1 Introduction
The announcement
1. In September 2012, the Prime Minister announced
that the Government intended to exercise the right conferred exclusively
on the UK by the Lisbon Treaty to opt out of EU police and criminal
justice measures adopted before that Treaty entered into force
on 1 December 2009. He added:
We'll be exercising that opt-out. The key thing
then is, well, which of the array of things you've come out of
do you actually think are good for Britain and you want to cooperate
with European partners on? And that's the discussion we're having
at the moment.[1]
2. The Prime Minister's announcement was followed,
on 15 October 2012, by an oral statement to the House by the Home
Secretary which confirmed that the Government's "current
thinking" was to opt out of all pre-Lisbon EU police and
criminal justice measures and to:
negotiate with the Commission and other Member States
to opt back into those individual measures that it is in our national
interest to rejoin.
She added:
The Government are clear that we do not need to remain
bound by all the pre-Lisbon measures. Operational experience
shows that some of the pre-Lisbon measures are useful, that some
are less so and that some are now, in fact, entirely defunct.[2]
3. Nine months later, on 9 July 2013, the Home
Secretary returned to the House to explain the Government's approach
to the block opt-out:
We believe the UK should opt out of the measures
in question for reasons of principle, policy and pragmatism and
that we should seek to rejoin only those measures that help us
to cooperate with our European neighbours to combat cross-border
crime and keep our country safe.[3]
4. The Home Secretary identified 35 out of approximately
130 pre-Lisbon police and criminal justice measures which the
Government considered it would be in the national interest to
rejoin. These measures are listed in Command Paper 8671, published
at the same time as the Home Secretary's Statement to the House.
5. The implications of the Government's block
opt-out decision for the UK are far-reaching. Its real significance,
however, will depend crucially on how many measures the Government
seeks to rejoin, and the impact that the extension of the jurisdiction
of the Court of Justice and the Commission's enforcement powers
in relation to these measures will have on the UK.
PURPOSE OF THIS REPORT
6. In his Written Ministerial Statement of 20
January 2011 on enhancing scrutiny of EU business, the Minister
for Europe (Mr David Lidington) alluded to the UK's 2014 block
opt-out decision and stated that "Parliament should have
the right to give its view on a decision of such importance."
He added:
The Government therefore commit to a vote in both
Houses of Parliament before they make a formal decision on whether
they wish to opt out.[4]
7. A debate and vote on the Government's decision
to exercise the block opt-out took place in the House of Commons
on 15 July 2013, but not in the manner originally anticipated
by the Government. The Government put forward a motion which
would not only have endorsed its decision to exercise the block
opt-out, but also its recommendation to open formal negotiations
on the list of 35 measures in Command Paper 8671 which it proposes
to rejoin. Following the intervention of the Chairs of the European
Scrutiny, Home Affairs and Justice Committees, the Government
tabled a motion which invited the European Scrutiny, Home Affairs
and Justice Committees to submit "relevant reports"
before the end of October, after which the Government intends
to open formal discussions with the Commission, Council and other
Member States and, at a later stage, submit its formal application
to rejoin certain measures. During the course of the debate,
the Government accepted a further amendment to its motion, tabled
by the Committee Chairs, which removed any reference to Command
Paper 8671, thereby ensuring that the vote in the House of Commons
would not pre-empt further consideration by the House of the measures,
if any, which the Government should seek to rejoin. The Home
Secretary made clear during the debate on 15 July that:
there will be a second opportunity for Parliament
to vote on the number and content of any measures that we seek
to opt into
and that this second vote would be held:
on the final list of measures that we will formally
apply to opt back into. [5]
8. The purpose of this Report is to inform the
debate and vote in the House of Commons and assist the House in
reaching its own view on the measures, if any, which the UK should
rejoin. The approach we have taken is based on the distinctive
role of the European Scrutiny Committee set out in Standing Order
143, which is to consider the legal and political importance of
each of the measures subject to the block opt-out and to report
on any "matters of principle, policy or law which may be
affected."[6] This
differs from the role given to Departmental Select Committees
which is to examine matters of "expenditure, administration
and policy" of their respective Departments. The Report:
- explains why the block opt-out
exists, contrasting the legal regimes before and after the Lisbon
Treaty entered into force (chapter 2);
- describes the different categories of EU police
and criminal justice measures to which the block opt-out applies
(chapter 3);
- explains the procedures for exercising the block
opt-out and the legal and practical implications which the Government
will have to address when applying to rejoin measures which it
determines to be in the national interest (chapter 4);
- sets out the reasons given by the Government
for exercising the block opt-out and for seeking to rejoin 35
measures, and considers the information provided by the Government
to inform our scrutiny (chapter 5);
- provides our analysis of the 35 measures which
the Government proposes to rejoin (chapters 6-10), as well as
our analysis of the remaining measures (chapters 11-16); and
- summarises our main conclusions and sets out
our recommendations for the debate and vote in the House of Commons
on the measures that the UK should seek to rejoin (chapter 17).
9. We held one oral evidence session with the
Home Secretary (Mrs Theresa May) and the Justice Secretary and
Lord Chancellor (Chris Grayling) on 10 October 2013. We are grateful
for their contribution.
