1. law, govt and politics
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UK INDEPENDENCE PARTY
London: 27 January 2014
Gerard Batten MEP. UK Independence Party. London.
Research by Pavel Stroilov
European Union
Police and Criminal Justice
Measures
The UK's 2014 'Opt-in' Decision
Response to the Government’s stated intention
to opt-in to 35 measures in 2014
“If the Government proceeds with the opt-in as proposed,
we note that it will not result in any repatriation of powers.
Indeed, the increased jurisdiction of the ECJ may result in
the net flow of powers in the opposite direction”.
Report by the House of Commons Select Committee on Home Affairs
Gerard Batten MEP,
[email protected]
PO Box 2409,
Ilford,
IG1 8ES
Response to the Scott-Baker Review Panel Report on the European Arrest Warrant
Contents
1. 2. Introduction
3. The 100 non-powers to be ‘repatriated’
4. The real powers to be surrendered to the EU
What exactly is the list of 135 measures?
4.1. European Arrest Warrant
4.2. Other ‘mutual recognition’ instruments
4.3. Eurojust: a backdoor into the European
Public Prosecutor Office
4.4. Europol
4.5. Schengen Agreement
4.6. Databases
4.7. Special Intervention Units
4.8 Special Intervention Units: A Back Door to the
European Gendarmerie?
5. The significance of ECJ Jurisdiction
6. Repatriation of powers?
7. Conclusion
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1. Introduction
In mid-2014 the Government has the power, under the Lisbon Treaty to ‘opt-out’ of
135 European Union criminal justice measures enacted in national legislation prior
to the Lisbon Treaty. Most people will be totally unaware of the growing number of
legal institutions and legal instruments that have been recognized or enacted under
English law and which were designed to bring into force the European Union’s
own ‘harmonised’ system of criminal law. The one measure that many people have
become aware of is the notorious European Arrest Warrant, and that is because of the
growing number of high-profile cases of gross injustice that it has caused.
There was much fanfare last year over the Home Secretary’s announcement that
100 of the existing police and criminal justice measures are to be ‘repatriated’ from
Brussels’. We were told that, under the government’s plan, only 35 out of 135 EU’s
measures would remain in force in the UK after December 2014. Having reviewed the
list, the Government discovered that the 35 were in the ‘national interest’ and 100
were not. By an incredibly lucky coincidence, the ‘national interest’ test produced the
round figure ideal from a spin-doctors’ point of view.
100 out of 135 sounds like three quarters of the way in the right direction – but only
until you examine the actual lists of ‘opt-ins’ and ‘opt-outs’. Contrary to what one
might assume, the European Arrest Warrant is here to stay; Europol is here to stay; and
Eurojust is here to stay. Meanwhile the Coalition Government enthusiastically opted-in
to the post-Lisbon measure of the European Investigation Order. In fact this was one
of the first actions of the Tory Home Secretary on assuming office in 2010. So, what is
it exactly the Tories are promising to get rid of?
There are dangerous things about the EU, and there are ridiculous things about the
EU. One of the ridiculous things is the great waste of paper. Most of the 135 pieces
of EU legislation on police and criminal justice are just that, and have been rhetorical
declarations of no real significance; defunct legislation nobody had bothered to repeal;
and measures duplicating each other and/or national legislation. All that will be thrown
into the bin. On the other hand, a minority of that legislation, things like the European
Arrest Warrant, represents an extremely dangerous attack on the English Constitution
and our centuries-old liberties. These are the ones the Coalition Government has
chosen to preserve.
Like the rest of their talk of the forthcoming ‘repatriation of powers’ this is nonsense;
it is another Tory con-trick. Not only has the Government failed to ‘repatriate’ any real
powers from the EU, the real shift of power in the 2014 reform of ‘police and criminal
justice’ system will be in the other direction. What they intend to do in reality is to give
away even more of our remaining liberties, and far greater policing powers than the EU
previously had.
2. What exactly is the list of 135 measures?
The Lisbon Treaty, imposed on us without a referendum in breach of David Cameron’s
‘caste-iron’ promise, has dramatically increased the EU powers in the area of ‘police
and criminal justice’. In particular, the UK lost its ‘opt-out’ of the jurisdiction of the
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‘European Court of Justice’ (ECJ) over that area; however, we reserved the right to
‘opt-in’ to individual pieces of EU policing legislation on a case-by-case basis, instead
of being automatically bound by all of them.
The ‘135 measures’ on the list are the ones which had been in place before the Lisbon
Treaty. According to its transitional arrangements, the ‘European Court of Justice’ will
have jurisdiction over all of them starting 1st December 2014. By 31st May 2014, the
UK has to decide which of them we ‘opt-into’. The list, however, does not include:
•
any of the post-Lisbon EU legislation which the government has chosen
to implement, such as the notorious European Investigation Order; or
•
any of the wider ‘Justice and Home Affairs’ legislation outside the limited ‘police and criminal justice’ ambit. That includes the voluminous EU legislation
on immigration, asylum, and civil law.
Those vast powers will belong to Brussels in any event (whatever the government does
about its 135-points) and will be subject to the ECJ jurisdiction. The government has
done nothing to ‘repatriate’ those powers. In reality, they cannot do anything about
them unless we leave the EU.
But the 135-points list, exceptionally, are the powers which the Tories could have
‘repatriated’ without leaving the EU. Contrary to what they promised before, and contrary
to what they say now, they have freely chosen not to do so. As will be shown below,
the 100 pieces of legislation they ‘opt-out’ of are mostly wastepaper of no substance.
By contrast, the 35 powers they ‘opt-in to’ are of enormous significance. Not only have
the Tories failed to repatriate the 35 real powers, what they omit to tell us is that under
the new Lisbon Treaty regime, the EU Commission and the EU Court of Justice will
dramatically increase its power on all the 35 points they have chosen to opt-in to.
3. The 100 non-powers to be ‘repatriated’
So, the government has claimed credit for ‘repatriation’ of a hundred EU powers; but
if you look at the actual list, you discover most of them are no powers at all.
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At least 9 items on the list have already been superseded or replaced by subsequent EU legislation, and many other items would also become redundant in the
next few years. For example, the 2002 Framework Decision on combating human
1
(1) Joint Action 96/747/JHA concerning the creation and maintenance of a directory of specialized competences, skills and
expertise in the fight against international organized crime, in order to facilitate law enforcement co-operation between the
Member States of the European Union;
(2) Council Decision 2000/261/JHA of 27 March 2000 on the improved exchange of information to combat counterfeit travel
documents;
(3) Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings;
(4) Council Framework Decision 2002/629/JHA on combating trafficking in human beings;
(5) Council Framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual exploitation of children and child pornography;
(6) Agreement between the European Union and the United States of America on the processing of Passenger Name Records (PNR) data by air carriers to the United States Department of Homeland Security;
(7) Council Decision 2008/651/CFSP/JHA of 30 June 2008 on the signing, on behalf of the European Union, of an Agreement
between the European Union and Australia on the processing and transfer of European Union-sourced passenger name record (PNR) data by air carriers to the Australian Customs Service;
(8) Declaration on extradition SCH/Com-ex (96) decl 6 rev 2;
(9) Council Decision 2003/169/JHA.
