Liberal Democrats risk civil liberties blind spot on EU crime and policing laws

There are few issues that galvanise Liberal Democrat members like civil liberties. Since going into coalition, party members have upheld this tradition by campaigning on a range of issues, most notably the so-called snooper’s charter and secret courts. However, the party has also traditionally been strongly committed to European co-operation – what happens when these clash?

The immediate context is the choice facing the coalition on whether to definitely opt into around 130 EU criminal and justice laws, including the European Arrest Warrant, by 2014. This is part of a wider debate whether it is desirable to cede sovereignty over national justice systems in the international fight against crime and terrorism. The House of Lords’ EU Committee has strongly endorsed staying in but the coalition is divided – Lib Dems back staying in while Conservatives are broadly minded to opt out. A compromise could see the UK opting-out en-masse but then opting back into key measures.

Crucially, any measures the UK opts back into – as well as any new ones it signs up to – will be subject to the jurisdiction of the European Court of Justice. The potential ramifications are huge as the ECJ would become the ultimate arbiter of UK citizens’ rights in cases of inter-EU criminal and justice proceedings such as extraditions. This is not a black/white issue – as with all EU involvement there are costs and benefits. Lib Dem MEPs argue ECJ involvement will strengthen British citizens’ rights abroad, but it will also weaken the ability of UK courts to oversee these rights. This is not a nationalistic argument but a liberal one – how can these rights best be protected? The ECJ can be very unpredictable, often issuing rulings completely at odds with the original intentions of member states. Allowing it to be the arbiter of single market disputes is one thing, but do we really want it to have the final say in such a sensitive area?

In fairness Lib Dems have acknowledged there are flaws in the current system, most notably with the EAW, and have pledged reforms. Laudable as this is, not even a much needed proportionality clause can fully remove the risk of miscarriages of justice similar to those suffered by Andrew Symeou or Deborah Dark, because the EU’s criminal and justice system will only ever be as strong as that of its weakest members. Insisting on tougher standards is well and good but as often demonstrated, it is one thing to agree on something at the EU level and another to enforce it. Also, once implemented, it can be virtually impossible to amend flawed EU laws, and it is noteworthy that Fair Trails International opposes opting into the EAW as it stands.

In the absence of appropriate safeguards is it worth the risk of definitely opting back in? In the battle over the snooper’s charter or secret courts the party stood firm, rejecting what it saw as unsatisfactory compromises. It also rejected alarmist rhetoric, such as when Julian Huppert wrote on these pages that Theresa May’s claim that “Criminals, terrorists and paedophiles will want MPs to vote against the [Communications] bill” was misleading and the sign of “someone without a rational argument to make”. However, in defending the opt-in, Lib Dem politicians including Nick Clegg have used the spectre of “paedophiles, murderers and terrorists” to try to shut down the debate. Moreover, the party’s enthusiasm for the EAW stands in stark contrast to its tough stance on the flawed UK-US extradition treaty, particularly in the case of Gary McKinnon. 

In addition to the risk of locking in existing flaws, there are also concerns over future proposals. For example, the Commission proposed last month that Europol should have more powers to access national files on “victims, witnesses, persons possessing relevant information as well as personal data of minors”. While not wishing to overstate the similarities to the Communications Bill, clearly there are similar arguments over authorities’ rights to access personal information of ordinary citizens – not just convicted criminals – yet Lib Dems have been silent on the issue.

No one seriously argues that the UK would be better off cutting itself off completely from international co-operation on crime and policing, however there is a legitimate debate to be had about the institutional form it should take and how citizens’ rights can best be safeguarded. In the corresponding domestic debate Lib Dems have been robust in standing up for civil liberties, and it would be wrong not to adopt the same approach to Brussels simply because the laws proposed have the pre-fix “European”.

* Pawel Swidlicki is a researcher at Open Europe, an independent think tank campaigning for EU reform

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This entry was posted in Europe / International and The Independent View.
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6 Comments

  • Alex Macfie 26th Apr '13 - 2:12pm

    Our party’s position on the EAW should be that we should not opt out, but we should reform the UK’s implementation of the system to take maximum advantage of the flexibility that it allows, and also push for reform at the European level. Other countries have managed to formulate their law to maintain, for example, a proportionality test and basic checks that the requesting state has the right person (something we don’t even have, e.g. Edmond Arapi). As a party perhaps we don’t loudly enough proclaim our support for a specifically liberal vision of Europe, which should include a pan-European arrest and policing system that is consistent with natural justice and fairness.
    However, it is actually very difficult to talk about EU reform in our political climate with much of the media still wedded to the lie that the only positions that it is possible to take on the EU is uncritical support for everything the EU does, and withdrawal. The idea that there are different political positions to take on specific aspects of EU law in the same way as there are on domestic law is lost on them. And will our Euro election campaign help clear the water on this matter by campaigning on what our MEPs are doing to make the EU more liberal? I doubt it, we’ll probably focus on national government like we are doing for this year’s local elections.

