Cameron’s choice: Play to the gallery or keep Britain safe by Hugo Brady
Britain has a decision to make that has major implications for both its security and its influence within the EU. Should it opt out of most EU co-operation on crime and policing by 2014? It can do so thanks to a special deal won by Britain in negotiations on the EU’s Lisbon treaty in 2009. MPs look likely to say ‘yay’ when parliament votes on the matter next year: anti-EU feeling is running high in Westminster.
For a full analysis of this issue, see the forthcoming CER publication ‘Cameron’s next European ‘own goal’: Leaving EU police and justice co-operation?’ by Hugo Brady.
If Britain uses this ‘block opt-out’, it will lose access to a raft of cross-border agreements and databases designed to help EU countries maintain security and better manage the free flow of people between them. UK authorities will no longer be able to use the European arrest warrant (EAW) with which they have prosecuted hundreds of criminals who would otherwise have gone unpunished.
and the Napoleonic legal code. Of the large member-states, only Britain uses common law, a fundamentally different system, where the defence and prosecution argue cases before a neutral judge and jury. Other governments recognise that this entitles Britain (and Ireland, also a common law country) to special treatment: both opt-in to EU crime and policing measures on a case-by-case basis.
If Britain does not opt-out, after 2014 the European Court of Justice (ECJ) will have a say over how police, prosecutors and courts across the EU co-operate to investigate crime, organise extraditions, share criminal records and exchange evidence. The Lisbon treaty will give the European Commission, for the first time, the power to enforce over 130 such agreements. EU judges will be able to interpret their exact meaning, as they do with the rules of the single market.
But Lisbon has shifted the emphasis of EU criminal justice policy away from ‘co-operation’ towards more ‘integration’, by abolishing national vetoes and giving the Union’s institutions more powers. Over time – the thinking in Whitehall goes – EU judges might undermine Britain’s common law traditions by handing down harmonising rulings that favour the continental model of criminal justice. This, along with strong opposition in the Conservative Party to the influence of European courts in general, makes it likely that Britain’s prime minister, David Cameron, will use the block opt-out.
Most EU countries have criminal justice systems based on a mix of the Roman civil law