17 Our main conclusions and recommendations
for the debate and vote in the House of Commons
543. Our Report seeks to explain what the
block opt-out is, why it matters, which measures it applies to,
and the procedural requirements for exercising the block opt-out
and seeking to rejoin individual measures. We have sought to
assist the House in determining which measures, if any, the UK
should rejoin by providing an assessment of the potential operational
significance or utility of each measure, based on its content,
the Government's analysis in Command Paper 8671, and the oral
evidence of the Home Secretary and Secretary of State for Justice
to us on 10 October. For the measures the Government does not
intend to rejoin we have not had regard to the broader institutional
and constitutional implications for the UK of accepting the full
jurisdiction of the Court of Justice and the Commission's enforcement
powers. We summarise in this chapter the main conclusions we have
drawn from our assessment.
BALANCE OF COMPETENCES REVIEW
544. EU competence in the police and criminal
justice field remains a contested area in the UK, as is evidenced
by the "Opt-in" arrangements negotiated as part of the
Lisbon Treaty. EU police and criminal justice measures are often
politically sensitive and legally complex, and require difficult
judgments to be made about whether the UK's national interest
is better served by opting into an EU measure or seeking alternative
forms of cooperation which exclude formal oversight and supervision
by the Court of Justice and Commission. We would expect these
issues to be explored in some detail in the Government's review
of EU competence in the police and criminal justice field, which
forms part of the wider balance of competences review. We very
much regret that the Government's call for evidence will not be
launched until spring 2014 and its findings published in autumn
2014, far too late to inform our Report and, in all probability,
the second debate and vote in Parliament on the 2014 block opt-out
(see paragraph 16).
ENGAGEMENT WITH PARLIAMENT
545. A recurring theme of this Report, and
our earlier Report, The 2014 block opt-out: engaging with Parliament,
has been the reluctance of the Government to provide Parliament
with the information it needs, at the time it needs it, in order
to gain a proper understanding of the legal, policy and operational
implications of the block opt-out, as well as the procedures determining
which measures the UK will be able to rejoin. This is essential
because the task of determining which measures the UK should rejoin
is not for the Government alone. The Government's decision must
be informed by the views of Parliament. Given the important role
of Parliament, it is all the more disappointing that answers have
been given which have little or no bearing on the questions we
have asked. For example, when asked to confirm that the UK's
formal application to rejoin individual measures subject to the
block opt-out could not be submitted before 2 December 2014, we
were told:
We believe it is in everybody's interests to try
to eliminate any gap between our opt-out taking effect and our
continued participation in the measures we formally apply to rejoin.[164]
546. Similarly, when asked to provide a second
Impact Assessment on the measures that the Government does not
propose to rejoin, to inform the Reports being prepared by the
European Scrutiny, Home and Justice Committees, we were instead
told:
I am happy to reiterate that the Government is
committed to providing an Impact Assessment on the basis of the
final package of measures the UK will formally rejoin in good
time ahead of the second vote.[165]
547. The most significant impediment to Parliamentary
scrutiny of the block opt-out decision has been the delay in publishing
the Government's Explanatory Memoranda, which were first requested
in November 2012, promised by early February, and finally delivered
on 9 July 2013 at the same time as the Home Secretary's Statement
to the House announcing the Government's intention to exercise
the block opt-out and seek to rejoin 35 measures. We might have
been willing to concede some justification for the delay if its
purpose was to enable the Government to clarify, in its Explanatory
Memoranda, the reasons for proposing to rejoin 35 measures and
opt out of the rest. To the contrary, the Explanatory Memoranda
studiously avoid providing any reasons or insight into how the
Government has assessed the national interest in relation to each
measure, doubtless because they were prepared before the Government
had determined which measures to seek to rejoin. There is no
evidence of the careful weighing of the benefits of participation
against the risks associated with acceptance of the full jurisdiction
of the Court of Justice and the Commission's enforcement powers.
Given that the extension of the Court's jurisdiction is at the
heart of the block opt-out decision we consider the lack of analysis
on this issue to be a serious omission (see paragraph 84).