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trafficking was repealed and replaced by a 2011 Directive giving the EU even more
power in that field. The government chose to ‘opt-in’ the 2011 Directive and there is
no question of an actual ‘repatriation’ of that power. However, the repealed 2002
Framework Decision was kept on the list, and now included in the list of ‘100 powers’
the Tories claim to have ‘repatriated’.
Another 12 items are various co-operation agreements between the EU and third
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countries (Bosnia, Norway, Macedonia, Ukraine, Croatia, Iceland, United States ,
Switzerland, and Russia), mostly on the exchange of classified information between
the EU agencies and the third countries’ law enforcement agencies. The ‘opt-out’ will
have no real effect: the EU agencies such as Europol and Eurojust will continue to
have access to UK’s classified data (because the government has chosen to ‘opt-in’
Europol and Eurojust), and will continue to share it with those third countries.
That, of course, should cause concern. It is manifestly counter-productive to exchange
classified information on combating crime with countries with such levels of corruption as Russia and Ukraine, where it is sometimes impossible to distinguish between
the law enforcement agencies and the organized crime.
And in terms of civil liberties, if we are rightly anxious about sharing sensitive information with some of the EU member-states, what should we say about sharing
people’s sensitive personal information with Moscow? Yet, the government has done
nothing and will continue to do nothing to really ‘repatriate’ those powers. They have
simply added another dozen entirely spurious ‘opt-outs’ to the list. Likewise, there may
be many more items on the list where the ‘opt-out’ will be rendered totally ineffective
by other ‘opt-ins’.
5
At least 20 further items on the list duplicate the national legislation which will
remain effective despite the ‘opt-out’. For example, the two Framework Decisions
2 Council Framework Decision 2002/629/JHA on combating trafficking in human beings.
3 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in
human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA.
4 There are three separate agreements with the US, respectively on exchange of classified information, on mutual legal assistance,
and on extradition; and the Council Decision 2009/933/CFSP of 30 November 2009 on the extension, on behalf of the European Union, of the territorial scope of the Agreement on extradition between the European Union and the United States of America.
5 (1) Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union
(2) Council Decision 2003/642/JHA of 22 July 2003 concerning the application to Gibraltar of the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union
(3) Council Decision 1999/615/JHA of 13 September 1999 defining 4-MTA as a new synthetic drug which is to be made subject to control measures and criminal penalties.
(4) Council Decision 2002/188/JHA of 28 February 2002 concerning control measures and criminal sanctions in respect of the new synthetic drug PMMA.
(5) Council Decision 2003/847/JHA of 27 November 2003 concerning control measures and criminal sanctions in respect of the new synthetic drugs 2C-I, 2C-T-2, 2C-T-7 and TMA-2.
(6) Council Decision 2005/387/JHA of 10 May 2005 (“2005 CD”) on the information exchange, risk-assessment and control of new psychoactive substances.
(7) Council Decision 2008/206/JHA of 3 March 2008 defining 1-benzylpiperazine (BZP) as a new psychoactive substance which is to be made subject to control measures and criminal provisions.
(8) Council Framework Decision 2000/383/JHA of 29 May 2000 on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with
(9) Council Framework Decision 2001/413/JHA of 28 May 2001 combating fraud and counterfeiting of non-cash means of payment
(10) Council Framework Decision 2001/383/JHA
(11) Council Framework Decision 2002/475/JHA on Combating Terrorism
(12) Council Framework Decision 2008/919/JHA amending 2002/475/JHA
(13) Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence
(14) Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector
(15) Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of drug trafficking
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on Combating Terrorism introduced draconian anti-terrorist laws across the EU in the
aftermath of the 9/11 attacks. It is not our purpose here to assess the merits of the
‘war on terror’ measures; the point is that similar legislation was introduced all over the
world around the same time, including in the UK. The EU legislation merely duplicated
our national legislation. We will now opt-out of the former, but the latter will remain in
place. Nothing will change in practice. And yet, the government misrepresents those
two Framework Decisions as two further ‘powers’ it has ‘repatriated’ from the EU.
7
At least 5 items are the ones which the previous government formally subscribed to,
but which were never implemented in the UK; so the ‘opt-out’ is no real ‘repatriation of powers’ and merely preserves the status quo. A good example is the European
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Evidence Warrant. While the government claims credit for ‘repatriating’ it, in reality
the EEW (a) had never been transposed into UK law; (b) turned out to be totally useless
and had never been used even in countries where it was formally transposed; and (c) is
about to be replaced by a much more comprehensive European Investigation Order
– which the Government has chosen to opt-into.
Under the proposed European Investigation Order the ‘Judicial Authorities’ in any
Member State will have the power to require any other Member States’ authorities to
investigate and gather evidence against criminal suspects in their territory. The ‘issuing
state’ will have the power to require the ‘executing state’ to obtain evidence against a
suspect, or have access to existing evidence already in their hands – subject to certain
restrictions regarding immunity or national security issues. Again, this is founded on
the doctrine of ‘Mutual Recognition’ that accepts without question that all Member
States’ judicially authorities of are of equal standing.
The final form of the EIO is not yet adopted but its powers will be far-reaching and
unprecedented in terms of the powers it will give foreign states over the English police
and legal authorities. The EIO is supposed to be used in the case of serious offences,
but the list of offences it includes is the same as those of the European Arrest Warrant.
As we have stated elsewhere, under English law the police can only investigate
allegations of specific criminal offences, but the EAW and EIO list of offences include
non-specific allegations such as ‘swindling’, ‘racism’ and ‘xenophobia’. It was not
necessary for the British Government to opt-in to the EIO, and indeed one European
country, Denmark, has chosen not to do so.
(16) Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-related Proceeds, Instrumentalities
and Property
(17) Council Framework Decision 2005/222/JHA of 24 February 2005 on attacks against information systems
(18) Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the
European Union in the course of new criminal proceedings
(19) Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime
(20) Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism
and xenophobia by means of criminal law.
6 Council Framework Decision 2002/475/JHA on Combating Terrorism and Council Framework Decision 2008/919/JHA amending 2002/475/JHA.
