The revolving door of EU criminal justice – Jodie Blackstock

18 October 2012 by Guest Contributor

There has been much in the press recently about the UK Government being minded to opt out, and/or in, of EU criminal justice measures. The implications of this decision will be significant to the UK’s ability to investigate and prosecute crime. So what does it all mean?

Opting out of what?

The UK managed to negotiate the quite remarkable article 10 to protocol 36 of the Lisbon Treaty which allows for the UK to exercise a power that no other member state of the Union holds. The Lisbon Treaty finally incorporates EU criminal justice measures (which are referred to as the area of police and judicial cooperation in criminal matters) into the main body of treaty law.

In order to do so, it allowed a transitional period of five years (which expires in December 2014), at the end of which, all measures adopted under the earlier treaty provisions (in what was known as the third pillar) are ‘Lisbonised.’ What this means is they become directives rather than framework decisions (and various other equivalents). The difference between the two is that directives are enforceable before the Court of Justice of the European Union (CJEU) and decisions are not.

Over the course of the past ten or so years, some 130 measures have been adopted by the EU in this field. They range from organisational decisions concerning the establishment of Europol and Eurojust, to procedural decisions such as affording mutual recognition of judicial requests, like that provided in the European Arrest Warrant, or substantive law measures such as the framework decisions on combating terrorism, minimum constituent elements of acts and penalties in drug trafficking.

Some measures have been removed from the list because they have been replaced by amending directives brought after the Lisbon Treaty, such as the measure on combating sexual exploitation of children and child pornography. There has of course been an ongoing process of law making under the Lisbon Treaty for nearly three years. However, the UK also secured a separate option under the Lisbon Treaty arrangements to decide whether to opt into new measures in this field in Protocol 21. So again, enforcement powers can be avoided if measures do not appear to be in the UK’s interests. Whilst the UK has no vote on the adoption of the instrument, it seems acceptable for it to continue to negotiate on its passage through the EU Council and Parliament towards adoption so that if it manages to remove the offending clauses, we can opt in one it has been adopted.

What if the UK chooses to opt out of some but not all measures?

We must wholesale reject every pre-Lisbon measure in this field in one go, but can then seek the consent of the Council to opt back in to, in principle, as many as we like, individually, at any time. If any necessary and unavoidable costs are incurred by other member states as a consequence of our opting out, the UK must bear them. If we want to opt back in, there are different rules depending on the area of law. Where the opt in relates essentially to border controls, the Council has the deciding vote. If it is any other criminal justice measure falling under Title V of the Treaty in the area of freedom, security and justice, the Commission can set conditions of participation which if it thinks we have not fulfilled we can refer to the Council to act as final arbiter. In either scenario, the EU institutions should seek to re-establish the widest possible measure of participation of the UK in the field without affecting their practical operability or coherence. So it sounds like a pretty good arrangement (though a financial assessment of the likely costs seems a sensible idea).

What are the implications of opting out?

Well this is the interesting part which needs careful analysis. The UK is heavily engaged in cross border law enforcement operations as well as being a leader in procedural safeguards for both suspects and victims of crime, as a result of which it has invested much time, effort, research and negotiation into improving cross border crime detection and the rule of law in the EU. The UK is the host state of the European Police College, the current director of Europol and two former directors of Eurojust were British.

Europol is currently supporting 700 investigations of organised crime and terrorist networks in Europe; The UK is actively involved in over 200 of these. The UK is especially affected by many aspects of the organised crime threat in Europe, e.g. as a leading market for cocaine and heroin in Europe, a particular targeted destination for trafficked and smuggled people, and the UK’s financial institutions a particular target for cyber and fraud attacks.

The reality is that a significant number of these measures are operating to improve law enforcement capabilities across 300 police forces and 30 legal jurisdictions. If we remain out of all measures, the possibility of ensuring crime is swiftly investigated is much reduced. Whilst some commentators have suggested we can return to pre-EU measures and carry on as before, things have changed and this is not a simple exercise. Extradition can be organised through the Council of Europe 1957 Convention, but this would require decisions of Governments rather than judges, a role which the Home Secretary announced this week as something she did not wish to retain.

