Has the Conservative party dropped its commitment to renegotiate ECJ jurisdiction over crime and policing?

Has Conservative policy towards ECJ 
power over crime and policing changed?

The chaos of yesterday's 'vote' or 'non vote' on the European Arrest Warrant has obscured a number of things. Not only have the 10 actual measures been waved through, without discussion and scrutiny, but the Home Secretary has avoided having to make a statement on future Conservative policy towards renegotiating the European Court of Justice's (ECJ) power over crime and policing.

Firstly, here are some of the measures 'adopted' last night without debate and without much publicity.

• Confiscation Orders 
• Mutual recognition of sentences 
• Trials in absentia 
• Mutual recognition of financial penalties

They are substantial in their own right and on 1 December all will be subject to the ECJ's jurisdiction.

Will a future Conservative Government renegotiate this area?

Removing the UK justice system from the remit of EU judges has been a Conservative policy for a number of years and one we agree with. When it became clear that the Conservatives could not block the Lisbon Treaty David Cameron stated:

“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. We will want to prevent EU judges gaining steadily greater control over our criminal justice system by negotiating an arrangement which would protect it" [4 November 2009]

This was followed up in the 2010 Conservative Manifesto:

“Conservative government will negotiate for three specific guarantees – on the Charter of fundamental rights, on criminal justice, and on social and employment legislation – with our European partners to return powers that we believe should reside with the UK, not the EU. We seek a mandate to negotiate the return of these powers from the EU to the UK.”

Clearly, the Coalition Agreement overtook these previous texts, but Theresa May and Chris Grayling have both stated during this Parliament that the ECJ's role would likely feature in any future EU renegotiation. On 16 July 2013, as we set out here, Theresa May was quite explicit:

"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"

So it was a surprise that Theresa May writing in the Sunday Telegraph on 9 November did not restate this position. The question is whether we should read anything into this, but as the smoke clears it remains to be seen whether a majority Conservative Government would 'let matters rest'.

The UK government is desperate to strengthen the role of national Parliaments in Europe - but can't get its own house in order

The Government - particularly the Tory wing of it - talks a very good game on the urgent need to strengthen the role of national parliaments in EU decision-making.

The UK Government (rightly) wants to negotiate a "red card" for national parliaments for example, giving them a chance to pull the democratic brake on EU proposals that go too far or aren't proportionate. It has also talked about various other ways to strengthen the role of national parliaments and boosting scrutiny of EU laws in Westminster.

In his Bloomberg speech, David Cameron called for a "bigger and more significant role for national Parliaments" adding:

"It is national parliaments, which are, and will remain, the true source of real democratic legitimacy and accountability in the EU. It is to the Bundestag that Angela Merkel has to answer. It is through the Greek Parliament that Antonis Samaras has to pass his government’s austerity measures. It is to the British Parliament that I must account on the EU...Those are the Parliaments which instil proper respect - even fear - into national leaders."

Well, the Government has just failed by its own standard - and badly.

As we pointed out this morning, despite the controversy surrounding the European Arrest Warrant, it was not explicitly included in the motion MPs will be voting on later tonight concerning the Government's opt-in to 35 EU crime and policing measures. The reason is that the EAW has already been transposed into UK law, unlike 11 of the full list of 35 measures the UK is opting back into which will require secondary legislation - these 11 are the only measures listed in the Government's motion.

This has provoked a storm of protest this afternoon including an extraordinary rebuke from the Speaker and MPs on all sides of the house:

Bercow in strongest attack yet on Govt over European arrest warrant vote: 'People are frankly contemptuous of what's not straight dealing'
— James Chapman (Mail) (@jameschappers) November 10, 2014

You know it's a bad day in the office when you've managed to unite both Bill Cash and Yvette Cooper against you...
— Sophy Ridge (@SophyRidgeSky) November 10, 2014

Now Keith Vaz denouncing shambolic attempt to get EU Arrest Warrant thru. & Ming Campbell calling for debate to be pulled
— Mark D'Arcy (@DArcyTiP) November 10, 2014

Can't believe Theresa "Competence" May has made such a mess of this EU Arrest Warrant debate. "Crooked wood," says Rees-Mogg.
— John Rentoul (@JohnRentoul) November 10, 2014

The Government had on several occasions committed itself to holding a vote on the EAW - although it was always likely to  be part of a package, and this is what most people were understandably expecting to take place today.

Following an Open Europe campaign for MPs to have a vote on the original decision to take the block opt-out which they were ultimately granted, in a subsequent letter to the Chairmen of the European Scrutiny, Home Affairs and Justice Committees of the House dated 31 January 2014, Theresa May and Chris Grayling said that:

“The Government will hold a second vote on the final list of measures we will formally apply to rejoin.”

This was seemingly confirmed by David Cameron himself during PMQs a couple of weeks ago when Ed Miliband challenged him on dodging a vote on the EAW due to opposition within his own party, and he responded that:

"There's only one problem with his second question. Which is we are going to have a vote, we're going to have it before the Rochester by-election. His questions have just collapsed."

To which Miliband replied that:

"All I can say is I look forward to us walking through the lobby together to vote for the European Arrest Warrant, two parties working together in the national interest."