7 (1) Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition
to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions;
(2) Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of
obtaining objects, documents and data for use in proceedings in criminal matters
(3) Council Decision 2008/615/JHA of 23 June 2008 on stepping up of cross-border co-operation, particularly in combating terrorism and cross-border crime
(4) Council Decision 2008/616/JHA of 23 June 2008 on the implementation of Council Decision 2008/615/JHA on stepping up of cross-border co-operation, particularly in combating terrorism and cross-border crime.
(5) Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of
jurisdiction in criminal matters.
8 Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters.
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Most of the other items on the ‘opt-out’ list are either of minor significance (e.g.
exchange of liaisons between various law enforcement agencies of different
member-states, which obviously could be done without any legislation) or purely
rhetorical declarations of no substance at all. For example, Joint Action 96/750/JHA
solemnly prescribes that member-states “combat illicit movements of narcotic drugs
and psychotropic substances within the Community” (Article 3), “take the most
appropriate steps to combat the illegal cultivation of plants containing active
ingredients with narcotic properties” (Article 8), and so on. This is something every
country in Europe does with or without EU legislation, and no powers have been
‘repatriated’ by the ‘opt-outs’ of that harmless, pompous nonsense. And yet, all these
declarations are included in the celebrated 100-points list.
4. The real powers to be surrendered to the EU
By contrast, when we turn to the 35-points list of ‘opt-ins’, what we find there are very
real and dangerous powers which the government has chosen to surrender to the EU.
This is often underplayed as a decision merely to “continue” being bound by those
35 pieces of legislation. In reality, that decision means a very grave change for the
worse on all 35 points.
As from December 2014 the application of all that legislation will be within the jurisdiction of the European Court of Justice (ECJ). The full implications of that are discussed
further below. In summary:
•
The European Commission will be able to sue the UK government in ECJ
if it considers that we failed to implement the EU legislation in full;
•
The entire body of ECJ criminal and policing case-law will become binding
in all UK courts;
•
UK courts will have to interpret UK law in those areas in a way best promoting the goals of the corresponding EU legislation (see the ECJ ruling in Criminal
Proceedings against Pupino (2005) – see below);
•
That, in turn, will politicise the judicial decision-making, as the courts will have
to pay due regard to the political declarations in preambles to EU legislation
as to its goals.
•
In a large number of criminal proceedings, each party will have a right to apply
for the case to be referred to the ECJ to resolve a dispute on interpretation of
EU law. That may delay the proceedings for years. If a UK court refuses to refer
the case to the ECJ, the application will be subject to appeal.
Below, we consider the most significant specific measures on the 35-points ‘opt-in’ list.
4.1. The European Arrest Warrant
The European Arrest Warrant has been the single most significant EU policing instrument, which alone dwarfs the other 134 items on the list. People in the UK are arrested
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on EAWs every day, and then transported to a foreign prison, on the force of a piece
of paper, whether or not there is any prima facie case against them. All our courts are
allowed to check is whether the form is filled in correctly.
No other EU ‘police and criminal justice’ measure has been used at a nearly similar
scope or with nearly as devastating consequences to the lives of their victims. In
practice, the government’s decision to opt-in the EAW is alone far more important than
the repatriation of a hundred illusory or minor powers.
The fundamental flaws of the EAW have now been highlighted so often that it is hardly
necessary to discuss them in detail. The list of its innocent victims is already long,
and growing. I was one of the first to raise the alarm over the case of my constituent
Andrew Symeou which was then largely ignored but has since become notorious.
Mr Symeou, 20-year-old student, was surrendered to Greece in spite of proving in
an English court that the Greek police had fabricated the evidence against him by
mistreatment of witnesses. He then spent almost a year in vile prison conditions in
Greece, which were tantamount to torture, only to be acquitted by the Greek court on
the same grounds he advanced from the outset. Had an English court had the power
to consider this prima facie evidence, and had the power to defend Mr Symeou, then
there can be no doubt it would have found it insufficient to justify extradition.
It was on a similar ‘no questions asked’ basis that the court ordered the surrender of
my constituent Dr. Meizoso to Spain for a fraud he certainly had not yet committed, but
allegedly ‘wanted to commit in the future’. In fact, as Dr. Meizoso credibly contended,
the EAW was procured by corrupt elements in a local government to gain an advantage
in a property dispute. After the surrender was ordered, we helped Dr. Meizoso to delay
it for another year by claiming political asylum in Britain: the Extradition Act grants
all asylum-seekers the special privilege of immunity from extradition until the asylum
claim is determined. In the meantime, his Spanish lawyers eventually managed to
secure a withdrawal of the EAW. Yet, this was a very narrow, almost miraculous,
escape, Dr. Meizoso’s life was put into considerable jeopardy for a number of years,
and the huge potential for injustice in similar cases is obvious.
Other notorious cases include those of Edmond Arapi (whose surrender was ordered
in spite of a solid alibi and the fact that he was convicted in absentia); Garry Mann
(who was surrendered and served two years in a Portugese prison after being convicted
at a manifestly unfair trial); Deborah Dark (whose acquittal was secretly reversed
in absentia by the French court, and who was repeatedly arrested on an EAW issued
17 years after the acquittal); Patrick Connor (extradited to Spain where a guilty plea
was extorted from him by unlawful pressure), etc.
We only know about these people because their families, friends and supporters
managed to wage energetic and articulate campaigns on their behalf. No doubt, many
others were less fortunate than that; unknown and helpless, they silently disappeared
into foreign jails – because our courts have been relieved of their centuries-old duty
to protect the weak against injustice and tyranny.
And yet, even in the face of those shocking facts, the Tories have now chosen to ‘optin’ to the EAW, which they declared to be “in the national interest”. It is not. In practice,
the EAW has proven virtually useless in the fight against real criminals. As I explained
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in the UKIP submission to the House of Lords Select Committee inquiry into the matter
prior to the government’s decision, the alleged advantages of the EAW are illusory:
Firstly, it is said that EAW allows us to secure extradition of criminals who would otherwise be safe abroad. Several cases of notorious terrorists or paedophiles extradited to
the UK are normally cited in support of this proposition. In fact, there can be no doubt
that all these criminals would have been extradited to the UK without the EAW, under
traditional extradition agreements. This is because UK prosecutors only ever issue an
EAW or an extradition requests when they are ‘trial-ready’, as they call it – when they
have all the evidence ready for presentation in court.
There would be no practical difficulty in presenting the prima facie case to a foreign
court before extradition, since exactly the same evidence would have to be presented
to a UK court, and satisfy more stringent legal and procedural requirements, immediately after the extradition. In reality, the only benefit of replacing outgoing extradition
requests with EAWs consists in saving the costs of translation. This is a very cheap
price to pay for protecting sacred and ancient constitutional liberties such as habeas
corpus.
