Theresa May’s opt-out mess

Stephen Booth of Open Europe was alone in defending the UK government’s plan to opt out of 130 EU police and judicial measure at a Law Society debate last week. Even he pointed to the list of 60 measures of ‘practical value’ to the UK compiled by prominent Tory eurosceptic Dominic Raab. These include the instruments governing Europol, Eurojust and even the oft-maligned European Arrest Warrant.

Professor John Spencer, author of a Cambridge University paper on this topic, hit back at some of the arguments being made in favour of the opt out. He first pointed to the letter to the Telegraphin January 2012, signed by 102 Tory MPs and calling for a mass opt out. Of the three measures mentioned in the letter – the European Public Prosecutor, the European Investigation Order and the European Arrest Warrant – only the third is even covered by the opt out. The European Public Prosecutor does not yet exist, and its sole role would be to investigate potential fraud and misuse of EU funds, something Tory eurosceptics would surely favour. Meanwhile, the UK has already chosen to opt in to the European Investigation Order in July 2010, under Theresa May. This shows the level of misunderstanding and wilful ignorance about the issue amongst the Tory MPs calling for the opt out.

Spencer stressed that concerns about the European Court of Justice gaining jurisdiction over these 130 measures were largely unfounded. Firstly, the measures relate to practical police and judicial cooperation and minimum legal standards: there is no scope for the ECJ to pursue some sort of secret EU integrationist agenda. Moreover, he described the idea that the Commission and ECJ were seeking a pan-European criminal code as simply another ‘euromyth’ peddled by the sensationalist media, as EU judicial cooperation is based on mutual recognition of different legal systems. If anything, the ECJ will serve to enforce and raise minimum standards across the EU to be in line with those already in place in the UK.

He also ridiculed the idea that a mass opt-out will somehow restore British sovereignty. All police and judicial cooperation measures introduced after the Lisbon Treaty in 2009 are already under the jurisdiction of the ECJ, and the same will be the case for any pre-Lisbon measures the UK chooses to opt back into. A better reason to exercise the opt out in his view could be to get rid of measures that are outdated and useless but measures which are useless are by definition harmless. He therefore believed that the real motivation behind the opt out was ideological; many eurosceptics see the opt out as a first step to an eventual EU exit.

This sentiment was echoed by Bill Hughes, former Director General of Britain’s Serious Organised Crime Agency. He said the UK has played a leading role in establishing police cooperation including Europol, which helps in the fight against organised crime and terrorism. However, he stressed that many of his former European partners are concerned about the UK opt out, and consider the proposed ‘cherry-picking’ approach to be arrogant and rude. He added that while contingency plans are being “cobbled together” to cover the transitional period before the UK opts back in to certain measures, it will be difficult to create workable solutions for police cooperation. The UK therefore risks becoming a “hole in the wall” in the EU’s crime fighting architecture, allowing criminals to take full advantage.

Jodie Blackstock from campaigning group Justice, and Catherine Heard from Fair Trials International, admitted that the European Arrest Warrant is far from perfect, but the priority should be reforming it to make its use more proportional and fair. The government should actively support measures such as the European Supervision Order, which will allows defendants to be bailed in their own countries, and the UK should help raise judicial standards and defence rights across the EU such as access to a lawyer and free translation services.

Overall, the panellists reinforced the view that the mass opt out is simply being used as a way to satisfy Europhobic backbenchers and counter the electoral threat from UKIP by creating the impression that the government is repatriating powers from Brussels. In reality, the only ones who will gain are organised criminals and terrorists.

Nucleus 2nd December 2012

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