UK has little room for manoeuvre on EU justice measures

Plans to opt out of EU justice laws will be seen as a partial dress rehearsal for membership renegotiation

Today MPs in the House of Commons will practise their own version of Lanigan's Ball, when they face a vote to step out of 130 European Union police and criminal justice measures before agreeing that they should step back into 35 of them. Under the Lisbon Treaty the British can opt out out of the measures if they act before May 2014, though they must do so en masse and then seek to rejoin those that they judge to be in their interest.

The powers touch sensitive spots: the operation of the European Arrest Warrant, for example, has infuriated MPs on all sides, but particularly Conservatives, who cite example after example where they believe British citizens have been abused.

On Europol, the European Union's law enforcement agency, the British want to rejoin, but not if it is given the power to direct national governments and police forces. "We believe in operational independence for our police forces," said home secretary Theresa May. Opt-outs are justified, she said, on grounds of "principle, policy and pragmatism", leaving the UK free to rejoin "only those measures that help us co-operate with our European neighbours to combat cross-border crime and keep our country safe".

The UK will rejoin the European Arrest Warrant, but it intends to make changes to ensure that British judges can refuse warrants for minor crimes, or order extraditions only after a decision to prosecute has been made.

In particular, May wants to end lengthy pre-trial detentions of British subjects. Equally, British judges should be allowed to refuse if part of the offence was committed in the UK, or if the act was not illegal in the UK. Later, it will want to go further, but London believes that it has already shown good intent by being prepared to rejoin and seek reform from within rather than push for structural changes now – though this is not a view necessarily shared elsewhere.

So far, the European Commission has played a cautious hand, though it is clear that some in Brussels believe the proposed changes to the European Arrest Warrant go too far, never mind anything else London will seek on other measures.

Implications for Ireland
For now, the Irish Government – which London believes was initially cautious, but is now viewing matters constructively – notes that the detail of the proposed amendments to the European Arrest Warrant has yet to be published, even though they have been well flagged.

"Assuming [they] are within the terms of the Framework Decision on the European Arrest Warrant, it is not anticipated at this time that they would have implications for requests made from Ireland to the UK," the Department of Justice has told The Irish Times.

Even if the rhetoric in London is vigorous, it is clear that the Conservative/Liberal Democrat coalition wants an agreement or, at least, wants to ensure that nobody prejudges anything for now. Equally, however, it has been made clear privately to some, if not all, EU capitals, that London has very little flexibility, since the political consensus that has been put together “may collapse” – to quote one source – if the European Commission or other member states push too hard.

2017 referendum
So far, some in Brussels, or elsewhere in the EU, fear that the British action is but a harbinger of years of demands from London as it prepares for a referendum on EU membership in late 2017, assuming David Cameron stays in Downing Street. Sources in London argue otherwise, pointing out that the ability to opt out of justice and home affairs measures was agreed with all others during Labour's time in office, so that the UK is doing no more than exercising a pre-existing treaty right.

However, the referendum, if it is not directly involved in current events, remains lurking in the shadows, since British officials have themselves noted its existence in conversations with other capitals. London has left itself with little room for manoeuvre.

As is so often the case, the view from London on all matters EU differs entirely from the perspective that obtains everywhere else, since many Conservative MPs believe the home secretary has given poor justification for wanting to opt back in to anything – a view to which they will give full voice today, and it will not just be the usual suspects.

Mark Hennessy is London Editor