Secondly, it is said that EAW has brought simplicity and speed into extradition proceedings in UK courts. In response, I quoted the High Court judgment of Lord Justice Smith
and Mr. Justice Irwin in the case of Regina (Hilali) v Governor of Whitemoor Prison and
another [2007] EWHC 939 (Admin), para 33:
“We accept without hesitation or reserve all that Mr Perry urged upon us about the
need for simplicity and expedition in dealing with the execution of EAWs. We would
say, in parenthesis, that anyone who is familiar with the jurisprudence which has
developed under Part 1 of the [Extradition] Act would be bound to observe that
it has not succeeded in providing a simple and speedy process.” [emphasis added]
And yet, the Home Secretary has duly parroted all this nonsense about efficiency
and speed of EAW procedure, about terrorists and paedophiles who would have
escaped justice but for the EAW, and absurdly concluded that the EAW is in our national
interest after all. As for the civil liberties, she has promised to introduce three
“additional safeguards” (as if there were any safeguards to add to), which she
claimed would “increase [sic] the protections offered to those wanted for extradition,
particularly British citizens”. In reality, as will be shown below, those bogus safeguards
will either change nothing or make the situation even worse.
‘Proportionality test’: the courts, in theory, will be allowed to refuse EAWs which
only allege ‘minor’ offences. This red herring has been in circulation for some time,
to divert attention from the real flaws of the EAW (as if it is any better to extradite
innocent people on serious trumped-up charges than on minor trumped-up charges).
This is a propaganda trick to whitewash the indefensible EAW. In addition to the list of
real injustices inherent in the EAW system, you invent a bogus problem (EAWs are used
disproportionately), then exaggerate it to the point when it looks like the only problem,
then you pretend to have solved it - and that the system is now safe.
In the long list of notorious EAW cases of injustice, none were caused by ‘disproportionate’ warrants. The Home Secretary claimed her safeguard “should stop cases like
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that of Patrick Connor who was extradited because he and two friends were found
in possession of four counterfeit banknotes”. In fact, ‘Patrick Connor’ is not a real
name, and he will be unwilling to speak out to contradict the Home Secretary’s
misrepresentation of his case. This is the pseudonym given by Fair Trials International
to a young man already stigmatized by an unfair criminal conviction in Spain, who now
prefers to keep a low profile because of that stigma.
Whether you consider it a minor crime or a major crime, ‘Patrick Connor’ was innocent
of it. He was not found in possession of counterfeit euros. He only shared a room with
someone who was. Four years later, the 22-year-old student was arrested on an EAW,
extradited to Spain, spent nine weeks in prison, was told he could spend another two
years in prison until trial unless he pleads guilty, and so he did.
What has ‘proportionality’ got to do with that? Guilty pleas can be extorted by unlawful
pressure on whatever charges. In a number of EU member-states, they often are.
Under the EAW regime which the Home Secretary supports, any of us can be extradited
on trumped-up charges without any evidence, or any questions asked. How does
‘proportionality’ help to prevent that?
New rules on extradition without charge. The Home Secretary has promised to
“amend our own Extradition Act to ensure that people in the UK can only be extradited
under the European Arrest Warrant when the requesting State has already made a
decision to charge and a decision to try, unless that person’s presence is required
in that jurisdiction for those decisions to be made” (emphasis added). The trouble
is, this is worse than the present law, which provides (in theory) that an EAW may only
require someone’s extradition “for the purpose of being prosecuted for the offence”
(S. 2(3)(b) of the Extradition Act). Under the proposed new ‘safeguard’, one may be
extradited just so that his presence inspires the foreign prosecutor to make up his
mind to prosecute or not to prosecute.
In practice, however, neither the old rule nor the proposed new rule provides any
safeguard. All it comes to is the form of words on the warrant where the foreign
prosecutor will need to tick a box. Once that box is ticked, our courts are legally bound
to accept what the warrant says; and if it is not true, nobody is responsible.
The Home Secretary absurdly claimed her new ‘safeguard’ would have prevented the
extradition of Andrew Symeou. She clearly knows very little about that outrageous
case of injustice. There was a decision in Greece to charge Mr. Symeou with manslaughter. There was a decision to prosecute him. The only trouble was, those decisions
were based on false testimonies extorted by the Greek police through intimidation of
witnesses, who retracted their statements as soon as they were out of the police
station. Mr. Symeou proved this in an English court - only to be told that unfortunately,
while “the consequences of the Framework Decision may be a matter for legitimate
debate and concern”, the judges do not make the law, they have to apply it as they find
it, and since the EAW form was filled in correctly, they had to extradite him anyway.
Despite all the Home Secretary’s ‘safeguards’, that will remain the law.
A ghost of ‘dual criminality’ principle. Finally, the Home Secretary has promised to
“amend our law to make clear that in cases where part of the conduct took place in
the UK, and is not criminal here, the judge must refuse extradition for that conduct”.
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It is rather unclear what exactly this is supposed to safeguard. There used to be a
principle of ‘dual criminality’ whereby nobody could be extradited for something that
is a crime abroad but not a crime in the UK. That principle was abolished in the
EAW legislation, and the Home Secretary is only promising to restore it for very
limited situations “where part of the conduct took place in the UK”.
Even if any of those amendments could be effective, the government is now giving
away jurisdiction to interpret them to the European Court of Justice. The Home
Secretary cannot guarantee that her ‘safeguards’ will not be overruled and voided by
the ECJ (as it happened with Romanian EAW ‘safeguards’ in the Radu Case (C-396/11)
or Spanish ‘safeguards’ in the Melloni Case (C-399/11)), or by our own courts bound
by ECJ case-law (as it happened with certain provision of the Extradition Act in the case
of Dabas v High Court of Justice in Madrid [2007] UKHL 6).
4.2. Other ‘mutual recognition’ instruments
The principle of ‘mutual recognition’ requires that a judicial or prosecutorial decision
taken in one EU member-state should be enforced automatically in any other EU
member-state. The European Arrest Warrant is the most infamous of the EU ‘mutual
recognition’ instruments; but there are a number of others, which extend the same
principle to criminal sentences, fines and penalties, bail conditions, confiscation
orders, etc. All these instruments suffer from the same fundamental flaw as the EAW:
‘mutual recognition’ cannot work between nations whose legal systems and standards
of justice are so different. Mutual recognition effectively means that every ex-communist prosecutor or judge in an Eastern European province run by a local mafia is
given an equal standing to the judges in the Old Bailey.
So scandalous are some of these ‘mutual recognition’ instruments that while the
previous Labour government formally subscribed to them, they were never in fact
implemented in the UK or transposed into UK law. One might expect the Tories now
to ‘opt-out’ of that EU legislation and then to take credit for the ‘repatriation’ for those
non-existent powers. Indeed, they did so in some cases (see above); but we should
not underestimate their loyalty to the EU. They have chosen to ‘opt-in’ to some
EU decisions that were not previously implemented, i.e. to give significant new
powers to the EU. They will not be able to continue stalling like the previous government did, because in that case, under the new regime, the European Commission can
take us to court to enforce that legislation.
