Letter to the Daily Telegraph: The need for the UK to opt in to the EAW

Steve Peers

The following is the text of a letter published in today's Daily Telegraph, and the subject of a  front page story in that paper (see also the web version), as well as the Guardian and BBC News websites. The vote in Parliament is scheduled for Monday 10th November. 

If you are a UK practitioner, academic, politician or NGO or and would like to add your name to this list of signatories, please tweet me at @StevePeers or e-mail me at speers@essex.ac.uk.  

For more details of the argument for opting back in, see the previous post on this blog. 

Dear Sir,

Parliament will soon face a crucial vote on the Government’s proposal to opt into certain EU measures. A key concern is the European Arrest Warrant (EAW).
 



Without the EAW other EU members may be unable speedily to extradite suspects like Hussain Osman or Jeremy Forrest to Britain - both in jail after use of the EAW. Unsurprisingly, the Association of Chief Police Officers believes we cannot afford to lose it.

Britain also risks becoming a safe haven for fugitives from justice – a handful of them British citizens, but the vast majority foreign nationals wanted for crimes elsewhere in Europe.

At home, recent statutory changes should help prevent extradition to long pre-trial detention overseas, and curb EAW use for trivial offences. Overseas, Britain can only lead reform of Europe’s criminal justice co-operation by being part of the system.


There is no credible alternative to the EAW. Other EU members will be reluctant to adopt new laws if we reject a system that works. Resort to international law on extradition would be slow and ineffective.

A vote to opt in will be a vote for security and for fair and effective criminal justice. 


Yours,

from the Legal Profession

Rt Hon Lord Phillips of Worth Matravers KG

Lord Carlile of Berriew CBE QC

Rt Hon Sir Henry Brooke CMG

Rt Hon Sir David Edward KCMG QC FRSE

Rt Hon Sir Anthony Hooper

Rt Hon Sir Francis Jacobs KCMG QC
Rt Hon Sir David Latham

Rt Hon Sir Konrad Schiemann

Andrew Caplen, President of The Law Society of England & Wales

Alistair Morris, President of The Law Society of Scotland

Evanna Fruithof, Consultant to The Bar Council

Jonathan Cooper OBE, Doughty Street Chambers

Richard Clayton QC, 4-5 Gray’s Inn Square

Tom de la Mare QC, Blackstone Chambers

Helen Malcolm QC, Three Raymond Buildings

Professor Philippe Sands QC, Matrix Chambers

from Law Enforcement and Civil Society

Lord Blair of Boughton QPM

Lord Harris of Haringey

Baroness Ludford, former Member of the European Parliament

Rt Hon Lord Roper

Rt Hon Charles Clarke

Andrea Coomber, Director of JUSTICE

Charles Grant, Director of the Centre for European Reform

William F Hughes CBE QPM, former SOCA Director General

Michael Kennedy CBE, former President of Eurojust, former COO at CPS

Peter Neyroud CBE QPM, former Chief Constable

from the Legal Academy

Professor John Spencer QC, Cambridge University

Professor Estella Baker, De Montfort University

Professor Patrick J Birkinshaw, Hull University

Professor Paul Craig, Oxford University

Professor Brice Dickson, Queen’s University Belfast

Professor Piet Eeckhout, University College London

Professor Angus Johnston, Oxford University

Professor Valsamis Mitsilegas, Queen Mary University of London

Professor Steve Peers, University of Essex

Nicola Padfield, Cambridge University

Dr Cian Murphy, King’s College London

Dr Veronika Fikfak, Cambridge University

Dr Alicia Hinarejos, Cambridge University

Dr Rebecca Williams, Oxford University

Hugo Brady, London School of Economics

Further signatories:

Fergus Randolph QC, Brick Court Chambers
Paul Garlick QC
Roger Smith, former chair of Justice
Daniel Sternberg, barrister
Carl Gardner, blogger, Head of Legal
Klentiana Mahmutaj, barrister
Thomas Garner, Gherson Solicitors
Shoaib M Khan, human rights lawyer
Charlie Edwards, Royal United Services Institute for Defence and Security Studies
Camino Mortera, Centre for European Reform
Dr Marianne Wade, University of Birmingham
Theodora Christou, Queen Mary, University of London
Professor James Chalmers, Glasgow University
Dr Egle Dagilyte, Bucks New University
Professor Tamara Hervey, University of Sheffield
Professor Ed Cape, University of the West of England
John Flood, Visiting Professor, University of Westminster
Dr Paul James Caldwell, University of Sheffield
Professor Geoff Gilbert, University of Essex
Matilde Ventrella, University of Wolverhampton
Dr Richard Ball, University of the West of England
Professor Jo Shaw, University of Edinburgh 
Colm O'Cinneide, University College London 
Professor Geert van Calster, King's College London and barrister
Dr Sara Drake, Cardiff University
Josephine van Zeben, Oxford University
Alison Young, Oxford University
Dr Barbara Havelkova, Oxford University
Professor Sionaidh Douglas-Scott, Oxford University
Professor Julie Dickson, Oxford University 
Dr Maria Fletcher, University of Glasgow
Helena Wray, University of Middlesex
Professor Laurent Pech, University of Middlesex 
Dr Noreen O'Meara, University of Surrey
Dr Mario Mendez, Queen Mary University of London
Claude Moraes, Member of the European Parliament 

