As Christopher Howarth pointed out on this site last week, the Government has an unappetising choice over a final piece of Lisbon Treaty business – namely, a mass of EU crime and justice measures, including the European Arrest Warrant (EAW). If Britain opted out of them, we would be outside existing laws on co-operation altogether, to the gain of criminals. But if we opted into them, we would bring ourselves within the jurisdiction of the court which, as Howarth said, has "a history of judicial acticism".
As he wrote about the EAW, "I won’t bore you with stories of injustices inflicted on UK citizens by
the EAW, UK citizens languishing in Greek jails, those tried without
their knowledge etc. I will refer simply refer you to the thoughts of an MP who campaigned
against it when it was first proposed and foresaw some of the problems
if an EAW is presented." He then quoted David Cameron (for it is he) saying in 2002: “The Home Secretary would have to say, I am sorry. You may spend
time rotting in a Greek or Spanish jail. Weeks may pass before you are
even charged with an offence that is not a crime in this country. But
there is nothing I can do about it.’"
In short, the Government has been dumped on by the last Labour Government and David Miliband – so reverently interviewed by Andrew Marr yesterday. It was Miliband who, when Foreign Secretary, left his successors with the choice I describe above – a reminder of how much his grieving country will miss him. Labour didn't dare to decide one way or the other, and left the envenomed chalice for Theresa May. The Home Secretary's choice, after the inevitable discussions with the Liberal Democrats, has been to opt out of 127 of the measures…and then to opt back into 35 of them, including the EAW.
Downing Street and the Home Office seem originally to have attempted to smuggle this decision past Conservative MPs on the back of May's success in ridding Britain of Abu Qatada: a vote was suddenly announced for today. However, the Home Secretary was given a polite but firm grilling during last week's meeting of the 1922 Committee, and the Government duly backed down. The motion before the Commons today recommends that "the
UK should opt out of all EU police and criminal justice measures adopted
before December 2009 and seek to rejoin measures where it is in the
national interest to do so".
In other words, as a "Dear Colleague" letter from May and Chris Grayling put it, today's vote is the fulfilment of that commitment. It is the vote to exercise the United Kingdom’s opt-out". The letter makes great play of the Government having "listened to the concerns of colleagues and particularly the chairmen of the Committees specifically looking into this decision" (in other words, especially Bill Cash, who chairs the European Scrutiny Committee). Ministers have invited the relevant committees to submit reports "by the end of October, before the Government opens formal discussions with the European Commission, Council and other Member States".
The letter then lists three ways in which the EAW can be improved now in UK law, and promises to make better use of safeguards. However, there is a problem at the heart of the Home Office's plan. Today's motion says that the Government "should seek to rejoin measures where it is in the national interest to do so". But it isn't – anywhere, any time. As Howarth pointed out, the protections that the Government seeks are all very well, but "the problem is they have no superior
force once the ECJ gets jurisdiction. We will be at the mercy of the EU
court. The problem is no longer EAW reform: it is the new EU legal
It isn't clear as I write whether there will be a Commons vote at all today, although the Daily Mail suggests that one will take place, and that any revolt will be "muted". Tory MPs have an unpleasant choice. The Government will argue that, as the May/Grayling letter says, today's vote in on the opt-outs, not on any opt-ins – and that it makes no sense to vote against opting-out of the measures. On the other hand, Ministers have made it clear that they intend to opt back into those 35 measures, including the EAW, and there is no sign that any report by any committee – Parliamentary or otherwise – is going to change their minds.
The Home Secretary yesterday made play of standing up to the EU over plans for a prosecutor. But this diversion shouldn't distract attention from the main point – namely, that the Government is only postponing future trouble today. Above all, there is little sign of enthusiasm in Downing Street or the Home Office, in the event of an opt-in, for the repatriation of powers under a future Conservative Government – despite the commitment in the last manifesto to return criminal justice powers. Tory MPs will be justified in voting against today's motion as a signal of intent.