European Parliament.

Amid an escalating debate on whether the Government should use Protocol 36 of the Lisbon Treaty to opt out of EU criminal law, a study reveals how doing so would limit the UK’s ability to police international crime.

It is essential that the decision the country takes is made with due consideration of what the consequences might be - and not on the basis of misunderstandings.

John Spencer

The UK is in danger of compromising its ability to police international crimes like terrorism and drug trafficking by exercising its right to opt out of EU criminal law, a report has warned.

The 79-page study, by researchers working at the Centre for European Legal Studies (CELS), at the University of Cambridge examines the likely consequences of the UK choosing to withdraw from a swathe of EU criminal legislation under terms agreed at the Treaty of Lisbon in 2007.

Protocol 36 of the Treaty entitles the UK to opt out of a range of European measures concerning police and criminal justice before June 2014. The Government is under increasing pressure to do so, particularly from those who believe that exercising this right would “repatriate” criminal justice to the UK.

But the new report argues that the escalating opt-out debate is proceeding on the basis of a misunderstanding both about what exercising the Protocol 36 opt-out would achieve, and the difficulties that would result from it. It stresses that key measures which allow the UK to police international crimes, for example, by enabling the swift extradition of terrorists or other wanted criminals who have fled to Europe, would be lost.

Having opted out of these laws, it suggests that in many cases the UK would be left with little choice but to ask the EU for permission to opt back in. Failing to do so “would prioritise antipathy for the European Union above any benefit for British law enforcement or criminal justice that results from any of the EU measures,” the paper adds.

The paper also says that the repatriation argument is a flawed. A range of new EU criminal justice measures, agreed since the Treaty of Lisbon came into force three years ago, would remain in place and continue to apply in the UK as before.

The authors – Alicia Hinarejos and John Spencer from Cambridge, together with Steve Peers from Essex - conclude: “In this area of law, the UK is facing an important choice about its relations with the European Union. It is essential that the decision the country takes is made with due consideration of what the consequences might be - and not on the basis of misunderstandings. We hope this paper will help to make that possible.”

Under the terms of Protocol 36, the UK could opt out of more than 130 European criminal justice measures at any time before June 2014, when the Court of Justice of the EU at Luxembourg is due to acquire jurisdiction in relation to them. The opt-out has to be on an all-or-nothing basis. Having opted out the UK could, however, then ask the EU for permission to opt back into some or all of the measures it had withdrawn from.

The original purpose of the Protocol 36 opt-out was a narrow one. Under the Treaty of Maastricht, Member States which failed to apply EU criminal justice legislation could not be sanctioned by the Court at Luxembourg. For measures adopted after Lisbon, they can be. As from December 2014, the new regime will apply to the earlier measures too. The Protocol 36 opt-out was devised to give the UK the chance, in respect of these earlier measures – all of which it had originally agreed to – to change its mind before this happened.

Some, however, see the Protocol as a device which would enable the complete repatriation of criminal justice to the UK. In February 2012, a group of MPs wrote to The Daily Telegraph urging the Government to use it on this basis. The Home Secretary has promised a Parliamentary debate, and some analysts believe that the Government may ultimately exercise the opt-out to deflect the pressure for a wider referendum on Europe.

The paper points out, however, that Protocol 36 would not free the UK from EU criminal justice legislation. This is because the protocol only enables an opt-out from measures established before the Treaty of Lisbon came into force in 2009. Since then, the UK has actively agreed to a range of other instruments which would remain in place. These include measures guaranteeing certain minimum rights to suspects during a police investigation, and others against crimes like people trafficking and child sex abuse.

More urgently, however, the Cambridge study argues that opting out of the pre-2009 legislation would mean the loss of measures that would directly threaten law and order in the UK. This includes the European Arrest Warrant (EAW), the opponents of which believe to be a specific piece of legislation with which the UK should terminate its involvement.

The EAW requires another EU member state to arrest and transfer a criminal suspect or sentenced person to the state which has issued the warrant so that they can be put on trial. While the paper accepts that the EAW has its problems, it argues that these can be resolved at EU level, rather than by pulling the UK out of it – a course that would hinder the UK’s ability to extradite criminals from within the EU once they have fled to Ireland, France, or another member state.

“If it reduced the likelihood of our citizens facing trials abroad, it would also make it difficult for us to get our hands on people who, having committed crimes in the UK, have fled by Ryanair or EasyJet to Europe,” one author commented. “Thanks to the EAW, for example, Husain Osman, one of the July 21 bombers, was returned from Italy within weeks. Without it, we might still be waiting for him now.”

The opt-out would have a similar effect on a wide range of other criminal justice measures which are discussed in detail in the report. These include legislation designed to enable information-sharing between European police forces and national prosecution agencies, and rulings which ensure that EU states will prohibit certain crimes, among them terrorism, bribery, money-laundering and electronic payment frauds, with deterrent penalties.

As a result, the report concludes that much of EU criminal law is too much of a practical necessity for an opt-out to be desirable, and that the UK should maintain its participation in these measures.

“A block opt-out would make it harder for British police to investigate crimes with a cross-border element, harder to get hold of fugitives who flee the UK to another member state, and harder to move foreign convicted criminals from British prisons to other member states,” the authors add. “There is a risk that some serious crimes would be committed which would have been prevented if the block opt-out had not been exercised and a similar risk that some crimes would go unpunished. It is worth asking whether this is a price worth paying for a purely nominal increase in British sovereignty?”

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