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.

Which MPs will stand up and be counted on the EU referendum lock?

The Government's EU Bill returns to Parliament next week, with MPs considering amendments to the 'referendum lock'.

At the moment there is no democratic control over which EU crime, justice and immigration laws apply to the UK – neither MPs nor the electorate have a say over these decisions, only the Government. With a new briefing published today, we have stepped up our campaign to see the Bill amended to give Parliament, and in some cases voters, a say over whether Ministers sign up to these laws.

The crux of the matter is that next week MPs have the chance to give themselves increased power over the Government, allowing them to debate and approve these hugely important EU laws that will have an impact on their voters.

And there is another hugely significant issue here.

Before 2014, the Government has to decide whether existing EU crime and policing laws (those introduced before the Lisbon Treaty came into force late 2009) continue to apply to the UK. If they continue to apply they fall under the full jurisdiction of EU judges at the ECJ.

This is a massive 'more or less EU' decision that should not be left entirely up to the Government, which it would be under the current Bill. This should be decided by the people or, failing that, Parliament.

Do MPs really want to explain to their constituents that they passed up on the opportunity to have a vote on EU crime or police laws such as the European Arrest Warrant agreed in 2002, which has seen numerous Britons extradited to other European countries on spurious charges?

These are laws that have a direct, and sometimes costly, impact on people's lives - this is no time for MPs to duck the question.

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...

News just in

Home Secretary Theresa May has just announced to the House of Commons that the UK has decided to opt in to negotiations on the European Investigation Order (EIO). It will give foreign police forces the right to request UK police to seek and share evidence on suspects. This clearly poses fundamental questions about safeguards for civil liberties and the new pressures it will place on police resources.

Let us first give May some credit for giving a statement in person and allowing questions to be put to her rather than issuing a mere written statement (She has done good work on parliamentary scrutiny of EU issues in the past). However, it should also be said that MPs have not previously had the chance to scrutinise the proposal either in the European Scrutiny Committee or in the House.

The truth is that, although May 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.

May said that signing up to the directive did not present a loss of sovereignty. But John Redwood made the valid and important point that if the UK doesn't have the ability (which it doesn't) to opt out of the European Investigation Order if it ends up as something "different to what was advertised" after negotiations then this must imply a loss of sovereignty.

The Home Secretary admitted today that there are aspects of the current proposal the Government does not like. This will now 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.

This is not to mention the fact that, as a result of Lisbon, the European Court of Justice will have the power to make rulings on how the EIO is interpreted in the UK.

Given this Government's pledges to protect civil liberties and reduce bureaucracy in public services, such as the police, this is surely too big a gamble to take.

What would a Lib Dem government do about Ian Bailey?

The Lib Dems' recent rise is rightly leading to closer scrutiny of the party's policies. Their support for the UK entering the euro, was correctly described as "folly" by the Sunday Times. If it wasn't right to join the euro when the UK was experiencing higher growth in comparison to the eurozone, and if you're willing to admit that the current eurozone interest rates would have hurt the UK's recovery (as Clegg has recently), then when would it ever be right to join? The Lib Dems' answer, "In the long-term", is simply not good enough from a party that wants to govern the country.

But another area that has received far less scrutiny and attention is the Lib Dems' commitment to further EU cooperation on crime, justice and policing. This is extremely important because, under Lisbon, this is the area of EU policymaking that is likely to grow fastest. And for a practical example of why this is all important, we need look no further than a story reported in yesterday's Independent, and today in the Irish Times.

Ian Bailey, a British former journalist suspected in connection, but not charged, with the murder of a French film-maker in Ireland 14 years ago, has been detained by the Irish authorities under a European Arrest Warrant issued by a French judge. French lawyers argue that they have jurisdiction over the case, citing the French constitution which states that murder cases involving French citizens in any part of the world can be brought in front of French courts.

But, as Carol Coulter, the Irish Times' legal editor, points out, the Irish Director of Public Prosecutions decided not to prosecute Bailey for the murder. Therefore, in practice, the French extradition request amounts to a breach of the double jeopordy principle, enshrined in the European Convention on Human Rights (ECHR), as well as the Irish Constitution.

We've pointed out some of the EAW's failings before, but this case could potentially prove to be a huge step in a very dangerous direction. If Bailey loses his fight against extradition, the Irish authorities will have deported someone, whom they believe did not have a case to answer under Irish law, to face charges in another country. Leaving aside whether Bailey is ever found guilty or not in the future, this simply cannot be right.

The Irish courts still have to decide whether to action the extradition request but it will be interesting to see how much pressure is put on them by the French government. And given that the French request effectively amounts to a vote of no confidence in the Irish legal and judicial system, what prospect does this man have for a fair trial in France? And doesn't the UK, given that Bailey is a British citizen, have a duty to point this out?

"Twenty years down the line, where will we be?"

Over the Bank Holiday weekend the Independent and the Telegraph both picked up on a lecture given by the aptly named Lord Chief of Justice, Lord Judge, last month, in which he warned of the growing influence of both the European Court of Human Rights (ECHR) in Strasbourg and the EU's European Court of Justice (ECJ) in Luxembourg. He concluded with a question that the Government has done everything it could to avoid: "Twenty years down the line, where will we be?"