It is hard to see why - given it stood to win any vote by a healthy majority given Labour's support - the Government has decided to ensure that the EAW was not mentioned in today's motion - one reason could be that today's motion is not amendable. Had a more wide ranging motion been put forward, MPs might have used this as an opportunity to force a vote on an amendment.

However, the European Arrest Warrant (and many of the other 35 measures) encapsulates the very sensitive balance between civil liberties and democracy, on the one hand, and security, on the other, and it is exactly the type of issue that should be settled by a democratic vote in Parliament. Indeed, as we argued way back in 2010 when the European Union Act was making its way through Parliament:

"Policing, crime, immigration and asylum are issues are hugely politically sensitive and any decisions to sign up to new EU laws in these areas need to be thoroughly debated and democratically accountable. This should be Parliament's job.

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

Most importantly, European judges will have the final say over any law that the UK Government decides to opt in to. By definition, this is a transfer of powers. In other words, it's a zero-sum game: every new justice or policing law the Government signs up to gives more power to the EU institutions at the expense of MPs, Parliament and the British courts. This is a big decision, which currently rests solely on Government Ministers' discretion.

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

It is hard to comprehend how the Government has contrived to create this problem for itself. And it is a very sorry state affairs indeed if a Government is able to say to Parliament 'whatever this motion says, you are actually voting on X'. This episode will only further undermine public faith in politicians and parliament.

And it does not inspire confidence in the Tories' wider renegotiation agenda.

Are MPs actually being given a vote on the European Arrest Warrant?

Today it is widely reported that MPs will vote on the Government's plans to opt back into the European Arrest Warrant. In fact reading the Home Secretary in the Sunday Telegraph you would think that she believed that as well.

However a close reading of the actual motion leaves her contention in some doubt. Here it is:

Secretary Theresa May That the draft Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014, which were laid before this House on 3 November, be approved.

Well the Government's Explanatory memo  to the regulations mentions only 11 out of the 35 measures the Government proposes to opt into actually require legislation - the warrant not being one of them.

This will undoubtedly be brought up in the debate and why exactly it has been omitted is unclear (perhaps because motions on legislation are unamendable). However, many MPs will argue that it contradicts assurances given to them over a long period and sets a bad precedent.

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.

See you in Court: Should there be a referendum before the UK opts into the European Arrest Warrant?

Could another Rees-Mogg Judicial Review lead to a referendum?

Update 17:00:
The Spectator Coffee House blog is reporting the Conservative Chief Whip may be preparing MPs for a decision to stay out of the EAW. However the line from Number 10  is that they are still "in principle seeking to opt back in."
********
Before 1 December, MPs will vote on whether to accept the Coalition's decision to opt back in to around 35 EU Crime and Policing laws and, for the first time, accept the jurisdiction of the European Court of Justice - or stay out completely. As we have written before, the choice is a straight one between "more or less EU control over UK crime and policing."

But this flagship Coalition EU policy may fly in the face of another - the European Union (Referendum) Act 2011 - which was supposed to give the British people the final say on the transfer of powers to the EU. So why are we not going to see a referendum? Well as this decision was already in the pipeline, it was excluded when the Government drafted its legislation. However, other areas such as participation in the European Public Prosecutor would definitely require a referendum.

This division will now be tested in the Courts courtesy of a judicial review by Jacob Rees-Mogg MP and UKIP treasurer Stuart Wheeler who believe that not only does the decision to opt-in to the European Arrest Warrant require a referendum, but the EAW also contravenes Magna Carta and Habeas Corpus. [It is worth remembering that Rees-Mogg's father and Stuart Wheeler have both previously brought legal actions against ceding of power to the EU]. As a legal opinion, commissioned by the Freedom Association, points out there are a number of serious problems including:

“With regard to the question of whether the UK’s opt-out from the jurisdiction of the European Public Prosecutor’s Office (EPPO) will be rendered ineffective owing to the ability of the EPPO to initiate the issue of an EAW and secure its execution in the UK, it is quite clear that it would."

It's unlikely that the Courts will side with the appeal, but in any case, it'll be interesting to follow what it has to say about it.

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.

Braveheart: Aspiration or reality? Alex Salmond claims Scotland could join the EU in 18 months

Aspiration or reality?

Alex Salmond has today claimed that an independent Scotland's (iScotland) EU membership terms could "be finalised in 18 months" i.e by March 2016. There is an obvious political reason for wishing to play down the disruption caused by Scotland leaving the United Kingdom - Alex would not want to scare the Scottish horses - but even by the standards of political rhetoric this is quite a claim. Here is how it might or might not work.

Gordon Brown's is the only 
Scottish signature on the EU Treaties

We have explained before that an independent Scotland would have to rejoin the EU. For although Scotland is within the EU it is the UK that is the signatory to the Treaties - above the most recent UK signatory (Gordon Brown's) it clearly states "United Kingdom". (If in doubt see the definitive legal opinion supplied to the Scottish Government by Former EU legal Counsel Jean-Claude Piris here). So it is clear that an iScotland would have to join  (not even re-join) the EU. So how long would that take?