Barnard & Peers: chapter 25 

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Irregular migrants and EU employment law

 

Steve Peers

What rights do irregular migrants have under employment law? It’s a vexed issue, because allowing irregular migrants to enforce employment law in their favour would arguably provide a ‘pull’ factor for them to enter and stay. On the other hand, if ordinary employment law applies to irregular migrants, then they will not be undercutting the legally resident workforce, and employers of irregular migrants will be deterred from employing them since they will not be saving money as a result.

The issue was addressed by the CJEU in today’s judgment in Tumer, concerning the application of the EU’s Directive on insolvency of employers to irregular migrants. In a bid to reduce the ‘pull’ factors of irregular migration, Dutch law specifies that irregular migrants cannot be considered employees for the purpose of the national application of the EU law. The result is that irregular migrants whose employer becomes insolvent cannot obtain the payments for back pay which the EU legislation provides for.

In this case, Mr. Tumer had initially resided legally in the Netherlands due to his marriage, but he was refused a continued residence permit after he got divorced. As a Turkish citizen, he arguably obtained rights based on the EU/Turkey association agreement, but the national court rejected his argument on this point and the CJEU refused to reopen the issue. Non-EU citizens can also obtain rights to stay after five years of lawful residence in accordance with the EU’s long-term residence Directive, but Mr. Tumer was divorced in 1996, well before that Directive had to be implemented (2006).

Despite not holding a residence permit, Mr. Tumer remained on the territory and worked for a Dutch employer. His employer became insolvent and he applied for the back pay which it had owed him from the Dutch fund set up to implement the insolvent employers Directive.

Judgment

The CJEU ruled first of all that the ‘legal base’ for the adoption of the legislation, the previous Article 137(2) EC (now Article 153 TFEU) was not limited to EU citizens only, ‘to the exclusion of third-country nationals’. Next, while the EU’s long-term residence Directive provided for equal treatment of long-term resident third-country nationals, this ‘in no way precludes other EU acts, such as’ the insolvent employers Directive, ‘from conferring, subject to different conditions, rights on third-country nationals with a view to achieving the individual objectives of those acts’.

As to the scope of this Directive in particular, the Court noted that it left it to national law to define the concept of ‘employee’. However, this discretion was circumscribed by provisions which limited the ability of Member States to remove certain categories of employees from the Directive, and specified that atypical workers (part-timers, fixed term workers, agency workers) had to be considered as employees. The Court pointed out that the Directive neither excluded third-country nationals from the scope of the Directive nor ‘expressly permit[ted]’ Member States to exclude them. Dutch civil law classified anyone with a ‘contract of employment’ as an ‘employee’ who was entitled to receive pay.

So, the Court reasoned, national discretion regarding the definition of ‘employee’ was circumscribed by the need to ensure that the ‘social objective’ of the Directive was obtained. So this meant that an ‘employee’ was in effect, defined by EU law, referring to ‘an employment relationship that gives rise to a right, vis-à-vis the employer, to receive payment for work done’. This definition corresponds to Dutch civil law. Denying any employees access to back pay when their employer became insolvent was ‘contrary to the social objectives of the Directive’. It was irrelevant that the person concerned was not entitled to work in the country, and Member States could not refuse to apply the Directive to irregular migrants on the basis that it expressly allows Member States to take measures to combat ‘abuse’.

Comments

This judgment is an important confirmation that EU employment law in principle applies to third-country nationals in general, including (but not limited to) irregular migrants. First of all, the Court stated for the first time that the legal base for EU employment law was not limited in scope to EU citizens only. It did not explain this interpretation in the light of the specific power (never used) in Article 153 TFEU to adopt legislation on the conditions of employment of third-country nationals, but it must be assumed from the judgment that the existence of this specific competence in no way limits the personal scope of any other EU employment legislation.

The impact of the Court’s ruling is clearly not confined to the insolvent employers Directive only. It refers very generally to the prospect of adopting ‘other EU acts, such as’ this Directive, which apply to third-country nationals. Logically, this means that other EU laws, such as consumer law, apply to third-country nationals too, since the Court did not suggest that its approach was limited to employment law.

Having said that, the Court clearly states that EU legislation could subject its application to third-country nationals to ‘different conditions’. What conditions are those? Its approach in this judgment indicates how the personal scope of EU legislation should be interpreted.

In Tumer, it’s crucial that the EU legislation in question doesn’t expressly exclude third-country nationals, or expressly permit Member States to do so. It does leave the definition of ‘employee’ up to national law, but the Court rules that this power is subject to satisfying the ‘social objectives’ of the Directive. Those social objectives don’t go as far as to permit exclusion of third-country nationals.