Both papers chose to focus predominantly on his comments about the growing influence of judgements from the ECHR on the UK courts and how this poses a challenge to the UK's centuries old common law legal system. The answer, Lord Judge said, is to ensure "that statute ensures that the final word does not rest with Strasbourg, but with our Supreme Court."

The ECHR falls outside the realm of the EU, although, under the Lisbon Treaty, the EU as a whole formally acceded to the European Convention of Human Rights, which the Strasbourg court was established to uphold. And Lord Judge made some very interesting comments regarding this and the EU's growing role in UK criminal law more generally. They are worth repeating here as they went largely unreported at the weekend.

Lord Judge's first point was that "the [EU's] European Court of Justice is beginning to acquire jurisdiction over matters that would normally be regarded as matters not for Luxembourg but for Strasbourg."

He didn't expand much on this but it is an interesting point to watch in the future as there are clearly concerns that, with the EU acceding to the Convention, the remits of both courts has become blurred, with a risk of ECJ mission creep. The first practical example to which Lord Judge refers is that, "The EU has recently signed up to what is called a 'roadmap' of five areas of criminal procedure which must be addressed within the next 5 years to protect and guarantee the rights of EU citizens. I thought that was the job of the Convention."

It also raises difficult questions for the UK specifically, which can 'opt out' of much of the EU's new criminal legislation under the Lisbon Treaty but at the same time remains a signatory of the Convention of Human Rights - although David Cameron has said that he wants to review the Convention's impact on the UK. How will this work in practice, which will take precedence?

The second major point is that "The Treaty of Lisbon has brought criminal justice matters to the core of the EU and with it the jurisdiction of the Luxembourg court." This means that if the UK does opt in to new EU justice and home affairs legislation "decisions of the Luxembourg court on issues arising out of the Treaty of Lisbon, even to the extent that they involve criminal matters, would become binding on us all."

He concludes, "the development of the European Union, and the extended jurisdiction of the European court in criminal matters, will have a significant impact domestically. Twenty years down the line, where will we be?"

This is not just an interesting question but a very important one. You'd have hoped that it had been debated and answered long before the Government signed the Lisbon Treaty.

The rise of the EU's surveillance state

We've written an article for the Guardian's Comment is Free looking at the themes in our latest report on the EU's surveillance state and the Government's complicit role in its rise.

Click the link below to have a read:
http://www.guardian.co.uk/commentisfree/libertycentral/2009/nov/02/europe-surveillance-state

EU're (sorry - couldn't resist) being watched

We've published a new briefing today, called "How the EU is watching you: the rise of Europe's surveillance state", looking at the growing impact the EU is having on civil liberties. Click here to read the press release.

There are lots of juicy proposals in the pipeline including: a target to train a third of all police officers across the EU in a “common culture” of policing; the mass collection and sharing of personal data including DNA records into an EU-wide database; controversial surveillance techniques including ‘cyber patrols’; the creation of a fledgling ‘EU Home Office’ with powers to decide on cooperation on police, border, immigration and criminal justice issues; an EU “master plan” on information exchange; the transfer of criminal proceedings among EU member states; a three-fold increase in the number of controversial EU arrest warrants; access to other member states’ national tax databases; and EU laws on citizens’ right to internet access.

The Lisbon Treaty's ratification, which is looking increasingly imminent, will see the amount and scope of EU justice and home affairs legislation increase further. National governments will lose their veto, while the European Court of Justice will be given the power to overrule national courts in this area for the first time.

It is however also important to understand the role the UK Government has played in the growth of the EU's policies in this field. It was the UK, for instance, that pushed the EU's Data Retention Directive, which requires telecoms companies to store information regarding every phone call we make, or text message and email we send.

I guess the EU and the Government could argue they are finally "listening to" their citizens, but this isn't quite what we had in mind.

Wasting no time...

If you're curious about what the Lisbon Treaty will mean for Justice and Home affairs in the EU, you should look closely at the so-called Stockholm Programme - a slew of proposals for more integration in areas such as asylum policy, data sharing, policing and other sensitive policies, traditionally reserved for the national governments.

It's hard to know exactly what the Stockholm Programme will look like for two reasons: First, it's huge, with proposals ranging from a European surveillance and security system (including ID card register and Internet surveillance) to a common asylum policy. Secondly, in trade-mark EU fashion, it's being negotiated behind closed doors, making it difficult for us common folk to know what in the world is going on. Quite apart from the merits or drawbacks of these proposals (the surveillance and datasharing parts no doubt sound awfully Orwellian - as we've argued before), it's fair to say that this is contentious stuff.

And those in charge have wasted little time to take advantage of the Lisbon Treaty, which scraps national vetoes in a range of areas of justice and home affairs, and massively extends the EU's competencies in this area. Even though the Treaty has not been ratified yet, the Swedish Presidency has made it no secret that they intend to raise the ambition of the Stockholm Programme under the Treaty.

Anders Hall, key aid to Swedish Justice Minister Beatrice Ask, has said that the Commission's proposals in this area have been "too modest", given that the EU will soon operate under Lisbon Treaty rules. He said: "Given that the Stockholm Programme will now be carried out in a Lisbon-context, the level of ambition will increase to a certain extent. But exactly how this will play out is unclear as talks and negotiations are currently taking place between the member states."

These people are wasting absolutely no time in ploughing ahead with the Lisbon provisions, even in areas that strike at the very heart of national democracy. Is anyone paying attention?

Hat tip: Swedish blogger HAX