Row alert: Germany and the Commission clash head on over EU migration

The European Commission isn't winning many popularity contests at the moment. The Italians are furious, and the Dutch aren't happy with it either. A recent Open Europe/Open Europe Berlin opinion poll showed that, out of 13 EU and national institutions, Germans trust the European Commission the least.

As we've noted previously, one now hears more rude things about the Commission in Berlin than in London. And sure enough, Germany is now heading for an almighty row with Brussels over EU migrants' access to benefits. 

EU Commissioner for Employment and Social Affairs, László Andor last week told Der Spiegel that migration to Germany from Bulgaria and Romania "only involves benefits for both sides." The fuss over access to benefits - and potential cost to the welfare state of EU migration - is overblown, claimed Andor.

German politicians have responded with an unusual degree of fury. The CDU/CSU faction’s spokesman for interior policy, Hans-Peter Uhl, labelled the claim “an outrageous denial of reality” and a “first-class frivolity.” In case people didn't get the message, he added that some Commissioners are as far removed from reality “as the moon from the earth” (which is about 384,000 km, so a considerable distance).

German Interior Minister Hans-Peter Friedrich also weighed in, telling Die Welt that

freedom of movement is not the freedom to change country because of higher benefits...The Commission needs to take this concern seriously.

Following a meeting of Interior Ministers this morning, interestingly, Friedrich has now demanded

a clear statement from the European Union whether we can send back those people who come to Germany to surreptitiously obtain benefits and also to prevent their re-entry

There are similar noises coming out of the Netherlands - and of course the UK. Issues related to free movement of persons are on Interior Ministers' agenda this afternoon. Expect this one to run and run.

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?

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.

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.

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.

Cameron needs credibility on Europe – here are two things he can do immediately to get it

Over on Conservative Home, we argue, 

The Coalition has already done some good work on the EU, the ‘referendum lock’ and the recently launched ‘audit’ of the EU’s influence on the UK to name two. However, the constraints of coalition government have tested the loyalties of Conservative MPs, party members and potential voters who wish to see substantial changes to the UK’s EU membership terms. As a result, Europe could damage the electoral coalition the Conservatives need to muster in order to win an outright victory. This is borne out by recent polling by Lord Ashcroft, which shows that 10% of Conservative voters say they would now vote for UKIP. Of course this may not happen, those who say they will vote UKIP may, when it comes to it, vote to keep the Labour party out. But it would be foolish to advocate complacency, not least as this also links to general trust in politicians. So what can be done?

Some talk of deals with UKIP, some talk of promises of a referendum, some talk of the need for a better defined Conservative vision for a post-2015 Government. These proposals all have specific problems and one major problem: Credibility. Would anyone (including in the first instance UKIP-inclined voters) believe them? Increasingly, the answer is no.

For this group of the electorate and party base, the Conservatives’ credibility on Europe has been hit by a series of forced and unforced errors. Whether perceived or real, the overselling of the Lisbon Treaty ‘cast iron’ guarantee, the revelations that before the election David Cameron’s policies may have been framed with Coalition in mind, the CCHQ prohibition on candidates campaigning on Europe, the opting in to EU crime and policing laws, lecturing the French and Germans on the need to create a Fiscal Union and now Cameron ruling out forever leaving the EU, all chip away at his credibility. In short, Cameron could promise to spend every waking moment committed to achieving new, improved EU membership terms, jump over the EU parapet, look back, and see his troops have opted to stay in the trenches.

Fortunately for David Cameron he has two great opportunities to address these concerns and reassure the electorate he means business, two opportunities where he can either act unilaterally or use a veto. Importantly both these opportunities come before the next election.

Firstly, David Cameron should use a quirk of the Lisbon Treaty to activate the 2014 block opt-out and repatriate around 130 EU crime and policing laws, rather than allowing them to fall under the jurisdiction of the European Court of Justice. He should then avoid squandering this gain by resisting pressure from within the coalition to opt back into them piecemeal. He should instead argue for either a better deal, under which the European Court has no jurisdiction in the UK over criminal law, or stay outside permanently.

Secondly, the UK should demand root and branch reform of EU regional policy, repatriating responsibility for regional funding to the UK and other richer member states. Limiting EU-managed regional funds to poorer countries would mean that 23 out of 27 EU countries pay less into the EU budget than at present, saving the UK £4bn net over seven years (in addition to the £8.7bn it currently gets back through the EU regional funds). This is achievable but Cameron must make it clear that he is prepared to veto the next multi-year EU budget, currently up for negotiation, in order to make this demand more credible.