Applying these rules of interpretation to other EU measures, no EU employment legislation expressly excludes third-country nationals, or expressly permits Member States to do so; and surely it would always contradict the social objective of the legislation concerned to exclude from its scope third-country nationals in general, or irregular migrants in particular. The same could be said of other areas of law, such as EU consumer law. In contrast, the Treaty rules and legislation on EU citizenship and free movement of persons are limited to EU citizens and their family members.

This means that irregular migrants, as well as third-country nationals generally, can invoke any EU employment law, and many measures in other fields of EU law. However, the judgment doesn’t give  them rights to invoke the application of purely national employment law in areas not directly regulated by EU law, such as pay (in the absence of insolvency).

Having said that, equal treatment as regards other aspects of national law might be required by EU immigration or asylum law, depending on the specific rules in that legislation.  The long-term residents’ Directive, referred to by the Court, is not the only EU measure which confers equal treatment rights in that regard. While most of the measures in this area concern legal migrants, it is striking that the Court makes no reference to the 2009 Directive on employers of irregular migrants, which contains specific rules on this issue.

In principle, according to that Directive, irregular migrants are entitled to the normal rates of pay from their employer, and that Directive also requires that effective means must be in place to enforce this. The reason for this rule is to avoid employers gaining a benefit from their exploitation of irregular migrants, and the judgment in Tumeris entirely consistent with this logic. As the Commission recently reported, however, Member States have been fairly lax in enforcing these rules (see the analysis by Elspeth Guild earlier on this blog).  

In the event that the employer becomes insolvent, perhaps due to the various sanctions against employers of irregular migrants that the 2009 Directive provides for, then the employees could rely on the Tumer judgment to get any back pay from the national funds set up to implement the insolvent employers Directive. However, what happens if the insolvent employer of irregular migrants has not been paying them the normal wage, and/or not making payments into the national fund? Today’s judgment does not address that issue, which the Court of Justice will have to address if and when it arises.

 

Barnard & Peers: chapter 20, chapter 26

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Tarakhel v Switzerland: Another nail in the coffin of the Dublin system?

 

Steve Peers

Introduction

Despite the EU’s purported adherence to high standards of human rights protection, the EU’s Dublin system, which allocates responsibility for each asylum-seeker’s application to a single Member State, has repeatedly run foul of human rights standards. Yesterday’s judgment of the European Court of Human Rights (‘ECtHR’, or ‘Strasbourg Court’) in Tarakhel v Switzerland, and the recent judgment of the same court in Sharifi v Italy and Greece, have further confirmed the problems in making this system compatible with ECHR obligations.

In fact, the Tarakheljudgment goes further than the prior judgments, which had merely exposed the lack of sufficient human rights protection in the EU legislation, as applied by Member States. Rather, it is now clear that the approach of the Court of Justice of the European Union (CJEU) in interpreting the Dublin rules is also incompatible with the ECHR.

Background

The Dublin rules initially appeared as part of the Schengen Convention, which bound only certain Member States. They were then set out in the form of the Dublin Convention, signed in 1990. This Convention was replaced by an EC Regulation (known as the ‘Dublin II Regulation’) from 2003. That Regulation was in turn replaced by the Dublin III Regulation, adopted in 2013, which applies to all applications made after 1 January 2014. Furthermore, the Dublin rules have been extended to the non-EU countries associated with the Schengen system, by means of treaties with Norway and Iceland on the one hand, and Switzerland and Liechtensteinon the other.

The previous leading cases on the compatibility of the Dublin regime with human rights were (for the Strasbourg court) the 2011 judgment in MSS v Belgium and Greece, and (for the CJEU) the judgment in NS, delivered later that same year. In MSS, the ECtHR ruled that Greece had violated Article 3 ECHR (the ban on torture or other inhuman or degrading treatment) in three ways: its treatment of the Afghan asylum-seeker in question in detention; its failure to secure adequate living conditions for him after release from detention; and its highly deficient asylum procedure. The evidence of these violations was found in numerous reports by NGOs and international bodies. The Court also ruled that Belgium had violated Article 3 ECHR because it had returned the same asylum-seeker to Greece (in accordance with the Dublin rules), even though it must have known of the situation there. For good measure, the Court also ruled that Belgium had violated Article 13 ECHR (the right to an effective remedy), since Belgium did not provide for sufficient reviews of the merits in cases such as this one.

Subsequently, the CJEU ruled in NS that asylum-seekers could not be returned to Greece, pursuant to the Dublin rules, because of systematic deficiencies in the asylum system in that country. Removals in such cases would constitute a breach of Article 4 of the EU Charter of Fundamental Rights (the equivalent of Article 3 ECHR). However, the Court distinguished such major breaches of fundamental rights from minor violations of EU or international rules relating to refugees, which would not require Member States to refrain from applying the Dublin rules.

