Open Europe has an article relating to the intended judicial review that it is reported Jacob Rees-Mogg and Stuart Wheeler intend to pursue. In this article they refer to a legal opinion and quote part thereof in relation to the European Arrest Warrant (EAW) and the European Public Prosecutors Office (EPPO)
In March this year I emailed Europa House, London (Representation of the European Commission in the UK), on a separate matter, namely that of fraud and the EPPO:
Dear Mr. Lamb,
It is the stated intention of the UK Government to opt out of the EPPO.
As part of the EPPO ‘set-up’ it is incumbent on Member States opting in to provide a designated European Prosecutor who would carry out fraud investigations and prosecutions in each Member States aided by a team of national staff, with each Member State presumably being liable to fund those personnel, their offices and their activities. It is also noted that national law will apply where punishment is concerned.
Bearing in mind any UK firm using EU money (for example an engineering company which secures a contract on an EU-funded infrastructure project, an agricultural business in receipt of EU subsidy, or any consultancy or university engaged in research projects) is liable to undergo such an investigation.
When the UK has opted out, what legal basis and/or obligation is there for the UK to accept a fraud investigation carried out by a body of which it is not a member, conducting a process to which, by nature of its opt out,it is not a signatory?
When the UK has opted out, who provides and funds a designated European Prosecutor, their offices,his/her staff and their activities for the UK?
Thanking you in anticipation of your response,
The following response was received:
Dear Mr Phipps,
I put your questions to the colleagues who are familiar with the Commission’s proposal on the EPPO, and they provided the following responses:
Answer to Q1: A firm located in UK and misusing EU-funds would not be subject to an EPPO-investigation, as the UK will not participate in the EPPO. For the UK, with the establishment of the EPPO, the current arrangements would continue to apply – i.e. the firm located in the UK would be subject to investigations by the UK national authorities and – as the case may be – OLAF. A domestic UK criminal investigation may arise as result of OLAF’s recommendations or the EPPO’s request for cooperation.
Answer to Q2: As the UK has opted out there would be no EPPO structures in UK and no UK-related activities of the EPPO which would need to be funded.
Representation of the European Commission in the UK
Perhaps it is time for a little game of ‘if’. If the Coalition is defeated in Parliament and thus decides not to proceed with its intention to opt back into 35 areas of EU Crime and Policing laws; and that we maintain our ‘opt out’ from the EPPO, just what ‘jurisdiction’ will the EPPO have in relation to the UK? If we do not participate. or thus accept the authority of the European Court of Justice then the EPPO, where any decisions, statements, requests etc that may come from that source, can have no effect on – or ‘force’ within – the UK. In other words, that well-known response of the British – Foxtrot Oscar – can be given.
Unfortunately were the government of the day to ignore the will of Parliament and exercise their prerogative - and thus override the will of Parliament – and decide to opt back-in to these 35 measures then the opinion of M’Learned Friends is quite correct – ie we would be legally bound to acknowledge said requests from an EPPO of a member state where an EAW is concerned; even though that would require the acknowledgement of the existence of an Office out of which we had opted.
(And don’t let us digress into the question about a legislature being overruled by an executive because that then leads into the question of a debate about democracy, separation of powers and what I have termed ‘democratised dictatorship’).
From the above it becomes obvious that, were the second scenario to happen, any UK involvement by the forces of law and order would incur costs. But we were assured, were we not, that as the UK has opted out of the EPPO there would be no UK-related activities of the EPPO which would need to be funded.
And the political class have not landed us – or possibly our elected dictatorship – may well land us in another fine mess?
But it is not just our real government that is telling us one thing, but delivering another – witness Theresa May. The following email has been received – and no doubt received by many others:
People who work hard and do the right thing deserve to feel safe in their homes and in their communities.
Under Labour, that wasn’t the case. Police officers were wrapped in red tape, unable to do their job – and people didn’t feel safe on the streets.
So since the last election, we’ve been working through our action plan to tackle crime:freeing the police to do their job, giving them the powers they need, and protecting communities with tougher sentences for criminals.
And our plan is working, with crime down by more than a fifth since the election:
But we need to keep going – and we need everyone to get behind our plan. So please add your name today to show you’re backing our plan.
With your support, we can keep making our streets and our communities safer. So please sign your name today:
What we are being asked to sign up to is, by inference, opting back into the 35 measures on EU Crime and Policing because what is missing from this email is her statement to the House of Commons in which she said that the question is whether we believe we need these measures in order to be able to keep the public safe and ensure people are brought to justice or not. We may (no pun intended) believe in tougher policing and sentencing, yet also believe that we should not cede aspects of policing and justice to the EU.
* A reference to a catchphrase in the Laurel & Hardy films.