EU Referendum

EU politics: MPs duck out on opt-ins


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The Financial Times tells the tale of the House of Commons "rebellion" that never was, with the Guardian (and others) adding more detail. You wonder how well briefed the MPs (and the media) actually were, though, when they still refer to 35 opt-back-ins, when the actual figure has been reduced to 33. But then, what does a little detail like that matter?

What is of more interest, though, is how many of the 20 or so Tory "eurosceptics" who lined up to denounce what John Redwood claimed to be a "surrender of sovereignty" to "a foreign power" had actually looked in detail at the opt-back-ins of which they were complaining.

For instance, there was some considerable talk about the Council Framework Decision 2008/909/JHA of 27 November 2008 on "the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purposes of their enforcement in the European Union".

Clearly, this provision is very much to the advantage of the UK. It allows the transfer of prisoners who are foreign nationals, so that convicted criminals from other member states can serve their sentences in their home countries. It reduces overcrowding and saves us the costs of looking after them.

But while the likes of Jacob Rees Mogg was arguing that Britain could effectively counter cross-border crime through a bilateral treaty with the EU, neither he nor anyone else in the House mentioned that the prisoner transfer agreement does not actually stem from the EU.

In fact, all the framework decision does is set out the procedure for transfers, but in so doing it is merely implementing the Council of Europe Convention on the Transfer of Sentenced Persons of 21 March 1983.

Under that Convention, sentenced persons may be transferred to serve the remainder of their sentence only to their state of nationality and only with their consent and that of the States involved. There is also an additional protocol to that Convention of 18 December 1997, which allows transfer without the person's consent, subject to certain conditions.

The interesting thing here is that, even if the UK had not opted-back-in to the EU framework decision, the prisoner transfer agreement would still stand, and it would still apply even if we left the EU, implementing as it does a Council of Europe Convention.

Without the opt-in, though, there would be no agreed procedure implementing the Convention, so to stay aloof from an unexceptional procedural decision would be a tad absurd.

For sure, there are issues with the headline opt-back-in, the notorious European Arrest Warrant. However, as Teresa May explained (from p.485), she has legislated to reform its operation, to include protections for those wanted for extradition (see part 12 of the Anti-social Behaviour, Crime and Policing Act 2014).

On the issue of British citizens being extradited for disproportionately minor offences, the law has been changed to allow an arrest warrant to be refused in respect of minor offences. A British judge will now consider whether the alleged offence and likely sentence are sufficient to make the person's extradition proportionate.

Then, on the issue of people extradited for actions that are not against the law of this land, the rules on dual criminality have been clarified to ensure that an arrest warrant must be refused if all or part of the conduct for which the person is wanted took place in the United Kingdom and it is not a criminal offence in the UK.

As far as it goes, the worst excesses of the arrest warrant have thereby been removed and, if there was no opt-back-in, we would have problems of our own getting hold of alleged offenders we wanted to see in our own courts.

Most of the other matters are also unexceptional, such as Council Decision 2000/375/JHA on combating child pornography on the internet, and Council Decision 2002/348/JHA (and amendment) concerning security in connection with football matches with an international dimension.

These we would be implementing anyway and such is the situation with football matches that UK law is already in place, and no new law is required to implement the Council Decision.

However, with there being no vote in the Commons, MPs obviously – and rightly – decided that this was not an issue on which they should go to the wire. It seems that Conservative MPs have taken a strategic decision not to rock the boat before next year's general election.

"We want to win the election", said one Tory eurosceptic. "The time to question the prime minister's strategy is when he has completed his renegotiation – then people can make up their mind whether it is good enough".

Whatever one's views on that, there is an element of tactical acumen there. Despite huffing and puffing by Carswell, now is not the time for the big fight. We want that on a larger canvas – just supposing we can win the argument. Fighting over this level of technical detail, at this stage in the electoral cycle, is not of the essence.