Mention the European Court of Justice to a Brexiter and it is almost certain to provoke an impassioned speech about Abu Qatada.
This radical Muslim cleric was detained in Britain in 2002 in the aftermath of 9/11. He had been tried in absentia for terror offences in Jordan and found guilty. Successive British Home secretaries tried to deport him to Jordan but the European Court of Human Rights ruled he could not be sent back there if he was to face retrial based on evidence obtained through torture. Theresa May finally managed to ship him off from Belmarsh in 2013 after an agreement was obtained from Jordan that evidence obtained through torture would not be used. He was tried and acquitted.
There was strong feeling at the time, in both Parliament and the country, about the European court that was preventing his deportation. David Cameron talked of pulling Britain out of the European Convention of Human Rights, and replacing the Human Rights Act, which enshrines it in British law, with a British bill of rights. Theresa May, as Home Secretary, was in agreement.
It has become familiar Tory ground, colonised with enthusiasm by Brexiters. Foreigners should not be allowed to tell us what our rights are, or what anyone else’s rights are if they are resident here. We are quite capable of making our own laws. Brussels should bugger off and stop telling us what to do.
However, Brussels was not telling us what to do about Abu Qatada. It was Strasbourg that was telling us what to do. The obstacle was not the European Court of Justice, created in 1952 as a part of the European Union to rule on disputes between member countries and ensure the uniform application of EU law across them, but the European Court of Human Rights, set up in 1959 with Britain as a founder member, to safeguard basic human rights across the continent. The two courts are quite separate. The European Court of Human Rights is not part of the European Union. Our status as signatories to it will not be affected by our leaving the European Union.
Do not expect Theresa May to clarify this for the British electorate. The confusion, which is almost universal (I heard a US Senator conflate the two recently), works to her advantage. Abu Qatada had to go; therefore the court that said we couldn’t deport him was wrong; since that court was European, we are right to leave the EU. Thus goes the logic, or what passes for it. And since it was Theresa May who got rid of him, here is another reason for voting for TM as PM.
The confusion is compounded by the fact that those Tory right-wingers who do know the difference between the two courts loathe them both equally and for the same reason. They believe that the ECJ, too, interferes with British sovereignty. In a limited sense it does, of course; in that same limited sense, it interferes with all member countries’ sovereignty and that is the point of it. It is the legal authority that guarantees transactions between member states and to which they can appeal in a dispute. Without it, or something like it, the Union could not exist.
Removing Britain from the jurisdiction of the ECJ is Point 2 in Theresa May’s 12-point Brexit Plan.
This issue goes to the heart of the row that erupted immediately after the tragic bombing in Manchester: security. How is the safety of this country from terror attacks best assured? The answer clearly is “by international co-operation.” However good our security services are, they are only as good as their information, and much of that information is held abroad. They must have easy access to it. That means they must be willing to part, reciprocally, with information they hold. This implies mutual trust. They need to able to pursue suspects beyond their own borders. All of this is obvious and on this occasion, fortunately, it worked.
It may not always work.
Europol is the EU’s law enforcement agency; modelled on Interpol, it assists member states in fighting terrorism and serious international crime. Eurojust co-ordinates criminal investigations and prosecutions across borders and facilitates extradition requests. The European Arrest Warrant is valid throughout all member states and covers 32 crimes including terrorism and human trafficking. SIS II (second-generation Schengen Information System) is a database that allows police forces to share real-time alerts on suspects and missing people. All these are functions of the Justice and Home Affairs Council of the EU. We will forfeit our membership of the JHA when we leave the EU.
No-one questions our need to participate in these measures. Theresa May, in November 2014, when Britain had negotiated a temporary opt-out on some of the JHA measures and was about to vote on whether to opt back in, said, “If we were to vote against the motion tonight and did not opt back in to the measures […] we would find ourselves kicked out of Europol within weeks and our extradition arrangements would be thrown into legal uncertainty, potentially for years. That would risk harmful individuals walking free and escaping justice, and would seriously harm the capability of our law enforcement agencies to keep the public safe.”
The Government says it will negotiate special arrangements for our access to the JHA but will not say what arrangements. After the Manchester bombing, Nick Clegg accused the government of putting the country at risk by its attitude to Brexit. He focused particularly on SIS II, which is used “16 times a minute” by British security forces. The Government heatedly replied that he was talking “nonsense” and that security would be “an important priority in the negotiations”, adding that it was not “in the EU’s interest to lessen that relationship.” The outlines of the Government’s negotiating strategy may be discerned in that last statement, which is a veiled threat. It means that Britain has valuable security expertise and might choose to keep it to itself if Europe doesn’t give us what we want.
It is true that we “have a strong hand” in security matters: “The UK played a prominent part in designing and constructing the JHA system” (Clegg). The question is whether it is strong enough and whether, in any case, this is the right tactic.
The EU has its rules. SIS II is only available to full members of the EU or participants in Schengen. The same applies to the EAW. Europol can enter into either a “strategic” or “operational” partnership with a non-EU state, but both have disadvantages: strategic partners cannot access data or intelligence on individuals, and operational partners have no direct access to the Europol Information system.
The Government is hoping to negotiate a “bespoke solution” that allows Britain the access to JHA it needs. In principle a bespoke deal is possible, but there is a major stumbling block: the UK Government’s rooted hostility to the European Court of Justice.
In a 20-page paper on Justice and Home Affairs Cooperation, published in December1 , Nick Clegg explains why the ECJ would continue to have a major role in any post-Brexit partnership agreement. The reasons include that the EU can only act in compliance with its Charter, “of which the ECJ is the ultimate arbiter”; that “any agreement needs to be policed”; and that “some form of dispute resolution is necessary in any international agreement.” Yes, it might be possible to establish an independent arbitration body – it has been done for Norway and Iceland covering Europol, with recourse to the UN in case of a dispute – but Britain would require virtually full membership of the JHA, and there is no precedent for the creation of an arbitration body of that scope.
Nevertheless, “A JHA partnership agreement could be agreed if goodwill exists,” Clegg thinks. “We… have very good bilateral relationships with member states… We have a culture of respect for human rights and for the rule of law. These are all good starting points.”
This was written in December. Consider what Theresa May has been doing in recent months. She has gone out of her way to antagonise the EU. She has whipped up suspicion of Europe in this country. What price a bilateral deal with Europe if our Prime Minister has scuppered relations before the talking starts?
And what happens then, if Britain lurches uncontrollably out of the EU under her bungling leadership? Clegg sets it out under seven terse points. But May has already told us. She said it in November 2014. It would “risk harmful individuals walking free and escaping justice, and would seriously harm the ability of our law-enforcement agencies to keep the public safe.”
I have a picture in my mind of a child walking into a rain squall, head down and hooded, fists clenched, shouting, “It’s not raining!”
But I was six when I did that.