Before the ECtHR could rule in Tarakhel, the CJEU clarified its position in its judgment in Abdullahi, delivered late in 2013. The Court started out by emphasising the presumption that all EU Member States protected human rights, noting that there was now second-phase legislation establishing the Common European Asylum System. It then characterised the Dublin rules as essentially regulating the relationship between Member States, referring in particular to the optional ‘sovereignty’ and ‘humanitarian’ clauses in the Dublin II Regulation, as well as the possibility of conciliation or separate arrangements between Member States. It followed that when two Member States agreed which of them was the Member State of first authorised entry (triggering responsibility under the Dublin rules), an asylum-seeker could ‘only’ challenge that decision by ‘pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum’ in the Member State which was deemed responsible for the asylum application.

Finally, the recent Sharifijudgment pf the Strasbourg Court established that Italy’s interception of asylum-seekers from Greece in the Adriatic, and their forced return to Greece, violated Article 3 ECHR as well as the ban on collective expulsions in the Fourth Protocol to the ECHR. In doing so, it confirmed a key corollary of the MSS ruling: Member States breach the ECHR if they stop asylum-seekers fleeing an unsafe country directly from crossing their borders. Although the rules on freedom to travel for third-country nationals in the Schengen Convention do not give asylum-seekers the right to move between Schengen States (unless, improbably, they have a visa or residence permit, or the visa requirement is waived for their country of origin), the ECHR nevertheless gives asylum-seekers the freedom to travel between Schengen countries (or any States) in such circumstances. Also, the right to move to another country extends beyond the three-month time limit on intra-Schengen travel, since asylum-seekers can in principle stay until their claim is finally rejected.

The Tarakhel judgment

Yesterday’s judgment concerned a family of eight Afghans, who entered the EU by crossing the Italian border first. This made Italy responsible for their applications under the Dublin rules. However, the family soon left the asylum-seekers’ reception centre which they were assigned to in Italy, on the grounds that conditions there were inadequate for families. They moved to Austria, which triggered the Dublin rules, asking Italy to take charge of them. Italy agreed, but before their transfer to Italy could be carried out, they moved on to Switzerland. That country in turn asked Italy to take charge of the family; Italy tacitly accepted.

However, they challenged their removal to Italy on the grounds that their treatment in that country, if they were removed there, would violate Article 3 ECHR. They lost their case in the Swiss courts, so asked the ECtHR to rule that their removal to Italy would constitute a breach of Article 3, as well as Article 8 ECHR (the right to family life). They also alleged a breach of Article 13.

The ECtHR rejected the Article 13 claim on the merits, since the Swiss courts had examined the merits of their legal arguments and they were allowed to stay on Swiss territory in the meantime. It held that it was not necessary to examine the Article 8 argument. Most importantly, by a majority of 14-3, it found that there was a breach of Article 3 ECHR.

Yet there are important differences between the MSS judgment and the Tarakhel judgment. Yesterday’s judgment does not state that Italy’s asylum system has effectively collapsed, as was the case in Greece. In particular, there were no allegations in Tarakhelrelating to flaws in Italy’s asylum procedures, or as regards detention. The argument instead was solely about living conditions in Italian detention centres.

The ECtHR began by reiterating its case law from MSS about reception conditions for asylum-seekers. While Article 3 ECHR did not guarantee a home or financial assistance, in cases involving EU Member States the Court took account of their specific obligations in that respect under the EU’s reception conditions Directive. Also asylum-seekers were an ‘underprivileged and vulnerable group’, and it was possible that extreme poverty could raise issues under Article 3. The Court also referred to other prior case law on the need to ensure that child asylum-seekers, who were in a position of ‘extreme vulnerability’, enjoyed ‘protection and humanitarian assistance’.

Next, the Court reiterated the usual rule that Article 3 prevents removal if ‘substantial grounds have been shown for believing’ that there is a ‘real risk’ of treatment contrary to Article 3 in the state of destination. The same rule could be used to rebut the assumption that countries applying the Dublin system were all safe. In this context, the ECtHR referred to the CJEU’s ‘systemic deficiencies’ test set out in the judgment in NS, but made no reference to the ruling in Abdullahi that this was the ‘only’ ground for challenging the application of the Dublin rules. However, the ECtHR also ‘notes’ the recent EM judgmentof the UK Supreme Court, which expressly stated that ‘systemic deficiencies’ were not the only ground for such challenges. Overall, the Court stated that these tests had to be applied by examining ‘the applicant’s individual situation in light of the overall situation prevailing’ in the state of destination.

Applying these rules to this case, the applicants had made three complaints about the situation of the Italian reception system. The first complaint, about the slowness of identification procedures, was dismissed out of hand, since the applicants had in fact been identified quickly. As for the second complaint, the Court accepted the evidence that there were not enough places for all asylum applicants. Thirdly, as for the reception conditions within the available facilities, a number of problems had been identified by the UNHCR and the Council of Europe’s Human Rights Commissioner.

Taken as a whole, then, the Court ruled that the ‘current situation in Italy can in no way be compared to the situation in Greece at the time of the MSS judgment’, where only a small fraction of asylum-seekers could be accommodated and ‘the conditions of the most extreme poverty…existed on a large scale’. So there could not be ‘a bar to all removals of asylum seekers to that country’. Having said that, the Court accepted that there was some risk that asylum-seekers might not get accommodation, or that the accommodation would be inadequate.

As for the individual position of the applicants, that was not comparable to the facts of the MSScase either.  The family in this case were taken care of immediately by the Italian government, rather than detained and then left to fend for themselves. But again, having said that, the Court was concerned that, in light of the vulnerability of asylum-seekers, and children in particular, there was no guarantee of (adequate) accommodation for families seeking asylum in Italy. So Switzerland could not send the family to Italy unless they obtained sufficient assurances on this point. This alone constituted a breach of Article 3 ECHR.

Interestingly, the majority judgment makes no reference to the alternative possibility of asylum-seekers obtaining private family housing at the expense of the State, which the CJEU developed in its recent Saciri judgment on the reception conditions Directive.

Comments

With great respect, there are many flaws with the CJEU’s judgment in Abdullahi. That judgment confuses Regulations (directly applicable in national legal systems) with Conventions (essentially governing relations between States). It places undue reliance on provisions of the Dublin II Regulation which were never applied in practice (conciliation) or were irrelevant to the case at hand (separate arrangements between Member States). It ignores the CJEU’s own case law on the ability to challenge Member States’ application of the Dublin II rules as regards unaccompanied minors (MA), humanitarian situations (K) or withdrawn applications (Kastrati). Its scope is unclear: does it only apply when Member States agree that the criterion regarding irregular entry is applicable, or in other cases as well? In any event, the judgment needs to be rethought in light of the Dublin III Regulation, which considerably expanded the procedural rights of asylum-seekers in the Dublin context. Why do that, if they can only challenge their transfer if there is a complete breakdown in the asylum system of the State responsible for their application?

But the most fundamental flaw in the Abdullahi judgment is exactly that: the CJEU’s statement that at least in some cases, the determination of the responsible Member State can ‘only’ be challenged if there are ‘systemic deficiencies’ in the asylum system of that State. Is that statement still correct after Tarakhel?

Certainly the statement is wrong if the CJEU meant (as it appeared to say) that both the asylum procedure and the reception conditions systems have to have failed in the responsible Member State, before a transfer to that State can be challenged. In Tarakhel, there is no issue raised regarding the asylum procedure in Italy. More generally, the Italian reception system is not in complete breakdown: the Tarakhel family faces neither extreme poverty nor vile detention conditions, but merely some risk that accommodation will either not be available or that it will be somewhat unpleasant. Accordingly, the Swiss obligations are nuanced: there is no ban on transfers, merely a procedural obligation to make arrangements with the Italian authorities.

It isn’t clear whether Tarakhelabandons the CJEU’s assumption that only ‘systemic deficiencies’ in the asylum system of a responsible State can justify a challenge to a Dublin transfer, or whether the judgment merely modifies the notion of ‘systemic deficiencies’ considerably, lowering the threshold for its application. On the first hypothesis, ‘systemic deficiencies’ are just one example of a situation that could lead to rebuttal of the assumption that another Dublin State is safe. Uncertainty about adequate reception conditions for families is another. But surely this cannot be an exhaustive list.

On the second hypothesis, a ‘systemic deficiency’ would not exist only where an asylum system had entirely collapsed, but where some particular aspect of the system was malfunctioning regularly to some extent. By analogy, a car needs to be fixed not only when the brakes entirely fail to work, but also when the windshield wipers occasionally malfunction. The risk is far greater in the first case, but the second case shouldn’t be ignored either. Again, the problems in Tarakhel cannot be the only example of a flaw in the asylum system of a responsible Member State that needs to be fixed before asylum-seekers can be transferred there.

There isn’t much difference between these two possible interpretations of Tarakhel. Although the first interpretation is in principle more open-ended than the second one, it shouldn’t take too much imagination to argue that any particular problem an asylum-seeker might face in the responsible Member State is ‘systematic’ in this very broad sense. The second interpretation does give the CJEU more leeway to back down from its head-banging judgment in Abdullahi, and explain that this was also what it had meant by ‘systemic deficiencies’ all along.

Of course, given the strong insistence on the efficiency of the Dublin system in the Abdullahijudgment, this is obviously not what the Court had meant at the time. Yet the clear message from the Tarakhel case is that there is not a simple binary distinction between cases when all Dublin transfers should stop, on the one hand, and cases when all Dublin transfers should go ahead at full speed, on the other. Instead, like a traffic light, yesterday’s judgment creates an intermediate category of cases in which national administrations must proceed with caution. This will undoubtedly make the Dublin system more costly and complex to administer, but that is often the only way to ensure that human rights are protected effectively.  

