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Britain's 2014 Justice Opt-Out Why It Bodes Ill for Cameron's EU Strategy

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Britain's 2014 Justice Opt-Out Why It Bodes Ill for Cameron's EU Strategy January 2013 Britain’s 2014 justice opt-out Why it bodes ill for Cameron’s EU strategy By Hugo Brady Britain’s 2014 justice opt-out: Why it bodes ill for Cameron’s EU strategy By Hugo Brady Britain has informed the rest of the EU that it is likely to pull out of most European crime and policing co-operation by 2014. This ‘block opt-out’ from EU criminal justice policy is allowed for under the Lisbon treaty. UK policy-makers want to remain part of specific elements of EU police and justice co-operation that are important for Britain’s security while disregarding the rest. However, the European Commission and other member-states may not co-operate in this ‘cherry-picking’ exercise. Eurosceptics argue that the price for Britain of opting out from most EU criminal justice policy would be negligible. But they have made critical errors of analysis. These cast into doubt not only the move itself but the overall Conservative strategy to repatriate powers from Brussels to Westminster. Britain’s Home Secretary, Theresa May, dismayed her EU counterparts in October 2012 when she announced that the UK is “minded” to leave most forms of European police and justice co- operation. The Lisbon treaty states that in 2014 the UK must accept the authority of the European Court of Justice (ECJ) over 130 existing agreements covering EU police and judicial co-operation – or opt out of all of them. Although the British government will take the final decision, members of parliament will also get a say on the matter in 2013 as it has important implications for the country’s wider relationship with the EU. Partly because of the parliamentary vote, most political Conservative-Liberal Democrat coalition government, observers in the UK see the ‘block opt-out’ as inevitable. concluding in the autumn of 2014. The review is seen as Prime Minister David Cameron needs to appease a an important step in the Conservative strategy to identify thoroughly eurosceptic Conservative party.1 And his other policy areas – for example, social policy – that could government’s European policy is focused on limiting serve as the basis for a future renegotiation of Britain’s the UK’s ‘exposure’ to EU integration and on repatriating membership of the EU. powers from Brussels. Cameron has since reiterated this stance publicly, including in a major speech on Britain’s The debate over the block opt-out and the conduct of relationship with the rest of Europe in January 2013.2 the competence review are separate from each other. But if the government uses the opt-out, this would be Whitehall officials are also in the early stages of a ‘balance the first ever transfer of sovereignty back to Britain from of competences’ review, a government audit of Britain’s the EU. Hence it is a test case for any future attempt at EU membership, which is set to report in stages to the repatriating powers from Brussels. 1: See Hugo Brady, ‘Cameron’s European ‘own goal’: Leaving EU police 2: David Cameron, ‘EU speech at Bloomberg’, January 23rd 2013. and justice co-operation’, CER policy brief, October 2012. BRITAIN’S 2014 JUSTICE opt-out: WHY IT BODES ILL FOR CAMERON’S EU STRATEGY January 2013 1 [email protected] | WWW.CER.ORG.UK An overview of the block opt-out decision Britain’s option for a block opt-out from most EU crime and policing policy was negotiated as part of the Lisbon treaty in 2007. EU co-operation in these areas is based on approximately 130 ‘justice and home affairs’ (JHA) agreements. Most of these are currently inter-governmental ‘framework decisions’ and cover how police, prosecutors and courts across the EU should co-operate to investigate crime, organise extraditions, share criminal records and exchange evidence. However, the Lisbon treaty allows the ECJ to treat such decisions in the same manner as single market regulation from December 2014 onwards. This means that, for the first time, the European Commission will be able to take to court those countries which fail to implement police and justice decisions made collectively by EU interior and justice ministries. And judges in the ECJ can ensure that these decisions are evenly applied throughout the EU by fining those countries which do not comply and handing down legal advice to national courts. Alone among the larger EU members, Britain uses ‘common law’ to hear criminal cases, a type of legal system where the defence and prosecution argue out criminal cases before a neutral judge and jury. EU countries have previously accepted that common law jurisdictions – principally those in Britain and Ireland – are distinct in nature from the legal systems in