Stephen Booth: Vigilance is required if we are to stop the trickle of policing and criminal justice powers to the EU

Stephen Booth is a research analyst at Open Europe.

The Government’s recent decision to opt in to negotiations on the controversial European Investigation Order has provided us with an early opportunity to see the coalition’s pledge to “approach forthcoming [EU] legislation in the area of criminal justice on a case-by-case basis” in action.

The coalition has made civil liberties a cornerstone of its programme. “We need to restore the rights of individuals in the face of encroaching state power,” the coalition agreement tells us. Perhaps with this at the back of her mind, Home Secretary Theresa May described the EIO as a “simplification” or a tidying-up exercise and rejected any concerns that it might threaten civil liberties or impose further burdens on the police.

But the truth is that, although the Home Secretary did her best to push the 'nothing to see here line', the Government cannot guarantee how the final directive will look until after negotiations with other member states and MEPs in the European Parliament, which under the Lisbon Treaty now have powers to co-decide in justice and home affairs.

Theresa May has already admitted that there are aspects of the current proposal the Government does not like. The final outcome will be decided by qualified majority voting, meaning the UK is powerless to veto the EIO either if these unwanted elements are retained or if new and unforeseen amendments are added along the way. John Redwood made the crucial point that if the Government doesn't have the ability (which it doesn't) to opt out of the EIO, if it “proves to be not as advertised” then this must imply a loss of sovereignty. For a government committed to “protecting Britain’s civil liberties” the approach taken to the EIO seems careless – although the jury will be out until the negotiations are concluded. 

Add into the mix the Conservatives’ pre-election promise to repatriate EU powers over policing and criminal justice and Theresa May’s announcement looks increasingly vulnerable to accusations of hypocrisy.

But why is this so important? It is not only a discussion about principles but also practical consequences. Any decision by the Government to opt in to new proposals, or amendments to existing proposals, in policing and criminal justice is not only potentially a further transfer of power, it is irreversible: once you’ve opted in there’s no opting out again.

The Lisbon Treaty has given the EU the means to increase its activity in the areas of justice and policing, and home affairs more generally, by removing national vetoes, and by giving the Commission new powers to initiate legislation and the European Court of Justice’s new powers to enforce it.

The extent of Brussels’ already extensive role in this area was most recently revealed by a European Commission review of seventeen law enforcement systems and databases currently operated or being developed by the EU. Six of these systems require the collection or storage of personal data at the EU level. The budget line devoted to justice and home affairs is set to increase by 13 percent in 2011 to €1.1bn, which, as it was in 2010, would be the highest percentage increase among the headings of the EU budget.

But crucially, under the Lisbon rules, anything agreed after the treaty came into effect last year automatically falls under the newly extended jurisdiction of the ECJ. Given that agreeing to any new or amended EU justice and home affairs legislation means ceding jurisdiction to the ECJ,  the Government is already taking a rather liberal interpretation of its promise to “ensure that there is no further transfer of sovereignty or powers over the course of the next Parliament”.

This issue is not going to go away and if the Government is not clear about how it is going to proceed then it could prove explosive for the coalition.

And there is another hugely important quirk that has arisen as a result of Lisbon. The ECJ currently only has jurisdiction over new or amended police and criminal justice measures and not until 2014 is the full body of pre-Lisbon legislation due to come under the remit of the Luxembourg court.

Owing to protocols in the treaty, the UK is given a major choice to make by this date: either accept full ECJ jurisdiction over these pre-Lisbon measures or opt out en bloc. Under the latter option, these pre-Lisbon measures would no longer apply to the UK after 2014 (N.B. this only applies to policing and criminal justice. For asylum, immigration, borders and civil justice there is no such choice and the ECJ automatically gains jurisdiction).

Deciding to opt out in 2014 would allow the Conservatives to make good on their promise to repatriate EU powers over policing and criminal justice but that option only exists if the Government doesn’t opt in to any amendments to existing laws or sign up to new ones. For example, the European Arrest Warrant, which the party opposed in opposition, may well come up for amendment before 2014. Opting in would mean ECJ jurisdiction over its application in the UK but remaining outside would allow the UK to opt out of it in 2014.

All of this is enough to make most people dizzy, but in the end the choice simply boils down to more or less powers for the EU. If the Government is pressured to hold out until 2014, the choice becomes all the more obvious in the coalition’s own terms. Opting in would transfer jurisdiction over a substantial body of law to EU judges and would undeniably look and feel like “the transfer of sovereignty or powers”.

Conservative MPs who want to deliver on their manifesto pledge still have the opportunity to do so. But this requires putting enough pressure on their Cabinet to resist the temptation of acquiescing to the drip, drip, drip of new proposals and amendments that are bound to come from Brussels over the next few years.