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What if Julian Assange won? EU headache? Or Eurosceptic dream?

I doubt very much he will: I think the Supreme Court will be driven to conclude that the phrase judicial authority in the European Arrest Warrant Framework Decision is capable of including a public prosecutor, and that UK legislation giving domestic effect to the Framework Decision must necessarily have the same meaning. If they reach any other conclusion, I’ll think they’ve gone bonkers.

But what if he did win? The question’s interesting because it shines light on an unusual, time-limited opt-out the UK has in relation to the European Arrest Warrant system – and all similar EU laws on criminal cooperation.

Something I’ve written before is that the obvious procedural solution usually available in a case where parties are bickering over the meaning of an EU legal term – a reference to the European Court of Justice – was not available in this case. Indeed, the Supreme Court would normally have had to refer the matter to the ECJ for a binding decision because under Article 267 of the Treaty on the Functioning of the EU, where a question of interpretation

is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.

There’s no national judicial remedy against decisions of UK Supreme Court, so it would be duty bound to refer – and Julian Assange would have remained on bail however long the ECJ took to rule – and it does usually take a long time.

None of this applies because the UK has not accepted its jurisdiction in relation to criminal cooperation laws like the EAW Framework Decision. Because of Protocol 36 to the TFEU, this opt-out from ECJ jurisdiction only lasts till 2015, though: scroll all the way down to Article 10(1) and (3) to see the relevant provisions. It’s one of the compromises the UK made in the Lisbon Treaty. The only way of the UK escaping termination of the opt-out would be to pull out of the EAW system altogether under Article 10(4) of the Protocol.

If the Supreme Court justices did decide to read the Framework Decision as requiring an EAW to be issued by a court, the first obvious consequence would be to throw the European Arrest Warrant system into disarray, at least as far as it applies to suspects sought in the UK. Countries like Sweden and France whose prosecutors issue warrants would be unable to pursue suspects in Britain – those countries will no doubt see our judges as having created a “safe haven” for fugitives.

Initially this might please Eurosceptics and some civil liberties campaigners, who’d be pleased to see British judges insist on their own reading of EU law, ensuring that anyone who wanted someone extradited from Britain had to live up to British ideas of justice. This is the sort of relationship some Conservatives would like the UK to have to human rights law, and which it is possible to achieve in this corner of EU law until 2015 because of the UK’s ECJ opt-out.

I suppose the member states affected might decide to designate courts as their issuing authorities in order to satisfy the UK. But this seems unlikely given that the change would only be needed in respect of one other state. It’d make much more sense, surely, to amend the Framework Decision. The solution could be to replace the term judicial authority with something else – like simply authority – wherever necessary to remove the local British difficulty.

But wait: amending the Framework Decision could potentially have further, unwanted ramifications. Under Article 10(2) of Protocol 36, which we looked at earlier,

The amendment of an act referred to in paragraph 1 shall entail the applicability of the powers of the institutions referred to in that paragraph as set out in the Treaties with respect to the amended act for those Member States to which that amended act shall apply.

In other words, any amendment would result in the immediate termination of the UK’s opt-out from ECJ jurisdiction: it would bring about the applicability of the powers of the ECJ with respect to the amended Framework Decision.

Surely David Cameron at least would not want to bring that about three years before it’s due; although the relevant minister, Ken Clarke, and Liberal Democrat ministers, might take a different view. A Julian Assange win, in other words, would be a grenade laid next to the government’s Euro-fissure.

How could the problem be solved? One way, as I’ve said, would be for other countries to change their arrangements to suit the British and allow us to keep our opt-out for as long as it suits us. Unlikely, perhaps, given Britain’s recent unhelpfulness towards them. Another option would be for the EAW system to limp along for three years, British suspects being out of reach of some European prosecutors, until the ECJ can order British judges to fall into line. The European countries affected, like Sweden, might decide to retaliate by not extraditing suspects to Britain.

Finally, it might be possible for member states to agree to textually amend the Framework Decision – or at least the British text – but at the same time also to agree that the change does not amount to an “amendment” but was merely a “clarification” of what was always the intended meaning of the instrument. That would be sneaky, and subject to a possible legal challenge, but might work as a reasonable trade, the UK agreeing to remove the problem in return for being allowed to keep its limited opt-out.

Of course many Eurosceptics would prefer us simply to pull out of the entire system of criminal cooperation in Europe, and would use the difficulty to lobby hard for this area of policy to be fully “repatriated” on the back of the Supreme Court’s ruling.

That wouldn’t necessarily result in people like Osman Hussein evading British justice. Presumably we’d negotiate bilateral extradition treaties with our European neighbours. Whether a judge would need to issue an extradition request or whether a prosecutor could do so would then simply be a matter of agreement in those treaties. I wonder what the UK-Swedish treaty would say.

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