Furthermore, other mutual legal assistance conventions exist. However, none of these measures can supply what the EU measures can: equal parity with domestic investigations, speedy procedures, integrated systems such as the Schengen Information System which is used to transmit EAW requests and the European Criminal Records Information System. Moreover, many of these conventions are not in force, in part or in their entirety, in all member states, and may have been replaced by the EU rules. The UK would need to re-negotiate its law enforcement capabilities with 26 other countries.

If we decided to opt back in to some measures, which should we choose?

The measure which consistently gets the worst press is the European arrest warrant. It certainly has its problems, not least in ensuring an effective defence. But it is successful in ensuring there are no safe havens in the EU. Since UK nationals travel in the EU to live and work on a very regular basis, and EU citizens also make use of their visa free travel and work opportunities in the UK, there will be problems with ensuring we can collect criminals as well as not provide a safe haven for perpetrators of crime in other EU countries. A report from the Inter-Departmental Ministerial Group on Human Trafficking revealed on Thursday that numbers of trafficked people to the UK are rising. Of the top ten countries from which people are trafficked, three are in the EU (Romania, Slovakia and Czech Republic). In a letter to the Times, Anti-Slavery International point out the contradiction between the Government’s commitment to fighting trafficking and pulling out of EU crime fighting measures.

Furthermore, the UK has already opted into post-Lisbon measures concerning combating sexual exploitation of children, procedural safeguards for suspects and victims, and the ongoing negotiation of what will be the European investigation order; It will be an odd state of affairs if we are obliged to agree requests to assist with the investigation of crime from other EU member states, but not be able to carry out arrests, sentences or share information on antecedents.

It may seem odd for a human rights organisation to be making these observations. JUSTICE has been criticising the draconian nature of EU law enforcement powers since their inception. However, we would prefer reform of these measures rather than repeal. We want to see equality of arms for suspects of crime through effective judicial decision-making that recognises genuine reasons to refuse EU requests, and the introduction of less coercive measures for the investigation of crime. We also want to see the improvement of procedural rights across the EU and wonder what incentive the UK will have to continue on this programme if it doesn’t maintain the package of law enforcement measures to which they apply.

What is the UK so concerned about?

Other than the rallying cry to preserve sovereignty, the predominant concern would seem to be EU enforcement powers. The implicated measures are currently unenforceable, which is largely why most of them are under utilised. But with Commission powers to take proceedings to Luxembourg and the application of the preliminary reference procedure to clarify EU measures, the Government appears to be nervous that yet more sovereignty will be lost to the EU.

This concern needs to be put into perspective. The UK had a veto in the Council when each of these measures was passed and did not exercise it, which suggests that the impact upon existing UK law would be minimal, or welcome. Our implementation record is good and we make use of the measures we have transposed into national law where it is deemed appropriate. In comparison with most member states, the Commission is unlikely to prioritise enforcement against the UK. Moreover, national courts control the mechanism of taking preliminary references, and despite the CJEU having jurisdiction across an extensive range of competences, the UK manages to avoid constantly having its knuckles wrapped by Luxembourg.

What is in the national interest?

Despite David Cameron’s announcement in Rio that we would be opting out, the announcement to the Houses of Parliament this week has been more measured. The Government’s ‘current thinking’ is that we will opt out and then negotiate opting back in to measures which are in our national interest. Fortunately Teresa May acknowledged that the ultimate decision is one for Parliament, whilst also indicating that negotiations are taking place behind the scenes with other member states and the Commission. The Lords EU Select Committee will be holding an inquiry. This will be an opportunity to sort the myth from the reality.

It is disappointing however that the Government has not ignored the Eurosceptism, and taken this opportunity to seek amendments to measures like the EAW whilst we are in a strong position. After all, the decision is not due until June 2014. It is hard to see what real negotiation will be possible once we have left the table.

This guest post is by Jodie Blackstock, director of Criminal and EU Justice Policy and a barrister.

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