14 Measures which are likely to be
superseded by a subsequent (post-Lisbon) instrument
468. This category includes 10 measures which
share the following characteristics:
- they will be repealed and replaced
by a subsequent (post-Lisbon) instrument which is expected to
be adopted and/or enter into force by 1 December 2014; and
- the UK has opted into the repeal and replace
measure.
| Measure |
No. | Page
(CM Paper)
| Purpose and content of measure(s) |
| Judicial cooperation in combating drug trafficking
SCH/Com-ex (93) 14
| 112 | 18
| Standardises the practice in dealing with requests for Mutual Legal Assistance (MLA) in respect of drug trafficking.
|
| Declaration on extradition SCH/Com-ex (96) decl 6 rev 2
| 113 | 19
| Facilitates judicial cooperation in relation to extradition within the Schengen area and to address the risk of extradition flight.
|
| Evaluation and implementation of the Schengen acquis SCH/Com-ex (98) 26 def
| 114 | 19
| Provides the only mechanism by which Member States participating at any level in Schengen are evaluated.
|
| Good practice in mutual legal assistance in criminal matters
Joint Action 98/427/JHA
| 16 | 40
| Promotes good practices among Member States for the sending and executing of requests for MLA.
|
| European Evidence Warrant (EEW)
Framework Decision 2008/978/JHA
| 91 | 75
| Aims to speed up MLA requests in relation to obtaining existing evidence from other Member States for use in criminal proceedings.
|
| Attacks against information systems Framework Decision 2005/222/JHA
| 60 | 102
| Sets out how Member States should address cyber crime, through legislative measures, law enforcement and public/private partnerships.
|
| EU Convention on Mutual Legal Assistance and Protocol
Council Acts of 29 May 2000 and 16 October 2001
| 25
32 | 52 | Lays down conditions under which MLA between Member States is accepted and executed.
|
| Transmission of samples of controlled substances
Council Decision 2001/419/JHA
| 30 | 57 | Provides a system for transmitting seized samples between national authorities for the purpose of their forensic examination and the investigation and prosecution of offences.
|
| Simplified extradition procedures for Iceland and Norway Council Decision 2003/169/JHA
| 134 | 118 | Associates Iceland and Norway with Schengen-building provisions of the 1995 and 1996 Extradition Conventions.
|
Measures expected
to be superseded by the European Investigation Order
469. The European Investigation Order is a mutual
recognition measure which is intended to establish a comprehensive
system for obtaining evidence in cross-border cases. The UK has
opted into the draft Directive and negotiations are continuing
between the European Parliament, Council and Commission with a
view to achieving a First Reading agreement. As the final text
has yet to be agreed, the measures which it will repeal and replace
cannot be ascertained with complete certainty. However, it is
expected to repeal, wholly or in part:
- the European Evidence Warrant
(No. 91);
- an EU Convention and Protocol on Mutual Legal
Assistance in criminal matters (Nos. 25 and 32);
- a Joint Action on good practice in mutual legal
assistance in criminal matters (No. 16);
- a Schengen measure on judicial cooperation to
combat drug trafficking (No. 112); and
- a Council Decision on the transmission of samples
of controlled substances (No. 30).
470. Most Member States, including the UK, have
not implemented the European Evidence Warrant. Adoption of the
European Investigation Order before 1 December 2014 would obviate
the need to do so and remove (or substantially reduce) the risk
of infraction proceedings.
Other repeal and
replace measures
471. The Government considers that a Schengen
declaration on extradition (No. 113) has been superseded by the
European Arrest Warrant. It expects the remaining Schengen measure,
which establishes a mechanism for peer evaluation of the application
of the Schengen acquis by Member States (No. 114), to be
replaced shortly by a new Regulation strengthening the existing
mechanism.[126]
472. The Framework Decision on attacks against
information systems (No. 60) will be replaced by a new Directive
which seeks to strengthen the EU framework for tackling cybercrime
and which Member States are required to implement by September
2015.[127]
473. The final measure in this category —
a Council Decision establishing simplified extradition arrangements
between EU Member States and Iceland and Norway (No. 134) —
has been replaced, in substance, by a 2006 Agreement on the surrender
procedure which is modelled on the European Arrest Warrant. The
Government anticipates that the Agreement will be in force by
1 December 2014, but this will depend on all Member States having
completed national ratification procedures.
474. All of the measures in this category, with
the exception of those for which replacement measures are already
in force, raise three key issues:
- the scope of the replacement
measures;
- the timing of the adoption and entry into force
of the replacement measures; and
- the degree of participation in the replacement
measures (so-called "variable geometry").
