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Open Europe sets out the arguments in favour of opting out of European Court of Justice jurisdiction over EU policing and criminal justice law, while outlining how the UK can continue to cooperate with its EU partners but retain national control over its justice system.
29 January 2012
The UK Government must decide during this Parliament whether to repatriate 130 EU crime and policing laws (through the JHA block opt out), or whether to transfer full control over these laws to EU judges for the first time. It is a clear choice between more or less EU control over the British justice system – a choice between repatriation or more Europe.
Owing to a constitutional quirk in the Lisbon Treaty, the UK has the option of using a ‘block opt-out’ to repatriate EU crime and policing laws adopted before the Lisbon Treaty came into force. If the UK does not opt out, it must accept the European Court of Justice’s (ECJ) full powers of jurisdiction over these laws from December 2014. This would, for example, 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 list of laws subject to the block opt-out includes major measures such as the European Arrest Warrant, those establishing the EU’s judicial and policing agencies Eurojust and Europol, and databases to share criminal records and DNA between member states. The UK’s right to opt out does not apply to EU legislation on asylum, immigration or civil law where the ECJ already has control. Ultimately, the decision over the 2014 block opt-out is a matter of balancing expediency against national control and democracy.
However, the risks of accepting the power of the EU institutions over these laws outweigh the downsides of using the block opt-out for several reasons:
Open Europe recommends that the Government should invoke the 2014 block opt-out, which would allow it to consider the following options post-2014:
As much as the Government would like to put this crucial decision off until 2014, this is neither politically nor practically tenable. The Government has said it will give Parliament a vote on the 2014 block opt-out.
However, 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 an existing pre-Lisbon measure. To date, the Government has chosen to opt in on every occasion it has had to take such a decision and has not required Parliament’s approval. This is therefore not a choice for the distant future, but an issue of urgent legal, political and democratic importance.
A thorough and open debate must now begin in order to inject greater democratic accountability into this crucial decision. However, opting out sooner rather than later would give the Government a greater chance of securing the best possible deal for the UK for the future.
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