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.