Our politicians shouldn't treat European law as a political football. Photo: Getty
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Politicisation of the European Arrest Warrant is dangerous and unnecessary

We need clarity on the European Arrest Warrant so that this logical and useful legal instrument does not fall victim to an emotive political bun fight.

The political storm surrounding the "on again off again" parliamentary vote on the European Arrest Warrant (EAW) underlines the complexity of an issue which is not easily defined in right versus left terms.

It is surprising that politicians for whom law and order is high on the agenda would object to a measure that has been used to extradite nearly 250 suspected rapists, murderers and child sex offenders. Such red meat for the red tops should, one would expect, be enough to bring even the most troublesome members along.

The reality is more complex. The European Arrest Warrant goes to the heart of two separate but interrelated questions. Firstly, to what extent does the EAW degrade or diminish civil liberties for UK citizens? Secondly, is it a worth further drain of sovereignty from Westminster to Brussels?

These are legitimate questions, and it is important that we provide clarity so that a logical and useful legal instrument does not fall victim to an emotive political bun fight.

Legislation governing the European Arrest Warrant was adopted in the aftermath of the 9/11 terrorist attacks. The context of the time demanded that governments should be able to move much more swiftly to combat the risk of criminality generally and terrorism particularly. The aim of the EAW was to greatly speed up extradition proceedings between EU Member states, and to remove legal and practical obstacles to judicial cooperation.

In EU terms, the legislation itself was enacted with remarkable speed. Proposed in 2001, it was adopted the following year under the European Arrest Warrant Framework Decision.

The result was a greatly simplified system of extradition, governed by mutual recognition of judicial decisions. The system operates on the basis of maximum trust, minimum formality, and utmost speed.

The European Arrest Warrant has been effective in many of its aims, and has had some notable and high-profile successes. The impact of the legislation has been seen most clearly in the area of streamlined and speedy judicial cooperation between Member States. In 2012, Jeremy Forrest, who was arrested in France on suspicion of having an affair with a 15-year-old Sussex school girl, faced swift and successful extradition proceedings under the European Arrest Warrant System. He was extradited to the UK, where he was convicted the following year.

In 2005, Osman Hussain – a suspect in the failed London Bombings – was arrested in Rome eight days after the botched attack. He faced immediate extradition proceedings in Italy and was transferred to the UK in September.

That said, high-profile successes do not necessarily equate to good law. The speed with which the European Arrest Warrant can be enacted is undoubtedly a double-edged sword.

Human rights groups expressed concerns about the operation of the system, particularly regarding the protection of the rights of persons whose extradition has been sought. Many criticised the length of detention in EU prisons for suspects awaiting trial, problems with securing a fair trial, and the conditions to which suspects were subjected.

In response to these concerns, the EU introduced a series of measures to strengthen the rights of citizens who are subject to a European Arrest Warrant. The European Supervision Order – to which the UK sensibly subscribes - now provides mutual recognition of bail decisions, while suspects are guaranteed access to lawyers, translators, and interpreters.

Regrettably though, the United Kingdom does not participate in the European directive on access to a lawyer in criminal proceedings. This rather unedifying situation undermines the human rights infrastructure which is so crucial to the maintenance of credibility for the European Arrest Warrant. While the system has, on the one hand, provided Member State governments with a sharp judicial instrument, it should – on the other – be accompanied by ethical and rights based checks and balances.

What of concerns about handing over more sovereignty to Brussels?

It seems as if much of the rhetoric around this point addresses politics more than it does the legal system. The decision in 2013 to opt-out of all 133 EU police and criminal justice measures was – from the perspective of Eurosceptic MPs, something of a victory. The decision, one year later, to opt back in to 35 of those measures may then, seem a bit meek.

It is, however, entirely sensible. Yes, EU institutions, including the Court of Justice and the Commission, will have a greater role in UK criminal justice after December 2014. Does this weaken our hand? The evidence suggests not. The average length of time that it takes to extradite a non-consensual suspect has been cut from more than a year to fewer than 50 days. The idea that lawmakers would prefer to revert to individual extradition agreements is a strange one indeed.

Concerns around sovereignty are misplaced and over-politicisation is dangerous. Human rights concerns should be addressed on an ongoing basis, with full engagement and participation by the UK in the existing protections for suspects.

Professor Valsamis Mitsilegas is head of the Department of Law, Professor of European Criminal Law and Director of the Criminal Justice Centre at Queen Mary University of London. From 2001 to 2005 he was legal adviser to the House of Lords European Union Committee

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Who is the EU's chief Brexit negotiator Michel Barnier?

The former French foreign minister has shown signs that he will play hardball in negotiations.