  • Helen Dudden 26th Apr '13 - 9:46pm

    The Brussels 11a is currently awaiting a report on the problems and issues. The use of Roman Law and English Law have differences.

    This is in connection with child access and abduction. A very costly situation for those concerned. It takes time and is very emotional to all those concerned. The costs can run into tens of thousands.

    The European Arrest Warrant has not only been used to catch murderers and those who commit serious crimes it has been abused in it’s use too.

    When things go wrong who do you turn to? That is a good question and MP’s have little interest in the subject, I can assure you. I would suggest that unless MP’s have the will and the power to sort out the problems they rethink their attitude on the subject of EU Law.

  • The idea that Britain, where the government treats the European Convention on Human Rights with contempt, tells us that there is such a thing as ‘evidence gained by torture’ and constantly complains that ‘Europe’ is stopping ‘us’ from randomly imprisoning people without evidence, somehow has a fairer justice system than other European countries is laughable.

  • @Chris: What government wants to be able to do, and what is possible under current laws, are not the same thing. We have better justice system and procedures than some other countries in certain respects. Unlike Poland, we don’t haul people before the courts for, say, the theft of a bicycle 10 years ago. Prosecutors here can’t appeal an acquittal just because they are unsatisfied with it (unlike in France, hence Deborah Dark’s predicament). And the UK is much more judicious in its use of extradition requests than some other countries (notably Poland).

  • We already have problems with unelected european judges overriding our laws, for example deciding who we can and can’t extradite from our country, based solely on unsubstantiated claims, do we really want to give away more power to the eu to govern our nation.

  • Chris Nelson 29th Apr '13 - 11:55pm

    The author is right to raise questions about European extradition procedures and to question whether civil liberties are being properly protected. Such questions are after all the very point of having a liberal party and we should always be aware of the need to treat a proposal from the EC Commission with the same degree of rigour, probity and ideological interrogation as we would treat a proposal from the British Home Office.

    A core point of this article however seems to be that the ECJ would become the sole arbiter of fairness for the EAW regime, that it can’t be trusted and that this might implictly result in the trampling of human rights. HOWEVER, whatever concerns are about judicial activism, the ECJ in 2004 has consistently held itself to be subject to the European Convention on Human Rights for over 40 years and has to my knowledge never yet contradicted it.

    What’s more, as the EU is now to sign up to the European Convention of Human Rights as its own right, we will soon have a right to appeal decisions of the ECJ directly to the European Court of Human Rights – who are exactly the same ultimate arbiter of British rights and freedoms as we have for national legislation. This is a major victory for Liberal MEPs, who have campaigned for this for decades. Quite apart from the fact that whatever it has done on other cases the ECJ has never directly contradicted human rights law (quite the opposite!) and usually draws heavily on ECHR cases when making human rights decisions, the fact that the ECHR will now be formally looking over its shoulder (just like it does for the UK Supreme Court) makes it even less likely that human rights will be disregarded.

    There ARE legitimate concerns to be had about how the European Arrest Warrant works in practice – which relate primarily to how effectively other countries implement fair trial protections, and whether the EU does enough to enforce them. Tackling that would involve fresh or amended EU legislation to uphold and lay out specific guarantees on issues such as access to counsel, legal aid rights, translation facilities, pre-trial detention and perhaps redefining the seriousness of the crimes worthy of extradition. Or it would involve a strong hand-ons approach from the European Commission to review how it is implemented in practice.

    Such amendments, however, can only be made within the system – by engaging with others and MEPs to make proposals for how it can be improved. Surely it is better to try and make a imperfect system better, when that system works well almost all of the time and has proven value in giving suspects their day in court, than to withdraw, giving a return to allowing hundreds or thousands of criminals to avoid justice simply with the aid of a cheap ticket to the costa del sol and obtaining the services of an obstructive extradition lawyer.

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