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.

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.

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.

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

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

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

The MPs wrote,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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