19th Aug 2022


EU watershed on criminal law poses questions for UK

  • 'In the UK, it is hardly possible to discuss EU affairs in a rational way' (Photo: Jumilla)

For years, EU states’ policy on crime and policing was seen as so sensitive, so sovereign that it had a special status – there was no European Commission or EU Court oversight and no European Parliament decision-making powers on new laws. 

On 1 December this year all that will change.

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All EU policies for police and criminal justice will simply be normal EU policies: If EU laws in this area aren’t implemented properly the commission will be able to take enforcement action and all national courts will be able to ask the EU Court in Luxembourg to interpret this body of law in the normal way.

Not surprisingly, this has created political shockwaves felt most keenly in the UK, where barely a week passes without a divisive political debate on its involvement in EU crime and policing measures. 

Of course, in part, these debates reflect troubled British attitudes to the EU. 

But these UK debates highlight two issues of relevance to the whole of the EU: the challenges created by the mishmash of EU laws passed under the old “third pillar”; and the dangers of allowing exceptional treatment on criminal justice for individual member states.

Before the Lisbon Treaty, EU countries could agree new measures quickly, without having to worry about the agreement of the European Parliament. 

They did just that: A staggering 135 measures were passed. 

If it had had the power, it is likely the parliament would have insisted on fewer and better EU laws on crime and policing. 

Take the European Arrest Warrant: MEPs identified the risks and advised on safeguards, but member states were free to ignore their advice and did just that. 

For over a decade people across the EU have been suffering the devastating human consequences of unfair extradition as a result.

Thankfully, the European Parliament has recently returned to this theme. This time, the parliament’s reform recommendations should receive the attention they deserve. 

Sensible reform of the Arrest Warrant should not be seen as pandering to the Brits. It should be seen as learning from experience and protecting the rights of people across the EU.

Pre-Lisbon, the parliament also recognised that, without guarantees of a fair trial, people surrendered under Arrest Warrants would face injustice. 

Fair trial rights

For nearly a decade, certain EU states (led by the UK) stood in the way of these efforts to protect the rights of many of the people the British eurosceptics say they are so keen to protect. 

Thankfully, the EU is belatedly starting to make up for lost time and EU-wide procedural rights directives are being agreed.

The clarion call for British eurosceptics, though, has not been the greater role of the European Parliament but, rather, the “spectre” of commission enforcement and the EU court.

In practice, a review of the court’s caselaw shows that EU states have little to fear from an activist EU court. 

If anything, it has done too little to ensure that mutual recognition measures like the Arrest Warrant operate in a framework of respect for human rights. 

But, more broadly, the absence of these mechanisms pre-Lisbon has contributed to some of the problems with the Arrest Warrant. 

The commission had no power to insist that EU laws, like those allowing the cross-border enforcement of fines, were implemented by member states, who instead relied on the more drastic (and disproportionate) measure of extradition. 

Similarly, the UK’s highest courts have bemoaned the fact that they must apply EU laws on crime and justice but, until 1 December, have been barred from asking the Luxembourg Court how those laws should be interpreted. 

While the EU Parliament is right to demand changes to the Arrest Warrant Framework Decision, if the right questions are asked, the court could deal with at least some of the problems - like the failure to respect human rights, and proportionality.

So, far from being something that people in Europe should fear, bringing crime and policing into the mainstream of EU law from 1 December could result in more consistent protection for fair trial rights. 

Sadly, though, things aren’t quite that simple. 

Third pillar

As commission VP Frans Timmermans recognised last week: Because of the political sensitivity of police and criminal law, certain member states have always had a special status. 

The price for abolishing the ‘third pillar’ was to extend somewhat the scope of this variable geometry.

Denmark has decided to stay out of this area altogether. 

Countries like the UK managed to secure a perpetual right to “pick and choose” what they want to be part of and what they want to stay out of. 

The EU has made it clear that EU-wide fair-trial safeguards are needed if police and judicial co-operation is to work. 

But, despite this, there is nothing to stop the UK deciding to remain part of all of the EU tools for police and prosecutors, while deciding to stay out of the EU laws needed to make those powers work fairly. 

Notwithstanding our efforts to persuade the UK to opt into new EU-wide protections for fair trials, increasingly the UK is refusing to do so. 

To take just one example, we know from years of working with people facing Arrest Warrants across the EU that having a decent lawyer in both the requesting and the requested country can make the difference between justice and injustice. 

EU law now recognises this. 

A new directive guarantees a right to access a lawyer in both countries which hopefully will soon be accompanied by a right to free legal assistance where needed. 

The UK, however, has made it clear that it wants no part of any EU laws guaranteeing suspects access to a lawyer. 

The result of this variable geometry: a person can be surrendered from France or Poland to the UK under an Arrest Warrant, but EU laws will not require the UK to give them legal assistance (or legal aid). 

With the current attacks on legal aid in the UK, and almost daily threats to restrict the rights of EU migrants, this is not as outlandish a risk as it might seem.

Jago Russell is the head of Fair Trials International, a London- and Brussels-based NGO


The views expressed in this opinion piece are the author's, not those of EUobserver.

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