Under Maastricht …

The “Maastricht Measures”

• New agencies• Police co-operation measures• Mutual recognition• Harmonising criminal law• Harmonising criminal procedure

Maastricht measures (cont.)

• Adopted by unanimity• No enforcement through the courts

UK opt-outs: the Lisbon deal• 82 TFEU “approximation” of criminal

procedure, so far as “necessary to facilitate mutual recognition”

• 83 TFEU “approximation” of substantive criminal law on a range of specified topics, to which the Council can add, by unanimous decision.

• QMV – farewell to the veto• ECJ/ CJEU has power to interpret and enforce

Lisbon Treaty: UK opt-outs

• Protocol 21: “No new EU justice measures apply to us unless we decide to opt into them”

• Protocol 36, article 10, clause 4: “We can pull out of all the remaining Maastricht measures ahead of the CJEU getting power to make us implement them”

UK policy under Maastricht

• “NO” to the European Public Prosecutor• “YES” to mutual recognition• “YES” to repressive measures• “NO” to defence rights

Coalition policy

“We will approach forthcoming legislation in the area of criminal justice on a case-by-case basis, with a view to maximising our country’s security, protecting Britain’s civil liberties and preserving the integrity of our criminal justice system. Britain will not participate in the establishment of any European Public Prosecutor.”

European Union Act 2011

• The “Referendum Lock”• No UK participation in a European Public

Prosecutor unless a national referendum votes in favour (!)

European Investigation Order

The Protocol 36 saga, 2012-2014

• Final outcome: in July 2013 the UK exercises the opt-out, and (after many arguments, and amendments to Part I of the Extradition Act 2003) then opts back into all the significant measures in December 2014.

• The value of the exercise? Compare assessments from David Cameron and from Yvette Cooper (shadow Home Secretary) – see next two slides.

• “The prime minister said the UK had already agreed to opt out of 100 other EU justice provisions, which he said amounted to the biggest single transfer of powers back from Brussels to the UK.” [dubious!]

• "I would stress to those who are concerned about this, the European Arrest Warrant is very different from the arrest warrant first introduced under the last Labour government. You cannot now be extradited for something that isn't a crime in Britain …” [wrong!]

• “… judges are able to reject European Arrest Warrants [they always could] and they have done so in many, many cases. [wrong: the great majority are executed]”

• "And you can't be extradited if there is going to be a long period of detention…” [partly true, but alas, not wholly]

• [Yvette Cooper] “… We have the power not to do a whole series of things we plan to carry on doing anyway, the power not to follow guidance we already follow, the power not to take action we already take, the power not to meet standards we already meet, the power not to do things that everyone else has already stopped doing and the power not to do a whole series of things we want to do anyway.”

The “Magic 35”; the list includes:

• Agencies: Europol, Eurojust, EJN, SIS• Police co-operation: Naples II, “Swedish FWD”, JITs, ECRIS,

Schengen• Mutual recognition: **EAW**, supervision order

(alias“Eurobail”), fines, jail, confiscation orders;[but not probation]

• Harmonising criminal law: child porn (only); all the rest are dropped – including e.g. the FWD on terrorism (!)

• Harmonising criminal procedure: Schengen art. 54; equal weight to convictions imposed in other EU Member States

A hasty catch-up …

• European Supervision Order? (implemented by secondary legislation in December 2014)

• European Protection Order? (implemented by secondary legislation in January 2015)

Harmonising criminal procedureDefence Rights: the “Roadmap”

• Measure A: Translation and Interpretation • Measure B: Information on Rights and Information

about the Charges • Measure C: Legal Advice and Legal Aid • Measure D: Communication with Relatives,

Employers and Consular Officials• Measure E: Special Safeguards for Suspected or

Accused Persons who are Vulnerable • Measure F: A Green Paper on Pre-Trial Detention

What the UK has done about the Roadmap…

• Translation and interpretation: we’re in!• Information: we’re in (just!)• Legal advice and communication: • “Sorry, darling, I’ve got a headache …”• Green Paper on Pre-trial Detention?

Governmental response: “no legislation”• Proposals for Directives on Juvenile Suspects• Well, maybe …• Legal Aid and the Presumption of Innocence• “UGH !! - We wouldn’t touch them with a

barge-pole!”

Sceptical about which Europe? One day in the Tabloids…

• "Labour Rights Act is a Mess - Blair Orders Rethink on Barmy Law" (The Sun, 15 May 2006)

• "End Human Rights Lunacy" (Daily Express, 15 May 2006)• "Human Rights Law Protecting Foreign Dangermen on Run"

(Daily Mail, 15 May 2006)• "DVLA Shreds the Records of Speeding and Drunk Drivers

(Because of their Human Rights"(Daily Mail, 15 May 2006

• "If We REALLY Want to Escape the Grip of Human Rights Law We Must Quit the EU" (Daily Mail, 15 May 2006)

How Eurosceptic are the British?

Euroscepticism in UK

• Ipsos Mori poll, October 2014: 61% support EU membership

• Poll for Sky News, February 2015: 51% wish to leave

Newspaper circulation, July 2014• The Sun 2,091,484 • Daily Mirror 970,151 • Daily Star 476,412 • Daily Record 219,419 • Daily Mail 1,721,589 • Daily Express 487,378 • Daily Telegraph 519,200 • The Times 397,713 • Financial Times 224,250 • The Guardian 191,717 • Independent 63,360 • The “I” 287,206

Conclusion

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