548. Our Report has highlighted a number of
apparent anomalies or inconsistencies in the Government's Explanatory
Memoranda. Why, for example, would it better serve the UK's national
interest to participate in a peer review of national capabilities
to tackle organised crime, but not terrorism? Why would the UK
wish to remain part of a network of designated contact points
for the exchange of information on the investigation of genocide,
crimes against humanity and war crimes, but to opt out of a related
measure strengthening cross-border cooperation in investigating
and prosecuting these crimes? On what evidence does the Government
base its assertion that there would be a reputational risk for
the UK if it were to opt out of certain measures, or that the
risk would be greater for some measures than for others? How
would it diminish the UK's international standing in tackling
crime and threats to security? Doubtless, the Government has
its reasons, but they are not made apparent in its Explanatory
Memoranda. Without that information, the task of Parliament in
holding the Government to account for its assessment of the national
interest is made immeasurably harder (see paragraphs 94 and 95).
549. In light of these deficiencies, we again
underline the importance of publishing a full Impact Assessment
on the measures the Government proposes to rejoin as a matter
of urgency and not, as was the case with the Government's Explanatory
Memoranda, a matter of days before the next debate and vote in
Parliament take place. We also reiterate our request for a second
Impact Assessment on the measures that the Government does not
propose to rejoin so that Parliament has a clear understanding
of the areas in which alternative arrangements may be necessary,
what form they are likely to take, how readily they can be achieved,
and what impact they will have on the protection of fundamental
rights. Pending publication of these Impact Assessments, and
given the imminent onset of formal negotiations, we look forward
to receiving a full and timely Government response to the issues
we have raised in our Report which sets out clearly, where the
Government proposes to rejoin pre-Lisbon police and criminal justice
laws, the basis on which it regards such a course as serving the
national interest (see paragraphs 98 and 102).
PRINCIPLE, POLICY AND PRAGMATISM
550. The Home Secretary's Statement to the
House on 9 July indicated that the Government's block opt-out
decision would be based on "reasons of principle, policy
and pragmatism" but these concepts can be slippery and difficult
to apply in practice. Should the Government's decision to opt
out of pre-Lisbon EU measures establishing minimum standards and
penalties in criminal law, or EU-wide control measures for certain
psychoactive substances, be considered a matter of principle or
an example of pragmatism? The statement by the Justice Secretary
that "we do not want courts across Europe to be told by Brussels
the minimum standards that should apply to the sentences they
impose"[166],
or by the Home Secretary that it is "not for Europe to impose
minimum standards on our police and criminal justice system"[167],
would suggest that a question of principle is at stake. Yet this
principle is difficult to reconcile with the Government's decision
to opt into post-Lisbon EU measures on human trafficking, cybercrime,
sexual exploitation of children and child pornography, and victims'
rights which establish minimum standards and penalties, or to
participate in post-Lisbon EU drug control measures on new psychoactive
substances which are already subject to control under domestic
UK legislation. If the block opt-out decision is indeed intended
to draw a line in the sand, demarcating areas in which the UK
will no longer be bound by EU norms and controls, it is a difficult
line to discern (see paragraphs 495 to 497 and 508).
COOPERATION NOT CONTROL
551. Participation in any EU police and criminal
justice measure necessarily entails a degree of EU control to
the extent that it establishes legally binding requirements which,
from 1 December 2014, will be subject to oversight by the Commission
and Court of Justice. What matters, therefore, is the degree
of control that is likely to be exercised by these institutions
and the extent to which it tips the balance from beneficial cooperation
to excessive, intrusive and unwarranted interference. A significant
number of the measures which the Government does not intend to
rejoin, such as those establishing cross-border contact points,
networks, directories, or non-binding forms of guidance or peer
evaluation, are those least likely to be susceptible to infraction
proceedings or to adverse rulings by the Court of Justice. By
contrast, although numerically far smaller, many of the measures
the Government does propose to rejoin are far more likely to be
susceptible to control by the Commission and Court of Justice
because of their inherent significance. As a result, the potential
for adverse judgments must be considered high. For this reason
alone, we question the Home Secretary's suggestion that "the
vast majority" of these measures are "uncontroversial"[168]
and have urged the Government to provide a detailed analysis of
the implications of the Court's jurisdiction in its response to
our Report (see paragraph 84).
BRINGING BACK POWERS
552. The Home Secretary has made clear that
the block opt-out is "first and foremost [..] about bringing
powers back home"[169],
a view shared by the Justice Secretary who regards it as "part
of a process of bringing powers back to this country."[170]
Whilst it is undoubtedly the case that the UK will divest itself
of a significant number of obligations arising under the measures
that the Government does not propose to rejoin, the block opt-out
does not signify any lessening of UK involvement in the key measures
governing law enforcement cooperation in the EU. Whilst the full
implications of extending the jurisdiction of the Court of Justice
and conferring enforcement powers on the Commission in relation
to these measures are, as yet, uncertain, it is clear that opting
back in will increase the powers of both institutions and diminish
the role and function of domestic courts in the UK as well as
Parliament. Given this reality, we see little evidence of a genuine
and significant repatriation of powers.
