Worry not, the government looks after you

Just recently people have realized that the European Arrest Warrant and the European Investigation Order is not just a silly boring joke but real encroachments on our legal and judicial system. Of course, neither of them constitutes a surrender of major powers to the EU; otherwise we would have had a referendum on, say, the EIO. Would we not? Oh stop giggling at the back.

It's not a particularly new subject, having been covered on numerous occasions by EURef (a few examples: here, here and here plus many more by the Boss) and a couple of times on this blog (here and here) but better late than never or so one keeps saying about eurosceptic organizations and supposedly eurosceptic politicians. As it happens, the subject came up in the House of Lords in which there are a few (just a few) genuine opponents of Britain's membership of the EU.

Yesterday Lord Vinson (who had, on Tuesday, also chaired the somewhat ill-fated meeting of Better Off Out) asked

Her Majesty's Government to what extent the European Arrest Warrant and European Investigation Order conform with the principle of habeas corpus.

Readers will be glad to know that HMG, represented here by the egregious friend of Douglas Hurd and Slobodan Milosevic, Baroness Neville-Jones (here and here) is not worried in the slightest. Well, maybe in the slightest. But only just.

The UK's transposition of the European arrest warrant complies fully with the concept of habeas corpus. UK implementation of the European investigation order will also be fully compliant. However, I understand that the noble Lord's principal concern is the separate issue of European arrest warrants being issued for trivial offences. The Government share this concern and are talking to other EU countries, bilaterally and through the European Union, to stop this happening.

There followed a discussion that the noble Minister might not have appreciated as she was attacked on all sides and was shown up to be somewhat ignorant of all matters, including the exact title of certain EU legislative documents. What do they have advisers for?

HMG seems to put a lot of faith in Sir Scott Baker and his panel of wise individuals who will be looking at the operation of the European Arrest Warrant (and it is perfectly clear from her shifty responses that habeas corpus does not protect anyone who has been detained wrongly under the EAW) to suggest changes and improvements. Exactly how is HMG going to change and improve European legislation that has already been transposed into British legislation.

Lord Tebbit's interesting suggestion has caught some amused attention:

My Lords, could my noble friend not take some advantage of the provision of European arrest warrants? We also have the problem of control orders. Perhaps she could get some friendly European country to take those who are currently subject to control orders and bang them up in a jail somewhere, without the need ever to bring them to trial. That would seem to be a most convenient solution.

Baroness Neville-Jones was not amused. Nor was she impressed by the perfectly sensible question put to her by Lord Stoddart of Swindon:

My Lords, I am sure that the noble Baroness will agree that one of the prime duties of government is to protect the interests of the citizen, particularly when abroad. She will be aware that members of the British public have been extradited to other countries without the production of any prima facie evidence at all. Moreover, they often go to countries that do not have the same respect for law and individual interests as we do in this country. The Government were warned about this when the Bill was discussed in Grand Committee. It is a serious matter and I hope that the Government will understand the level of concern about it throughout the country.

She replied:

My Lords, the point that the noble Lord makes about the Government having been warned at the time of the passage of the legislation is perhaps to be directed at the other Benches. We are concerned about the operation of the European arrest warrant, which is precisely why we believe that it needs to be looked into. I would add one point about the European supervision directive-I may not have the title quite right. There is a framework agreement on an arrangement that will come into operation whereby individuals who have been summoned for jurisdiction can nevertheless return to their country of origin during the period of bail and, if sentence is passed on them, can also serve that sentence there. Extra remedies are coming into operation to protect people's rights.

In other words, we know it is a mess and a destruction of the English (and Scottish) legal system but do not worry: we shall look into it and .... errrm .... well, that's it really.

Nope, we are not handing over power

Just in case you were wondering, dear reader, about that European Investigation Order that the Cleggeron Coalition decided to opt into, it does not involve handing over power to the EU. Of course not.

Lord Tebbit asked about it.

To ask Her Majesty's Government whether the decision to opt in to the European Investigation Order to which future amendments will be made by qualified majority voting rather than unanimity transfers any power from the United Kingdom to the European Union.

What a silly question. As I said above: of course not.