9
For example, European Confiscation Orders issued anywhere in the EU will, for
the first time, have to be automatically enforced by the ‘designated authorities’ in
the UK to confiscate property of UK citizens in on behalf of foreign states. Another
instrument now introduced by the Tories for the first time is the European Supervision
10
Order : EU-wide version of bail, designed for those awaiting trial in a different
member-state. A European Supervision Order obliges the UK courts and police to
enforce its conditions on the subject, such as:
•
living at a certain address;
9 Council Framework Decision 2006/783/JHA on the application of the principle of mutual recognition to confiscation orders.
10 Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions of supervision measures as an alternative to provisional detention.
European Union Police and Criminal Justice Measures. The UK's 2014 'Opt-in' Decision
•
•
•
•
•
12
observing a curfew;
electronic tagging (if permitted by the national law in similar circumstances)
regular reporting to the police;
limitations on entering certain places;
obligation to avoid contacts with certain people.
All or any of those restrictions may now be imposed on any British citizen on the orders
of a judge or a prosecutor from any EU state.
The government cynically misrepresents both the European Supervision Order and
European Investigation Order as further ‘safeguards’ which would prevent abuse of
European Arrest Warrants. Instead of ordering arbitrary arrests, we are told, the foreign
judges and prosecutors will now be able simply to order an interrogation, a covert
surveillance, a curfew or an electronic tagging. What a relief! They have abused one
oppressive power they had been given; so let’s give them another dozen of oppressive
powers to choose from. No doubt, this makes a great progress towards the ill-defined
‘proportionality’ – and strikes at the very heart of liberty.
4.3. Eurojust: a backdoor into the
European Public Prosecutor Office
The EU plan to establish the European Public Prosecutor (EPP) Office with vast powers
across the EU is of course not on the 135-points list, because it is a post-Lisbon measure
not yet in force. The government has already announced that it is going to ‘opt-out’ of
that scheme. How very ‘Eurosceptic’ of them; however, the combination of other
‘opt-ins’ planned by the government will work as a back-door to bring us under
the powers of the Prosecutor.
Firstly, it is virtually certain that the Prosecutor will have the power to issue European
Arrest Warrants. Since the Tories have chosen to ‘opt-in’ the EAW, they will have to
be implemented by our courts. Even if not, the Prosecutor’s vast powers will make it
easy to cause the warrant to be issued and sent to the UK by some other EU state. Our
courts will of course be compelled to extradite the victim, who would then be within
the reach of the Prosecutor.
Secondly, the same is true about European Investigation Orders, European Supervision Orders, and other ‘mutual recognition’ instruments. The Prosecutor, either
directly or through other EU member-states, and their legal authorities, will be able to
exercise the powers enshrined in them over British citizens.
Thirdly, the government is going to ‘opt-in’ to Eurojust, which is seen in Brussels as
virtually the same thing as the future European Public Prosecutor’s Office. In the future,
Eurojust will either simply mutate into the EPP Office, or else become its subsidiary.
On the basis of the EU legislation already in force, Eurojust represents an unprecedented
concentration of judicial, prosecutorial, and police power in Europe. Eurojust brings
together the so-called ‘College’ of 27 prosecutors, magistrates or police officers, one
from each member-state. Each National Member is accompanied by a relatively small
team of Deputies, Assistants, and Seconded National Experts. At least one of them for
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each member-state is legally obliged to be ‘on call’ 24 hours a day, 7 days a week.
Each National Member has the legal powers to order arrests, searches, seizures,
interrogations, surveillance, freezing or monitoring of bank accounts, confiscations,
electronic tagging, etc. in their own countries, on an EU instrument such as a European
11
Arrest Warrant, or even without such an instrument . In this respect, Eurojust may
serve as a back door for a de facto mutual recognition even if we formally ‘opt-out’
of a particular piece of legislation. Further, each member has access to his country’s
databases of criminal record, registers of arrested person, investigation registers, DNA
registers and “other registers of his Member State where he deems this information
12
necessary for him to be able to fulfil his tasks”. In all probability, all that sensitive
data from UK police databases will eventually be available to the European Public
Prosecutor via Eurojust.
The amount of the collective power of Eurojust is something unheard of in the
UK legal system. At this level, there is no mutual independence, no separation of
powers, no checks and balances between judges, prosecutors and the police. In
the future, all those vast powers will, no doubt, be placed at the disposal of the
European Public Prosecutor.
In practice, most of Eurojust work at present consists in answering queries from
member-states on cases involving a complex international dimension, or forwarding
such queries to colleagues in another member-state who are able to assist. In this
respect, Eurojust has admittedly been of some utility: according to its 2011 annual
report, it has answered 71 requests from UK, and sent 197 requests to the UK, during
that year.
Nevertheless, there are many respected international law firms offering similar advice
on a private contractual basis. Eurojust may be said to be simply the most expensive of
them, with the annual budget of €33,000,000; 11.5 per cent of that budget (€3,795,000)
13
comes from UK contributions to the EU. Not only would a private law firm be much
cheaper in monetary terms; most importantly, it would not pose a threat to our liberties.
The European Public Prosecutor’s Office will be “responsible for investigating,
prosecuting and bringing to judgement, where appropriate in liaison with Europol,
the perpetrators of, and accomplices in” any “serious crimes having a cross-border
dimension”. In March 2010, the then Spanish Presidency of the EU, backed by France
and Germany, announced the specific proposals on the establishment of the office.
As reported by Reuters:
‘Spanish officials said the Greek debt crisis had highlighted the need for the EU to
have a coordinated legal response against speculators attacking the euro, which has
slumped to nine-month lows against the dollar.
"The existence of an area with a single currency requires a single institution to
implement laws to protect its economic interests," [Spanish Attorney-General]
Conde-Pumpido told a news briefing in Brussels.
11 Articles 9c and 9d of the Eurojust Decision; however these powers are subject to national law.
12 Article 9(3).
13 Co-operation not Control. The case for Britain retaining democratic control over EU crime and policing policy. By Dominic Raab,
Open Europe, 2012; p.p. 17-18.
European Union Police and Criminal Justice Measures. The UK's 2014 'Opt-in' Decision
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‘"Doubtless if there were a public prosecutor and there was a combined attack against
the single currency, the prosecutor could coordinate the legal response vis-a-vis that
attack."…
‘Conde-Pumpido did not elaborate on what legal tools the prosecutor's office might
use to prevent financial markets from selling the euro in response to concern about
14
economic strains in the euro zone.’
