Jonathan Marks writes…muddled thinking over the EAW threatens our security

Yesterday in the House of Lords we discussed a report from the European Union Committee entitled ‘Brexit: Judicial Oversight of the European Arrest Warrant’. I regard this as a warm-up to the debates we will be having over the course of the Withdrawal Bill when we return from recess.

I rose to agree with the Prime Minister. Well, when she was Home Secretary in 2014 she recognised that losing the European arrest warrant would turn the UK into “a honeypot for all Europe’s criminals on the run from justice”. It seems that in the intervening period she has suffered some sort of memory loss and is now toying with the idea of pulling out of all of the most important crime-fighting tools we have with our European partners.

Luckily not all is lost. Nick Hurd, the Police Minister, during evidence to the Home Affairs Committee exalted the European arrest warrant as “an incredibly important tool in the box.”

He went on to explain how prior to the implementation of the EAW in 2004, fewer than 60 individuals a year were extradited from the UK to any country, not just the EU. Between 2004 and 2016-17, the EAW has enabled the UK to surrender over 10,000 individuals accused of convicted of a criminal offence to other member states.

Now we are putting that valuable tool as risk. Sure, day after day we hear ministers saying that the Government’s aim is to maintain our relationship with the EU in as close as possible to its existing form. But by stubbornly holding on to the red line on the European Court of Justice (CJEU) they are jeopardising their stated objective.

It’s more an unbending rod for the Government’s back than a defensible red line. If the Government genuinely wants this partnership they must accept that in areas of European cooperation, whether on citizens’ rights, trade standards, the environment or cross-border security cooperation, European law will continue to hold sway and its oversight is now and will remain with the CJEU or something very close to it.

In the legal and security areas, the arguments surrounding the European arrest warrant apply equally across the field. They apply to Europol, the EU agency for law enforcement, critically important to the fight against serious organised crime, people trafficking, cybercrime, terrorism. They apply to data sharing under the Schengen information system, the vast database to which EU member states have access, under the judicial oversight of the the CJEU; to Eurojust, the EU agency that promotes coordination and cooperation between EU investigating and prosecuting authorities, to which the DPP has made it clear that she attaches great importance; to protection for citizens under the Data Protection Directive; to resolving choice of law issues, currently achieved by the Rome regulations; to dealing with issues of jurisdiction, recognition and enforcement in civil and commercial matters covered by the Brussels 1 Regulation and the recognition and enforcement of judgments in family law, covered by the Brussels II Regulation.

In all these areas, ministers claim to want maximum cooperation. Yet they insist on rejecting CJEU jurisdiction. They dress this red line up as a moral defence of UK sovereignty yet we accept the UN Charter and the jurisdiction of the International Court in The Hague. We accept the jurisdiction of the European Court of Human Rights under the European Convention of Human Rights. Why not the CJEU?
Frankly, this whole issue has been blown out of all proportion by the soundbites of ideologues.
The UK has been a successful litigant before the European Court. Research for the Institute of Government published in December demonstrated that the UK has the highest success rate before the court of any EU member state. These negotiations are difficult enough, without red lines that are illogical, unnecessary and indefensible.

If this whole sad enterprise is going to proceed and the Government is serious about partnership, then in this, as in all these areas, will they please stop posturing and make proposals to our partners that have some chance of being agreed and are realistic and workable?

* Lord Jonathan Marks is a barrister and Lib Dem peer

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  • Martin Walker 10th Feb '18 - 10:34am

    Good article – I think it shows how the anti-European zealots now controlling the Conservative Party will never be satisfied. Leaving the EU will not be enough. They will not be happy until we have left the single market, the customs union, Euratom, Europol, the European Court of Human Rights, and even if all that happens, any other example of international cooperation (especially with a European focus) will be trashed too.

  • I have never been a supporter of “British Values” – one of the daftest phrases ever invented by UK governments. But just supposing it meant something, presumably the rule of law would be a basic minimum. Refusing to let citizens of other countries help us uphold it is utter madness.

  • Laurence Cox 10th Feb '18 - 9:29pm

    Have you considered the ways in which the EAW can be abused? I remember that some years ago when Sarah Ludford was an MEP, she had a case where a London resident (Andrew Symeou) was extradited to Greece on charges of which he was subsequently acquitted after a four-year ordeal; but he had to spend a year in prison in Greece before he came to trial, because as a non-resident of Greece he was not eligible for bail. Here is a 2014 article from Fair Trials which mentions Sarah’s role in calling for reforms of the EAW:

    and here is the case:

    Have these reforms ever been implemented? If not, leaving the EU will mean that we will have no influence in getting these reforms made.

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