the rest of Europe. Hence the Lisbon treaty allows these two countries to opt in to any new EU law governing cross-border police or judicial co-operation on a case-by-case basis. This concession still leaves open the question as to what impact the large body of framework decisions, already in place before the Lisbon treaty, will have on the UK and Ireland once they become enforceable by the ECJ after 2014. This is the reason that Britain sought an additional insurance policy for itself during the 2007 treaty negotiation: the option to leave all EU criminal justice measures agreed prior to the Lisbon reforms before they become binding EU legislation. Ireland, Cyprus and Malta – the other EU countries which use common law to a greater or lesser extent – did not press for this option but rather accepted the ECJ’s new role without reservation. Now the UK government must inform other member-states what it wishes to do before June 1st 2014, six months before ECJ jurisdiction is formally extended to police and judicial co-operation. The block opt-out only covers those EU police and criminal justice agreements concluded before 2010. Britain will remain party to JHA legislation agreed since then and can continue to opt in to new measures on a case by case basis. For example, in July 2010, the UK opted in to the European investigation order (EIO), a highly ambitious piece of EU legislation aimed at changing how cross-border police investigations are conducted. This will not be affected by the 2014 decision. The reaction to the block opt-out Theresa May’s October announcement has caused re-join a few forms of co-operation like the arrest warrant widespread frustration in Brussels and in national capitals. and the exchange of criminal records across borders This matters because, although Britain has the legal between national justice systems. Police in the UK say that right to use the block opt-out, it needs the goodwill of they need access to both of these in order to do their jobs other EU countries and the European Commission if it effectively, given that citizens of other member-states is to be allowed to opt back into certain elements of have the right to reside in Britain under EU single market police and judicial co-operation afterwards. Although rules. They also cite 11 other forms of EU law enforcement the Commission and other EU countries can decide co-operation that must be maintained after the block otherwise, there is no guarantee that the UK will have any opt-out. These include UK membership of Europol, further access to – amongst other things – the European the EU’s police office, and Eurojust, its unit of national arrest warrant (EAW), if the opt-out is exercised. The latter prosecutors, as well as legislation allowing EU countries has greatly simplified the transfer of criminal suspects to set up ‘joint investigation teams’. The latter greatly between EU member-states since 2003 and is the single reduces the amount of red tape involved in fighting crime most important piece of European legislation in the JHA across borders.4 policy field.3 The trouble for Britain is that the political context has Many national and European officials are hostile to the completely changed since 2007. Its use of the opt-out idea that, after triggering the block opt-out, Britain would is now seen by other member-states as a precursor to 3: The arrest warrant technically abolished international extradition 4: Evidence given by the Association of Chief Police Officers, ‘UK’s 2014 between EU countries altogether, replacing it with a new system opt-out decision (‘Protocol 36’) written evidence’, UK House of Lords, where member-states are expected to ‘surrender’ suspects to each December 13th 2012. other. BRITAIN’S 2014 JUSTICE opt-out: WHY IT BODES ILL FOR CAMERON’S EU STRATEGY January 2013 2 [email protected] | WWW.CER.ORG.UK a broader attempt to re-negotiate its EU membership, member-state would choose to leave a policy field where rather than an act of understandable prudence in a highly it has long been an important player. Officials in Brussels sensitive area. Senior officials say that the opt-out is “the and other national capitals are only beginning to puzzle elephant in the room” at JHA Council meetings of EU out the practical consequences of such a move, although interior and justice ministers. British officials are already most regard it as reckless and foolish. The block opt-out finding it harder to influence new policing and crime should be studied carefully by both Cameron’s Europe legislation under discussion. advisers and the UK Cabinet Office, which is leading the competence review. It clearly illuminates some of The 2014 opt-out is likely to be remembered as an act of the problems inherent in the government’s policy of diplomatic self-harm by the UK.
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