Astonishingly, this suggests the European Public Prosecutor would use his
formidable powers to regulate the economy by means of criminal law.
The Conservative Party’s promise to keep us out of all this should not be believed.
As shown above, they have already resolved to ‘opt-into’ Eurojust through other backdoor means.
4.4. Europol
Despite their earlier hints and indications, the government has now announced they
will also ‘opt-in’ to Europol.
While sometimes referred to as the ‘EU’s police force’, in fact Europol is a criminal
intelligence agency, modelling itself on the USA’s FBI or the UK National Criminal
Intelligence Service. At the same time, there are well-founded concerns that it has
every potential to develop into some kind of political secret police.
Europol employs over a thousand staff, who enjoy immunity from prosecution or civil
lawsuits in relation to everything they do or say as Europol officers, with just one
15
technical exception . The names of Europol staff are kept secret, with the exception
of its Director and his three Deputies. In 2006, I wrote to the then Director of Europol,
Max-Peter Ratzel, requesting the names and brief CVs of other Europol employees,
but Mr. Ratzel declined to provide them.
Since its foundation as the Europol Drugs Unit in 1992, Europol’s remit has been steadily
widening; since 2010, it has power to investigate any organised crime, terrorism, and
a further list of 24 very broadly defined categories of illegal activity. Like the EAW
list of offences, some of those strike an English reader as manifestly inadequate
definitions of criminal offences, for example ‘racism and xenophobia’, ‘computer crime’
or ‘corruption’.
There are no reliable safeguards to ensure that Europol does not gather intelligence
on lawful political or other activities under such ill-defined headings. Given Europol’s
secretiveness and lack of accountability, one would not be surprised if ‘racism’ was
extended to include opposition to uncontrolled immigration, ‘xenophobia’ – opposition
to the EU; or ‘computer crime’ – such web-sites as Wikileaks. It is worth noting that
the 2010 EU legislation explicitly authorised Europol to investigate such activities
outside its ‘organised crime’ remit, i.e. without any evidence of organised crime
involvement.
14 http://in.reuters.com/article/2010/03/03/eu-euro-prosecutor-idINLDE6222G620100303?pageNumber=1&virtualBrandChannel=0.
15 if a Europol officer takes part in a Joint Investigative Team between member-states, his actions as a member of JIT are not covered.
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An EU Council document dated 16 April 2010 instructs Europol to build a database
on ‘the processes of radicalisation in the EU’ in order to ‘generate lists of those
involved in radicalising/recruiting or transmitting radicalising messages and to
16
take appropriate steps’. Well-founded concerns have been voiced that this project
is effectively aimed at political persecution, and amounts to spying on political activists
whom Europol arbitrarily deems to be too ‘radical’.
In substance, the work of Europol is organised around so-called Analysis Work Files.
Each AWF is a massive project with a big database and a team of officers working
on it full-time. Some of them (such as DOLPHIN – ‘Non-Islamist extremist terrorist
organisations threatening the EU) might cause obvious civil liberties concerns
(although there is no hard evidence of any specific impropriety in Europol’s work on
those files at the moment).
The priorities for Europol’s work are set by the political leadership of the EU in
documents called Council Conclusions. ‘Conclusions’ are issued after the relevant
Ministers meet at the European Council each month.
There is a Europol National Unit in each member-state. In the UK, Europol officers
work within the international department of the Serious Organised Crime Agency
(SOCA). Each national unit seconds a liaison officer to the central Europol in Hague.
At least one Europol officer was involved in the infamous killing of Jean Charles
de Menezes following the 7th July 2005 terrorist attacks in London. In connection with
that, I wrote to Europol, the Home Office, Metropolitan Police and SOCA, expressing
concern over the immunity enjoyed by Europol officers. All my correspondents
defended the present position; however, Brian Minihane, the then head of Europol
National Unit UK, confirmed to me that a Europol officer was involved in the incident,
although his role was limited to ‘facilitation of enquiries with other member-states’ and
he was ‘desk bound’.
The concept of immunity from the law for a public official, from a police constable up
to the Prime Minister, is unknown in English law, where every person is responsible for
their actions under the criminal law and Common Law. After centuries that principle is
set aside for Europol officers operating on British soil.
4.5. Schengen Agreement
The government is also going to ‘opt-in’ a number of ‘police and criminal justice’
elements of the Schengen Agreement. Those are obviously supplementary to its
principal part – effective abolition of borders between the parties. Schengen measures
provide for even closer integration of police and judicial authorities than other
police and criminal justice measures of the EU; accordingly, they are often even more
dangerous to civil liberties and the rule of law. The essential problem is, however, typical
of many EU measures in this sphere: it fails to draw clear lines of separation of power,
or to introduce any checks and balances, between the police powers, prosecutorial
powers, and judicial powers.
16 http://register.consilium.europa.eu/pdf/en/10/st08/st08570.en10.pdf.
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Schengen’s best known policing instrument are the Schengen Information Systems (SIS1 and SIS2) – effectively EU-wide police databases. An alert placed on the SIS
database is treated as a European Arrest Warrant. Within the Schengen Zone, people
are being extradited simply on the basis of a hit in a database. The government has
chosen to take us into SIS, but not (so far, so good) into the Schengen Zone; so it is not
clear whether the same will happen in the UK; however, the Scott Baker Report states
that the number of EAWs received in the UK is expected to rise sharply after we join SIS.
Again, to someone belonging to an English legal tradition, it seems self-evident that an
operational police database cannot be trusted in the same way as a judicial decision,
and mixing these two is, by definition, a major threat to liberty. Especially so where the
data is put into the database by foreign police forces that may well be of a far lower
quality and integrity than our own.
The matter is not limited to the database; what comes with it is SIRENE, (Supplementary
Information Request at the National Entry) a little known but powerful organisaton
created to manage SIS, which has by now developed into virtually a second Europol.
SIRENE has a central office and national bureaus, i.e. a number of officers attached to
a respective national authority - the equivalent of the UK's Serious Organised Crime
Agency.
Unlike other EU police organisations, SIRENE has actual executive powers in some
countries. For example, SIRENE officers can escort prisoners who are being surrendered under a European Arrest Warrant. In some other member-states, SIRENE officers
help to organize ‘execution’ of EAWs without being directly involved.
4.6. Databases
The ‘opt-in’ list also includes a number of EU-wide police and criminal intelligence
databases:
The European Criminal Records Information System (ECRIS) was established in
April 2012 to achieve an ‘efficient exchange of information on criminal convictions’
between EU countries.