The scope of the
replacement measures
475. Until replacement measures have been formally
adopted, it is impossible to determine with certainty whether
they will repeal and replace all, or part, of the pre-Lisbon measures.
We note that the European Investigation Order is expected to
replace in its entirety the European Evidence Warrant (No. 91)
but it is still unclear whether it will replace all, or only part,
of the EU Convention and Protocol on Mutual Legal Assistance in
criminal matters (Nos. 25 and 32). Similar uncertainty attaches
to the Joint Action on good practice in mutual legal assistance
(No. 16) and the Schengen measure on judicial cooperation in combating
drug trafficking (No. 112), which both concern the handling of
requests for mutual legal assistance, and to the Council Decision
on the transmission of samples of controlled substances (No. 30).
It is essential that Parliament's assessment of the measures
which the UK should seek to rejoin is based on a full understanding
of the impact that significant post-Lisbon measures, such as the
European Investigation Order, will have on pre-Lisbon measures
subject to the block opt-out. We ask the Government to clarify
at the earliest opportunity the scope of the European Investigation
Order, particularly in relation to existing mutual legal assistance
instruments, in light of ongoing negotiations between the Council,
Commission and European Parliament.
The timing of
the adoption and entry into force of replacement measures
476. Even where a replacement measure has already
been adopted, Member States may not be required to transpose it
into national law until after 1 December 2014. For example, the
Directive on attacks against information systems, although formally
adopted in July 2013, envisages that transposition will be completed
by September 2015. For those replacement measures which have
not yet been adopted, notably the European Investigation Order,
there is even greater uncertainty, not least because European
Parliament elections in May 2014 may delay the legislative process,
potentially creating an even greater risk of a legislative or
operational gap arising between an existing measure ceasing to
apply to the UK and the replacement measure being fully implemented.
The Government's response to our Report should set out the
action that the Government intends to take to avoid or mitigate
the risk of a legislative or operational gap arising between an
existing measure ceasing to apply to the UK on 1 December 2014
and a replacement measure taking effect.
Variable geometry
477. All Member States are bound by pre-Lisbon
EU police and criminal justice measures. By contrast, Denmark
does not participate in any EU police and criminal justice measures
adopted since the Lisbon Treaty entered into force on 1 December
2009, and the UK and Ireland are only bound by these measures
if they choose to opt in or, in the case of measures building
on parts of the Schengen acquis in which they already participate,
if they decide not to opt out. This variable geometry creates
additional complications in assessing the impact of the block
opt-out.
478. Taking the EU Convention and Protocol on
Mutual Legal Assistance in criminal matters (Nos. 25 and 32) as
an example, although it is binding for all Member States, the
Government notes that it has not been fully implemented by Greece,
Italy or Ireland. The European Investigation Order is expected
to replace some, or possibly all, of the EU Convention and Protocol,
but Ireland has not opted into the European Investigation Order
and Denmark is unable to do so. The Government anticipates that
cooperation with Ireland after 1 December 2014 will continue on
the basis of a 1959 Council of Europe Convention on Mutual Assistance
in Criminal Matters and two Additional Protocols, although it
is possible that the risk of infraction proceedings may induce
Ireland either fully to implement the EU Convention and Protocol
and/or to opt into the European Investigation Order once it has
been adopted.
479. As for Denmark, cooperation will no longer
be based on the EU Convention and Protocol, but on the Council
of Europe Convention and First Additional Protocol (Denmark has
not ratified the Second Additional Protocol). The Council of
Europe Convention will similarly fill any gaps in mutual legal
assistance arrangements with other Member States if the European
Investigation Order does not repeal the EU Convention and Protocol
in its entirety.
480. The Government's recommendation to opt
out of 10 measures which it expects will be repealed and replaced
by new post-Lisbon measures in which the UK has chosen to participate
will have a particular impact on Denmark, since its cooperation
with other Member States in the police and criminal justice field
will continue to be based on existing pre-Lisbon measures. We
are disappointed that the Government's Explanatory Memorandum
does not provide a fuller, comparative assessment of the differences
in the Mutual Legal Assistance arrangements under the existing
EU Convention and Protocol and the Council of Europe alternative,
given the importance of cooperation in this area. We ask the
Government to do so in its Response to our Report.
126 See Council document 11846/12 (34045), considered
most recently in HC 83-xiii (2013-24), chapter 4 (4 September
2013). Back
127
See Directive 2013/40/EU on attacks against information systems,
OJ No. L 218, 14.08.2013. Back
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