EU opt-out weakens the UK

Professor Ed Cape
Tuesday, 16 July 2013

On 9 July 2013 Theresa May, the Home Secretary, announced the government’s intention to opt out of 130 European Union crime and justice measures, and to try to negotiate opting back in to just 35 of them. This was approved by a vote in the House of Commons on 15 July, with a majority of 97.

The opt-out provisions were negotiated by the previous New Labour government under Tony Blair as a condition of signing up to the Lisbon Treaty in 2009. Under the provisions, the UK government has until December 2014 to decide which pre-Lisbon measures to opt out of, and Protocol 36, Article 10, then allows the UK government to apply to opt back in to one or more of them – although success is by no means guaranteed.

Almost all of the provisions are designed to ensure co-operation between the police and other criminal justice agencies, and mutual recognition of judicial decisions in member states. In her oral statement to parliament Theresa May portrayed the opt-out as necessary to re-assert national sovereignty. In truth, it is more about appealing to the Eurosceptics in the Conservative Party, and to prevent leakage to UKIP, rather than a rational consideration of British interests in Europe.

When the pre-Lisbon measures were adopted the UK, along with all other member states, had a veto on EU legislation in the area of crime and justice, so it cannot be argued that the UK did not have a say in whether they were adopted.

The power of veto came to an end with the Lisbon Treaty, which introduced a system of qualified majority voting for crime and justice measures, but post-Lisbon measures are subject to another Treaty provision, Protocol 21, Part 3, which allows the government to notify the EU that it will not participate in a measure relating to the area of freedom security and justice. Under this provision, the UK government has, in effect, opted in to the Directives on the right to interpretation and translation in criminal proceedings, and also to the Directive on the right to information. To its shame, it is opted out of the Directive, soon to be agreed, on the right to legal assistance in criminal proceedings, although this did not stop it from interfering with the negotiations over the Directive.

Until now, respect for the British criminal justice systems (they differ significantly as between England and Wales, and Scotland) amongst other EU member states has been high, and in some respects Britain has provided a lead. For example, England and Wales introduced a statutory right to legal advice at police stations, supported by non-means tested legal aid, decades before many other countries – leading to fairer trials and fewer miscarriages of justice.

Opting out of the crime and justice provisions is a backward step which is not only bad for British interests at home, but will inevitably lead to a reduction in Britain’s moral authority in Europe and beyond.