An EU Member State that convicts a non-national is obliged to immediately send
information (electronically via a standardised format) to the member state of the
offender's nationality. Therefore if a British citizen is convicted in absentia (something
not allowed in English law) by an EU state, he may be listed in the Europe-wide system
as a criminal without knowing about it. This may then have dire consequences if he
ventures abroad. In the most recent proposal the EU will try to determine whether third
country nationals were previously convicted in other EU countries without consulting
all of them in order to create an European index of convicted third-country nationals
to supplement ECRIS.
The Customs Information System (CIS) was established under the CIS Convention
of 1995. Its aim is to assist in combating customs related crime by facilitating
co-operation between European customs authorities. The system can be accessed by
Member States and involves the processing of personal data relating to the Customs
European Union Police and Criminal Justice Measures. The UK's 2014 'Opt-in' Decision
17
and Excise area. However if data is entered in error, the subject may well be unaware
of this. To check it the person has to contact the competent national authority, either
the Revenue Commissioners or the Department of Agriculture and Food. Requests for
corrections have to be addressed to the ‘competent national authorities’. It will involve
a lengthy process to have it removed.
•
European Image Archiving System (FADO) – the database of genuine and
fake identity documents such as passports, identity cards, visas, residence
permits and driving licences as well as summary information on forgery and
security techniques.
•
Council Framework Decision 2006/960/JHA (the exchange of information
between member-states’ law enforcement agencies on an 8-hour notice).
Obviously, sharing confidential personal data is a very sensitive issue in terms of civil
liberties, and even where some limited rights of invading people’s privacy may be given
to the British police, sharing this with the police of some other 26 states is a different
matter. In addition, the example of SIS and SIRENE demonstrates that the EU databases
tend to grow large organizations to manage them, which in time develop into powerful
agencies of their own right.
4.7. Special Intervention Units:
a backdoor to Euro-Gendarmerie?
17
The government is going to opt-in to the EU legislation which provides for setting
up ‘special intervention units’ in each member-state and assistance they may provide
at the request of another member-state in case of a vaguely defined ‘crisis’. The
assistance may take the form of sharing expertise, equipment, or “carrying out
actions on the territory of that Member State, using weapons if so required”.
The civil liberties risks are obvious, especially if the jurisdiction over interpretation of
that legislation is transferred to the ECJ. On the face of it, the legislation seems to
permit, for example, for a government to request an intervention of a foreign
police to control civil unrest.
The Euro-Gendarmerie is a common police force of a few thousand troops. It was originally
established by an agreement between France, Italy, the Netherlands, Portugal, Spain,
and Romania; and was recently enlarged to include Poland as a full member, and
with Lithuania as a partner. It is currently headquartered in Vicenza in Italy, and in the
fullness of time other EU Member States may join. It is envisaged that the well-armed
Euro Gendarmerie may be used in various ‘trouble-spots’ and ‘post conflict’ zones
within the European Union or outside its borders as part of the EUs’ Foreign and
Security Policy. It is possible that the Gendarmerie could also be used to suppress civil
disorder and unrest in EU Member States in the future. Britain is not currently a member
of the Gendarmerie but given the Government’s alacrity to opt-in to so many far reaching
measures, it cannot be ruled out that we eventually find ourselves a part of it. Whether
it is under the same name or a different name does not matter.
17 Council Decision 2008/617/JHA of 23 June 2008 on the improvement of co-operation between the special intervention units
of the Member States of the European Union in crisis situations.
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5. The significance of ECJ Jurisdiction
From 2014 onwards, it will not be our courts which will have the final say on the interpretation and application of all these 35 pieces of EU legislation: it will be the European
Court of Justice in Luxembourg. This is a heavily politicized court of very poor judicial
quality.
The ECJ’s natural tendency is to turn any case into a major constitutional judgment,
transferring power from member-states to the EU. It was ECJ who, as early as 1964,
claimed the EEC’s “sovereignty” over member-states in so many words, in the case of
Costa v ENEL. It was ECJ who, as early as in 1986, held the EEC Treaty to be a ‘basic
constitutional charter’ in the case of Partie Ecologiste ‘Les Verts’ v. Parliament (1986).
It was only 20 years later that the EU dared to utter the word ‘Constitution’ aloud; and
from that it was forced to retreat. Yet, in the ECJ jurisprudence, the EU constitution had
been there from the outset.
The same trend is manifest in a number of Luxembourg judgments on criminal cases,
with disastrous consequences for civil liberties guaranteed in the national law of
member-states. The ECJ is not an impartial court of law as we would understand it
under English law, but rather one of the engines of ‘every closer union’.
In the case of Pupino (2005), the ECJ imposed the principle of ‘confirming interpretation’:
“When applying national law, the national court that is called upon to interpret it must
do so as far as possible in the light of the wording and purpose of the [EU] framework
decision in order to attain the result which it pursues”.
In theory (Article 34(2)(b) of the EU Treaty), ‘framework decisions’ have no ‘direct
effect’, i.e. should not be applied as laws. They are “binding upon the Member States
as to the result to be achieved” but “leave to the national authorities the choice of form
and methods”. In breach of the EU Treaty, the Pupino judgement effectively elevates
them to the level of binding law; but it goes further than that. It obliges the courts to
interpret the law in such a way as to promote the EU’s political objectives: not merely
the legal provisions of the ‘Framework Decisions’, but political declarations in their
lengthy preambles about the “result which it pursues”: ‘ever closer union’ and that
sort of thing.
For example, refusing a European Arrest Warrant would not help to achieve an ‘ever
closer union’; therefore, in practice, the court is obliged to interpret the national law in
such a way which makes sure that they surrender the suspect. The law is made much
more flexible than it should be by its very nature; it now has to be bent and twisted to
achieve particular results and promote political objectives. The ECJ not only changed
our law to the worse; it has undermined the rule of law itself, and substituted
the rule of EU ideology.
In the case of Radu (C-396/11 – 29 January 2013), the ECJ held that a member-state
(in that case, Romania) cannot reject a European Arrest Warrant because the suspect’s
human rights would be at risk in the requesting member-state. Lib-Dems and other
British enthusiasts for the EAW had been telling us for years that the suspects’
rights were adequately safeguarded by Section 21 of the Extradition Act 2003, which
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19
provides for a refusal of the EAW on human rights grounds.
In practice, no case is known where an EAW was refused on such grounds (as that
would be against the stated political objectives of the Framework Decision); and now
the ECJ has held this can never happen. Because of the principle of ‘supremacy’ of ‘EU
law’, that judgment will be binding on our courts and will trump the express provision
of the Extradition Act.
In the case of Melloni (C-399/11 - 26 February 2013), an Italian court issued a European
Arrest Warrant against Mr. Melloni after sentencing him in absentia to 10 years imprisonment. In the circumstances where he would have no right to challenge the fairness
of trial in absentia in an Italian court, the Spanish court considered that execution
of the warrant would breach Mr. Melloni’s right to a fair trial guaranteed by Spanish
Constitution. The case was referred to the ECJ.