THE 35 MEASURES
Incoherent approach
553. The Secretary of State for Justice told
us in evidence that the Government's approach to choosing which
measures to rejoin was as follows:
If you look at the steps that we have taken in
this, the broad thrust of how we have allocated the different
measures is we have almost entirely—it is never quite an
exact science—accepted the need to be part of international
partnerships in fighting crime. That is in the interests of our
citizens—to protect them against the risk of serious and
organised crime and terrorism. However, we are trying to resist
moves to take us down to having European criminal penalties and
European systems of law. That was a very telling factor in our
decision-making process. We went through all this measure by measure
to understand what we should be part of and what we should not.
[171]
554. An analysis of the measures, however,
does not confirm this approach. Whilst a number of the measures
widely considered influential in fighting cross-border crime are
within the list, many which appear peripheral, or where the Government
has not explained the national interest in rejoining, are also
included, as we highlight in chapters 7 to 10. In this respect
the Government's repeated assertion in the Command Paper that
not rejoining a measure will incur a "reputational risk"
is, without a clear explanation why, too easily made for us to
take into consideration without substantive justification. Additionally,
there is considerable incoherence between those measures which
the Government seeks to rejoin with those that it does not, as
we mention above and highlight in chapters 11-16.
555. It is likely, in our view, that this
incoherence is a consequence of coalition politics, particularly
because the two coalition parties have markedly different policies
on how many EU police and criminal justice measures should be
rejoined. Trade-offs were, therefore, inevitable. As the Justice
Secretary told us "it is in the nature of coalition governments
that you have to reach collective agreements."[172]
Perhaps it is for this reason that several of the explanations
for measures the Government wants to rejoin appear to have been
written as if the Government was not intending to rejoin them,
and vice versa.
Significance of the jurisdiction of the Court
of Justice
556. Adherence to any legally binding EU police
and criminal justice measure brings with it the risk of legal
principles and practices of other jurisdictions influencing or
interfering with our own, as the Court of Justice will have the
ultimate say on how it is interpreted and applied. That, at its
simplest, is the compromise made, and against which we suggest
the benefits of adherence should be tested. Whilst the UK has
had some success in both influencing this area of policy and preserving
national legal principles —it was, for example, instrumental
in developing the principle of mutual recognition as an alternative
to harmonisation—the risks are real. The proposed repeal
and replacement of the Eurojust decision is a case in point. Without
waiting for the evaluation of the current Eurojust Decision, which
is underway, and without the benefit of an impact assessment,
the Commission has proposed a new Eurojust Regulation. Amongst
its proposals is the giving of coercive powers to the Member State
representatives of Eurojust; were these to be incorporated in
the final text to which the UK opted in, they would be in conflict
with fundamental national principles of separation of function
between police officer and prosecutors.
557. It is of course the case that of the
measures the Government proposes to rejoin, some are far more
likely to lead to litigation before the Court of Justice than
the measures which the Government proposes not to rejoin. This
is partly because, as has been said above, they interfere with
the human rights of suspects or convicted persons, such as in
extradition proceedings or prisoner transfers, and so have to
be legally justified. Accordingly, much consideration has been
given to how the Court of Justice is likely to influence EU police
and criminal justice measures when they are fully within its jurisdiction.
On this point the Secretary of State for Justice told us that
he had:
looked at this issue and would not necessarily
single out the Court as having a particular motivation in the
work it does. I think the issue is that many of the legal frameworks
it works with are pretty vague but contain some pretty big signposts
about greater European integration. If you have a big signpost
that says more Europe and laws and principles that are quite vague,
the Court will interpret those in a way that delivers more Europe.
[173]
558. We have some sympathy with this view.
In our view opinions on the Court can be based as much on ideology
as on track record, which makes a balanced assessment more difficult.
There are strong arguments that the EU should be governed by
the rule of law at the apex of which sits a court ensuring its
uniform and correct application: yet there are also equally strong
arguments that the power of a supranational court over national
courts, and the reduced flexibility for Parliament to change the
law as a result of an adverse Court of Justice decision, affronts
the UK's sovereignty. Similarly, it can be argued that the jurisdiction
of the Court of Justice over these policies will have the welcome
effect of raising fair trial standards in some Member States:
but it will do by standardising them across the EU in a way that
could seriously interfere with the UK's distinctive and well-established
legal system.
