely to be perceived as a fairly minor concession in any case.

On Common Agricultural Policy Reform, currently part of the negotiations over the EU’s next long term budget (to run between 2014 and 2020), despite his strong views, Paterson is unlikely to be able to change the direction of travel. The UK is pushing for an overall freeze to the EU budget, meaning that the CAP will largely stay unreformed (see here, here, here  and here for detailed discussion). In addition, Paterson may not want to rock the tractor, so to speak, given that his constituency is pretty rural, while the brief is led by the FCO and the Treasury anyway. Paterson also has a climate change-sceptic streak which may have an impact on how he handles the environmental side of the DEFRA brief and when this crosses over with EU policy (though DEFRA is more biodiversity than emissions).
 
That the re-shuffle won’t bring in people who will shake-up the Coalition’s EU budget policy is a shame, since the EU budget doesn’t only need to be frozen but also radically reformed on substance – as we’ve shown repeatedly and comprehensively.
 
Other less significant moves are Baroness Warsi’s replacement for a retiring Lord Howell as FCO spokesman in the Lords. Lord Howell, another EU reformer with a great personal commitment to the Commonwealth, carried out his role with charm and expertise and will be a hard act to follow. It’ll be interesting to see how Warsi will work out in that role.

Britain should not ape Norway - but new EU membership terms are fully possible

In today's Telegraph, we argue,

During Prohibition in America, the bootleggers and Baptists found themselves in an unholy alliance. One liked Prohibition for commercial reasons, the other backed it due to religious conviction. The alliance proved short-lived. A similar union has now grown up between certain Europhiles and Eurosceptics. Both say that renegotiating new EU membership terms for Britain is impossible: one group because it thinks the status quo in Europe should prevail, the other because it thinks the UK should leave the EU altogether. Both positions miss the point.



From Open Europe "Trading Places" report.

The argument the Eurosceptics make is that Britain should “become like Norway”, i.e. leave the EU and join its more detached cousin, the European Economic Area. But this would actually be a much worse deal than the existing relationship. First, Norway is almost as much of an EU member as Britain is, implementing roughly 75 per cent of all EU laws, from labour market rules (such as the working time directive) to crime and policing measures.

Second, despite being forced to accept all these laws, Oslo has no representation in the EU’s institutions and virtually no way of influencing the decision-making process to reflect its national interests. Should Britain “become like Norway”, it would be home to 36 per cent of Europe’s retail finance market, but with no say over huge swathes of regulation governing that market. And it would have to accept EU employment law – currently costing UK employers £8.6 billion a year – but with no way of influencing it. The net effect would be less opportunity to hold Brussels to account, not more.

Finally, Norwegian companies face extra costs when selling manufactured goods to Europe, stemming from the EU’s arcane “Rules of Origin”, which impose a tariff on any imports that contain components from outside the EU, and lots of extra paperwork. This has been acceptable to Norway, since 62 per cent of its goods exports come in the form of fish or natural resources, which are not affected by these rules. Applied to the UK – its car manufacturing or pharmaceuticals industries – it would bring sudden additional costs and a competitive disadvantage.

In return for its deal, Norway gets control over its farming and fishing industries. This has economic benefits and helps the country manage and maintain its heritage. But fishing and farming only account for 0.7 per cent of UK GDP. As maddening as the EU’s policies covering these two areas are, would the trade-off really be in the UK’s interests? Pursuing a “Swiss model” – based on a cobweb of bilateral agreements – might be a slightly better fit, but it would present similar problems, for example limited access to the Single Market for the UK’s large services sector.

Europhiles are equally wrong in thinking that the status quo is an option. Whether the eurozone integrates further or breaks up, the rules of the game will change. It is clear that the British public will never accept being dragged deeper into a centralised EU.

As the newly launched Fresh Start group of Tory MPs argued yesterday, Britain should set out a new vision for its place in the EU. This should allow countries to integrate with each other to different degrees. To avoid the pitfalls of the Norwegian model, Britain must not only maintain access to the internal market for goods and services, but also a vote on making the rules, and therefore remain an EU member. But it could take a pick and mix approach in other areas, including retaining its opt-in arrangement on EU policing laws, while participating in a better-targeted EU budget and some environmental measures.

As Europe goes through profound political changes in the wake of the crisis, Britain will have plenty of opportunities to advance this position, including in budget talks and future treaty negotiations, over which it will have vetoes. Once new terms have been agreed, they could confidently be put to the electorate in a referendum.

But to show he can be trusted on Europe – and to avoid a stinging defeat at the 2014 European elections at the hands of Ukip – David Cameron must get to work right away. First, in the ongoing talks over the EU’s long-term budget, he should use his veto to insist on UK economic support being limited to the poorer member states, ending the irrational redistribution of money among richer countries. This would save taxpayers billions. Second, under a loophole in EU law, he could instantly bring more than 100 crime and policing laws back under the control of MPs. Last, as the eurozone presses ahead with a “banking union”, he is right to explore safeguards against its 17 members writing rules for all 27 EU states.

Contrary to what reform-sceptics on both sides say, Britain has leverage in Europe. If the choice is between the UK leaving or getting some powers back, liberal, northern EU countries in particular may – after a lot of posturing and negotiation – go for the latter. The alternative would be losing a key ally in upholding a rules-based system of liberal trade as Europe goes through a highly defensive phase. Germany fears a Mediterranean-dominated EU as much as anyone.

Britain is one of the world’s largest economies, and therefore a major market for other member states, a huge contributor to the EU budget, a powerful military force and a global leader in finance. It lends clout and reach to the EU in world affairs. If it makes the effort, it will most certainly achieve a better deal for both itself and for Europe as a whole.