Lisbon has shifted the emphasis of EU criminal justice policy away from ‘co-operation’ towards more ‘integration’. Over time – the thinking in Whitehall goes – EU judges might undermine Britain’s common law in favour of the continental civil model by handing down harmonising rulings. This, along a domestic political backlash against the influence of European courts, makes it likely that Britain’s prime minister, David Cameron, will use the block opt-out.
That would be a mistake. First, UK officials think that Britain’s size and importance mean that it can automatically opt back in to around 50 EU anti-crime measures, including the arrest warrant, once the block opt-out is triggered. That way the government could secure access to co-operation and data valued by Britain’s police while limiting the country’s exposure to future ECJ rulings. This is wrongheaded. The European Commission is likely to attach tough conditions to allow this and Britain’s negotiating stock in Brussels is low due to its perceived unhelpfulness during the eurozone crisis.
Furthermore, countries in the EU’s Schengen area of passport-free travel have previously blocked Britain from joining Frontex, the EU’s border agency, and the so-called VIS, a common database of visa records. (The UK maintains its own separate border regime.) Why should they now acquiesce to British cherry-picking in policing and justice?
Britain has shaped much of the EU’s internal security agenda to date. The current head of Europol (the EU’s police office) Rob Wainwright, is British; as have been the last two presidents of Eurojust (its prosecution office), and the last two director-generals of the Commission’s justice and home affairs directorate. For a country that is not in Schengen, possesses a minority legal system and selectively opts-out of common rules, this is a remarkable diplomatic success.