559. In terms of track record, from an analysis
of the Court's case law a mixed picture emerges: it certainly
does not always rule in favour of more Europe. But in cases of
unclear wording, often the product of multilateral law-making,
the Court will use the general objectives in the Treaties to guide
its interpretation of disputed EU law (the purposive approach),
and these objectives are generally integrationist. This leads
to the Court often to ruling in favour of the EU. The case of
Pupino is illustrative of this.[174]
560. Our own analysis leads us to conclude
that it is very difficult to predict how the court will adjudicate
on its new area of competence, other than to say that it will
follow the content of clear legal provisions where they exist,
will rely on a purposive approach where they do not, and will
bring its human rights jurisprudence to bear, which could lead
to significant new interpretations of measures.
THE DEBATE AND VOTE IN THE HOUSE
OF COMMONS
561. In her Statement to the House on 9 July
2013, the Home Secretary made clear that the House would have
two opportunities to debate and vote on the UK's block opt-out.
In the first debate, which took place on 15 July, the House was
asked to endorse the Government's decision to exercise the block
opt-out and to enter into negotiations with the Commission, Council
and other Member States on the set of measures in Command Paper
8671 which the Government intended to seek to rejoin. Following
the intervention of the Chairs of the European Scrutiny, Home
Affairs and Justice Committees, the Government accepted an amendment
to the motion agreed by the House which, crucially, omitted any
reference to Command Paper 8671, thereby ensuring that the vote
would not pre-empt further consideration by the House of the measures,
if any, which the Government should seek to rejoin.[175]
The motion invited the European Scrutiny, Home Affairs and Justice
Committees to submit Reports by the end of October "before
the Government opens formal discussions with the Commission, Council
and other Member States, prior to the Government's formal application
to rejoin measures in accordance with Article 10(5) of Protocol
36 to the TFEU."
562. Whilst there is a clear commitment by
the Government to a second vote, there is considerable uncertainty
as to its timing and purpose. There would appear to be two possibilities.
The first is that the House should be invited to express a view
on the measures which the Government should seek to rejoin before
formal negotiations with the Commission, Council and Member States
commence. This is what the Government appeared to intend in July
when it asked Parliament to endorse the 35 measures set out in
Command Paper 8671. The second is that the House should be invited
to express a view on the measures that should form part of the
Government's formal application to opt back in. This would most
likely be some time after formal negotiations have begun, once
there is a clearer indication of what the Commission, Council
and other Member States are willing to accept, but before 1 December
2014. Put more starkly, the options are to seek a Parliamentary
mandate for negotiations or Parliamentary approval of the outcome
of negotiations.
563. We asked the Home and Justice Secretaries
what the Government would be negotiating on after 31 October,
given that the motion agreed by the House on 15 July did not express
any view on the measures the UK should seek to rejoin. The Home
Secretary told us:
We will be negotiating on the basis of the Government's
position. We will have to look at the information from Parliament
that will be produced in relation to the measures, and obviously
various Committees will be coming forward with their views on
this particular issue.[176]
564. In terms of the timing of the vote, she
added:
Parliament will have an opportunity to have that
vote once we are able to put the final package to it, but of course
we do have to go through the negotiations before we are able to
do that.[177]
565. We noted the Home Secretary's observation
in the debate on 15 July that:
a vote in favour of the Government's motion will
send a clear signal to the Commission and the other Member States
that Britain is serious about bringing powers back home, and it
will strengthen our negotiating position in Brussels.[178]
566. We suggested that an early vote could
similarly strengthen the Government's hand in negotiations. The
Justice Secretary replied:
It is a difficult one. It is a negotiation, and
in a negotiation you do not necessarily want to lay all of your
cards on the table at the very start. There would be a danger
that, if Parliament expressed a very firm view about a list, it
would constrain us in having the discussions that you would wish
us to have in the national interest with the Commission. Therefore,
in my judgment, it is better for Parliament to trust us to negotiate
on the basis that it will get the final say, rather than to do
it the other way around. We will certainly take into account what
the different Committees have to say.[179]
567. The Home Secretary added:
Everybody knows the nature of negotiations,
and if it were the position that we were not able to have flexibility
within the negotiations, that would put us in a worse position.[180]
She also made clear that:
The decision as to the shape and nature of the
vote has not yet been taken.[181]
568. We think that there is an evident contradiction
in the Government's position on the purpose and timing of the
second vote. Under the EU Treaties, the UK has an unconditional
right to exercise the block opt-out. The first vote, on 15 July,
secured the House's endorsement of the decision in principle to
exercise the block opt-out. The House did not, however, endorse
the Government's proposal to rejoin the 35 measures listed in
Command Paper 8671. The purpose of the second vote, therefore,
is to enable Parliament, informed by this Report and the Reports
of the Home Affairs and Justice Committees, to determine which
measures, if any, the Government should seek to rejoin. As the
process of rejoining individual measures is conditional on obtaining
the agreement of the Commission and Council, we consider that
an early debate (before the Government embarks on formal negotiations)
would considerably strengthen the Government's negotiating hand
whilst also ensuring full transparency and accountability to Parliament.