These two measures would achieve several objectives simultaneously – a reduced EU budget contribution, repatriation of two areas of power from Brussels and limiting the powers of the EU judges – an early opportunity to get some ‘balls in the net’. If Cameron takes these two opportunities, this would be a substantial down payment for future electoral credibility which he will need when he promises a wider renegotiation with the EU. Without it, any future manifesto promise may be skilfully crafted but will not sway many voters’ minds.

 

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.

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.

Go local

Today we publish a report, written by ex-head of Policy Exchange Anthony Browne and our Director Mats Persson, suggesting a fresh EU strategy for the UK government - European localism. In yesterday's Sunday Times, we trailed the piece, arguing:

"closer union cannot continue for ever. In some ways the EU is already more centralised than a country — individual American states have more freedom over sales tax than do EU members. And what was right 50 years ago is not necessarily right now. When challenges change, so should institutions.

The euro crisis has tested to destruction the principle of ever closer union — its momentum required Greece to join the euro when it was not ready, directly leading to turmoil. As the crisis has unfolded, the debate has moved to an existential question: what kind of Europe do Europeans want?"

We go on to say:

"Popular support for the EU has plummeted even in the countries that were once most supportive and national parliaments have grown restive because their powers are being usurped. The euro crisis is also forcing Europe to develop a more variable approach to co-operation, with countries integrating at different speeds.

The EU is ripe for change and this presents Britain with an opportunity to push forward its own strategy — which we call European localism. Since it joined in 1973 Britain has never shared the strategic vision of ever closer union, but nor has it had an alternative strategy of its own. As a result it has remained disengaged from Brussels, focusing on defensive tactics limiting the perceived damage of European legislation, rather than trying to steer the direction of the EU. This is an unsatisfactory position."

But, we argue, in the wake of the crisis,

"Britain can position itself as the champion of European localism, taking the principles and rhetoric of localism widely endorsed at a national level and applying them at a European level. The same arguments apply: if you devolve where possible and centralise only where necessary, you get better democratic engagement, more flexibility and better policy making."

As we note in our press release, in terms of concrete proposals, this would include:

• Parliament should be given the right to approve the UK appointment of judges to the European Court of Justice, to hear their views on European integration, just as Congress approves presidential appointments to the Supreme Court in the US;

• The Government should consider taking the European Commission to the European Court of Justice for breaches of subsidiarity, the legal principle underpinning localism that is now enshrined as a founding principle of the EU in the Lisbon Treaty;

• The role of national parliaments should be strengthened by a new “red card” mechanism, whereby if two thirds – or in particularly sensitive areas, half – of national parliaments express concerns about EU legislation or European Court of Justice rulings, then the EU would have to abandon legislation or overturn the ruling;

• The UK Parliament should work with other national parliaments to set up an “Inter-parliamentary Task Force on Localism”, acting independently from EU institutions, to ensure that the EU does not involve itself in issues that should be left to national governments;

• A new mechanism should be introduced enabling member states to repatriate powers over certain policy areas, even if all 27 countries do not want to do so, resulting in a variable, more democratic Europe where powers can flow both to and from Brussels;

• The Government should use its legal rights under the Lisbon Treaty to unilaterally repatriate up to 90 Justice and Home Affairs laws, and should prioritise other areas where it wants to repatriate powers;

• The Government should subject all significant EU proposals to a robust subsidiarity test, and should hold the European Commission to account for rejecting parliament’s complaints about breaches of the subsidiarity principle;

• The Government should lobby for a new European Subsidiarity Court, to uphold breaches of subsidiarity;

• The Foreign Office should set up a ‘European Localism Unit’ to drive the localism agenda across Whitehall departments affected by the EU;

• Form a ‘localism bloc’ of like-minded EU nations, starting with a conference in London.

As we conclude in the Sunday Times piece, This "is a strategy that should command wide cross-party support in Britain and enable us at last to engage fully in the EU."

This Government cannot be trusted on EU crime and policing

The torrent of EU justice, police and immigration laws keeps on coming and the Government keeps on signing up to them.

Home Office Minister James Brokenshire today told the House of Commons that the UK has opted in to the EU's cyber-crime directive. Now leaving aside the merits or drawbacks of the new law in question, this decision demonstrates the complete lack of democratic accountability that we've been highlighting over the past weeks and why we've been pushing for MPs and the public to be given more power under the EU Bill.