Barnard & Peers:  chapter 9, chapter 26

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The European Arrest Warrant: the case for the UK to stay in

Maria Fletcher, Senior Lecturer in Law, University of Glasgow, and Steve Peers, Professor of Law, University of Essex

The UK government is currently making its final decision on which EU laws on criminal law and policing adopted before December 2009 that it wishes to opt back in to, as from 1 December 2014. The most controversial decision it has to make is whether to opt back in to the European Arrest Warrant (EAW). In this blog post, we set out the case for opting back in to this law.

Background

As part of the Treaty of Lisbon, the Labour Government of the day secured a rather unique legal opt-out for the UK in relation to EU crime and policing matters, which takes effect on 1 December 2014 and which is known as the ‘Protocol 36 opt-out’. This was to be on top of the already secured position whereby the UK (and Ireland), by default, does not participate in the EU police and criminal justice (or asylum and immigration) agenda unless it chooses to opt in to individual measures on a case by case basis, either during the proposal stage or after their adoption.

The Protocol 36 opt-out, completely unprecedented in terms of scope and only available to the UK, entitles the UK to withdraw en masse from EU measures concerning police and criminal justice adopted prior to the Lisbon Treaty (1 December 2009 to be precise). In principle it is an all or nothing opt out in the sense that the UK must opt out of all of these pre-Lisbon measures, or none at all. But, in the event of its exercise, the UK also has the right, within limits, to opt back in to individual measures selectively.

The UK Government officially invoked the opt-out (of 130 measures) in July 2013 and simultaneously produced a list of 35 Pre-Lisbon measures it considered to be in the ‘national interest’ to rejoin. The Government then began negotiations with the European Commission and the Council to seek to rejoin that list of 35 measures – the terms of the Protocol requiring approval from one or other of those institutions depending on the precise nature of the measures. For measures linked to the EU’s ‘Schengen’ rules, such as the Schengen Information System database, the UK needs the consent of all Schengen States to opt back in. For other measures (the majority, including the EAW), the UK needs only the consent of the Commission.

According to the Protocol, the UK and the EU institutions must ‘seek to re-establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence.’ The UK is therefore likely to be able to insist on opting back in to its chosen measures unless it is opting back in to only part of a package of measures that are deemed to be inextricably linked  (the coherence requirement) or it would be impossible or very difficult in practice for technical reasons to opt back in to one measure but not another (the operability requirement).

At the domestic level, scrutiny procedures by Parliament have been thorough, if fraught, due to the Government’s lack of timely information. The relevant committees of both the House of Lords and the House of Commons have conducted inquiries and produced numerous reports on this matter and both Houses have been promised votes on the overall package of measures to rejoin following the conclusion of negotiations with the Commission and the Council and on the basis of Impact Assessments. But time is running out, especially if the Houses are to be given enough time to reflect upon this important matter.

Although the timetable relating to the Protocol 36 opt-out is entirely out of the hands of the current government, the plain reality is that the timing could not have been worse. With Ukip on the rise and ostensibly gaining ground amongst the traditional Tory vote and now just months away from a general election, the government and in particular, the Conservative party, is seemingly running scared on the topic of Europe.

And one criminal justice measure in particular seems to be fuelling particular panic.

The European Arrest Warrant

The EAW has operated in the UK for a decade, and has made it onto the list of 35 that the Government wishes to rejoin as of 1 December 2014. It is without doubt the most high-profile and controversial of the EU’s criminal justice measures. In essence it provides a simple and speedy procedure designed to surrender people between EU states for the purpose of conducting a criminal prosecution or executing a custodial sentence or spell in detention.  It works on the basis of mutual recognition, such that the authorities in the Member State in receipt of a warrant execute it (arrest and surrender the wanted individual) more or less automatically.

This way of cooperating amongst states – which is based on trusting the integrity of another state’s criminal justice system – was chosen, and indeed advocated, by the UK government of the time, precisely because it entailed the least intrusion by EU law into domestic systems. Rather, decisions or rulings by a criminal court in the UK must be accepted and enforced in any another Member State and vice versa.

It is widely recognised that the EAW has created a more efficient, simpler, quicker, cheaper, more reliable and less political system of extradition in Europe compared to its predecessor 1957 European Convention on Extradition (see the House of Lords committee analysis). Since 1 January 2004, when the EAW scheme came into force, the average time taken to extradite a suspect in cases with consent is just 17 days and in non-consensual cases it is has fallen from around a year to 48 days. The number of wanted persons surrendered to the UK in 2013 was 127, compared to 19 in 2004; and surrendered from the UK upon the request of all other EU Member States was 1126 in 2013 compared to 24 in 2004. Speaking on 9 July 2013 the Home Secretary said ‘[s]ince 2009 alone, the arrest warrant has been used to extradite from the UK 57 suspects for child sex offences, 86 for rape and 105 for murder. In the same period, 63 suspects for child sex offences, 27 for rape and 44 for murder were extradited back to Britain to face charges. A number of these suspects would probably have not been extradited back to Britain without the arrest warrant.