The European Commission’s chief Brexit negotiator today set an October 2018 deadline for the terms of Britain’s divorce from the European Union to be agreed. Michel Barnier gave his first press conference since being appointed to head up what will be tough talks between the EU and UK.

Speaking in Brussels, he warned that UK-EU relations had entered “uncharted waters”. He used the conference to effectively shorten the time period for negotiations under Article 50 of the Lisbon Treaty, the legal process to take Britain out of the EU. The article sets out a two year period for a country to leave the bloc.

But Barnier, 65, warned that the period of actual negotiations would be shorter than two years and there would be less than 18 months to agree Brexit.  If the terms were set in October 2018, there would be five months for the European Parliament, European Council and UK Parliament to approve the deal before a March 2019 Brexit.

But who is the urbane Frenchman who was handpicked by Commission President Jean-Claude Juncker to steer the talks?

A centre-right career politician, Barnier is a member of the pan-EU European People’s Party, like Juncker and German Chancellor Angela Merkel.

A committed European and architect of closer eurozone banking integration, Barnier rose to prominence after being elected aged just 27 to the French National Assembly.  He is notorious in Brussels for his repeated references to the 1992 Winter Olympics he organised in Albertville with triple Olympic ski champion Jean-Claude Killy.

He first joined the French cabinet in 1993 as minister of the environment. In 1995, Jacques Chirac made him Secretary of State for European Affairs, teeing up a long and close relationship with Brussels.

Barnier has twice served as France’s European Commissioner, under the administrations of Romano Prodi and José Manuel BarrosoMost recently he was serving as an unpaid special advisor on European Defence Policy to Juncker until the former prime minister of Luxembourg made him Brexit boss.“I wanted an experienced politician for this difficult job,” Juncker said at the time of Barnier, who has supported moves towards an EU army.

 

Barnier and the Brits

Barnier’s appointment was controversial. Under Barroso, he was Internal Market commissioner. Responsible for financial services legislation at the height of the crisis, he clashed with the City of London.

During this period he was memorably described as a man who, in a hall of mirrors, would stop and check his reflection in every one.

Although his battles with London’s bankers were often exaggerated, the choice of Barnier was described as an “act of war” by some British journalists and was greeted with undisguised glee by Brussels europhiles.

Barnier moved to calm those fears today. At the press conference, he said, “I was 20 years old, a very long time ago, when I voted for the first time and it was in the French referendum on the accession of the UK to the EU.

“That time I campaigned for a yes vote. And I still think today that I made right choice.”

But Barnier, seen by some as aloof and arrogant, also showed a mischievous side.  It was reported during Theresa May’s first visit to Brussels as prime minister that he was demanding that all the Brexit talks be conducted in French.

While Barnier does speak English, he is far more comfortable talking in his native French. But the story, since denied, was seen as a snub to the notoriously monolingual Brits.

The long lens photo of a British Brexit strategy note that warned the EU team was “very French” may also have been on his mind as he took the podium in Brussels today.

Barnier asked, “In French or in English?” to laughter from the press.

He switched between English and French in his opening remarks but only answered questions in French, using translation to ensure he understood the questions.

Since his appointment Barnier has posted a series of tweets which could be seen as poking fun at Brexit. On a tour of Croatia to discuss the negotiations, he posed outside Zagreb’s Museum of Broken Relationships asking, “Guess where we are today?”

 

 

He also tweeted a picture of himself drinking prosecco after Boris Johnson sparked ridicule by telling an Italian economics minister his country would have to offer the UK tariff-free trade to sell the drink in Britain.

But Barnier can also be tough. He forced through laws to regulate every financial sector, 40 pieces of legislation in four years, when he was internal market commissioner, in the face of sustained opposition from industry and some governments.

He warned today, "Being a member of the EU comes with rights and benefits. Third countries [the UK] can never have the same rights and benefits since they are not subject to same obligations.”

On the possibility of Britain curbing free movement of EU citizens and keeping access to the single market, he was unequivocal.

“The single market and four freedoms are indivisible. Cherry-picking is not an option,” he said.

He stressed that his priority in the Brexit negotiations would be the interests of the remaining 27 member states of the European Union, not Britain.

“Unity is the strength of the EU and President Juncker and I are determined to preserve the unity and interest of the EU-27 in the Brexit negotiations.”

In a thinly veiled swipe at the British, again greeted with laughter in the press room, he told reporters, “It is much better to show solidarity than stand alone. I repeat, it is much better to show solidarity than stand alone”.

Referring to the iconic British poster that urged Brits to "Keep Calm and Carry On” during World War Two, he today told reporters, “We are ready. Keep calm and negotiate.”

But Barnier’s calm in the face of the unprecedented challenge to the EU posed by Brexit masks a cold determination to defend the European project at any cost.

James Crisp is the news editor at EurActiv, an online EU news service.