This Government cannot be trusted on EU crime and policing

The torrent of EU justice, police and immigration laws keeps on coming and the Government keeps on signing up to them.

Home Office Minister James Brokenshire today told the House of Commons that the UK has opted in to the EU's cyber-crime directive. Now leaving aside the merits or drawbacks of the new law in question, this decision demonstrates the complete lack of democratic accountability that we've been highlighting over the past weeks and why we've been pushing for MPs and the public to be given more power under the EU Bill.

Not only did MPs not get to vote on whether the UK should sign up to this particular directive, the Government broke the European Scrutiny Committee's 'scrutiny reserve' to do so. MPs on the ESC considered the proposal late last year but did not clear it because they felt there were still questions for Ministers to answer about the plans. The directive sets "a maximum term of imprisonment of at least five years" for certain cyber-crime offences.

But there is another technical but hugely significant point. We've explained before that in 2014 the UK has the right to opt out of around 90-100 EU policing laws that came into force before the Lisbon Treaty took effect. On the other hand, if the Government decides to remain opted in, these laws will fall under the full jurisdiction of the European Court of Justice for the first time. The Government has said it will put this hugely important decision to a vote in both Houses of Parliament - something that we welcome.

However, the directive the Government opted in to today 'repeals and replaces' a pre-Lisbon law, meaning that there is now one less EU law the UK can opt out of in 2014. It also means that the Government has today handed jurisdiction over the area of cyber-crime from the UK courts to the ECJ. And all without Parliamentary debate or approval.

The Minister said that by giving an oral statement to the House he was acting in the spirit of Parliamentary scrutiny but this is, quite frankly, nonsense. What use is scrutiny after the event? The Government has made a decision and there's nothing anyone can do about it. Today's statement was just to put that fact on record.

Last month, Europe Minister David Lidington made a statement committing the Government to observe Parliamentary scrutiny and give MPs more opportunity to have a say on EU justice and home affairs opt ins. On today's evidence it doesn't seem the Home Office got the message.

To make matters worse, the Government also looks set to opt in to the EU's plans to make the telephone numbers, addresses, credit card numbers, email and other details of British air travellers available on demand to police forces across Europe. The Commission's current proposal covers flights between EU and third countries but, not satisfied with this, the Coalition wants the proposal stretched further to cover data collected on all flights within the EU as well.

MPs have again been sidelined and the Government is fast losing any trust that Lidington has been seeking to build on this issue.

This is why the EU Bill should be amended

The Government on Friday published an annual report that reveals which, and how many, EU crime, justice and immigration laws the UK signed up to between December 2009 and December 2010.

The report states (p4) that the Coalition Government has opted in to eight new EU justice and home affairs laws since coming to power in May 2010, including the hugely controversial European Investigation Order, a new "IT Agency" to oversee the EU's vast crime and immigration databases (with start-up costs of around €113m), and granting United States' authorities access to European citizens' banking data under the so-called SWIFT agreement.

These are all transfers of power from the UK to the EU but Ministers were free to sign up to them without any democratic checks - Parliament had no say.

The Coalition has said it wants to operate a case-by-case policy of deciding whether to opt in to new EU justice and home affairs laws. Well last week's report shows what that policy amounts to in practice. Of 13 decisions whether to 'opt in' or not, the Government opted in 8 times. That's an opt in percentage of 62%.

The Government's record so far would suggest then that the UK will continue to play a major part in the EU's ever-expanding role in justice and home affairs. But under the current EU Bill, Parliament and voters have no say over the steady steam of laws that are transferring power over British justice and immigration policy to the EU level.

This is why amending the EU Bill is so important. Allowing the status quo to continue simply widens the democratic deficit between the Government and the general public on these crucial issues. Crime, justice and immigration are important to people and voters do not expect their Government to have free reign to hand over powers to the EU in these areas.

We hope that as many MPs as possible make their voices heard when these issues are debated tomorrow and that they impress on the Government the need for Parliament and voters to have more say over this crucial aspect of the UK's relationship with the EU.

The EU in 2011

For those of you who can't wait to see what 2011 has in store for European politics, Open Europe has published a briefing looking at the issues facing the EU - and most importantly the eurozone - next year. Read it here.

Let's put it like this: EU leaders better be ready to hit the New Year running...

Parliament needs to get a grip on EU justice and home affairs laws

At a time when MEPs are trying to grasp every possible opportunity to extend their own powers (and give themselves more cash), it’s about time that national parliamentarians showed some assertiveness over EU decision-making – or they risk becoming even more marginalised in EU affairs. The Lisbon Treaty shifted substantial control away from national parliaments to MEPs (hardly credible protectors of democracy in Europe), the Commission and EU judges. As a result, the UK Parliament was weakened (and the Lisbon Treaty’s yellow card procedure did not make up for this, as now is becoming increasingly clear).

But MPs now have a chance to claim some of these powers back.

How? In a new briefing published today, we argue that by a series of simple amendments to the Government's proposed EU 'referendum lock', the UK Parliament could turn itself into one of the most powerful chambers in Europe, insofar as EU policy is concerned. These amendments would require Ministers to seek the approval of Parliament before signing up to any EU laws in justice and home affairs. If the answer is No, the government can’t opt in.

This may seem like a boring detail, but on the contrary – it’s absolutely vital.

For the first time, this would give Parliament, and voters, a real democratic check on the extension of the EU's powers – although it would still fall far short of repairing all the damage caused by the erosion of democracy through successive EU Treaties.

Policing, crime, immigration and asylum are issues are hugely politically sensitive and any decisions to sign up to new EU laws in these areas need to be thoroughly debated and democratically accountable. This should be Parliament's job. As the German Constitutional Court argued in its ruling on the Lisbon Treaty:

Due to the fact that democratic self-determination is affected in an especially sensitive manner by provisions of criminal law and criminal procedure, the corresponding basic powers in the treaties must be interpreted strictly - on no account extensively -, and their use requires particular justification.

As it currently stands, the Government's proposed Bill, although a significant step forward, fails to address the day-to-day transfer of crime, policing and immigration powers from the UK to the EU. So any decision to opt in to a proposal like the controversial European Arrest Warrant will not be covered by the lock.

And the thing is, justice and home affairs is the area in which the EU gains the most new powers under the Lisbon Treaty. The EU now has two Commissioners rather than one, 17 databases and a rapidly expanding budget to fulfil its ambitions here.

Most importantly, European judges will have the final say over any law that the UK Government decides to opt in to. By definition, this is a transfer of powers.

In other words, it's a zero-sum game: every new justice or policing law the Government signs up to gives more power to the EU institutions at the expense of MPs, Parliament and the British courts. This is a big decision, which currently rests solely on Government Ministers' discretion.

The EU's growing ambitions in justice and home affairs deserve Parliament's undivided attention. It is perfectly reasonable for MPs to demand the power to vote on these crucial decisions that the Government makes in the name of their constituents. In fact, it would be a dereliction of duty not to.