Not only did MPs not get to vote on whether the UK should sign up to this particular directive, the Government broke the European Scrutiny Committee's 'scrutiny reserve' to do so. MPs on the ESC considered the proposal late last year but did not clear it because they felt there were still questions for Ministers to answer about the plans. The directive sets "a maximum term of imprisonment of at least five years" for certain cyber-crime offences.

But there is another technical but hugely significant point. We've explained before that in 2014 the UK has the right to opt out of around 90-100 EU policing laws that came into force before the Lisbon Treaty took effect. On the other hand, if the Government decides to remain opted in, these laws will fall under the full jurisdiction of the European Court of Justice for the first time. The Government has said it will put this hugely important decision to a vote in both Houses of Parliament - something that we welcome.

However, the directive the Government opted in to today 'repeals and replaces' a pre-Lisbon law, meaning that there is now one less EU law the UK can opt out of in 2014. It also means that the Government has today handed jurisdiction over the area of cyber-crime from the UK courts to the ECJ. And all without Parliamentary debate or approval.

The Minister said that by giving an oral statement to the House he was acting in the spirit of Parliamentary scrutiny but this is, quite frankly, nonsense. What use is scrutiny after the event? The Government has made a decision and there's nothing anyone can do about it. Today's statement was just to put that fact on record.

Last month, Europe Minister David Lidington made a statement committing the Government to observe Parliamentary scrutiny and give MPs more opportunity to have a say on EU justice and home affairs opt ins. On today's evidence it doesn't seem the Home Office got the message.

To make matters worse, the Government also looks set to opt in to the EU's plans to make the telephone numbers, addresses, credit card numbers, email and other details of British air travellers available on demand to police forces across Europe. The Commission's current proposal covers flights between EU and third countries but, not satisfied with this, the Coalition wants the proposal stretched further to cover data collected on all flights within the EU as well.

MPs have again been sidelined and the Government is fast losing any trust that Lidington has been seeking to build on this issue.

Which MPs will stand up and be counted on the EU referendum lock?

The Government's EU Bill returns to Parliament next week, with MPs considering amendments to the 'referendum lock'.

At the moment there is no democratic control over which EU crime, justice and immigration laws apply to the UK – neither MPs nor the electorate have a say over these decisions, only the Government. With a new briefing published today, we have stepped up our campaign to see the Bill amended to give Parliament, and in some cases voters, a say over whether Ministers sign up to these laws.

The crux of the matter is that next week MPs have the chance to give themselves increased power over the Government, allowing them to debate and approve these hugely important EU laws that will have an impact on their voters.

And there is another hugely significant issue here.

Before 2014, the Government has to decide whether existing EU crime and policing laws (those introduced before the Lisbon Treaty came into force late 2009) continue to apply to the UK. If they continue to apply they fall under the full jurisdiction of EU judges at the ECJ.

This is a massive 'more or less EU' decision that should not be left entirely up to the Government, which it would be under the current Bill. This should be decided by the people or, failing that, Parliament.

Do MPs really want to explain to their constituents that they passed up on the opportunity to have a vote on EU crime or police laws such as the European Arrest Warrant agreed in 2002, which has seen numerous Britons extradited to other European countries on spurious charges?

These are laws that have a direct, and sometimes costly, impact on people's lives - this is no time for MPs to duck the question.

The EU in 2011

For those of you who can't wait to see what 2011 has in store for European politics, Open Europe has published a briefing looking at the issues facing the EU - and most importantly the eurozone - next year. Read it here.

Let's put it like this: EU leaders better be ready to hit the New Year running...

News just in

Home Secretary Theresa May has just announced to the House of Commons that the UK has decided to opt in to negotiations on the European Investigation Order (EIO). It will give foreign police forces the right to request UK police to seek and share evidence on suspects. This clearly poses fundamental questions about safeguards for civil liberties and the new pressures it will place on police resources.

Let us first give May some credit for giving a statement in person and allowing questions to be put to her rather than issuing a mere written statement (She has done good work on parliamentary scrutiny of EU issues in the past). However, it should also be said that MPs have not previously had the chance to scrutinise the proposal either in the European Scrutiny Committee or in the House.

The truth is that, although May did her best to push the 'nothing to see here line', the Government cannot guarantee how the final directive will look until after negotiations with other member states and MEPs in the European Parliament, which under the Lisbon Treaty now have powers to co-decide in justice and home affairs.

