The Lords are wrong on EU crime and justice

Jonathan Lindsell, 29 April 2013

The government must decide by May 2014 whether to ‘opt in’ to all 130 EU police and criminal justice measures. The Home Secretary intends to opt out – which legally must be done en masse – before negotiating re-entry to specific measures which fit Britain’s needs. This re-entry right is enshrined in Lisbon. The measures include the controversial European Arrest Warrant, DNA & fingerprint databases, cross-border cooperation, fraud and illegal migration mechanisms and the legal basis of Europol and Eurojust.

Last week, the Lords EU Select Committee heavily criticised May’s intentions. They conclude:

“The concerns of proponents of opting out…were not supported by the evidence…and did not provide a convincing reason for exercising the opt-out. We have failed to identify any significant, objective, justification for avoiding the jurisdiction of the CJEU…The CJEU has an important role to play.” [Full Report.]

This demonstrates multiple errors of judgement. Firstly, the Lords’ report frequently highlights the benefits of specific measures then extrapolates that the entire raft of measures is desirable. This mischaracterises the Home Office position – May is fully aware of the importance of cross-border cooperation.

Theresa May’s position instead questions the nature of CJEU measures, which would be ‘supranational’ if the UK were to opt in. This would surrender Westminster’s “competence” in a key area, which poses a threat greater than the Lords admitted. The Lords repeatedly denied that any of the 130 measures were actively bad or costly to the UK (an assertion with which Open Europe and Dominic Raab MP disagree.) That’s beside the point: why should we open ourselves to future EUCJ unpalatable developments when we can get all the current benefits from an intergovernmental arrangement?

The Lords’ argument rests on quibbles and speculation – they inflate the difficulty, cost and time-frame of a renegotiation to paint it as the worst option, whilst denying the possibility of sovereignty loss and practical shortcomings, even those raised by European law expert Martin Howe QC and Raab, who has human rights legal experience.

The Lords’ opinion represents preference for the ‘Path of Least Resistance’. Rather than drop needless measures and reform those which are attractive but flawed, entertain the Denmark Option, or consider our success in working with Frontex, the Lords recommend the Government accepts a piecemeal, risky system just for the sake of short-term stability.