The success of the EAW might be illustrated by the extradition from Italy, in less than eight weeks, of Hussain Osman, who was wanted in connection with the attempted July 2005 London bombings; he was subsequently sentenced to a minimum term of imprisonment of 40 years. More recently, Jeremy Forrest, the teacher who was sentenced in June 2013 for absconding to France with one of his pupils, was extradited back to the UK less than three weeks after his arrest.

 

Notwithstanding these positives, the EAW is not beyond criticism and the most serious two concerns are considered here. It is worth noting however that other criticisms of the EAW appearing in the public debate are, frankly, contrived to fuel anti-EU sentiment and fear. For instance, outrage that the EAW can be used by foreign courts to extradite Britons and in unacceptably large numbers is misplaced on two counts. First, the EAW does indeed require all Member States to surrender nationals, but unlike some other Member States, the UK had never treated nationality as a bar to extradition anyway. The UK had also removed the obligation of the requested State to show a prima facie case in respect of extradition requests coming from Europe, far in advance of the EAW abolishing the same.

And second, the UK may be being required to surrender increasing numbers of individuals to face prosecution under the EAW, but the overwhelming majority (96%) of those are not British nationals – and presumably, on that basis alone, there would not be much appetite to keep them here!

 

Turning then to the two particularly serious criticisms of the EAW.  First, it has resulted in a number of British suspects being surrendered to countries where they then face excessive periods in prison before trial – bail being notoriously difficult to attain as a foreign suspect. Any such instance is unhappy and unacceptable and it certainly fuels the critics who push for the UK’s withdrawal. But alternative options to improve the situation do exist and we would submit that they are preferable to opting-out. For one, the EAW legal instrument could be amended to permit the requested state to postpone the execution of the warrant until the issuing state is ready to proceed with trial, and the UK could push for this. Along these lines, recent amendments to UK law (see further below) mean that a suspect will not be handed over on the basis of an EAW unless he or she has been charged by another Member State.

Another route is to implement an EU measure which specifically tackles this problem - the so called ‘European Supervision Order’. Adopted in 2009, the ESO enables a suspect or defendant who has been granted a pre-trial non custodial supervision order (bail) in another Member State to be supervised in their home MS until such time as their trial takes place. This instrument would allow foreign suspects to be transferred home while awaiting trial and equally, UK nationals to return home while they are on bail. For sensible reasons therefore, this measure is among the 35 instruments which the current government is seeking to opt-back in to.

Finally, a longer term way of addressing the EAW problem is to address its root causes – namely to force those Member States whose criminal justice systems are deficient in these respects to improve the way they treat suspects and defendants. The UK government appears willing to participate partly in this agenda to ensure minimum standards of procedural safeguards to those who find themselves caught up in the criminal justice system (including victims) across the whole EU. To be sure, agreement on these issues across Europe is not easy, but it is a measure of the level of commitment to ensuring fairness and justice that efforts are made to secure appropriate safeguards and standards of protection in addition to securing speedy and effective prosecutions.

In any event, anyone who objects to the EAW on the grounds that it sometimes results in miscarriages of justice should hardly be among those calling for repeal of the Human Rights Act and the UK’s withdrawal from the ECHR, given that one of the main aims of both these measures is precisely to avoid miscarriages of justice. But in fact, the critics of the EAW are often also critics of the ECHR.

The second serious criticism of the EAW is its excessive scope, which enables it to be used in some cases that are trivial, or stale, or both. This causes a headache for UK law enforcement authorities, who must expend significant resource following up all warrants, including those for minor offences. This instrument was designed with serious crimes and organized criminality in mind and the absence of a proportionality requirement undermines this – although in practice a permissible ‘human rights’ requirement, which has been enshrined in UK legislation implementing the EAW, does mitigate the disproportionate impact.  It also worries those who speak for the interests of suspects and defendants.

This problem could be solved at EU level by amending the EAW legislation to include a proportionality requirement (which could be similar to the rules in the recently-adopted European Investigation Order). The European Parliament has also suggested that the EAW rules should incorporate such a rule (along with many other reforms). This issue could also be addressed by creating a workable system specifically for dealing with minor or so-called ‘disorganised’ criminality committed across borders.

Acknowledging that reform is needed, the Home Secretary has already acted upon her promise to pursue changes at the national level by amending the UK legislation implementing the EAW, the Extradition Act 2003, in order (among other things) to introduce rules on proportionality, to provide that a person will not be surrendered if he or she has not been charged, and to refuse to surrender persons if there are charges pending against them in the UK.

So, why then has the UK Government chosen to opt-back in to this measure? To put it simply, as a tool for law enforcement, the relevant UK authorities are convinced that it is, on balance, a good thing. The Association of Police Chief Officers has said that the EAW ‘gives us a stronger, more effective means of arresting dangerous criminals across borders and thus keeping our communities safe at home – it is not an instrument we can afford to lose.’ In fact the evidence amassed during the Protocol 36 parliamentary enquiries overwhelmingly supports retaining the EAW.

