Should Britain leave EU police and justice policy?

Despite its narrowing lead in the opinion polls, the Conservative Party is still likely to form or lead the government after Britain’s general election in May. Although Britons remain as eurosceptic as ever, the country’s relations with the EU are unlikely to be a major issue in the election campaign. Even so, a Conservative government is bound to adopt a more critical attitude to the EU than that of the current Labour government.

One policy area of particular concern to the Conservatives is EU co-operation on policing and criminal justice, and in particular certain laws designed to combat terrorism, serious crime and illegal immigration. The Lisbon treaty scraps member-states’ vetoes in these areas. It also extends the powers of the European Court of Justice (ECJ) over agreements on crime and policing from 2014 onwards.

The Lisbon treaty gives Britain a special deal on such matters: it can choose whether to opt in to individual policies on policing, crime or immigration. But some Conservatives still worry about the ECJ having any say over the country’s criminal laws. Britain’s common law differs fundamentally from the legal systems in most other EU countries. The Conservatives are more hostile to the ECJ than to any other EU institution. They fear that future ECJ rulings could lead to harmonisation and endanger Britain’s legal traditions. In fact the Lisbon treaty gives the UK the right to pull out of most EU agreements on crime and policing, six months before the European Court gains jurisdiction over them in 2014.

If elected, the Conservatives are likely to use the UK’s opt in rarely, if at all. And most will be keen to use the escape clause that would allow the UK to pull out of EU co-operation in these areas in 2013. The result would be that the UK ceases to apply 90 or so existing EU agreements covering terrorism, serious crime and illegal immigration – including the European arrest warrant that allows for the speedy transfer of suspects between member-states.

The Conservatives need to consider the implications of such a move very carefully. Britain’s police and prosecutors would lose access to important crime-fighting tools. For example, if an EU national exercises his right to move to Britain and work in a school, there is currently no way of checking effectively whether he has a criminal record for paedophilia in another member-state. To resolve such issues, EU countries are in the process of linking up their DNA, fingerprint and criminal record databases. Common procedures for surveillance, pursuit and extradition of suspects across borders are already in place and working. But Britain would no longer be able to use these instruments if it opts out of policing and justice before 2014.

Britain would also lose its ability to increase its security by pressing for standards in other EU member-states to be raised. Working through the EU’s institutions, the UK has tried to establish a European ‘buffer zone’ between itself and international criminals seeking to traffic illegal drugs, contraband and prostitutes into Britain. If the Conservatives were to stand aside from police and justice cooperation, the UK would lose much of its authority to shape EU legislation in these areas. The UK would also have to leave Europol – the EU’s police agency – and Eurojust, its unit of national prosecutors. Both have been heavily influenced by British practice and expertise and are, coincidentally, currently led by Britons.

In addition, since Britain would no longer be able to use the European arrest warrant, it might become a haven for fugitives fleeing from justice in other EU countries. According to one EU official, Britain risks becoming “like Brazil, a place where criminals go in the knowledge they will be safe from extradition”. The UK could agree new bilateral extradition treaties with individual member-states. Denmark, the only member-state which does not participate in EU policing and justice policy, already does this. But the Danes have found that having separate treaties with EU countries on policing and justice issues is very unwieldy. The Danish government longs to switch to the normal EU police and justice arrangements, and hopes to get this approved in a future referendum.

Rather than pulling out of EU co-operation on policing and justice, Britain’s Conservatives should focus on another issue that voters care rather more about: control of the UK’s borders. The UK is not a member of the EU’s passportfree Schengen area. But single market rules give other EU nationals the right to move to, and settle in, the UK without the need for a visa or a work permit, just as Britons can travel to and work anywhere in the Union.

These rules – laid out in the EU’s 2004 ‘free movement’ directive – are deliberately strict, to ensure that countries do not dilute citizens’ freedom to travel and work on spurious grounds. But they also mean that Britain cannot repatriate a suspicious person to another EU country, unless it can prove beyond doubt that the suspect poses an immediate threat to the public. None of this will change if a Conservative government opts out of policing and justice co-operation.

But a future Conservative government could request the renegotiation of the free movement directive to allow for the easier expulsion of wrongdoers from other member-states. Such a controversial initiative could not succeed without several years of coalition-building by the British government. But Britain would stand a much better chance of securing such a deal if it remained a full partner in police and justice co-operation after 2014.