May said that signing up to the directive did not present a loss of sovereignty. But John Redwood made the valid and important point that if the UK doesn't have the ability (which it doesn't) to opt out of the European Investigation Order if it ends up as something "different to what was advertised" after negotiations then this must imply a loss of sovereignty.

The Home Secretary admitted today that there are aspects of the current proposal the Government does not like. This will now be decided by qualified majority voting, meaning the UK is powerless to veto the EIO either if these unwanted elements are retained or if new and unforeseen amendments are added along the way.

This is not to mention the fact that, as a result of Lisbon, the European Court of Justice will have the power to make rulings on how the EIO is interpreted in the UK.

Given this Government's pledges to protect civil liberties and reduce bureaucracy in public services, such as the police, this is surely too big a gamble to take.

What would a Lib Dem government do about Ian Bailey?

The Lib Dems' recent rise is rightly leading to closer scrutiny of the party's policies. Their support for the UK entering the euro, was correctly described as "folly" by the Sunday Times. If it wasn't right to join the euro when the UK was experiencing higher growth in comparison to the eurozone, and if you're willing to admit that the current eurozone interest rates would have hurt the UK's recovery (as Clegg has recently), then when would it ever be right to join? The Lib Dems' answer, "In the long-term", is simply not good enough from a party that wants to govern the country.

But another area that has received far less scrutiny and attention is the Lib Dems' commitment to further EU cooperation on crime, justice and policing. This is extremely important because, under Lisbon, this is the area of EU policymaking that is likely to grow fastest. And for a practical example of why this is all important, we need look no further than a story reported in yesterday's Independent, and today in the Irish Times.

Ian Bailey, a British former journalist suspected in connection, but not charged, with the murder of a French film-maker in Ireland 14 years ago, has been detained by the Irish authorities under a European Arrest Warrant issued by a French judge. French lawyers argue that they have jurisdiction over the case, citing the French constitution which states that murder cases involving French citizens in any part of the world can be brought in front of French courts.

But, as Carol Coulter, the Irish Times' legal editor, points out, the Irish Director of Public Prosecutions decided not to prosecute Bailey for the murder. Therefore, in practice, the French extradition request amounts to a breach of the double jeopordy principle, enshrined in the European Convention on Human Rights (ECHR), as well as the Irish Constitution.

We've pointed out some of the EAW's failings before, but this case could potentially prove to be a huge step in a very dangerous direction. If Bailey loses his fight against extradition, the Irish authorities will have deported someone, whom they believe did not have a case to answer under Irish law, to face charges in another country. Leaving aside whether Bailey is ever found guilty or not in the future, this simply cannot be right.

The Irish courts still have to decide whether to action the extradition request but it will be interesting to see how much pressure is put on them by the French government. And given that the French request effectively amounts to a vote of no confidence in the Irish legal and judicial system, what prospect does this man have for a fair trial in France? And doesn't the UK, given that Bailey is a British citizen, have a duty to point this out?

"Twenty years down the line, where will we be?"

Over the Bank Holiday weekend the Independent and the Telegraph both picked up on a lecture given by the aptly named Lord Chief of Justice, Lord Judge, last month, in which he warned of the growing influence of both the European Court of Human Rights (ECHR) in Strasbourg and the EU's European Court of Justice (ECJ) in Luxembourg. He concluded with a question that the Government has done everything it could to avoid: "Twenty years down the line, where will we be?"

Both papers chose to focus predominantly on his comments about the growing influence of judgements from the ECHR on the UK courts and how this poses a challenge to the UK's centuries old common law legal system. The answer, Lord Judge said, is to ensure "that statute ensures that the final word does not rest with Strasbourg, but with our Supreme Court."

The ECHR falls outside the realm of the EU, although, under the Lisbon Treaty, the EU as a whole formally acceded to the European Convention of Human Rights, which the Strasbourg court was established to uphold. And Lord Judge made some very interesting comments regarding this and the EU's growing role in UK criminal law more generally. They are worth repeating here as they went largely unreported at the weekend.

Lord Judge's first point was that "the [EU's] European Court of Justice is beginning to acquire jurisdiction over matters that would normally be regarded as matters not for Luxembourg but for Strasbourg."

He didn't expand much on this but it is an interesting point to watch in the future as there are clearly concerns that, with the EU acceding to the Convention, the remits of both courts has become blurred, with a risk of ECJ mission creep. The first practical example to which Lord Judge refers is that, "The EU has recently signed up to what is called a 'roadmap' of five areas of criminal procedure which must be addressed within the next 5 years to protect and guarantee the rights of EU citizens. I thought that was the job of the Convention."