The UK's decision to opt in to the draft directive for a European Investigation Order (EIO) and thereby participate in negotiations which will be subject to qualified majority voting (QMV) does not constitute a transfer of power from the United Kingdom to the European Union. The treaty on the functioning of the European Union provides an appropriate legal base under Title V for the Union to legislate in this area. This is subject to protocol 21 to the treaty providing for the UK to decide to opt in to the proposal. In taking the decision to opt in to this measure a number of factors, including the benefits of participating in the more effective arrangements which the measure proposes and the prospect of achieving the right outcomes for the UK through negotiations, were considered.

Any new measure proposing amendments to the EIO after the current directive has been adopted would be subject to the UK's JHA opt-in and the UK could therefore choose whether or not it wished to participate in any future amended version. The UK will consider these decisions on a case by case basis.

I wonder if it is true. There seems to be a slight discrepancy between the last paragraph of Baroness Neville-Jones's reply and what she said last time.

I can further explain that, in line with Article three of Protocol 21 of the Treaty on the Functioning of the European Union concerning the position of the United Kingdom (and Ireland) in respect of the area of freedom, security and justice, the UK is able to opt in to a draft directive within the three month opt-in period, but that the Government cannot then subsequently reverse this decision (to opt in). This means that the UK will be bound by any text that is agreed after qualified majority voting (QMV) in the Council of Ministers.

I am not at all sure that the UK will have an option of not participating in any amended version in the future though, of course, an attempt to form a blocking minority in the QMV vote will always be a possibility. The reality of such a minority is far less of a possibility.

A couple of interesting items from the House of Lords

Here is Lord Stoddart again, this time asking a Written Question:

To ask Her Majesty's Government, further to the Written Answer by Baroness Neville-Jones on 11 October (WA 40) concerning the European Investigation Order, whether they will reconsider their decision to accede to the directive before final agreement is made; and what arrangements they are making for Parliamentary discussions of this issue.

Naturally enough, HMG does not exactly bother to reconsider anything, no matter how foolish it was. But we do have another problem. Even if they did, mirabile dictu, reconsider their decision to opt in the European Investigation Order, they cannot do anything about it, as Lady Neville-Jones explains:

My Answer of 11 October 2010 stated that the United Kingdom will be unable to withdraw from the directive. I can further explain that, in line with Article three of Protocol 21 of the Treaty on the Functioning of the European Union concerning the position of the United Kingdom (and Ireland) in respect of the area of freedom, security and justice, the UK is able to opt in to a draft directive within the three month opt-in period, but that the Government cannot then subsequently reverse this decision (to opt in). This means that the UK will be bound by any text that is agreed after qualified majority voting (QMV) in the Council of Ministers. However, should the Government not like the final negotiated proposal the UK can vote against it and attempt to form a blocking minority alongside other likeminded member states in order to prevent its adoption.

Good luck with that: the new rules for QMV make it well-nigh impossible to form a blocking minority. The whole process used to be rather easy as this BBC site explains: there were 87 votes and 62 were needed to pass a proposal while 27 constituted a blocking majority. You could do a bit of negotiating here and there. All that has changed. This gives you some idea of the complications, which are due to increase in 2014 when a system of double majority will be introduced as it was decided in the Constitutional Lisbon Treaty. (Article 16 on page 24 of the Treaty on European Union, known as the TEU, since you ask.)

The House of Commons produced a good paper on the Treaty of Nice (whose arrangements for QMV still stand) and pages 19 to 24 discuss the subject exhaustively. Suffice it to say that, at present, a blocking minority in most circumstances is 91 votes. As I said good luck with getting that on any important subject.

On the same day there was a Written Statement from Lord Howell of Guildford, which was a copy of the one in the Commons, made by David Liddington. It summed up what was going to take place in the forthcoming Foreign Affairs Council, to be attended by that great giant of international statesmanship, William Hague and the General Affairs Council, to be attended by another giant of political thinking, David Liddington.

I thought this paragraph might be of interest, given the Prime Minister's stated intention to lead a rebellion about the EU Budget, which has, in fact, been decided on.

October European Council

Ministers will look ahead to the October European Council, which takes place in Brussels on 28 and 29 October and will be attended by the Prime Minister. The Council agenda includes economic governance, the Single Market Act, climate change, the Seoul G20 summit, and the EU-US summit. There may also be discussions on the EU-Russia summit, Pakistan (see below) and the EU budget review.

It would appear that a possible discussion of the budget is very low on that list. What we really need to be paying attention to is the Boy-King's stand on that economic governance.