How to repatriate 130 EU laws

This week Open Europe published a new report that shows how the Government could repatriate 130 EU laws on crime and policing, including the controversial European Arrest Warrant.

The Government must decide before June 2014 whether a whole raft of EU police and justice laws, adopted before the Lisbon Treaty took force, will continue to apply in the UK beyond December 2014. Under Lisbon, if the Government opts out of any one of the existing laws, it has to opt out of the entire lot.

If it decides to keep these laws as they currently stand, ultimate and full jurisdiction over them will for the first time be irreversibly transferred from the UK courts to the European Court of Justice in Luxembourg. For example, it would give EU judges the final say over the mechanisms for extraditing British citizens to other member states, on the basis of a case brought against the UK by the European Commission.

The EU document relating to these powers was debated on the Floor of the House on 25^th January, during which the Justice Minister, Crispin Blunt, said that:

It is clear that the Government and the European Scrutiny Committee are of the same view: we consider that European legislation in the field of criminal law should be contemplated only as the last resort and only where action at the European level is absolutely necessary.

However, words of caution were given by my colleague, Dominic Raab:

The document before us has all the hallmarks of a massive and substantial power grab from Brussels in the area of EU criminal law. We might have ad hoc opt-outs, but the direction of travel has very serious implications for this country. The clear ambition in the document is for a pan-European code on what the Commission calls “Euro-crimes”, backed by EU penalties and jurisdiction… This is a fork in the road: it is time to decide whether Britain will retain our unique justice system and common-law tradition. This is one of the most serious constitutional challenges the House will face in this Parliament.

Commenting on Open Europe’s report, their Research Director, Stephen Booth, said:

As much as the Government would like to put this crucial decision off until 2014, this is neither politically nor practically tenable. The body of law to which the 2014 block opt-out applies is reduced every time the UK opts in to a new EU law which either amends, repeals or replaces a law on the list. To date, the Government has chosen to opt in on every occasion it has had to make such a decision and has not required Parliament’s approval. No matter where one stands in the debate, this clearly marks a failure of democratic scrutiny.

Finally, the wording of the Europe Commission’s official communication on this issue is of particular concern:

In cases where the enforcement choices in the Member States do not yield the desired result and levels of enforcement remain uneven, the Union itself may set common rules on how to ensure implementation, if necessary, the requirement for criminal sanctions for breaches of EU law.

Regarding sanctions, “minimum rules” can be requirements of certain sanction types (e.g. fines, imprisonment, disqualification), levels or the EU-wide definition of what are to be considered aggravating or mitigating circumstances.