ANNEX AND APPENDIX
10. There is an Annex and an Appendix to the
Report. The Annex lists post-Lisbon EU police and criminal justice
measures which the UK has chosen to participate in. The Appendix
sets out in full Article 10 of Protocol No. 36 on Transitional
Provisions, which establishes the procedures applicable to the
block opt-out.
TABLE
11. Our Report is accompanied by a Table which
provides a summary of all of the measures subject to the block
opt-out, cross-referencing them to the Report and to Command Paper
8671, and grouping them into categories of measures sharing similar
operational or regulatory features. The Table also assesses
the operational importance for law enforcement of each of the
measures. The analysis is based on our own assessment of the
potential significance of each measure and the information provided
by the Government in Command Paper 8671. It is not intended to
express a view on what measures the Government should seek to
rejoin, nor does it take into account the wider legal or political
significance of the extension of the jurisdiction of the Court
of Justice in the UK and any financial implications associated
with the block opt-out. We recognise, however, that the extension
of the Court's jurisdiction will be a highly material factor in
Parliament's deliberations on the measures the UK should rejoin
and we return to this issue in assessing each of the measures
later in the Report.[7]
Extracts of the Table are included in those Chapters of the Report
setting out our analysis of the measures which the Government
does not intend to rejoin (chapters 11-16). We have colour-coded
the measures to distinguish between those which have significant
operational importance (green), some operational importance (white)
and little or no operational importance (grey).
THE BLOCK OPT-OUT AND THE GOVERNMENT'S
REVIEW OF THE BALANCE OF COMPETENCES
12. All of the measures subject to the block
opt-out, as well as EU police and criminal justice measures adopted
since the Lisbon Treaty came into force on 1 December 2009, will
be considered as part of the Government's Review of the Balance
of Competences. The Review, launched in July 2012, claims to
provide a comprehensive audit of what the EU does and how it affects
the UK. The Review is spread over four semesters starting in
the autumn of 2012 and concluding in the autumn of 2014. At the
start of each semester, a Call for Evidence is launched by the
relevant Government Departments inviting the submission of objective,
factual information about the impact or effect of specific areas
of EU competence. The evidence received will form the basis for
a series of departmental Reports setting out the Government's
findings.[8] A Call for
Evidence on EU competence in the police and criminal justice field
will not be launched until the final semester, in spring 2014.
13. In its response to the House of Lords Report,
EU police and criminal justice measures: The UK's 2014 opt-out
decision, the Government described the 2014 block opt-out
decision and balance of competences review as "two separate
exercises." It said that "the review will look at everything
the EU does, and so has a much wider remit than the 2014 opt-out
decision. It will ensure that our national debate is grounded
in knowledge of the facts. The review will not make specific
policy recommendations as it is designed to broaden and deepen
public understanding of what EU membership means for the UK, not
pre-judge policy."[9]
14. The 2014 block opt-out decision will, however,
have potentially far-reaching policy implications for the UK,
as the Home Secretary made clear in the debate on 15 July:
The Government's decision [...] to opt out of around
130 European justice and home affairs measures, before seeking
to opt back into those measures that we believe work in the national
interest, will be the first time in the history of our membership
of the European Union that we have taken such a set of powers
back from Brussels. Let us be clear that, however complicated
the issues we are about to debate [...] we are first and foremost
talking about bringing powers back home.[10]
15. The Justice Secretary agreed, describing
the 2014 block opt-out decision as "part of a process of
bringing powers back to this country."[11]
16. The Balance of Competences Review derives
from a commitment in the Coalition's Programme for Government
and is far broader in scope than the 2014 block opt-out decision.
Whilst we understand that the Government wishes to treat them
as separate exercises, we think that the parallels between them
are nevertheless evident, not least because both seek to assess
the impact of specific areas of EU competence on "the national
interest." The principal difference, in our view, is that
the 2014 block opt-out decision will have an immediate and material
impact on the balance of competences in the police and criminal
justice field. It seems to us that an objective, factual analysis
by a range of stakeholders on the impact of EU competence in this
field would undoubtedly have made an important contribution to
public understanding of, and engagement with, an area of policy
which is politically sensitive and legally complex and could have
informed, rather than pre-empted, policy making. We consider
the Government's decision to launch its call for evidence at the
end of the review period, after its decision to exercise the block
opt-out and to seek to rejoin individual measures has been taken,
to be a serious omission as well as a missed opportunity to inform
the debate in Parliament and beyond.
1 Interviewed in Rio de Janeiro on 28 September 2012. Back
2
HC Deb, 15 October 2012, cols. 34-45 Back
3
HC Deb, 9 July 2013, col. 177 Back
4
HC Deb, 20 January 2011 Back
5
HC Deb, 15 July 2013, cols. 770-862 Back
6
Standing Orders of the House of Commons. Back
7
See paras 80 to 84. Back
8
For further details, see https://www.gov.uk/review-of-the-balance-of-competences. Back
9
See http://www.parliament.uk/documents/lords-committees/eu-sub-com-f/Protocol36OptOut/p36followup/p36govtresponse.pdf
Back
10
HC Deb, 15 July, col 770 Back
11
HC Deb, 15 July, col 853 Back
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