It also raises difficult questions for the UK specifically, which can 'opt out' of much of the EU's new criminal legislation under the Lisbon Treaty but at the same time remains a signatory of the Convention of Human Rights - although David Cameron has said that he wants to review the Convention's impact on the UK. How will this work in practice, which will take precedence?

The second major point is that "The Treaty of Lisbon has brought criminal justice matters to the core of the EU and with it the jurisdiction of the Luxembourg court." This means that if the UK does opt in to new EU justice and home affairs legislation "decisions of the Luxembourg court on issues arising out of the Treaty of Lisbon, even to the extent that they involve criminal matters, would become binding on us all."

He concludes, "the development of the European Union, and the extended jurisdiction of the European court in criminal matters, will have a significant impact domestically. Twenty years down the line, where will we be?"

This is not just an interesting question but a very important one. You'd have hoped that it had been debated and answered long before the Government signed the Lisbon Treaty.

The rise of the EU's surveillance state

We've written an article for the Guardian's Comment is Free looking at the themes in our latest report on the EU's surveillance state and the Government's complicit role in its rise.

Click the link below to have a read:
http://www.guardian.co.uk/commentisfree/libertycentral/2009/nov/02/europe-surveillance-state

EU're (sorry - couldn't resist) being watched

We've published a new briefing today, called "How the EU is watching you: the rise of Europe's surveillance state", looking at the growing impact the EU is having on civil liberties. Click here to read the press release.

There are lots of juicy proposals in the pipeline including: a target to train a third of all police officers across the EU in a “common culture” of policing; the mass collection and sharing of personal data including DNA records into an EU-wide database; controversial surveillance techniques including ‘cyber patrols’; the creation of a fledgling ‘EU Home Office’ with powers to decide on cooperation on police, border, immigration and criminal justice issues; an EU “master plan” on information exchange; the transfer of criminal proceedings among EU member states; a three-fold increase in the number of controversial EU arrest warrants; access to other member states’ national tax databases; and EU laws on citizens’ right to internet access.

The Lisbon Treaty's ratification, which is looking increasingly imminent, will see the amount and scope of EU justice and home affairs legislation increase further. National governments will lose their veto, while the European Court of Justice will be given the power to overrule national courts in this area for the first time.

It is however also important to understand the role the UK Government has played in the growth of the EU's policies in this field. It was the UK, for instance, that pushed the EU's Data Retention Directive, which requires telecoms companies to store information regarding every phone call we make, or text message and email we send.

I guess the EU and the Government could argue they are finally "listening to" their citizens, but this isn't quite what we had in mind.

Wasting no time...

If you're curious about what the Lisbon Treaty will mean for Justice and Home affairs in the EU, you should look closely at the so-called Stockholm Programme - a slew of proposals for more integration in areas such as asylum policy, data sharing, policing and other sensitive policies, traditionally reserved for the national governments.

It's hard to know exactly what the Stockholm Programme will look like for two reasons: First, it's huge, with proposals ranging from a European surveillance and security system (including ID card register and Internet surveillance) to a common asylum policy. Secondly, in trade-mark EU fashion, it's being negotiated behind closed doors, making it difficult for us common folk to know what in the world is going on. Quite apart from the merits or drawbacks of these proposals (the surveillance and datasharing parts no doubt sound awfully Orwellian - as we've argued before), it's fair to say that this is contentious stuff.

And those in charge have wasted little time to take advantage of the Lisbon Treaty, which scraps national vetoes in a range of areas of justice and home affairs, and massively extends the EU's competencies in this area. Even though the Treaty has not been ratified yet, the Swedish Presidency has made it no secret that they intend to raise the ambition of the Stockholm Programme under the Treaty.

Anders Hall, key aid to Swedish Justice Minister Beatrice Ask, has said that the Commission's proposals in this area have been "too modest", given that the EU will soon operate under Lisbon Treaty rules. He said: "Given that the Stockholm Programme will now be carried out in a Lisbon-context, the level of ambition will increase to a certain extent. But exactly how this will play out is unclear as talks and negotiations are currently taking place between the member states."

These people are wasting absolutely no time in ploughing ahead with the Lisbon provisions, even in areas that strike at the very heart of national democracy. Is anyone paying attention?

Hat tip: Swedish blogger HAX