It is unlikely that the UK could continue to extradite suspects and criminals in the same way even if it opts-out of the EAW. Certainly it cannot be taken for granted that other Member States would be able to continue to send EAWs to the UK, or execute EAWs coming from the UK, as a matter of law – indeed their implementing legislation would preclude this if it refers only to the EU ‘mother’ legislation, and this would arguably be illegal as a matter of EU law. And any political will to change their arrangements might be stretched by the UK’s unilateral rejection of a previously unanimously agreed instrument, which, after all is supposed to be based on mutual trust.

In this event, extradition between the UK and other EU Member States would essentially fall back on traditional procedures agreed in 1957 under the auspices of the Council of Europe (a non-EU international organization that is most well known for the European Convention on Human Rights). Such procedures are discretion-based, follow a ‘request model’ and are subject to the ultimate control of the executive (making it a political rather than a legal matter). As compared to the EAW (as summarized above), these features combine to make it slow, costly and uncertain, potentially undermining public safety – an almost unthinkable backward step in the cross border pursuit of criminal justice.

It has sometimes been suggested that the UK could replace the EAW with an extradition deal with the entire EU, or with bilateral deals with individual Member States (see the suggestions on the Conservative Home website). While the EU has negotiated an extradition treaty with Norway and Iceland, this took years to negotiate and has not yet entered into force eight years after its signature. Furthermore, this treaty is nearly identical to the European Arrest Warrant. So this process is not efficient and would not free the UK from compliance with most of the EAW’s rules (which the critics of the EAW system dislike so much).

In any event, there is no time before the absolute deadline of 1 December for the UK to opt back in to the EAW to develop an alternative system. There is now little time even to draw up transitional rules which would govern the situation if the UK failed to opt back in on that date. In the absence of such transitional rules, there will be a doubtful legal basis for continuing to arrest, detain or surrender people who are sought by the UK in other Member States or vice versa as of that date.

More generally, having less stringent extradition laws in the UK than the rest of the EU would risk turning the UK into a sort of ‘Costa del Crime’, since criminals might be attracted to come here in light of the relative ease of not being extradited. Conversely, the rest of the EU would become a more attractive bolt-hole for anyone committing crimes in the UK, in particular those who flee to the state of their nationality and argue that they should no longer be extradited from that State (this was the common practice of continental Member States before the EAW was adopted).

It is certainly true that alarmist press coverage has fuelled a widely held belief that ‘Brussels’ is planning to impose on Europe a single, common uniform system of criminal justice. This quite simply is not the case in and furthermore, it cannot be the case under the existing legal framework – there is simply not the political appetite for this amongst the other 27 member state governments, who collectively and for the most part constitute ‘Brussels.’  Even the most potentially ‘intrusive’ EU criminal law measure – the creation of a European Public Prosecutor  - which is still at proposal stage, would only be able to investigate, prosecute and bring to justice those involved in offences against the Union’s own financial interests. The UK has opted out of this proposal, and any extension of its scope would be limited to ‘serious crime having a cross-border dimension’ and require the unanimous approval of all participating Member States and the European Parliament. 

Concluding remarks

The ‘in/out’ option that has emerged in domestic politics is crude and dangerous. The promise of a referendum along those lines by 2017 has seemingly set in train a period of frenzied, mis-leading and alarmist commentary. This intervention seeks to explain some of the basic legal facts and fiction around the UK’s position in relation to EU criminal law.

The Article 36 opt-out does not and cannot rid the UK of the entire EU criminal law agenda, even in the event that the UK Government chose not to exercise its right to seek to rejoin certain measures.  It cannot simply ‘walk away’ from EU criminal law. Any pre-Lisbon measures amended since 1 December 2009 and any new measures adopted since that date are not subject to the Protocol 36 opt-out. And the UK has already committed itself to many of these. This legal reality appears to have been misunderstood or ignored in much of the debate amongst those pushing for the exercise of the opt-out. The fact is that the Protocol 36 opt-out is less about repatriating powers from Brussels than about degrees of future participation in a system already in place. The UK is in a very privileged position in this sense and its ongoing willingness to engage in this agenda is to be welcomed in the interests of safety, security and justice for UK nationals, if nothing else.

The EAW is by no means perfect and reflection, review and reform should never be off the agenda. On balance we believe it to be a positive force and as such it is preferable to be ‘in’ it – with a chance to shape it – than ‘out’ of it. Much the same goes for the European Union itself.

Europe's leaders have recently reiterated their general commitment to accommodating different national positions on integration in the EU: ‘Our diversity is an asset, our unity brings strength. In our Union, different degrees of cooperation and integration exist.’ It would seem that there is a real future for even a typically skeptical United Kingdom in this very modern club of nations whose aims are to promote peace, the well-being of its peoples and its values of respect for human dignity, freedom, democracy, equality, respect for human rights and the rule of law.

Barnard & Peers: chapter 2, chapter 25

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