We can see no reason why the Government, having failed to secure
a mandate from the House for the measures it wishes to rejoin
in July, should shy away from obtaining one now.
569. Indeed, we very much agree with the phased
approach set out by the Justice Secretary in his oral evidence
to us on 10 October:
we have been through or are going through three
phases. The first is to reach a point of collective agreement
within Government, then bring that collective agreement to the
House and then take all of our collective agreement to the Commission.[182]
570. It is our view that there should also
be the option of a third vote: that the Government should make
a commitment that it will return to the House at a later stage
for approval of the list of measures which the Government intends
formally to apply to rejoin after 1 December 2014 if the list
has changed in the light of negotiations, or if there are substantive
conditions attached to rejoining which merit debate.
571. The form of the second vote (and, if
appropriate, the third) should ensure that there is a genuine
opportunity for the House to determine the measures the Government
intends to rejoin. To consider the 35 measures as a "block
opt-in," subject to one motion, would be seriously to misconceive
the individual significance of some of the measures. Once the
UK opts in to a pre-Lisbon Framework Decision which it has not
already implemented, it will have to be implemented through domestic
legislation in order to become legally binding on those that it
regulates. And although the initial interpretation of such legislation
will be for national courts, in cases of doubt it will be for
the Court of Justice in Luxembourg, which has ultimate supervisory
jurisdiction over EU legislation. In addition, if the Commission
concludes that the UK's existing or future implementation of pre-Lisbon
measures fails to fulfil the obligations of the parent measure,
it will bring infringement proceedings against the UK government
directly before the Court of Justice.
572. It is worth bearing in mind that, were
each of these 35 measures to have been proposed post the Lisbon
Treaty, they would each require an opt-in debate, often on the
floor of the House, under the enhanced scrutiny procedures that
now apply to EU police and criminal justice measures. These enhanced
procedures are not coincidental, for what is at stake is the level
at which national criminal justice policy is decided. Equally,
when the Maastricht Treaty entered into force, the Government
of the time was sufficiently concerned about the domestic effect
of Third Pillar (pre-Lisbon) criminal justice measures that it
ensured they could only be implemented by primary legislation
—an Act of Parliament—with the full rigours of Parliamentary
scrutiny which that entailed. This was in contrast to the usual
means of implementing EU legislation, which was by secondary legislation
under section 2(2) of the European Communities Act 1972. It did
so by excluding Title VI TEU from the EU Treaties governed by
the ECA 1972.
573. We ask Members of the House to keep this
context in mind — it underlines the importance of having
separate motions for each of the police and criminal justice instruments
the Government wishes to rejoin.
574. We ask the Government to reflect this
context in the form of the second vote (and, if appropriate, the
third) by tabling separate motions for each of the measures in
which it wishes to opt back in.
164 See letter of 11 September 2013 from the Home and
Justice Secretaries to the Chair of the European Scrutiny Committee. Back
165
Ibid. Back
166
HC Deb, 15 July 2013, col. 851 Back
167
HC Deb, 15 July 2013, col. 777 Back
168
HC Deb, 15 July 2013, col. 782 Back
169
HC Deb of 15 July 2013, col. 770 Back
170
HC Deb of 15 July 2013, col. 853 Back
171
Q 5 Back
172
Q 17 Back
173
Q 69 Back
174
See paras 24 and 25 of this Report. Back
175
See para 7 of this Report. Back
176
Q 59 Back
177
Q 60 Back
178
HC Deb, 15 July 2013, col. 771 Back
179
Q 82 Back
180
Q 83 Back
181
Q 86 Back
182
Q 12 Back
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