Well a lot more than 18 months if history is a guide. We have set it out before here but in brief Scotland would need to apply for EU membership, be independent to apply and then complete 35 chapters of accession negotiations. Once the Commission has cleared Scotland through that phase, Scotland would still need the unanimous approval of all 28 EU states (inc rUK) and the European Parliament's approval. This leaves a lot of unanswered questions. We have set some of them out here and again here but here is a recap of the more serious problems:

All in 18 Months?

1. Gain an opt-out from the Euro + Schengen border controls: All EU accession negotiations are based on accepting the full treaties. In iScotland's case Alex Salmond will come to the table asking for a UK-style opt-out from the euro, justice and policing laws and Schengen and the a share of the current UK rebate. These are all in the main body of the treaties. Without them iScotland would have passport controls on the English border, have to comply with rules governing the eurozone and be signed up to a growing body of EU criminal laws. Some EU members will object or want something in return.
2. Avoid a Spanish veto: Spain (and a number of other states listed in our table here) have an 'in principle' objection to secession. As Scotland would require their agreement to join this is a real problem, while not unsolvable has the potential to complicate matters. 
3. End negotiations with rUK: If Scotland were to opt to become independent it would enter into a long and fraught negotiation with rUK over the mountain of UK debt, assets, oil, currency, defence, passports and a whole range of other complicated issues. While this is going on the rUK will have want and be entitled to ensure that its negotiations with Scotland take precedence over iScotland's negotiations with the EU.

So could this all be done in 18 months of the referendum? Well as with so much of the independence debate, the reality is that all we have at this point are lots of 'known unknowns' and it is fair to say that if Scotland does vote for independence there will be a large item in Alex Salmond's inbox labelled EU membership...

An independent Scotland's forthcoming EU negotiations

The SNP has today published its White Paper on an independent Scotland. Amongst its other analysis it sets out a strategy towards the EU. It has always been clear that if Scotland votes for independence there will need to be a negotiation with the rest of the UK on the terms for divorce, but it is now clear the SNP have an EU negotiating agenda too. Here are the main points:

Firstly, the SNP assume Scotland will remain in the EU and have a smooth transition from corporate UK membership to individual membership. They argue that "discussions [on EU accession] will be held during the period in which Scotland remains part of the UK". These discussions will have to take in the following points:

• A Schengen opt-out: The SNP says it  would "plan to continue in the current Common Travel Area" with the rest of the UK.  As signing up to the Schengen travel area is incompatible with the UK/Ireland CTA and Schengen is a part of the EU treaties this will need a negotiation.
• A Scottish EU Budget rebate: The UK is a net contributor to the EU budget, but would contribute even more if it had not secured a UK rebate. The SNP recognise that "Scotland is likely to be a net financial contributor to the EU" but state they wish to have their own rebate saying they "consider that the division of the share of the UK rebate would be a matter for negotiation". This would obviously be a difficult negotiation as it was for Mrs Thatcher at Fontainebleau.
• A Euro opt-out: The SNP state that it is "our intention to retain Sterling as the currency of an independent Scotland". As well as discussions with the rest of the UK, Scotland will ideally need to gain a permanent opt-out from the Euro. The UK and Denmark are the only two states to have such a permanent opt-out but the SNP argue that the case of Sweden (which is meant to join but shows no signs of joining) shows that the EU can be flexible.
• A Justice and Home Affairs opt-in: The UK has a special deal whereby it can chose to opt in to new JHA (justice and home affairs) measures on a case-by-case basis. The SNP have said that they "will seek to retain the current flexibility to opt into new measures on Justice and Home Affairs" meaning they will ask for their own ability to opt in.

So in an independent Scotland's EU accession negotiations, the SNP will be asking for a number of special conditions already afforded to the UK. Firstly they would like their application to be considered while they remain a part of the UK, something they will also need UK approval for. They will then be asking for opt-outs from Schengen, the Euro, a JHA opt-in and perhaps most controversially a Scottish rebate.

Will the EU be a big deal in the Scottish referendum? The SNP seem to think it might be and are keen to defend themselves from accusations they might inadvertently leave the EU. Indeed they argue that “if we remain part of the UK, a referendum on future British membership of the EU could see Scotland taken out of the EU against the wishes of the people of Scotland.”

It is often thought that Scotland is less 'eurosceptic' than the rest of the UK. But is this true? One YouGov poll for instance suggests that 31% of Scots would vote to leave the EU against the UK average of 34% and that 55% would vote to stay in if David Cameron renegotiated and recommended a new deal the same as the UK average. Perhaps the SNP feel that if they were left inside the EU without a 'Scottish' rebate and their own version of the UK's existing opt-outs they might see a challenge from a tartan version of UKIP?

So at a time when disillusion with the EU is growing in the UK, the SNP is, like the UK parties, keen to demonstrate they will not be ceding more (Scottish) power or money to the EU. They even accept that there are, as in the UK at large, some Scots "arguing for a looser form of partnership" with the EU.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[David Cameron MP Hansard 9 December 2002]

And then again:

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

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

[David Cameron MP Hansard 25 March 2003]

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

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

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

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

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

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

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.