The ECJ, with its usual arrogance, held that even the most fundamental principles of a
national constitution always have to give way to stated objectives of any EU directive
or Framework Decision: “by virtue of the principle of primacy of EU law, which is an
essential feature of the EU legal order (…), rules of national law, even of a constitutional
order, cannot be allowed to undermine the effectiveness of EU law” (para 59 of the
judgement). If the Spanish court was “allowed” to refuse an EAW for the sake of a right
to a fair trial, that would cast “doubt on the uniformity of the standard of protection
of fundamental rights” across the EU, “undermine the principles of mutual trust and
recognition… and would, therefore, compromise the efficacy of [the] framework
decision” (para 63).
Of course, “uniformity of standard of protection of fundamental rights” in the EU is – to
put it as neutrally as possible – a fantasy. To give just a few examples out of dozens:
Italians keep people in prison without trial for up to six years; prison conditions in
Greece are tantamount to torture; Lithuanian police routinely beat confessions out of
suspects; and Slovakian courts are notoriously corrupt from top to bottom.
Despite the government’s best efforts, we are not yet sufficiently integrated into the
EU ‘common area of freedom, security and justice’ to bring our practices in line with
theirs. When the EU talks of harmonizing European legal systems it does not envisage
adopting the English system of Common Law, the presumption of innocence, habeas
corpus, or trial by jury; instead it envisages harmonising our legal system, courts, police
and penal systems in line with the completely different continental styles and to meet
common EU standards to the lowest common denominator.
Not only does the Melloni judgment demonstrate the constitutional expansionism
of the ECJ and its hostility to national sovereignty; the ECJ approach undermines the
rule of law itself, by placing a political expedient above the right to a fair trial. A vital
constitutional liberty has been thrown away merely to avoid “casting doubt” over what
we all know to be a political lie.
Some of us have fought important battles against the disastrous influence of ECJ
jurisprudence on the administration of justice in the UK. In 2012 Vladimir Bukovsky and
I applied to the UK Supreme Court for leave to intervene in the high-profile EAW case
of Julian Assange.
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As ‘public interest interveners’, we argued that the Supreme Court should take that
opportunity to establish that the ECJ case-law was not binding on UK courts. The
Supreme Court held this would indeed be so until 1st December 2014, but afterwards,
that would depend on the government’s decision to ‘opt-in’ or ‘opt-out’ of the EAW. The
Supreme Court judgment could have untied the hands of our courts to refuse EAWs or
EIOs, at least in the most outrageous cases, and to place at least some checks on the
daily expansion of the EU police state. Unfortunately, the government has now chosen
to throw it away, and has instead voluntarily submitted our courts to the dictate from
Luxembourg.
6. Repatriation of powers?
The recent report by the House of Commons Select Committee on Home Affairs
concludes: “If the Government proceeds with the opt-in as proposed, we note that
it will not result in any repatriation of powers. Indeed, the increased jurisdiction of the
18
ECJ may result in the net flow of powers in the opposite direction”. The European
19
Scrutiny Committee has reached the same conclusion.
The Tory promise of ‘repatriation of powers’ is no truer than any other Tory promise
in the long history of broken promises, deception and lies since we joined the EU
(European Economic Community as it was then) in 1972. Generally speaking, it is
impossible to repatriate any powers from Brussels without withdrawing from the EU
altogether: And of course the Tories are as much against that as the Labour Party or
Lib-Dems.
Yet, the ‘police and criminal justice’ legislation was a unique exception from that rule.
Those are the 35 powers which could really have been ‘repatriated’ without leaving the
need to leave the EU. Moreover, such a ‘repatriation’ would have been entirely painless.
It would not cause any real practical difficulties in terms of international co-operation
in the area of law and order. We would simply fall back on the well-established system
of normal extradition and mutual legal assistance treaties, which we have with all EU
members. Similarly, we would all remain members of Interpol. Whatever is useful and
valuable in co-operation with EU members would have been preserved.
So, the Conservative Party was in an incredibly favourable position to prove its resolve
to ‘repatriate powers’. In other areas, ‘repatriation’ would be much more difficult or
altogether impossible. Despite those unique advantages, they have failed this first test.
Instead of a ‘repatriation’, they freely chose to give away more powers to the EU.
They have failed for no other reason but their loyalty to the EU ideology of ‘ever closer
union’, even if the price of going ahead with that project is to abolish more and more
of our ancient liberties, and to a high extent, the rule of law itself.
As her Labour counterpart told the Home Secretary in Parliament when she announced
the government’s decision to ‘opt-into’ the European Investigation Order, “May I warmly
thank the Home Secretary for adapting this sensible, pragmatic and pro-European
policy? I look forward to sending her a membership form for the European Movement.”
18 HC Home Affairs Select Committee, 2013, 9th Report, Pre-Lisbon Treaty EU Police and Criminal Justice Measures: the UK’s
opt-in decision.
19 HC European Scrutiny Committee, 1913, 21st Report, The UK’s block opt-out of pre-Lisbon criminal law and policing measures.
European Union Police and Criminal Justice Measures. The UK's 2014 'Opt-in' Decision
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7. Conclusion
The Coalition Government still has a golden opportunity to put its money where
David Cameron’s mouth is. The Government has the ability to opt-out of all of the 135
measures up to the deadline in May 2014. Mr Cameron reneged on his ‘cast-iron’
promise to the British people for a referendum on the Lisbon Treaty, so he can surely
renege on Theresa May’s commitment to the EU to opt-in to the 35 measures.
Mr Cameron says he wants to repatriate powers from the EU. He asks the British public
to vote for the Conservative Party in the 2015 General Election precisely so that he can
form a Government and renegotiate Britain’s terms of membership of the European
Union (which would itself be pointless unless that involved repatriation of powers) and
then put those renegotiated terms to an in-or-out referendum.
Why should anyone believe that if Mr Cameron foregoes the opportunity to repatriate
powers here and now? As we point out above, he can safely opt-out from these
measures but continue with genuine co-operation between Europe’s various police,
judicial and legal systems by means of Interpol and the existing intergovernmental
treaties on mutual co-operation in such matters.
The golden rule of politics is to listen to what politicians say but judge them by what
they do. What is at stake here is not some temporary policy that can be repealed later
if need be, but a threat to our most basic freedoms and protections under English law
established over centuries. If we opt-in to these 35 powers in 2014 then we lose the
power to opt-out later, and lay ourselves open to yet more EU control over our legal
system. If that happens then we cannot later regain these powers without a full and
unconditional withdrawal from the European Union.
Gerard Batten MEP,
[email protected]
PO Box 2409,
Ilford,
IG1 8ES