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The arrest and extradition of schoolteacher Jeremy Forest, the recent arrest of 103 suspects for illegally trafficking people into the EU and the extradition of Hussain Osman for trying to blow up a tube station all have something in common. All were successful examples of pan-EU law enforcement using the European Arrest Warrant, Eurojust and Europol. In spite of this impressive record, debate is raging over whether the UK should repatriate legislation on cross-border law and order.

The UK has a complicated constitutional position in this respect. For all measures adopted after the Lisbon Treaty (2009), the UK can choose to opt in or opt out on a case by case basis. So far, the UK has opted in to 46 out of 69 measures.

Things get more complex with those measures adopted before the Lisbon Treaty came into force, estimated at around 130 (a moving target as current EU legislative reforms have/will make some redundant). The Labour government negotiated a ‘red line’ which allows Britain to opt back in to all these measures en masse or to opt out of all of them en masse. There is a third choice whereby the UK could opt out en masse but negotiate with the Commission to opt back in to some individual measures.

The policing and legal professions have waded into the debate. The Association of Chief Police Officers (ACPO) has contrasted the rapid procedure under the current system with lengthy, pre-EAW examples such as the ten year extradition process from Britain to France of Rachid Ramda, a terrorist suspect. They also argue that other measures hold value for the UK, particularly exchanges of criminal records, joint investigation teams, the Schengen Information System and agencies such as Eurojust and Europol that coordinate cross-border policing. ACPO also point out that, since the European Police College is located in Bramhill, it would have to be relocated using British taxpayers’ money in the event of a UK opt out. Their arguments are replicated even more strongly by the Law Society and the Bar Council.

So what’s all the fuss about? Surely in a globalised world, all political parties recognise that crime, terrorism and trafficking are cross border problems that necessitate cross border solutions? Surely all want swift extradition procedures to bring criminals and terrorists to justice in British courts? Surely, as debate rages over the impending freedom of movement for Romanian and Bulgarian citizens, no sane party would want to remove the very tools that prevent criminals from exploiting this privilege?

Well actually the Conservative Party do. As topsy-turvy as it may seem, the Tories are arguing that we should abolish EU measures that help tackle cross-border criminal gangs and terrorists. Unlike environment, employment and financial services, this Tory policy doesn’t fit easily into the EU left-right spectrum. Law and order, and anti-terrorism are defining features of British conservatism.

Undeterred by this inconsistency, repatriation was included in the Conservative manifesto and re-confirmed by the Bloomberg Speech. Over 100 Tory MPs have written a public letter demanding that this mass opt out is exercised while the Fresh Start group want not only to opt out of pre-Lisbon measures, but all the post-Lisbon measures too. Clearly it escapes their attention that Conservative Home and Justice Secretaries are responsible for opting into most of those measures.

So do the Tories have a point? They like to portray themselves as the defender of UK common law against the intrusions of continental civil law and potential interference from the European Court of Justice. I suspect that much of their resentment and fear is driven by the latter as they are loathe to allow a second European court to ‘interfere’ in UK civil liberties issues, as the ECHR has been seen to do on prisoners’ voting rights.

Perhaps more convincingly, they highlight the huge flaws in the European Arrest Warrant (EAW) that has led to some gross miscarriages of justice. At the moment, there is no human rights conditionality clause for the EAW under which national judges could prevent extradition in the event that the suspects’ human rights are not guaranteed. The infamous story of Andrew Symeou is a case in point. Extradited on flimsy evidence, he spent three years clearing his name, including one year spent in appalling conditions in a Greek jail. A further weakness is the lack of a proportionality threshold which has allowed countries such as Poland to issue arrest warrants for comparatively trivial crimes, causing significant costs and administrative burdens.

What about the Lib Dems? Civil liberties is about their only core principle left undefiled by coalition concessions and they have an honourable record in fighting Blairite authoritarianism and dodgy US extradition agreements. It would be logical therefore to assume that they would want to opt out at least from the EAW. Well, wrong again. In this upside down debate, the Tories are arguing for civil liberties and the Lib Dems are supporting an extradition agreement which has led to serious miscarriages of justice. Indeed, the newly-formed pro-opt-in pressure group Justice Across Borders is stuffed full of Lib Dems such as Evan Harris, Diana Wallis and Lord Taverne. While some Lib Dems such as Sarah Ludford MEP have been at pains to emphasise that the EAW needs reform, given a choice between opting in or out to the arrest warrant in its current imperfect state, they would opt in. Indeed, many see it as a coalition breaker.

So where does all this leave the government? A decision must be taken by 31st May 2014 and David Cameron is in an unenviable position. He has committed himself to repatriation and the opt-out decision will be the first real test of this policy. He can recommend a mass opt out but this would cause consternation in other European capitals, possibly topple the coalition and allow Labour to portray the Tories as soft on crime and terrorism. On the other hand, he could recommend a mass opt in and run the risk of a major Tory rebellion, possibly splitting the party, undermining his repatriation policy and giving UKIP an open goal. There is always the third way – he could mass opt out but then, as recommended by ACPO, opt back in to the most crucial legislation. However, this is an uncertain option as it requires negotiations with the Commission and, in any event, would again incense the Conservative Party as the measures identified by ACPO include the EAW.

It’s clear from these choices that the coalition could be at stake and it’s impossible to see how Cameron can appease all sides. The Lib Dems meanwhile will confidently argue that they are defending UK citizens from foreign criminals, terrorists and paedophiles, knowing that if the coalition falls because of this issue, they would likely enjoy public support. So the onus is on Cameron who has to somehow give enough to both sides without either collapsing the coalition or facing a rebellion in his own party. He’ll need to be at his skillful best to pull it off.

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