Theresa May deserves to be congratulated for the doing the very best she can within the confines of the Coalition on the decision on mass opt-out from pre-Lisbon Justice and Home Affairs measures. However, the Conservative Party urgently needs to look ahead to what it can promise for the future. As matters stand, there are still arguments to make for those of us who believe that police, criminal justice and other such issues should be decided at a UK level rather than a European level and that, in particular, they should not be subject to the jurisdiction of the European Court of Justice (ECJ).
Why is this so? Because – under Coalition pressure? – the decision to opt-out of these old measures is apparently accompanied by a commitment to look at opting back into them on an individual basis. Any such opt-in would give the ECJ jurisdiction for the first time in the area concerned. Since the formation of the coalition government, new justice and home affairs proposals have been looked at on just such an individual basis under the terms of the Coalition Agreement and there has been a steady drip feed of EU measures into UK law.
The piece meal nature of such an approach inevitably leads to the UK being sucked further and further into the steadily growing European jurisdiction of the European legal system. It is not a question of fine-tuning our legal system, or choosing a beneficial measure here and there to top up our crime fighting capability. It needs to be stressed that the European Area of Freedom, Security and Justice is a political project to create a European legal system, something which is evident in the Treaty of Lisbon.
The Conservative Party is becoming more and more concerned about the direction in which our membership of the EU is taking us. It has held open the prospect of repatriation from the EU – although how the newly conceded powers under this opt-in fits into such an approach is an interesting question. As a starting point for our post-Coalition policy on Europe, the Conservative Party should surely consider a short postponement of all opt-in decisions until after a general election – and then committ a future Conservative government to no opt-ins at all to the area of Freedom, Justice and Security.