I preferred to be a wall-flower last week rather than join in the wild and shameless hokey cokey led by the government over the decision both to opt out and then opt back in to various EU criminal law measures. We will opt out of 135 and opt back in to 30. ‘Opt-in! Opt-out! In, out, in, out. You shake it all about. You do the hokey cokey, And you turn around. That's what it's all about!’ This is the government of a country which used to run one quarter of the world’s surface.
Whereas most of the commentary concentrated on the opt-out – at last the UK shows Europe what it thinks of EU interference! – I found the opt-in much more interesting. Whenever the government, and eurosceptics, speak of the EU, they say that they will stay in the single market, as if that is the only benefit. We can buy and sell goods across borders without tariffs or other barriers, but leave us out of the rest. But here was the government openly declaring that it would voluntarily opt back into 30 measures - the main two of which are the European Arrest Warrant and Europol (subject to some amendments being agreed to them) – when this has nothing to do with economics or the single market at all.
This is the government saying that a wider Europe of standards and procedures in the field of criminal law is beneficial to life in the UK. Indeed, it is often overlooked that the opt-in-and-out exercise excludes many important measures, such as the minimum procedural safeguards for suspects and defendants, which the UK expressly opted in to after the Lisbon Treaty.
What then are we to make of the simultaneous uproar which broke out after the decision of the European Court of Human Rights in the Vinter case (nos. 66069/09, 130/10 and 3896/10) which dealt with the claim that whole-life sentences without possibility of release or review are inhuman and degrading treatment?
I sat out that dance, too, and actually looked at the judgment while the mayhem went on around me. Here are a few facts. The decision was made by 16 votes to one. It includes a review of how other European countries deal with the issue, and the summary notes ‘there was clear support in European and international law and practice for those principles’ i.e. a possibility of release and review of the whole-life sentence, ‘with the large majority of convention contracting states not actually imposing life sentences at all or, if they did, providing for a review of life sentences after a set period (usually 25 years’ imprisonment)'. You can find out exactly which country does what by reading the judgment, and you will see that the UK is in a small Euro-minority in terms of its treatment of long-term prisoners.
As for whether or not the defendants should be released, the summary says it ‘would depend, for example, on whether there were still legitimate penological grounds for their continued detention and whether they should continue to be detained on grounds of dangerousness. These questions were not in issue in this case and were not the subject of argument before the Court.’ This is hardly grounds for ‘Anger as Europe backs killers’ (Daily Telegraph) or ‘An insult too far to British democracy’ (Daily Mail).
There is a conflict in the public response to the two developments: opt-out/opt-in to the EU criminal law measures, and opt-out/opt-out to the European Court of Human Rights. Both deal with a set of European standards in the field of criminal law (I am perfectly aware that the 30 measures are part of the EU, and the court part of the Council of Europe). Why then is the government happy to opt back in to 30 of the EU’s criminal measures, while it makes threats about the court? Is there not the same principle at stake of participating willingly within a framework of European and international standards?
Save this dance for me, while I murmur in your ear. The question is whether we feel that we have a monopoly of wisdom and virtue, or are prepared to subject ourselves voluntarily to accepted outside norms. The exact political entity which makes decisions over our future has always been changing. Wales and Cornwall may feel that they should still retain control over their decision-making; Scotland might leave the UK altogether; some centuries back, great chunks of France belonged to the UK; and then there was the British Empire. Why this terrible passion against the European Court of Human Rights?
The argument usually put is that it is a question of democratic accountability (even though it is supposedly democratic countries which appoint the court’s judges). But the same newspapers which run the democracy argument feel that they should not themselves be subject to democratic accountability despite the recent terrible scandals afflicting their own industry. (And I didn’t hear them howl with rage when it emerged that our own country has been spying on us en masse.)
This is the hokey cokey government. We shall have many more ‘in-out’ dances in the years ahead.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs