Appendix: Government response
Firstly we would like to express our thanks for the
Committee's work on the 2014 opt-out decision. We consider it
important that Parliament has an appropriate opportunity to conduct
scrutiny of this matter.
We are grateful for the opportunity to respond to
your conclusions and recommendations. These are addressed in our
response below. Where appropriate we have grouped together several
answers in order to avoid repetition.
Before replying to the points you make we thought
it necessary to reply to one of the principal criticisms running
through your report: a perceived lack of engagement by the Government
with Parliament on this issue. We have been clear throughout this
process that Parliament should play a full and active role in
scrutinising this matter and it is perhaps instructive to set
out a full chronology of our engagement with Parliament.
On 20 January 2011 the Minister for Europe David
Lidington set out in a Written Ministerial Statement the Government's
commitment to consulting Parliament on this matter. He stated:
'The treaty of Lisbon provides for a five-year
transitional period after which the infringement powers of the
European Commission and the jurisdiction of the European Court
of Justice (ECJ) will apply to all unamended police and criminal
justice instruments adopted under the pre-Lisbon "third pillar"
arrangements. The transitional period began on 1 December 2009
and will end on 30 November 2014. The UK has until 31 May 2014
to choose whether to accept the application of the Commission's
infringement powers and jurisdiction of the ECJ over this body
of instruments or to opt out of them entirely, in which case they
will cease to apply to the UK on 1 December 2014.
Parliament should have the right to give its view
on a decision of such importance. 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. The Government will
conduct further consultations on the arrangements for this vote,
in particular with the European Scrutiny Committees, and the Commons
and Lords Home Affairs and Justice Select Committees and a further
announcement will be made in due course.'
Since that commitment the Government have taken steady
and consistent steps to engage with Parliament and contribute
to the relevant Committees' scrutiny of this matter.
On 21 December 2011 the Home Secretary wrote to your
Committee in relation to the 2014 opt-out decision and provided
a list of measures subject to the decision. The letter reiterated
the Government's commitment to Parliamentary scrutiny and stated:
'I am committed to ensuring the Parliament is
able to scrutinise the decision that flows from Article 10(4)
of Protocol 36 of the Treaty of Lisbon as part of our undertaking
to hold a debate and vote in both Houses on this decision. We
look forward to engaging with Parliament fully in this matter.'
This letter was copied to the then Chair of the House
of Lords EU Committee (HoL EUC), Lord Roper. At this point we
contend it would have been possible for scrutiny of each of these
measures, and the overall opt-out decision, to begin.
In July 2012 Dominic Raab MP posed 125 Parliamentary
Questions on this matter. The Government provided responses to
each of the Parliamentary Questions posed, including information
on how measures have been implemented and how they are used. The
Government recognised Parliament's interest in this matter and
the need for full disclosure to help inform scrutiny. We note
that the information provided in response to these questions helped
to inform the Open Europe report: Cooperation Not Control:
The Case for Britain Retaining Democratic Control over EU Crime
and Policing Policy. We also note that this report was able
to draw its own conclusions on the use of the opt-out and the
utility of individual measures. We commend Mr Raab MP for his
work in this regard.
On 18 September 2012 the Home Secretary wrote to
your Committee to provide an update on this matter. This letter
set out the changes to the list as a result of measures being
repealed and replaced by new Commission proposals. This letter
also informed of changes to the list as a result of further technical
level discussions at official level with the Council Secretariat
and European Commission. Finally the letter reiterated the Government's
commitment to Parliamentary scrutiny of this matter and stated:
'The Government has also committed to consulting
the relevant Committees as to the form of that vote. I will be
writing in the coming months to invite you, and all other relevant
Committee chairman, to engage on this important issue.'
This letter was copied to the Chair of the HoL EUC,
Lord Boswell, the Chair of the Justice Select Committee (JSC),
Sir Alan Beith, and to the Chair of the Home Affairs Committee
(HAC), Rt Hon Keith Vaz.
On 15 October 2012 the Home Secretary announced in
a statement to Parliament that the Government's current thinking
was to exercise the opt-out and seek to rejoin measures that were
in the national interest. The Government considered it important
to communicate the proposed direction of travel on this matter
at an early stage to enable scrutiny of that position to take
place. This is in line with standard practice on post-Lisbon opt-in
decisions where relevant Committees have informed the Government
that it is helpful to have an early indication of the Government's
thinking in order to allow for proper scrutiny. Consequently,
we found criticism of this position to be somewhat surprising.
The Home Secretary's statement also invited the Committees
to consider this matter in more detail:
'I fully expect that these committees will want
to undertake their own work on this important decision. The Government
will take account of the committees' overall views of the package
that the UK should seek to apply to rejoin. So that the Government
can do that, I would invite the committees to begin work, including
gathering evidence, shortly and to provide their recommendations
to government as soon as possible.'
On 15 October 2012 we wrote to the Chairs of all
the relevant Parliamentary Committees to advise them of the Home
Secretary's announcement on this matter. This letter provided
an updated list of measures subject to the decision A fact sheet
providing further information was also placed in the House Library.
The letter stated:
'This Government has done its utmost to ensure
that Parliament has the time to properly scrutinise our decisions
relating to the European Union and that its views are taken into
account. We would like to take this opportunity to assure you
that the 2014 decision will be no exception. On 20 January 2011
the Minister for Europe, by way of a Written Statement, set out
the Government's commitment not only to holding a vote prior to
the final decision being taken, but also to consulting you on
the arrangements for that vote. In line with the commitment made
in January 2011, and following my statement to the House today
we would now like to seek your views on this matter.'
On 7 November 2012 the Home Secretary wrote to the
Chair of the Joint Committee on Human Rights, Dr Hywel Francis
inviting his Committee to undertake work on this matter. The letter
stated:
'The Government is interested to hear the views
of Parliament before coming to a final decision. Should the Joint
Committee on Human Rights wish to undertake any work in this regard
the Government would of course take due account of that work.'
This letter was copied to the Chair of the HoL EUC,
Lord Boswell, the Chair of the JSC, Sir Alan Beith, the Chair
of the HAC, Rt Hon Keith Vaz and to Chair of the ESC Mr William
Cash MP.
On 7 November 2012 the Home Secretary wrote to the
Chair of the ESC Mr William Cash MP with regards to the opt-out.
In this letter the Home Secretary stated:
'I would like to assure you that my statement
on 15 October and the Prime Minister's announcement on 28 September
were not in any way intended to pre-empt any view the European
Scrutiny Committee may wish to express on this matter. Indeed,
my statement actively invited your Committee to take forward work
on this matter.'
This letter was copied to the Chair of the HoL EUC,
Lord Boswell, the Chair of the JSC, Sir Alan Beith and to the
Chair of the HAC, Rt Hon Keith Vaz.
On 28 November 2012 The Security Minister provided
evidence to the European Scrutiny Committee (ESC) and answered
thirty-five questions in relation to the opt-out during this evidence
session. The Security Minister reiterated the Government's commitment
to engaging constructively with Parliament throughout.
On 14 December 2012 we provided twelve pages of written
evidence to the HoL EUC's Inquiry into the opt-out. This was copied
to the Chair of the ESC Mr William Cash MP, the Chair of the JSC,
Sir Alan Beith, and the Chair of the HAC, Rt Hon Keith Vaz. Our
evidence provided detailed information on the use made of measures
such as the European Arrest Warrant, Article 40 of the Schengen
Convention, the Mutual Legal Assistance Convention, Freezing Orders,
Europol, Joint Investigation Teams, Eurojust, ECRIS and the Prison
Transfer Framework Decision. Our evidence also provided information
on the measures that the UK was yet to implement in full and the
process for rejoining measures. Additionally our evidence also
addressed the potential effects of ECJ jurisdiction over the measures
in question and potential alternative arrangements for cross-border
cooperation.
On 13 February 2013 we appeared before the HoL EUC
to provide oral evidence to its Inquiry into this matter. During
this session we answered thirty four questions on a number of
topics related to this decision. Our responses included information
on our consultation with operational partners and the Devolved
Administrations. We also set out in detail the Government's concerns
about ECJ jurisdiction.
On 23 April 2013 the HoL EUC produced its report:
EU police and criminal justice measures: The UK's 2014 opt-out
decision. We were very grateful to the Committee for heeding
our call to report on this matter and producing its report in
a timely fashion. As we noted in our response to that report,
this was very helpful in informing our view about which measures
the Government is now seeking to rejoin. The Government considers
it disappointing that the other relevant Committees did not submit
reports on this matter, despite the Government's request for them
to do so. Whilst the Government accepts that the late provision
of the Explanatory Memoranda may have been unhelpful in this regard
we do not accept that it was not possible for a substantial and
informative report to be published without them - the HoL EUC
report is testament to that.
The Security Minister James Brokenshire attended
a HoL EUC seminar on 26 June 2013 organised to support the publication
of their report. During this seminar the Security Minister set
out the Government's current position on its consideration of
this matter and debated with members of the HoL EUC, Emma Reynolds
MP, Helen Malcolm QC and Martin Howe QC
On 12 June 2013, an Opposition Day Debate was called
in the House of Commons. The Home Secretary responded on behalf
of the Government. This debate lasted for just over two hours
and runs to thirty-three columns in Hansard. During this debate
the Home Secretary repeated the commitment to consult with Parliament
on this matter. The Home Secretary set out clearly that a full
list of the measures that we would seek to rejoin would be provided
to Parliament ahead of a vote. The Home Secretary stated:
'it is indeed the Government's intention to provide
Parliament with a list of the measures that we wish to opt back
into, so Parliament will have that before it votes on the matter.'
The Home Secretary also committed that the Government
would:
'supply the Select Committees with explanatory
memorandums and the list of measures that the Government propose
to opt back into'
On 9 July the Home Secretary reaffirmed the Government's
intention to exercise the opt-out. This followed consultation
with operational partners, discussions with the European Commission
and other Member States, detailed analysis of all the measures
within scope of this decision and a number of discussions with
the Departments within the Government responsible for the measures.
On the same day we provided Parliament with Command Paper 8671.
This 155 page document sets out details of all the measures that
remain subject to this decision and highlights the 35 measures
the Government believes it is in the national interest to rejoin.
This fulfilled the Government's commitment to provide Parliament
with a full list of measures that the Government will seek to
rejoin ahead of a vote on this matter. It also fulfilled the Government's
commitment to provide Explanatory Memoranda on this matter.
In deciding to make this announcement almost a year
before the deadline we were particularly mindful of the evidence
submitted to the HoL EUC Inquiry. We note that the Commission
DG for Justice Françoise Le Bail said that 'the key
issue is to have a decision by the British Government' and
that there is 'nothing else' the Commission can do before
that. We also considered carefully the recommendation at paragraph
225 of the HoL EUC report which stated 'Government would have
done well to have commenced negotiations at a much earlier stage'.
Whilst we do not accept that it would have been possible to
commence negotiations at an earlier stage, we do accept that it
was necessary to communicate the Government position as early
as possible.
Following this announcement the Government held a
vote in both Houses of Parliament. This fulfilled the commitment
from the Minister for Europe David Lidington set out above.
On 15 July the Home Secretary set out the Government's
reasons for exercising the opt-out to the House of Commons, and
invited the European Scrutiny Committee and the Home Affairs and
Justice Select Committees to submit reports before the end of
October, in advance of the Government opening formal discussions
with the European Commission and other Member States. The motion
supported by the House of Commons by a majority of 97 stated:
'That this House believes that the UK should opt
out of all EU police and criminal justice measures adopted before
December 2009 and seek to rejoin measures where it is in the national
interest to do so and invites the European Scrutiny Committee,
the Home Affairs Select Committee and the Justice Select Committee
to submit relevant reports before 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.'
On 23 July Lord McNally repeated the reasons for
exercising the opt-out to the House of Lords and invited the HoL
EUC to reopen their Inquiry and submit reports before the end
of October, in advance of the Government opening formal discussions.
The motion supported by the House of Lords by a majority of 112
stated:
'That this House considers that the United Kingdom
should opt out of all European Union police and criminal justice
measures adopted before December 2009 and should seek to rejoin
measures where it is in the national interest to do so; endorses
the Government's proposals in Cm 8671; and invites the European
Union Committee to report to the House on the matter before 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 Treaty on the functioning
of the European Union.'
We are clear that these successful votes demonstrate
Parliament's support for the Government's approach and satisfaction
with the information provided. If this were not the case we do
not believe Parliament would have supported the Government in
such numbers. However, as we have said throughout this process,
Parliament should play a full and active role in scrutinising
this important matter. That is why we gave a commitment not to
begin formal negotiations until November and why we invited all
the relevant Parliamentary Committees to submit reports on this
matter. That is also why we have continued to support the Committee's
Inquiries.
In October we submitted three further pages of written
evidence to support the reopened HoL EUC Inquiry. This evidence
set out details of the reforms to the European Arrest Warrant
that we are implementing to safeguard better the rights of British
citizens.
We submitted eight pages of written evidence to support
the HAC Inquiry. This provided further data and information on
Eurojust, Europol, ECRIS, Naples 2, Joint Investigation Teams
and the European Arrest Warrant.
We submitted four pages of written evidence to support
the JSC Inquiry. This provided further information on the Prisoner
Transfer Framework Decision, the European Supervision Order, the
Mutual Recognition of Financial Penalties measure and the Data
Protection Framework Decision.
On 9 October 2013 we appeared before the HoL EUC
to provide evidence. During the session we answered seventeen
questions and provided detailed information on our reasons for
not seeking to rejoin individual measures.
We were surprised that your Committee did not issue
a call for evidence. However, we gave evidence to you on 10 October
2013 and answered eighty-six questions. These covered a range
of topics, including the Government's concerns about the threats
of ECJ jurisdiction. We also set out in detail the Government's
reasons for seeking to rejoin the 35 measures set out in Command
Paper 8671 and the approach that followed in considering whether
rejoining these measures would be in the national interest.
We also provided evidence on 15 October 2013 to the
HAC and answered ten questions including detailed questions on
Europol and the reforms to the European Arrest Warrant.
On 16 October 2013 the Justice Secretary provided
evidence to the JSC and answered thirty-eight questions relating
to the opt-out, including some detailed questions on the Framework
Decisions on prisoner transfer, probation and alternative sanctions,
and data protection. Following the evidence session, on 21 October
the Justice Secretary wrote to the Chair of the Committee, copying
in your Committee and the other Committees, providing further
detail on his concerns about rejoining the Framework Decision
on probation and alternative sanctions.
The evidence sessions alone amount to well over ten
hours of Ministerial time. We are clear that it cannot be said
that we have failed to engage with Parliament on this issue. We
are also clear that we will continue to provide information as
required on the measures subject to this decision, as appropriate.
You will be aware that in October 2013 the Government responded
to over 150 Parliamentary Questions requesting further information
on measures that the Government is not seeking to rejoin. Since
2011, the Government has responded to over 300 Parliamentary Questions
in relation to the 2004 decision. For reference, a table including
all Parliament Questions on this matter is annexed to our response
at Annex A.
We will also continue to engage with Parliament as
appropriate. You will be aware, as the Home Secretary set out
on 15 July, that the Government will hold a second separate vote
on the measures the Government proposes to rejoin ahead of our
formal application to do so. We are content to repeat that commitment
here.
We have committed to a full impact assessment on
the final package of measures we seek to rejoin. This will be
provided in good time ahead of a second vote and set out the full
details on all of the measures we seek to rejoin.
We are also clear that the motions supported by Parliament
in July were clear that the Government would commence negotiations
in November without returning to Parliament. Your report has been
useful in informing our negotiating position. We are thankful
for your support. However, this is a negotiation and this must
guide our approach.
We will now turn to the key findings from your report.
Paragraphs 16 and 544
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.
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).
These are two separate exercises. The 2014 opt-out
decision is a decision that is provided for under the EU Treaties.
It is limited to those police and criminal justice measures that
were adopted before the Lisbon Treaty came into force.
The Balance of Competences Review is a commitment
in the Coalition Programme. The review will examine the scope
of the EU competences, how they are used and what that means for
the national interest. 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.
Where possible we tried to de-conflict individual
reports with upcoming policy decisions to allow the reports to
fulfil their remit of taking a step back to take a strategic look
at the impact of EU competence over time, without being caught
up in immediate policy-making. We considered that had we run the
Balance of Competence exercise prior to the opt-out decision being
taken there was a real risk that the two would become conflated.
We also consider that by producing the report into police and
criminal justice in the fourth semester this gives the Government
and stakeholders the chance to take into account the Government's
position on the opt-out. This should ensure that the report is
not out of date as soon as it is produced and can help to inform
the current, not past, debate.
Paragraphs 31, 551, 556, 557, 558, 559 and 560
These safeguards were not needed to the same extent
before Lisbon, because the UK had the power to veto any EU police
or criminal justice measure which it considered to be contrary
to the national interest. The post-Lisbon opt-in/opt-out arrangements
ensure that the UK cannot be compelled to participate in any new
EU police and criminal justice measures unless it chooses to do
so. The block opt-out serves a similar purpose in relation to
the pre-Lisbon EU police and criminal justice measures in which
the UK currently participates. It enables the UK to turn the clock
back and address the question left unanswered at that time: would
the UK have chosen to participate in them on the terms agreed
if it had known that the Court of Justice would, at some future
date, be given jurisdiction to interpret them and to sanction
the UK for any failure to implement them correctly? The impact
of the Court of Justice's jurisdiction is one of the most important
factors the Government should consider when deciding whether to
rejoin any of the pre-Lisbon measures.
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 nonbinding 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"
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).
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.
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.
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.
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.
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 Government agrees that the extension of ECJ jurisdiction
into Justice and Home Affairs was an important development brought
about by the Lisbon Treaty. This Government, through the European
Union Act 2011, has ensured that any similar future developments
will be subject to a referendum and will ensure that the British
public have their say over such important matters.
As we have said throughout this process, the Government
is concerned about the risk that the Court could make unexpected
adverse decisions on the interpretation of pre-Lisbon measures.
The Metock judgement - on the extension of free movement
rights to an illegal migrant who was married to an EEA national
who was exercising free movement rights - is a good example of
the potential risk that the ECJ may rule in unexpected and unhelpful
ways. This case has raised considerable concern in other Member
States.
In addition, we are concerned that much of the third
pillar legislation was made to the 'lowest common denominator'
in order to secure unanimity and was not negotiated with ECJ jurisdiction
in mind. As a result some of these measures are ambiguous and
could lend themselves to expansive interpretation by the ECJ.
This raises the prospect of further unexpected judgments.
We have also set out our concerns with the impact
of these judgements on the domestic law. If we disagree with the
ECJ's interpretation of legislation, it will be impossible for
the UK to amend the law itself. Indeed, it would be very difficult
to alter it at all as this would require the Commission to propose
an amendment to the EU legislation itself, or a cohort of Member
States to do so under the auspices of a Member State initiative.
There is also the possibility of infraction if the Court deems
that we have not met our obligations under EU law.
Given the prospect of unexpected judgements, concerns
about the drafting of measures and the difficulty in altering
EU legislation we believe that minimising the possibility of an
adverse judgment is a sensible and pragmatic approach. It is only
correct that the Government consider carefully whether to accept
the full jurisdiction of the ECJ before seeking to rejoin measures.
We accept that there is always a risk attached in
terms of ECJ jurisdiction if we do decide to participate. However,
in certain cases, it will be in the national interest for the
UK to participate and the Government will accept that risk given
the wider benefits of the instrument in question.
Paragraph 56
In our view, Article 10(5) of Protocol No. 36
is predicated on the assumption that the individual measures which
the UK wishes to rejoin "have ceased to apply to it".
This is consistent with the obligation imposed on the EU institutions
and the UK to seek to "re-establish" the widest possible
measure of UK participation in the EU's justice and home affairs
acquis, again pre-supposing that the measures that the UK wishes
to rejoin no longer apply to it. We therefore consider that the
earliest date on which the UK may formally notify its request
to rejoin individual measures subject to the block opt-out is
1 December 2014 and that the Commission and Council will not formally
be in a position to act on the UK's request until then. We ask
the Government to ensure that Parliament is kept informed of the
process and timescales envisaged by the Commission and Council
for considering and approving the UK's request to opt back into
individual measures and whether transitional measures are likely
to be required.
We are keen to conclude negotiations as soon as possible
to ensure as smooth a handling of this domestically and in the
EU as we can. Avoiding a transitional gap for the measures we
seek to rejoin is our key objective and we are clear that the
Treaty allows for us to avoid such a gap completely. There is
no reason that we cannot conclude this process early so there
is political and legal certainty for all involved. As we have
said throughout this process we need to agree a common understanding
of the legal framework for rejoining measures. This is a matter
that we will discuss in detail with the Commission during formal
negotiations and the Government will, of course, keep you informed
as appropriate.
Paragraph 59
We are not aware of any decisions having been
taken under Article 5 of the Schengen Protocol or Article 4a of
the Opt-in Protocol to eject the UK from an EU justice and home
affairs measure in which it already participates, or to impose
any conditions on its continuing participation. Experience would
therefore tend to reinforce the Government's view that the conditions
set out in Article 10(5) of Protocol No. 36 constitute "a
high threshold" which would make it difficult to exclude
the UK from opting back into individual measures subject to the
block opt-out. However, we do not consider that a precise analogy
can be drawn with the procedures established under the Schengen
and Opt-in Protocols, which are based on an assessment of the
practical implications of a decision by the UK not to participate
in a specific EU measure. The scale of the task envisaged under
Article 10(5) is undoubtedly far greater, given the number of
measures subject to the block opt-out and the depth of analysis
needed to discern any possible interaction between them. Whilst
the ability of the UK to rejoin measures in which it has participated
since their adoption should not seriously be in doubt, the UK
may encounter difficulties if it seeks to opt back into only some
of a group of measures which are inter-linked, or if it would
be impossible or very difficult in practice to opt back into one
measure and not another.
The Government acknowledges that some measures are
both practically and operationally interlinked and has taken this
into account when deciding on the set of 35 measures we wish to
rejoin.
For example, we know that it is a commonly held view
in Europe that in order for the European Supervision Order (ESO)
to function properly all States, including the UK, would need
to participate in the European Arrest Warrant. This is because
of ESO Articles 15 and 21.
We recognise this is a negotiation and that we will
need to have discussions with the Commission and Council about
our set of measures. We hope that the Commission will adopt a
pragmatic approach and work with us to find a solution in the
interests of all parties.
Paragraph 68
Transitional arrangements will potentially play
a crucial role in addressing any legal and practical issues likely
to arise as a result of the UK's block opt-out but, in order to
do so, the Council will need to ensure that they are drafted in
such a way as to avoid, rather than create, further uncertainty
or confusion and are sufficiently robust to withstand legal challenge.
The Government appears to suggest that, if needed, transitional
arrangements could be used to preserve the legal effects of certain
measures during the period from 1 December 2014, when all of the
block opt-out measures cease to apply to the UK, and the date
or dates on which the UK's application to rejoin a limited number
is formally accepted. For reasons which we set out later in our
Report, if transitional arrangements are to be used for this purpose,
it is essential to limit their scope to measures which the Government
intends to rejoin and which Parliament has approved. Transitional
arrangements should not be used to preserve the legal effects
of measures which the Government has said it will not rejoin,
even if (as is the case for a number of Europol measures) they
are closely related to a measure which the Government does intend
to rejoin.
It is not the intention to have a gap between the
date on which the opt-out will take effect and the point at which
the UK can rejoin measures. We place a great deal of importance
on this issue and believe it is in everyone's interest to try
to eliminate any operational gap between our opt-out taking effect
and our continued participation in the measures we formally apply
to rejoin.
If it is necessary to use transitional measures we
consider that transitional arrangements could be used to preserve
the legal effects of measures which the Government has said it
will rejoin.
Paragraph 70
We note that the costs could, potentially, be
substantial if Member States seek to hold the UK to account for
any costs incurred in establishing alternative mechanisms for
cooperation with the UK outside the EU legal framework. A similar
provision is contained in Article 4a of the Opt-in Protocol, but
has not been used, so there is no precedent to indicate how it
may be interpreted and applied.
The Security Minister responded to Parliamentary
Question 124839 from Rushanara Ali MP (Bethnal Green and Bow)
on the 22 October 2012 on this topic. His reply stated;
"The Council, acting by qualified majority
on a proposal from the Commission, may adopt a Decision determining
that the UK shall bear the direct financial consequences, if any,
necessarily and unavoidably incurred as a result of the cessation
of its participation in the third pillar acts. Until we hold discussions
with the EU Institutions and other Member States it is impossible
to say with any certainty whether the UK will be held liable for
any costs. However, the Government considers this to be a high
threshold to meet".
Paragraphs 84, 94, 95, 553, 554 and 555
We comment further on the information provided
in the Government's Explanatory Memoranda in the following section.
We note here, however, that whilst we agree with the Government
that the implications of the Court's jurisdiction require very
careful consideration in respect of each of the measures subject
to the block opt-out, and an even more exacting analysis for those
the Government proposes to rejoin, we see no evidence of such
consideration or analysis in the Government's Explanatory Memoranda.
In particular, the Memoranda do not include an assessment, for
each instrument, of the effect that CJEU jurisdiction would have
for the common law systems in England and Wales, Scotland, and
Northern Ireland. Nor do they show how the Government has sought
to balance "the risk" associated with CJEU jurisdiction
against the "wider benefits" of each instrument. It
is straining credulity to suggest that there would be a lesser
degree of risk, or unexpected and unhelpful judgments, for a number
of the instruments the Government intends to seek to rejoin —
notably the European Arrest Warrant and other mutual recognition
measures — than for many of those it does not wish to rejoin.
The Government's reasons for concluding that the wider benefits
of participation outweigh the risks, and are in the national interest,
need to be transparent and open to scrutiny by Parliament. Given
the deficiencies of the analysis in the Explanatory Memoranda,
we request and require the Government to give this issue detailed
consideration in its response to our Report.
The Government raised expectations that all of
its Explanatory Memoranda would be published by mid-February 2013,
but none appeared until 9 July, at the same time as the Home Secretary
confirmed that the Government would exercise the block opt-out
and seek to rejoin 35 measures. Our intention, in requesting the
Explanatory Memoranda nearly a year ago, last November, was to
ensure that Parliament had the information it needed to understand
the nature and content of the measures subject to the block opt-out,
as well as their actual or potential operational significance,
before the Government determined whether to exercise the block
opt-out and which measures to seek to rejoin.
Such a lengthy delay in their publication might
have been justified if the Explanatory Memoranda gave some insight
into the reasons which have led the Government to conclude that
seeking to rejoin some measures, and not others, would be in the
national interest. In her statement to the House on 9 July 2013,
the Home Secretary made clear that the Government only intends
to rejoin measures which will "help us cooperate with our
European neighbours to combat cross-border crime and keep our
country safe" and that the benefits of participation must
demonstrably outweigh the risk involved in conferring full jurisdiction
on the Court of Justice. The Explanatory Memoranda do not provide
sufficient analysis to enable Parliament to weigh these factors,
and give the impression that they were drafted "blind",
before the Government had decided which measures it intended to
seek to rejoin. This seriously undermines their utility and the
ability of Parliament to hold the Government to account in asserting
that participation in some pre-Lisbon EU police and criminal justice
measures, and not others, serves the UK's national interest. It
is essential that the Government's response to our Report addresses
these shortcomings.
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.
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.
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." 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.
We set out to provide Explanatory Memoranda that
would explain each of the measures and would assist the Committees
in their scrutiny of the process. As we explained in our letter
of 14 December 2012, as discussions with the Commission and Council
were ongoing we did not think it was appropriate for the Explanatory
Memoranda to provide a view on how 'useful' each of the measures
were.
The Explanatory Memoranda are fact based and objective
documents that set out the policy implications and fundamental
rights considerations of the measures subject to the opt-out.
These were written in line with standard practice and submitted
to Parliament to assist with scrutiny. We believe that it was
perfectly open for Parliament to take its own look at these measures
and make its own assessment.
We very much regret that we were not able to produce
the Explanatory Memoranda at an earlier date. This is because
the issues covered by the 2014 Decision are numerous and complex
and required collective agreement within Government. The process
of considering within Departments and across Government what the
Government's position on each of the measures should be took longer
than we anticipated. We were therefore unable to produce the Explanatory
Memoranda until July when we had agreed on the set of 35 measures
that we believe are in the UK's best interest to rejoin.
Paragraphs 98, 102 and 554
The original undertaking given by the Minister
for Security in November 2012 was to provide a full Impact Assessment
on the final package of measures that the Government intends to
apply to rejoin and not, as the Home and Justice Secretaries have
subsequently indicated, on "the final package of measures
the UK will formally rejoin." By then, negotiations with
the Commission and Member States will all but have concluded and
the scope for Parliament to influence the content of the package
of measures will be greatly reduced. The Justice Secretary has
made clear to Parliament that the Government is "strongly
committed" to the list of 35 measures set out in Command
Paper 8671. We can therefore see no justification for any further
delay in the publication of an Impact Assessment on these measures,
supplemented where necessary at a later stage to take account
of any additions to, or subtractions from, the list as negotiations
progress.
As our earlier Report — The 2014 block opt-out:
engaging with Parliament — made clear, we consider the slow
and unpredictable drip-feed of information to Parliament to be
inimical to effective scrutiny. In our view, a second Impact Assessment
is essential for two reasons. First, as the Home Secretary made
clear in the debate on 15 July, Parliament will have the opportunity
to vote on "the number and content of any measures that we
seek to opt into." In reaching a view, Parliament is entitled
to expect the Government to provide a more comprehensive assessment
of how cooperation could be pursued outside the EU framework,
how effective it would be and how readily appropriate measures
could be put in place before 1 December 2014. Second, the analysis
of fundamental rights in the Explanatory Memoranda only concerns
EU measures in which the UK already participates. A second Impact
Assessment should supplement this with a more considered analysis
of any risk to fundamental rights which might, for example, arise
from the development of ad hoc or informal arrangements established
without a clear underpinning legal framework. We therefore reiterate
our insistence on a second Impact Assessment to be produced without
further delay.
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).
The Government remains committed to providing an
Impact Assessment on the final package of measures that it will
seek to rejoin. This will be provided in good time ahead of the
second vote.
The Government does not intend to provide an Impact
Assessment on the measures it is not seeking to rejoin. This is
because the starting point for any analysis is that the opt-out
has been exercised and therefore not seeking to rejoin a measure
will not have a direct impact upon the UK.
Paragraph 122
The investigation and prosecution authorities
that gave evidence to the House of Lords inquiry into the block
opt-out rank the EAW as easily the most significant pre-Lisbon
mutual recognition measure. The statistics provided by the Government
appear to back up their view. Between April 2009 and April 2013,
5,184 people were arrested under an EAW in England and Wales,
and 4,005 were surrendered to another EU Member State. Over the
same period, 507 people were surrendered to the UK from another
EU Member State. According to the Association of Chief Police
Officers (ACPO), the growth in EAW requests reflects the growth
in cross-border crime, a process which it considers to be irreversible.
We ask the Government to put these figures in greater context,
though. On average approximately 125 people a year were surrendered
to the UK between 2009 and 2013 under an EAW. We ask the Government
whether this figure can be said to amount to a significant contribution
to the UK's ability to investigate and prosecute serious crime,
compared to overall annual figures for those convicted of such
crimes.
According to the latest statistics ending September
2012, published by the Ministry of Justice, indictable proceedings[2]
numbered 377,000. The total number of offenders found guilty of
indictable offences at either the Magistrates' or Crown Court
between 2011 and 2012 was 308,900. This figure includes those
surrendered under an EAW by another Member State and subsequently
prosecuted in the UK.
The Government considers the EAW to be an effective
law enforcement tool that makes a significant contribution to
the UK's ability to investigate and prosecute serious crime. A
comparison with the overall annual figures for those convicted
of such crimes is not an effective method of evaluation.
Statistics published by the Serious and Organised
Crime Agency (SOCA) as was, and validated by Her Majesty's Chief
Inspectorate of Constabulary (HMIC) show that in 2012/13, EAWs
issued by the UK to other Member States led to 13 people being
surrendered to the UK for child sex offences, 11 people for murder,
and 12 people for rape.[3]
Between 2009 and 2012, a total of 507 serious offenders were returned
to the UK to face justice.
The use of the EAW in these cases demonstrates its
value to law enforcement. It also demonstrates the benefits this
measure brings to the victims of such crimes, and their families,
who might otherwise wait years for a prosecution to take place
in a UK court. Both the Government and police and prosecution
services consider that the EAW is an extremely significant tool
for tackling such crimes where the alleged perpetrator has fled
the country. During our consultation, law enforcement partners
made it clear that the EAW is a vital tool in combating cross-border
crime and keeping our streets safe. This is borne out when looking
at the evidence provided to a number of Parliamentary inquiries
into the 2014 decision. Furthermore, the very effectiveness of
the measure may help to keep the numbers down, preventing the
UK from becoming a safe haven for criminals wanted abroad, and
deterring UK criminals from fleeing abroad.
To illustrate to the Committee the effectiveness
of the measure, the NCA and the Crown Prosecution Service (CPS)
have, where possible, provided the conviction and sentence details
of those people returned to the UK for prosecution or to serve
a sentence already imposed, from January 2012 - November 2013.
The following figures are based on this sample[4]:
· Of the 8 people extradited for murder
whose cases have been determined, 6 were convicted (75% conviction
rate);
· Of the 21 people extradited for child
sex offences whose cases have been determined, 17 were convicted
(81% conviction rate); and
· Of the 19 people extradited for rape whose
cases have been determined, 17 were convicted (89% conviction
rate).
The overall average conviction rate for the persons
returned in that time period was 91%. This is a slight increase
in trend from the last published statistics but may not be direct
comparison due to the way that figures have been calculated[5].
In addition, following arrest in the issuing state, it took on
average 105 days for a person to be surrendered to the UK. The
sentence and conviction details of those people returned between
January 2012 and November 2013 can be found at Annex B.
It is important to stress that the UK will only issue
an EAW for serious offences or where there is a genuine and compelling
public interest reason for a person being brought to justice.
It will also only do so for the purposes of conducting a criminal
prosecution or the execution of a detention order, as is required
by the Framework Decision. In addition, in a prosecution case,
the CPS will only issue a warrant where the case is ready to proceed
to trial. Indeed, when issuing an EAW (or when making any other
extradition request), the CPS apply strict guidance for crown
prosecutors to assess firstly whether there is a realistic prospect
of conviction, and secondly whether it would be in the public
interest to proceed. This ensures that where an alleged criminal,
or person convicted of a serious offence, has fled the UK and
it is in the interests of justice to prosecute that person, a
warrant can be issued for their return.
By way of comparison, prior to the implementation
of the EAW, between 2000 and 2003, the UK made approximately 220
extradition requests under the predecessor regime, the European
Convention on Extradition 1957 (ECE). This figure pertains to
requests made to both EU Member States and other non EU signatories
to the Convention so is not directly comparable to the EAW regime,
but it does usefully demonstrate the increase in requests made
by the UK for crimes committed in the UK since the EAW came into
force. Although the higher number of extradition requests currently
issued is undoubtedly a by-product of EU enlargement (see reply
to paragraph 124 for further details on growth in migration to
the UK from Poland) and the growth in EU nationals living and
working in the UK[6],
the EAW has undoubtedly made it easier to return and prosecute
these people for serious offences committed in the UK. The often
referenced case of Hussain Osman (the failed 21/7 London bomber)
demonstrates how fast the EAW can work in comparison to alternative
schemes. It took 56 days to return Osman to the UK, whereas in
non EAW cases it can often take many months and sometimes years
to return serious offenders to face justice. This can be contrasted
with examples of alleged terrorist offenders going unpunished
under the old regime because of various procedural bars which
the EAW has since removed. In terms of extraditions from the UK,
it took the UK 10 years to extradite Rachid Ramda to France, where
he was subsequently convicted of terrorist offences. By contrast,
a number of terrorist suspects wanted in connection with ETA or
Al Qaeda have been returned by the UK to Spain under an EAW, for
example Farid Hilali, Inigo Maria Albisu Hernandez, Zigor Ruiz
Jaso, and Ana Isabel Lopez Monge. These cases were all completed
much more quickly than the Ramda case.
The Government strongly welcomes the work of Operation
Captura, a joint initiative between Crimestoppers, SOCA/NCA and
the Spanish Police that clearly demonstrates the role and value
of the EAW in targeting fugitives from British justice who are
believed to be resident in Spain. Government Ministers have taken
an active interest in the operation and have discussed and have
held discussions with their Spanish counterparts on a number of
occasions. The Security Minister, James Brokenshire, has consistently
emphasised the success of the operation and the impact of our
ongoing effective relations with the Spanish.
On 20 October 2011 James Brokenshire spoke with Ignacio
Cosido, from the Partido Popular about the 5th anniversary
of Operation Captura. They agreed to cooperate closely to tackle
organised crime. The Security Minister met the Spanish Security
Minister Francisco Martínez Vázquez on 17 December
2013, to continue to promote our relationship; and, the importance
of maintaining effective cooperation to ensure serious criminals
are brought to justice. They issued a joint statement following
this meeting which highlighted the recent successes under Operation
Captura.
No longer is Spain an appealing destination for British
criminals evading capture. The EAW has played a large part in
making it easier to bring British criminals back to face justice.
Fifty five of the 76 people wanted under Operation Captura have
now been arrested and brought to justice including the following:
· James HURLEY - convicted killer
of 27-year-old PC Mason on 14 April 1988 who escaped custody in
1994. He was arrested in 2007 in the Netherlands for drug offences
and returned to the UK.
· Markcus JAMAL - wanted for conspiracy
for murder of Nageeb El Hakem in 2005. He was arrested in Spain
and returned to the UK in January 2007.
· John SETON - wanted for the murder
of Jon Bartlett in March 2006. Arrested in the Netherlands and
returned to the UK in May 2007.
· Andrew MORAN was wanted for his
involvement in a robbery that took place on 23rd May 2005. He
was arrested in Spain in May 2013, where he awaits trial for offences
committed there while on the run.
· Martin Anthony SMITH - Smith was
wanted in connection with a rape of a child under 16, gross indecency
with a girl under the age of 16, indecent assault of a girl under
16 and attempted rape of a girl under 16. He was returned to the
UK in 2010 and was convicted of child rape.
· Mark Alan LILLEY was arrested in
July 2013, after he was sentenced in 2000 to 23 years in jail
for drugs and firearms offences. Lilley was surrendered to the
UK on 5 August and is now detained at Belmarsh prison.
More generally, between January 2012 and November
2013 a number of high profile and very serious offenders were
returned to the UK. This includes:
· Constantin Nan, who was surrendered
to the UK from Romania in 2013. He was found guilty of the torture
and murder of a retired school teacher in 2010; he was sentenced
to life imprisonment to serve a minimum of 31 years.
· Warwick Spinks, who was returned
to the UK from the Czech Republic in 2012 to serve the remainder
of a sentence imposed in 1994 for the sexual assault of young
boys. He had evaded capture for 15 years after breaching the terms
of his licence in 1997 and his arrest was a result of cooperation
between the National Crime Agency, the Metropolitan Police, CEOP
and Czech police forces.
· Joseph Davies, who was surrendered
from the Netherlands in 2012. He was subsequently convicted of
killing his then girlfriend and sentenced to life imprisonment
to serve a minimum of 22 years.
Further examples of serious offenders returned between
January 2012 and November 2013 can be found at Annex C.
As the Home Secretary was clear in her statement
to Parliament in July 2013, the views of law enforcement were
sought prior to making the decision on the 35 measures the UK
will seek to opt back into. ACPO's evidence to the Home Affairs
Committee on 3 September made clear their view that the EAW is
an "essential weapon" in the fight against serious
criminality. This view was echoed by the outgoing Director of
Public Prosecutions, who was clear that the streamlined process
of the EAW makes it easier for serious criminals to be returned
to face justice. In oral evidence to the same committee he said;
"...Do you want people back speedily for
serious offences like the [attempted] 21/7 bombing, or do you
want it to be a longer process........I think most people would
say if there is a serious allegation against an individual we
would rather have them back to be tried for a serious offence
speedily...."
The Government agrees with that assessment and would
refer the Committee again to the written evidence regarding the
EAW which was provided by the Home Office to the Home Affairs
Committee in October 2013.
Finally, in taking a decision to seek to opt back
into the EAW, the Government has been mindful of the concerns
of the Devolved Administrations and we have also taken extremely
seriously the views of our partners in the Republic of Ireland
about the impact on security relations between our two countries.
Prior to the commencement of the EAW, extradition
relations between the UK and Ireland were governed by an administrative
system which gave effect to Irish arrest warrants in the UK, and
vice versa. The relevant legislation, the Backing of Warrants
Act 1965 (UK) and Part III of the Extradition Act 1965 (ROI) have
both since been repealed.
Ministers in the Irish Republic and in Northern Ireland
have been consistently clear that the EAW has real benefits in
swiftly tacking serious cross border criminality. In July 2013,
Alan Shatter, Irish Minister for Justice responded to the Government's
decision to opt out of all pre-Lisbon criminal justice measures,
and said the following:
"It is particularly important that the co-operation
between our two jurisdictions in tackling so-called dissident
republican activity should not be hindered, and I emphasised the
vital role of the European Arrest Warrant in this regard. As such,
I very much welcome Ms. May's confirmation that the EAW is among
the measures that the UK government will be seeking to opt back
into."
Similar representations have been made by both David
Ford, the Justice Minister for Northern Ireland, and the Police
Service of Northern Ireland (PSNI). In evidence to the House of
Lords European Union Committee, the PSNI stated that since 2004,
of the 50 EAWs issued by Northern Ireland to other Member States,
30 of these had been made to Ireland. Dr Gavin Barrett (University
College Dublin) stated that the extradition figures between the
two countries were "striking": 170 out of the
601 individuals (28 per cent) surrendered by Ireland between 2004
and 2011 were to the UK, and 160 out of the 184 individuals (87
per cent) surrendered to Ireland during the same period were by
the UK..
In his representations to the same Committee, the
Rt. Hon Frank Mulholland QC, the Lord Advocate for Scotland said
that he would have "real concerns" if the UK
were to opt out of the EAW. Mr Mulholland gave evidence that of
the 20 EAWs issued by Scotland to other Member States, over 10
had been charged with murder, drugs, child pornography, very serious
assault and rape, and of the previous extradition arrangements
Mr Mulholland said, "You required affidavits, evidence,
statements, sworn statements, and very detailed documentation.
It does take a lot of time to be able to process such a request."
The Committee published this evidence in its report in April 2013.
In conclusion, and as evidenced above, the Government
would strongly rebut the assertion that the EAW (and extradition
to the UK in general) does not make a significant contribution
to prosecuting and bringing to justice dangerous criminals who
have committed serious crimes in the UK.
Paragraph 123
The Government provides statistical evidence of
the effectiveness of the EAW compared to the extraditions under
the 1957 Council of Europe Convention (ECE). We note, for example,
that since 2009 over 100 people have been returned to the UK from
countries that did not extradite their own nationals under the
ECE; and that an EAW takes approximately three months to execute,
whereas an extradition under the ECE took upwards of two years.
We ask the Government to tell us how many of those 100-plus people
extradited to the UK from countries that previously did not extradite
their own nationals were convicted following extradition, the
crime(s) they were each convicted of and what sentence they each
received.
The ECE allowed countries to make a reservation under
article 6 that they could refuse to extradite their own nationals.
The following countries have made such a reservation, which we
understand still remains in force for any extradition request
made under the ECE:
· Bulgaria
· Croatia
· Cyprus
· Estonia
· France
· Germany
· Hungary
· Lithuania
· Luxembourg
· Netherlands
· Poland
· Portugal
· Romania
Due to the way data is processed and stored by the
NCA and the CPS it has not been possible to obtain conviction
details in all cases from the countries listed above. However,
conviction details of 60 individuals extradited to the UK from
these countries has been obtained. Details of these convictions
are set out in at Annex D[7].
In addition, under the ECE, extradition could be
barred for own nationals even if a reservation had not been entered,
if there is a constitutional bar in place. The following EU countries
still have a constitutional bar in place, which we believe could
prevent the extradition, to the UK, of their nationals if we no
longer operated the EAW. These are;[8]
· Italy[9]
· Slovakia
· Austria
· Belgium
· Sweden
· Finland
· Latvia
· Czech Republic
· Ireland[10]
There have been some high profile cases where the
nationality bar has prevented people being surrendered to the
UK to face justice. The Russian Federation's refusal to extradite
Andrey Lugovoy (accused of the murder of Alexander Litvinenko)
is a good example of this. While the refusal to extradite a national
would not necessarily result in the person going unpunished, in
order to prevent this, the proceedings would have to be transferred
to the executing state. This is not always possible or desirable
(as in the case of Lugavoy) and would be unfair on victims and
witnesses who would have to travel abroad to see justice done.
Paragraph 124
No doubt because of its impact on the rights of
suspects, the Framework Decision has attracted considerably more
criticism than other pre-Lisbon mutual recognition measures. Particular
concerns have been raised about the disproportionate use of the
EAW for trivial offences, the lack of a sufficient human rights
safeguard in UK legislation, the lengthy pre-trial detention of
some British citizens overseas, the use of the EAW for actions
that are not considered to be crimes in the UK, and the use of
the EAW as an aid to investigation rather than prosecution. We
have in mind in these regards the long campaigns run by Fair Trials
International, Justice and Liberty, and the cases of Mark [sic]
Symeou and Garry Mann, among others, which have been brought to
the attention of the House of Commons in particular. If the EAW
is premised on the equivalence of the protections and standards
in the criminal justice systems in each Member State, certain
individual cases show that such equivalence is not met in every
EU Member State.
The Government has been consistently clear about
some of the more problematic operational issues with the EAW,
particularly in respect of proportionality and lengthy pre-trial
detention. Proportionality, in particular, has been the focus
of a number of reports and studies into the operation of the EAW,
including the most recent EU Commission's implementation report
on the operation of the EAW in 2011, which stated the following;
"Confidence in the application of the EAW
has been undermined by the systematic issue of EAWs for the surrender
of persons sought in respect of often very minor offences"
"....there is general agreement among Member
States that a proportionality check is necessary to prevent EAWs
from being issued for offences which, although they fall within
the scope of Article 2(1)23 of the Council Framework Decision
on the EAW, are not serious enough to justify the measures and
cooperation which the execution of an EAW requires."
"Several aspects should be considered before
issuing the EAW including the seriousness of the offence, the
length of the sentence, the existence of an alternative approach
that would be less onerous for both the person sought and the
executing authority and a cost/benefit analysis of the execution
of the EAW. There is a disproportionate effect on the liberty
and freedom of requested persons when EAWs are issued concerning
cases for which (pre-trial) detention would otherwise be felt
inappropriate. In addition, an overload of such requests may be
costly for the executing Member States."
It concluded:
"it is essential that all Member States apply
a proportionality test, including those jurisdictions where prosecution
is mandatory."
The issue of proportionality in the UK has primarily
been associated with the large volume of requests from Poland;
while many of these requests are for serious offences, there have
been many examples of offences for which extradition is a disproportionate
measure. The Polish authorities are aware of Parliament's concerns
about this and have provided evidence to the various inquiries
into the 2014 opt-out decision on this issue. The large amount
of Polish migration to the UK may have played its part in this,
together with a highly systematised approach to the issuing of
EAWs. However, Poland has taken steps to reduce the number of
EAWs that are issued and the overall number of EAWs received from
Poland has reduced by approximately 25% in the last few years.
In addition Polish legislation is currently being taken through
their Parliament and will come into force in July 2015 that is
anticipated to make further reductions in the number of EAWs issued
to the UK. This legislation will amend section 607b of their Criminal
Procedure Code so that an EAW can only be issued if it is in the
interests of justice to do so.
According to the latest published statistics provided
by the NCA, Poland accounts for almost 60% of all surrenders made
from the UK to other Member States, making Poland the UK's biggest
extradition client. However, the UK also receives EAWs for minor
offences from other EU Member States. The proportionality bar
which the Government intends to introduce will address the issue
of proportionality more generally, as it could be applied to all
prosecution EAWs received by the UK.
The Government agrees with the Committee that Member
States have different legal systems and often different judicial
and penal standards to the UK. However, this is inevitable and
not a by-product of the EAW scheme itself. The former Director
of Public Prosecutions gave evidence to this committee in February
2013, stating:
"…[the judicial systems do] vary and
one keeps a careful eye on that. It is important to look at what
the practical alternatives are… Whatever arrangements you
have, unless you have a full trial here or something close to
it before the person goes back—an examination of every issue—there
is a reliance on the arrangements back in that country. It is
difficult to see how one lives in a world where that can be otherwise.
You could have a system where all of the evidence was tested in
our courts before someone was returned, but one, you would get
very close to a finding on their guilt, which would not be helpful,
and two, it would take a very long time. There has to be this
reliance."
The requirement to consider the evidence or issues
would require the UK courts to consider, at the very least, prima
facie evidence. Even under the ECE, the courts would not have
considered such evidence and in those cases still governed by
this regime, there is no requirement to provide it.
It is a fact that many of the problems identified
by the Committee would still occur even if the UK no longer operated
the EAW. In addition, extradition would be more difficult, slower
and in some cases impossible. For example, as well as allowing
extradition to be barred for own nationals, the ECE allows refusal
for tax offences in certain circumstances; and also provides for
refusal on statute of limitation grounds (which could allow serious
offenders to escape being brought to justice if the statute of
limitations had passed).
The Government's view is that in order to find solutions
to commonly acknowledged problems, we should work with and challenge
the EU institutions for reform of EU law where it is required,
and work bilaterally with other Member States to address practical
problems.
There are several recent notable examples of this:
· Working to secure UK objectives on new
mutual recognition instruments such as the European Investigation
Order;
· Engaging with the European Parliament's
Own Initiative review of the EAW which has made recommendations
on improving the measure itself and safeguarding the fundamental
rights of those subject to EAWs; and
· Provision of bilateral support to the
Romanian Government to develop options for prison reform using
private sector investment.
The Government is determined that the UK's extradition
processes should be as effective and fair as possible. This is
why we commissioned the Baker review, to get an impartial view
on our existing procedures and to look for ways in which the processes
could be improved. The Government has considered the recommendations
made by the review, as well as the concerns raised by Parliament
and members of the public and has introduced a number of amendments
to improve the workings of the Extradition Act 2003 ("the
Act"). These reforms are being introduced via the Anti-social
Behaviour, Crime and Policing Bill currently before Parliament.
These reforms will address many of the concerns raised by the
Committee and others, including NGOs such as Fair Trials International.
The purpose of the Government's proportionality bar
is to require the courts to consider whether execution of an incoming
EAW request would be disproportionate. This is in addition to
requiring the judge to be satisfied that extradition would be
compatible with the Convention rights (which is already the case).
In deciding whether extradition would be disproportionate, the
judge will have to take into account the seriousness of the conduct,
the likely penalty and the possibility of the issuing State taking
less coercive measures than extradition. The new section 21A of
the 2003 Act is intended to apply in cases where an EAW has been
issued in order to prosecute the person for an offence. In addition,
the National Crime Agency (as the UK's designated authority for
the receipt of EAWs) will operate an administrative filter of
cases with a view to preventing the most obviously disproportionate
cases ever reaching court. To that end, we have tabled an
amendment to the Bill to empower the Lord Chief Justice with the
agreement of the Lord Chief Justice of Northern Ireland and the
Lord Justice General of Scotland to issue guidance to the
NCA on this point.
The Government is also amending the Act to ensure
that in EAW cases where the person is wanted for the purposes
of prosecution, extradition can only take place where the issuing
State has taken a decision to charge and a decision to try the
person. This will provide that EAWs which are issued when
the case is still being investigated may be refused. Where it
appears to the judge that there are reasonable grounds for believing
that a decision to charge and a decision to try have not both
been taken in the issuing State (and that the person's absence
from that State is not the only reason for that), extradition
will be barred by new section 12A unless the issuing State can
prove that those decisions have been made (or that the person's
absence from that State is the only reason for the failure to
take the decision(s)). This will help prevent people spending
potentially long periods in pre-trial detention following their
extradition, whilst the issuing State continues to investigate
the offence. This would have allowed Andrew Symeou to raise, in
his extradition hearing, the issue of whether or not a decision
to charge him and a decision to try him had been taken and as
the Home Secretary said in her statement, it would likely have
prevented his extradition at the stage he was surrendered - and,
quite possibly, altogether. The Government's intention to seek
to opt into the European Supervision Order (ESO) signals a clear
intent to provide additional safeguards that make it easier for
people like Mr Symeou to be bailed back to the UK and prevent
such injustices occurring in future.
The Committee also refers to the case of Gary Mann.
By way of background, Mr Mann's appeal was not filed within the
statutory time limit (7 days from the day extradition was ordered).
His solicitors also lodged three judicial review applications.
All of these judicial review applications were unsuccessful.
During one of the judicial review hearings, Lord Justice Moses
referred to a "serious injustice". This was in reference
to the consequences of the failure of two sets of lawyers representing
Mann (one in Portugal and one in the UK) to lodge appeals against
(i) the Portuguese sentence and (ii) the extradition order within
statutory time limits.
To address cases such as this, the Government has
made an amendment regarding appeals. These provisions will provide
an important new protection for those people who, through no fault
of their own, are unable to serve notice on the Court of their
intention to appeal in time. This would have made a difference
in the cases like that of Gary Mann, and any future such cases.
The new appeals provisions will afford people in
such circumstances much needed additional protections, and overall
the package of EAW reforms, alongside work that continues within
the EU will contribute to fewer cases of injustice and serve to
enhance procedural equality across the EU.
Paragraph 130
We expect the Government in its response to this
Report to:
· explain the legal basis on which it
considers the proposed amendments to be consistent with the EAW
Framework Decision, were the UK's amended implementing legislation
to be challenged before the Court of Justice;
· explain how tests applied in Ireland
and Germany (and any other Member State) can be relied upon in
support of the UK's domestic amendments;
· provide a detailed assessment of the
risk that the Commission, when considering whether the conditions
for the UK's participation in the EAW Framework Decision have
been fulfilled, will conclude that the amendments to the UK's
implementing legislation mean that the UK no longer fulfils those
conditions and so cannot rejoin the EAW.
Command Paper 8671 makes clear there are many safeguards
in place to ensure fundamental rights are protected. The Framework
Decision is clear that when a person is arrested s/he must be
informed of the EAW and its contents, and have the right to be
assisted by legal counsel and an interpreter (Article 11). A decision
on detention must be taken in accordance with the law of the executing
Member State (Article 12). The person has a right to be heard
by the courts in the executing Member State before a decision
is taken on surrender (Articles 14 and 19). EAWs must be dealt
with as a matter of urgency, there are tight time limits for the
decision to execute the warrant and the extension of those time
limits is only possible in exceptional circumstances (Article
17). Likewise, there are tight timescales for the surrender of
the person after a decision to execute the EAW, and the person
must be released if s/he is still in custody at the expiry of
those time scales (Article 23). In addition, post-surrender, the
issuing Member State is obliged to deduct all periods of detention
from the execution of the EAW from the total period of detention
to be served in the issuing State as a result of a custodial sentence
being imposed (Article 26).
In addition, and bearing in mind Article 50 of the
Charter of the Fundamental Rights of the European Union, the mandatory
grounds of refusal in Article 3 of the FD require the executing
Member State to refuse to execute the EAW where the person has
already been finally judged by a Member State in respect of the
relevant acts (and has served his/her sentence, where there has
been one). This provides a powerful protection against double
jeopardy.
Although there is no express ground of refusal to
cover cases where the executing State is satisfied that execution
would result in a breach of the person's human rights, recital
(12) and Article 1(3) are relevant. Recital (12) stresses that
the FD respects fundamental rights and observes the principles
recognised by ex-Article 6 TEU and reflected in the Charter and
Article 1(3) makes clear that the FD shall not have the effect
of modifying the obligation to respect fundamental rights and
fundamental legal principles enshrined in ex-Article 6 TEU. It
is on this basis that the UK has enacted section 21 of the Extradition
Act 2003, which requires the judge at the extradition hearing
to discharge the person if the judge is of the view that execution
of the EAW would result in the person's ECHR rights being breached.
The 2003 Act requires a judge to assess whether surrender
would be compatible with the Human Rights Act 1998 and discharge
the person if not so satisfied. Indeed there have been cases where
a person has been discharged because the UK courts have found
that the prison conditions in the issuing member state would be
a breach of that person's human rights.[11]
The Baker review looked at the issue of safeguards
in the extradition Act and concluded (at paragraph 11.11) that
Section 21 (Part 1) of the Act (Human Rights), coupled with other
safeguards contained in the 2003 Act, provided fair and transparent
mechanisms for contesting surrender and that they did not operate
in a way that caused or permitted manifest injustice or oppression.
A judge's consideration of Human Rights must be applied in strict
accordance with the terms of the Human Rights Act 1998 and relevant
case law.
However, the Government has been consistently clear
about its concerns with the operation of the EAW, which is why
a series of reforms are being introduced in the Anti-Social Behaviour,
Crime and Policing Bill.
New Section 21A (proportionality) provides an additional
safeguard that explicitly guards against surrender where it would
be otherwise disproportionate to do so. Section 21A specifically
states that regard must be had to Article 1(3) of the EAW FD,
which provides that that Decision shall not have the effect of
modifying the obligation to respect fundamental rights and
fundamental legal principles as enshrined in Article 6 of
the Treaty on European Union." New section 12A will also
bar surrender in cases where the issuing state is not ready
to proceed to trial, which will help to deal with the issue of
lengthy pre-trial detention. These new amendments to the Act will
provide additional safeguards and protections for those subject
to EAWs, particularly UK citizens. We consider that the existing
safeguards and new legislation currently before Parliament, together
with the additional measures the UK will seek to opt into (such
as the ESO and Prisoner Transfer FD) will help to address some
of the operational deficiencies with the EAW and provide robust
enhancements to the existing safeguards contained in the Act.
Finally, as previously explained, the Government
believes that there is further work that can be undertaken at
the EU level to ensure that the rights of individuals subject
to EAWs are fully protected. This includes work that continues
to be undertaken with the EU institutions, and also bi-laterally
with other Member States to ensure that the UK continues to be
central to driving up standards across the EU where problems (e.g.
detention conditions in some Member States) persist.
As provided in written evidence to the House of Lords
Inquiry to the 2014 decision, the Government believes that the
domestic reforms which the Home Secretary announced to Parliament
on 9 July are fully consistent with the UK's desire to rejoin
the European Arrest Warrant ('the EAW') Framework Decision, including
our obligations under that Framework Decision and the EU Treaties.
The necessary changes to the Extradition Act 2003 ('the Act')
are being made by way of amendments to the Anti-social Behaviour,
Crime and Policing Bill.
PROPORTIONALITY
The use of the EAW for relatively minor offences
has long been identified as a problem, not only by the UK. We
are clear that resources that could be directed at dealing with
more serious cross-border crime are often being diverted to matters
which should be tackled in a different way (for example, by way
of a fine or a court summons). This is consistent with the European
Commission's handbook on how to issue an EAW, which is clear that
issuing States should consider alternative punitive measures prior
to issuing an EAW, where it would be more appropriate to do so.
New clause 138 will require the judge to consider
- in addition to whether extradition would be compatible with
the Convention rights - whether it would be disproportionate,
taking into account (so far as the judge thinks it appropriate
to do so) the seriousness of the conduct, the likely penalty and
the possibility of less coercive measures being taken. This will
apply in all cases where the EAW has been issued in order to prosecute
the person.
We believe this is consistent with the UK's obligations
under EU law. Proportionality is a cornerstone of EU law. Its
origins lie in the case law of the European Court of Justice and
it is specifically enshrined in Article 5(4) TEU. Moreover, and
bearing in mind that in many cases proportionality issues are
inextricably linked with fundamental rights, Article 1(3) of the
EAW Framework Decision is clear that the Decision shall not have
the effect of modifying the obligation to respect fundamental
rights and fundamental legal principles. In addition, Article
52(1) of the Charter of Fundamental Rights makes clear that limitations
on rights enshrined in the Charter are "subject to the principle
of proportionality".
ABSENCE OF PROSECUTION DECISION
Parliament has expressed concerns about lengthy and
avoidable pre-trial detention, and it is important that these
situations are avoided.
Where an EAW has been issued when the issuing State
is still investigating the alleged offence, this could lead to
the person spending potentially long periods in pre-trial detention
following extradition while the issuing State continues to investigate
the offence. New clause 137 will address this. The effect of
the clause will be that where it appears to the judge that there
are reasonable grounds for believing that a decision to charge
and a decision to try have not both been taken in the issuing
State (and that the person's absence from that State is not the
only reason for that), extradition will be barred unless the issuing
State can prove that those decisions have been made (or that the
person's absence from that State is the only reason for the failure
to take the decision(s)).
We believe that this new clause is consistent with
the UK's obligations under EU law. Article 1(1) of the EAW Framework
Decision is clear that an EAW is "a judicial decision issued
by a Member State with a view to the arrest and surrender by another
Member State of a requested person, for the purposes of conducting
a criminal prosecution or executing a custodial sentence of detention
order".
REQUEST FOR TEMPORARY TRANSFER ETC.
New clause 140 will allow the requested person and
the issuing State to speak to one another, if they both consent,
before extradition takes place. It will allow for the temporary
transfer of the person to the issuing State and also for the person
to speak with the authorities in that State whilst he or she remains
in the UK (e.g. by video link).
In some cases, it is to be expected that the result
of this will be the withdrawal of the EAW - e.g. in cases where,
having spoken with the person, the issuing State decides that
he or she is not the person they are seeking or that he or she
did not in fact commit the offence in question. In other cases,
where extradition goes ahead, it is to be expected that in some
cases the person will spend less time in pre-trial detention,
as some of the questions which need to be asked and the processes
which need to happen ahead of the trial could take place during
or as a result of the temporary transfer or videoconference.
This amendment transposes Articles 18 and 19 of the
EAW Framework Decision, which allow for temporary transfer and
for the person to be heard ahead of extradition. As such, the
change is consistent with EU law. The previous government failed
to implement these safeguards.
AMENDMENTS TO THE DEFINITIONS OF "EXTRADITION
OFFENCE"
Parliament has also expressed concern about people
being extradited for conduct which is not criminal in British
law.
To help address these concerns, the changes we are
making to the definitions of "extradition offence" in
the Act - clause 145 - will make clear that, in all EAW cases,
in cases where part of the conduct took place in the UK, and is
not criminal here, the judge must refuse extradition for that
conduct.
We believe this is consistent with the terms of the
Framework Decision, Article 4(7)(a) of which is clear that the
executing judicial authority may refuse to execute the EAW where
it relates to offences which are regarded by the law of the executing
Member State as having been committed in whole or in part in the
territory of the executing Member State.
CONSENT TO EXTRADITION NOT TO BE TAKEN AS WAIVER
OF SPECIALTY RIGHTS
Clause 144 ensures that a person who consents to
his or her extradition does not lose the benefit of any "specialty
protection" he or she would otherwise have. Specialty protection
ensures a person is, in general, only proceeded against for the
offence or offences listed in the extradition request. At present,
the Act states that a person waives specialty protection when
he or she consents to extradition. This leads in practice to very
few people consenting to extradition, even where they may otherwise
have no objections. Removing this waiver will enable those who
wish to be extradited to be surrendered quickly without risking
being tried for any other alleged offences.
As the Home Secretary has stated to several committees
and inquiries relating to the 2014 opt out decision, Germany and
Ireland, in particular, have taken steps in respect of proportionality
and barring surrender in the absence of a prosecution decision
respectively. Irish legislation (on no decision to charge or try)
and the approach of the German and Irish courts (on proportionality)
show that other Member States have taken steps to tackle the same
problems that we are seeking to deal with in the Anti-social Behaviour
Crime and Policing Bill. In order to do so they must have concluded
that doing so is compatible with EU law.
Whilst of course this is relevant to our policy approach,
we have analysed the position very carefully and have satisfied
ourselves that our reform package is compatible with EU law.
Paragraph 131
We also ask the Government to say on what basis
it has decided to opt into the Framework Decisions on the ESO
and transfer of prisoners, but not the Framework Decision on judgment
and probation decisions, given that all three are considered to
be means of achieving a more proportionate use of the EAW. In
addition, we ask the Government to say what assessment, if any,
it has made of pursuing reforms to EU free movement rules as part
of an alternative to opting back in to the EAW.
The Government has been clear that it will only seek
to rejoin measures that are in the national interest. The Home
Secretary was clear in her statement to Parliament that the Prisoner
Transfer Framework Decision should be used to the fullest extent
and where UK citizens are convicted abroad,
but are now in the UK and the subject of a European Arrest
Warrant, they should stay in the UK to serve their sentence
wherever possible. This change could have prevented the extraditions
of Michael Binnington and Luke Atkinson - sent to Cyprus, only
to be returned to the UK six months later. This was identified
by Sir Scott Baker in his review of extradition as something that
could help to deal with this problematic issue.
In terms of the Framework Decision on mutual
recognition to judgements and probation decisions (the Probation
FD), the Government considered this measure carefully. However,
what differentiates it from other mutual recognition measures
that we are seeking to rejoin is that while we support the principle
behind it we do not consider that its benefits outweigh its risks.
As we have stated 'practical operability'
was a key test when considering which measures to rejoin. A key
issue here is that this measure may well lead to different practices
amongst Member States following EU wide implementation, especially
in the event of a breach of a Community Order. Some Member
States will be willing to address the breach domestically and
have the right to do so, but some Member States will wish to return
jurisdiction back to the issuing state on breach, and they will
also have the right to do so.
This is a particular concern for the UK as
our community orders do not specify a penalty in the event of
breach. So in many cases the UK may well not be able to transfer
community orders out, without running a risk that jurisdiction
is returned to us. If we fail
to act when jurisdiction is returned then the offender will
have effectively evaded their sentence, so in order to properly
administer justice we would have to bring them back to the
UK. However, we are not clear that there is any effective
means of ensuring their return and even if the
EAW could be used it is not CPS policy to use the
EAW for what could well be minor offences. This would be exacerbating
the proportionality problems around its operation that the UK
has actively been trying to resolve at EU level.
However, this is not the only area of concern
in relation to this instrument. As the Justice Secretary set out
in a letter of 21 October to the Justice Select Committee that
was also copied to your Committee, we are also concerned about
the complex issues around the status of deportees. Article 5 of
the measure relates to the criteria for forwarding on a judgment
and, where applicable, a probation decision. In our view it is
entirely unclear in relation to its application to persons who
have been returned to another Member State as a consequence of
being deported and who did not consent to be returned but who
are now lawfully and ordinarily residing there. We consider that
the better reading of the Probation FD is that this does not apply
to deportees, as the provision implies that return should be a
choice, but it is absolutely not clear whether other Member States,
the Commission and ultimately the ECJ would agree. As the Justice
Secretary said when giving evidence to your Committee:
"That is the kind of area where I
am extremely reluctant to see the European Court take jurisdiction
over measures that have a practical impact in this country, and
where we would not be able to do anything about a decision we
disagreed with".
Of course we reiterate that at this stage
only 10 Member States have implemented it and it has never been
used to our knowledge so there is no clear understanding
as to how this measure will work in practice and very little evidence
on which to judge its effectiveness. However, we note that no
new evidence has been put forward by your Committee or the other
Committees looking at this matter, which outweighs the concerns
we have highlighted. As such, this Government continues to intend
not to seek to rejoin it at this stage. It of course remains open
to future Governments to reconsider.
In relation to the EU Free Movement Directive (FMD),
this is an intrinsic part of the single market; as the Minister
for Immigration made clear during the European Committee Debate
on this issue in July 2013, the Government has recognised that
it benefits British citizens who can exercise their free movement
rights across the European Union. It should not, however, be an
open door policy that has no regard to consequences.
There is no direct causal relationship between the
FMD and extradition. The Government has been clear that the EAW
is a necessary tool in returning people to face justice. The implicit
suggestion in this question is that an amendment to the FMD would
result in fewer EU nationals being in the UK which would result
in fewer requests for extradition. This overlooks the fact that
regardless of the means by which a person enters the UK, a proper
extradition process is required to bring people to justice. This
is why we have concentrated on improving our Extradition legislation
and why we will continue to work with other EU states to improve
the work of the EAW generally.
However, the Government has been clear that the immigration
system that we inherited from the last Government was chaotic
and dysfunctional. We are committed to changing this system and
reducing the annual net migration of immigrants by the end of
this parliament. To this end we are taking through the Immigration
Bill in this Parliamentary session. We must also reform the immigration
system that manages the flow of migrants in and out of the UK.
The Government is clear that EU citizens who benefit
from the right to free movement must adhere to the responsibilities
this brings with it and abide by our laws. Those who engage
in serious or persistent criminality are liable to deportation.
As specified by the FMD, an EEA national may be deported on the
grounds of public policy, public security, or public health. EEA
nationals are liable to deportation on grounds of public policy
when their conduct represents a genuine, present and sufficiently
serious threat affecting one of the fundamental interests of society.
Anyone not meeting this test who is convicted of an offence
that attracts a prison sentence may also be removed from the UK
using administrative powers and returned to their country of origin.
The Home Office will continue to take a robust approach
in considering and, where international obligations allow, pursuing
the deportation of EEA nationals.
Furthermore, the Prime Minister announced in November
2013 further toughening of the rules with regards to administrative
removal. EEA nationals who are administratively removed from the
UK for not exercising Treaty rights will be unable to re-enter
for twelve months following removal unless that EEA national can
prove that they will be immediately exercising Treaty rights.
Paragraphs 142, 143 and 144
The Government's evidence in the Command Paper
on why it is in the national interest to opt back into the Framework
Decision on freezing orders is not compelling. The UK's implementing
legislation excludes property, so it may be at risk of infringement
proceedings after opting back in unless further primary legislation
were to be enacted. The instrument is little used by the UK and
other Member States, all of whom rely on alternative processes.
It will also be repealed by the EIO in relation to the freezing
of evidence.
When we questioned the Home Secretary on this
instrument, we were similarly unconvinced:
This particular measure is, as I understand it,
the only EU measure regarding the freezing of property. This is
an important tool that we believe exists in order to deal with
organised criminals. We want to rejoin this measure as part of
the process of increasing the speed at which we are able to freeze
criminal property in the UK, on behalf of EU Member States. The
information about the policy implications, and obviously each
section has a policy implication and a fundamental rights analysis,
is within the Explanatory Memorandum. What I am searching for
is exactly what information the Committee was expecting to see
in the Explanatory Memoranda.
Two things struck us about this reply: the Home
Secretary implied the Freezing Order applied to property in the
UK, which it does not; and she could not accept any criticism
of the Command Paper, a characteristic of her evidence throughout.
The Government acknowledges that the UK's implementing
legislation currently excludes property. However, it is not correct
to say that primary legislation is needed to implement these elements.
This is because section 96 of the Serious Organised Crime and
Police Act 2005 provides an enabling power to make such provisions
in respect of property by secondary legislation. We are committed
to putting in place the necessary legislation.
The Government is keen to drive up international
asset recovery performance. Improving our performance on
the recovery of hidden assets overseas is a commitment in the
Serious and Organised Crime Strategy. The mutual recognition of
freezing orders will be an additional tool for operational practitioners.
It is also not correct to suggest that the Home Secretary implied
that we had implemented this Framework Decision as regards property.
Instead, she made it very clear that rejoining this measure was
part of the process of 'increasing the speed' at which
we can act. The only implication here is that the Government considers
this measure to be more operationally effective than the alternative
arrangements. We know that this is a view shared by CPS.
Paragraph 150
As with the previous instrument, the Government's
evidence on why it is in the national interest to opt back into
the Framework Decision on confiscation orders is not compelling.
The UK, along with seven other Member States, has not implemented
it. It may therefore be at risk of infraction proceedings if it
opts back into it unless further primary legislation were enacted.
The Government, and we presume other Member States given the implementation
gap, rely on alternative processes for confiscation orders. The
Government makes no criticism of the alternative processes.
The reasons given for rejoining the measure on freezing
of evidence and property apply equally to this measure. This measure
should facilitate increased international cooperation in pursuit
of the recovery of the proceeds of crime.
Our efforts to recover UK criminal assets from Spain
(the country with the highest volume of UK criminal assets) are
at present hampered by having to rely on the 1990 Convention rather
than the mutual recognition framework decision. The Spanish authorities
are required to open a domestic money laundering investigation
in order to freeze or confiscate assets for the UK. Any recovered
assets are kept by the Spanish authorities and are not shared.
The Spanish authorities are clear that these problems would be
overcome, and assets would be shared, were the UK to be participating
in the mutual recognition Framework Decision. This is one reason
why the CPS supports rejoining this measure.
The Government acknowledges that legislation will
be required to implement this measure.
Paragraph 158
We note that this Framework Decision has been
largely implemented in the EU, and the level to which it has been
used for non-resident EU nationals who commit offences carrying
the penalty of a fine in the UK and for UK residents who commit
similar offences in other EU Member States. This level strikes
us as very low, however: for example, the UK only relied on this
measure 126 times in a little over two years for non-payment of
fines of €70 and over by non-residents. We ask the Government
to say how many similar fines incurred by non-residents over the
same period were not enforced through this measure. Given our
concern that the use of this measure has been trivial, and at
the fact that the Government does not have a reliable estimate
of the net financial cost of enforcing other Member States' penalties,
we ask the Government why the UK should opt back into this measure,
and thereby the jurisdiction of the Court of Justice.
We are unable to provide any figures or estimates
with regard to similar financial penalties incurred by non-residents
but not enforced through the Mutual Recognition of Financial
Penalties (MRFP). This is because data on unpaid fines is not
broken down by the residence of the offender. However, the
UK has used this measure 267 times from December 2010 to September
2013 for non-payment of fines and there appears to be an upwards
trend in the volume both of incoming and outgoing penalties (although
there are insufficient years of data to be confident of any trends).
However, use of the measure may well rise further
as more Member States start to use the MRFP system to transfer
penalties (some Member States are yet to implement this measure),
or as Member States that are already transferring penalties start
to use it more fully. In addition, there may be an increase in
the volume of outgoing penalties as domestic awareness of this
instrument increases. It should also be noted that the commercial
process to appoint an external provider for the future delivery
of Her Majesty's Courts and Tribunal Service (HMCTS) compliance
and enforcement services formally commenced in July 2013. All
enforcement activity, including the management of accounts that
fall under MRFP will be transferred to the successful provider. HMCTS
are not guaranteeing financial penalty volumes to suppliers so
the successful bidder will be expected to manage any risk pertaining
to change in volumes, but the move to an external supplier
may lead to changes in the use of this instrument.
The Government believes that fines are an important
tool for punishing those who break particular laws. However, any
dissuasive element of this is diminished if people can avoid paying
a fine by returning to a different Member State.
The Government believes that this measure provides
for practical and desirable cooperation in ensuring that fines
will be collected. This makes sure that any dissuasive effects
of monetary penalties are not diminished. This means that visitors
in the UK from another Member State may be less inclined,
for example, to commit road traffic offences if they know they
will likely still have to pay the resulting fine imposed for any
offence.
Paragraphs 165 and 166
The Secretary of State for Justice, when questioned
about this instrument by us, confirmed the Government's view that
it was an important measure in the fight against international
crime.
However, we are not convinced of the need for
the UK to be bound by this measure. The mutual recognition principle
it sets out is already recognised in statute and common law in
the UK. Opting back in to this EU measure would introduce full
Court of Justice jurisdiction into this area of UK criminal law,
with unpredictable results.
The Committee is correct that the principle of taking
account of foreign convictions in the same way as domestic convictions
existed in statute and common law in the UK before the adoption
of this measure; as such we support the principle of this measure.
When judges know about a defendant's previous criminality, it
can result in longer and more appropriate prison sentences. Information
on previous convictions can also be used by prosecutors to resist
bail applications; for example, where an individual has a history
of convictions in another Member State for violence or sexual
offences and may reoffend whilst on bail. The measure thereby
ensures appropriate justice within the EU and helps to create
more equal treatment between EU nationals and UK nationals.
If the UK does not rejoin the Framework Decision,
other Member States would not be required to take account of a
defendant's conviction from a UK court. In a Europe of free movement,
it is clearly in the interests of public safety for a defendant's
previous criminality to be taken account of, regardless of the
Member State in which it occurred.
Paragraphs 178 and 179
We note the Government's emphasis on the prospective
benefits of this instrument, which was described by the Secretary
of State for Justice in his recent evidence session with us as
a "no-brainer":
There are some measures here that are just no-brainers.
The Prisoner Transfer Agreement, as I said a moment ago, is just
something that we clearly want to have. We have a very large number
of overseas prisoners, Eastern European prisoners in particular,
in our gaols. I am keen to see that implemented across Europe
as quickly as possible and to have those people going back to
their home countries.
We ask the Minister to explain the extent to which
it has been implemented, and is being used, by all other Member
States. As part of this, we ask whether the UK and other Member
States (and if so, which ones) maintain a declaration under Article
7(4) of the Framework Decision, requiring dual criminality for
the offence committed by the prisoner before accepting a transfer.
Fifteen Member States including the UK have now implemented
the Prisoner Transfer Framework Decision (PTFD). They are; the
UK, Austria, Belgium, Croatia, Denmark, Finland, Hungary, Italy,
Latvia, Luxembourg, Malta, Netherlands, Slovakia, Slovenia and
Poland (Poland for voluntary transfers only until December 2016).
The PTFD provides a mechanism for transfer but does
not require a Member State to seek the transfer of individual
prisoners. It is therefore a matter for each Member State to determine
the extent of its use in relation to persons sentenced in their
jurisdiction.
The UK has not entered a declaration in relation
to dual criminality. That means that dual criminality is not
required for the offences listed in Article 7. The Repatriation
of Prisoners Act 1984 which governs the transfer of prisoners
into and out of the UK does not require dual criminality to be
established in relation to the transfer of prisoners. We understand
that as of October 2012, Ireland Hungary, the Netherlands, Austria
and Poland have made declarations under Article 7(4).
Paragraph 180
We also ask the Government how many foreign national
prisoners it estimates will be transferred from the UK each year
under this instrument, assuming it is widely implemented in the
EU. In this regard we note that, under the Framework Decision,
a prisoner can only be transferred to their country of nationality
without their consent or the consent of the receiving Member State
if that is the country in which they live, or if they would be
deported there after serving their sentence. We ask the Government
whether this qualifies EU free movement rules, which in many circumstances
bar the deportation of offenders who are nationals of another
EU country.
There are still some uncertainties about how long
the process will take and when other Member States which have
not implemented so far will fully implement (we expect most to
do so in 2014). However, our estimates are set out in the
table below.
| Year | Expected Number of successful Prisoner Transfers per year to EU Countries
|
| 2014 | 210
|
| 2015 | 425
|
| 2016 | 455
|
| 2017 | 375
|
| 2018 | 395
|
| 2019 | 410
|
| 2020 | 430
|
| 2021 | 455
|
| 2022 | 460
|
| 2023 | 480
|
The Government's current estimate for the potential net
benefit over 10 years
for the PTFD is approximately £100 million
(to the nearest million). This is based on the current estimate
of there being approximately 4100 EU prisoners transferred from
the UK in the corresponding period.
The PTFD does not qualify free movement. It simply enables
the compulsory transfer of prisoners where they are being deported
where this is in accordance with the free movement rules. Government
policy is not to seek to transfer a prisoner (although transfer
will be considered should the prisoner request it) unless we
are successful in obtaining a deportation order. A Deportation
Order will be considered for a foreign national offender
regardless of the length of sentence.
Paragraph 181
We also note that the Framework Decision appears to be premised
on a prisoner's transfer "facilitating the social rehabilitation
of the sentenced person" (Article 3 of the Framework Decision).
We ask the Government if a prisoner would be able to take court
action against their transfer on the grounds that it would not
facilitate their rehabilitation; and whether, with full Court
of Justice jurisdiction, UK courts would be able to refer questions
of how to apply this rule to the CJEU for determination.
It is the position of the Government that it will almost
always be in the best interest of a prisoner, who would normally
be removed from the United Kingdom at the end of his sentence,
to serve that sentence in his own country where he can re-establish
links with the community and be properly prepared for release
into that community.
Although the PTFD is intended to facilitate social rehabilitation
it does not provide for a transfer to be refused on rehabilitation
grounds. If a prisoner believes correct process has not
been followed they can always challenge a decision to transfer
him in the UK domestic courts by way of judicial review.
Paragraphs 188 and 189
We note the relevance of this measure for the operation of
other mutual recognition measures such as the EAW and prisoner
transfers. To be fully implemented, however, it may require the
UK to implement the Framework Decisions on confiscation orders
and judgments and probation decisions, which the UK has not implemented.
We ask the Government to assess the risk that this might lead
to infringement proceedings being brought by the Commission.
We also note that the Government does not propose to opt back
into the Framework Decision on judgments and probation decisions.
This seems incoherent with the decision to opt back into this
measure on trials in absentia, as the latter regulates the former.
We ask the Government to explain this.
The Trials in Absentia Framework Decision amends five other third
pillar acts by inserting textual amendments into each of those
five acts separately. Out of those five amended Framework Decisions
the Government has set out that it intends to seek to rejoin the
following four: the European Arrest Warrant Framework Decision;
the Mutual Recognition of Confiscation Orders Framework Decision;
the Mutual Recognition of Financial Penalties Framework Decision
and the Prisoner Transfer Framework Decision. By rejoining the
Trials in Absentia Framework Decision it will therefore be seeking
to rejoin those four measures as amended by the Trials in Absentia
Framework Decision.
As noted above in relation to paragraph 150, the Government acknowledges
the need to bring forward legislation to implement the measure
related to the mutual recognition of confiscation orders. That
will take full account of our obligations under this related measure.
As the Government will not be seeking to rejoin the Probation
FD there will essentially be no instrument binding the UK for
the Trials in Absentia Framework Decision to amend. As such, the
provisions in the Trials in Absentia FD relating to the Probation
FD will effectively be severed from those amending the other four.
Paragraphs 197 and 198
Together with the Framework Decision on prison transfers, this
is the mutual legal instrument upon which the Government has the
greatest expectations, particularly as a replacement to using
an EAW. This enthusiasm appears recent, however, as the Government
has not begun to implement it almost a year after the implementation
date. In this regard the Secretary of State for Justice told us
in evidence that the Government's position on the ESO had developed
over time. We ask the Government to provide considerably more
information on when and how it proposes to implement the ESO,
and on the implementation of it by all other Member States.
As part of this, we ask the Government what its estimate is
of the absolute numbers of people currently in the UK who could
be bailed to another Member State under the Framework Decision,
and of the absolute numbers of both British and foreign nationals
who could be bailed back to the UK. If the Government believes
the ESO would make it more likely that eligible individuals in
both the UK and other Member States would be granted bail, we
ask on what basis it holds this belief.
The Government intends to implement this measure as soon as practicable.
To this end we have been having initial discussions with the Devolved
Administrations and attending Commission led working groups on
implementation with other Member States.
As of 1 November 2013 seven Member States have implemented the
ESO. They are Slovakia, Poland, The Netherlands, Latvia, Finland,
Denmark, and Croatia. We expect other Member States to move forward
with implementation in 2014.
The Government currently estimates that approximately 80 prison
places could be saved by people in England and Wales being bailed
to their home Member States. This would be offset by around 70
bail places being taken up by UK nationals returning to
the UK.
Suspects and defendants who are considered suitable for unconditional
bail will continue to be granted such bail and will therefore
usually be free to return home. Likewise those suspects where
remand in custody is considered appropriate, due perhaps to reasons
such as public safety, will continue to be held on remand and
will not be subject to an ESO.
The group of suspects where an ESO may offer an alternative will
be those where bail needs to be conditional, for example with
some restrictions on the person in place, and those conditions
need to be monitored. Without the ESO the only option in these
circumstances is to monitor those conditions locally so the suspect
must remain in the prosecuting jurisdiction to facilitate that.
The ESO will allow the person to return home and be monitored
there. There is also a possibility that this could apply to some
suspects who are currently remanded in custody, primarily due
to the risk of flight if they were released on bail. This may
particularly affect suspects arrested in a Member State different
to their usual home Member State, since it is clear they have
roots in a different jurisdiction and they may be considered to
have greater likelihood of flight. The ESO may allow some of these
suspects to be allowed to return home and have their bail supervised
there rather than being held on remand or supervised locally.
Paragraph 199
We ask the Government whether opting back in to this Framework
Decision would create a risk of the CJEU reviewing the principles
applied in the UK when deciding whether to grant bail to persons
eligible for an ESO, including on the basis of that Court's human
rights jurisprudence.
Decisions on whether to grant bail continue to be governed by
the law and procedures of the Member State where the criminal
proceedings are taking place. This is made clear in Article 2(2)
of the Framework Decision. The Framework Decision does not confer
any right on a person to elect non-custodial measures as an alternative
to custody in the context of criminal proceedings. The Government
considers that opting back in to this Framework Decision does
not, therefore, create additional risks of the ECJ reviewing the
principles applied by courts in the UK in relation to the granting
of bail.
Paragraph 200
We ask the Government if it believes alternative arrangements
could be made, where desirable, to enable transfer of bail between
the UK and other EU countries, rather than opting back in to this
EU measure.
In theory the UK Government could seek to open talks with other
EU Member States to provide for bilateral or multilateral agreements
but we are clear that rejoining this measure has clear benefits
for British Citizens facing trial in other Member States.
Paragraphs 211, 212 and 213
As with most mechanisms for exchange of information between
EU Member States this is an administrative measure which does
not interfere with procedural or legal rules — there has
been no need for implementing legislation. The Government's evidence
suggests that the measure has increased the UK's ability to combat
money laundering, which is often a transnational crime; that although
alternative arrangements exist, these are likely to require further
bilateral cooperation measures to be effective, which might reduce
law enforcement capacity unless put in place quickly; and that
relying on alternative arrangements may incur reputational risk
and further financial expense.
However, we note that in evidence on the block opt out given
to the House of Lords European Union Committee, the Association
of Chief Police Officers said the following about the information
exchange covered by this Council Decision if the UK were to opt
out of the measure: "It is likely that this could maintained
[sic] on a police to police basis or via the Swedish Framework
Decision [Council Decision 2006/960/JHA]. We share this kind of
information with many other non-EU states without any problem".
We ask the Government to confirm that opting back in to this
EU measure could put at least some activities of the UK FIU under
the full jurisdiction of the Court of Justice, given Article 2
of the Decision in particular defining the tasks of an FIU.
The UK FIU plays an important role in gathering, analysing and
disseminating information on money laundering. Its intelligence
products are widely used by UK law enforcement agencies. The transnational
nature of crime requires UK FIU to cooperate effectively with
other FIUs.
Framework Decision 2000/642/JHA encourages cooperation between
FIUs by setting standards on information sharing, and limiting
the reasons under which an FIU may refuse to share information.
We already have gateway provisions to allow the UK FIU to share
intelligence with FIUs in other Member States. However, if we
do not rejoin this measure, we may encounter greater difficulties
in obtaining information from the FIUs of other Member States
which do not possess such comprehensive domestic legislation.
The Government notes the view of the Association of Chief Police
Officers and agrees that it may be possible for information sharing
to continue on a police-to-police basis. However, taking that
approach would leave the risk that some of the 27 Member States
lack legislation to allow information sharing, would not limit
the reasons other Member States could use to refuse to share information
that the UK FIU seeks, and may entail the administrative costs
and burdens mentioned above, because of the need to negotiate
bilateral memoranda of understanding to replicate the provisions
of the Framework Decision.
Relying on police-to-police cooperation would also risk depriving
the UK of access to FIU.net, the ICT service that enables secure
sharing of intelligence between participating FIUs in the EU.
The UK FIU routinely uses FIU.net. Ceasing to use it would add
to administrative burdens as administrative practices would have
to be changed and other methods for the secure exchange of information
relied upon.
The Government does not consider the Swedish Initiative to be
a suitable substitute for Framework Decision 2000/642/JHA. Firstly,
the Swedish Initiative does not contain the same provisions, setting
different conditions under which Member States may refuse to share
requested information.
Secondly, the Swedish Initiative applies to law enforcement authorities
only. Whilst the UK FIU would fit within this definition, the
FIUs of some other Member States may not. Framework Decision 2000/642/JHA
applies to all FIUs regardless of whether they are administrative,
law enforcement or judicial authorities. Relying on the Swedish
Initiative may lead to some other Member States refusing to share
information on the grounds that their FIUs are administrative
or judicial authorities.
Attempting to rely on the Swedish Initiative would also risk depriving
the UK of access to FIU.net. For these reasons, relying on the
Swedish Initiative would risk the effectiveness of our information
exchange with other Member States.
The Third Anti-Money Laundering Directive contains provisions
obliging Member States to establish an FIU, and ensure that suspicions
of money laundering or terrorist financing are reported to the
FIU. The Framework Decision governs information sharing between
FIUs. The Third Anti-Money Laundering Directive is already subject
to ECJ jurisdiction.
Paragraphs 229 and 230
We consider measures 69 and 73 together, as it is clear that
the Swedish initiative is used in the UK primarily by the Asset
Recovery Office for outgoing requests. The Government says that,
should the UK not participate in this measure and push to use
CARIN, other Member States may face difficulties as they prefer
the Swedish Initiative. But in relation to this Decision the Government
says that, were it to exercise the opt-out and not rejoin the
measure, Member States would continue to exchange information
and intelligence and cooperate with the UK in the pursuit of criminal
finances. Without the benefit of further information these two
statements appear contradictory. We ask the Government to provide
a clearer and more detailed explanation of why it is in the national
interest to opt into these two measures.
Any determination of whether it is in the national interest
to opt back into the Swedish initiative (upon which the ARO Decision
largely relies) should pay special attention to the fact that
that measure obliges the provision of information and intelligence
to the law enforcement authority of another Member State, upon
that authority's request, for the purposes of a criminal investigation
that authority is carrying out. This obligation is subject, under
Article 10 of the Framework Decision, to a right to refuse to
provide information where there are "factual reasons"
to assume that it would "harm the essential national security
interests of the requested Member State". If the UK opts
back into the Swedish initiative, the extent of this obligation
to provide information, and the protection afforded by Article
10, will ultimately be for the CJEU to determine.
The ARO measure (2007/845/JHA) sets time limits for the exchange
of information between AROs, based on the provisions found in
Article 4 of the Swedish Initiative. In cases where AROs in other
Member States hold the requested information they must respond
within just eight hours. The ability to secure information quickly
from AROs to enable the prompt identification and tracing of the
proceeds of crime can help UK law enforcement and prosecutorial
agencies both in the investigation of crime and in efforts to
prevent the flight or dissipation of the proceeds of crime.
If the UK chooses not to rejoin this measure, we expect it would
be possible to share information through other channels, for example,
through police-to-police cooperation. However, in order to create
mutual obligations to share information according to the timetable
set by the Swedish Initiative, we would have to secure bilateral
memoranda of understanding replicating its provisions with all
27 Member States. Taking this approach would create unnecessary
administrative burdens and may harm the UK's reputation for cooperation
to tackle cross-border crime. In addition, there is no guarantee
that all Member States would agree to share information according
to the timetable set out in the Swedish Initiative if the UK chose
not to re-join the ARO measure.
Article 10 of the Swedish Initiative must be read in its entirety,
together with Article 3. There are considerable safeguards
contained in these provisions which give Member States and the
relevant authorities a considerable margin of discretion as to
when and what information can be withheld.
Firstly, the safeguards are as strict as those which apply internally
within the UK, including any judicial controls (Articles 3(3)
and (4) and 10(1) and (3). Secondly, investigations, operations
and the safety of individuals are reasons to withhold information
alongside national security interests (Article 10(1)(b)). Thirdly,
disproportionate or irrelevant requests along with requests which
relate to offences punishable by prison sentences of one year
or less can be refused (Article 10(1)(c) and (2)). Fourthly,
the rights of third parties are respected under the rule of specialty
(Article 3(5)). Fifthly, as the Committee points out elsewhere
in your report, Member States exclusive competence in relation
to maintaining law and order and safeguarding national and internal
security is clear from Article 4(2) TEU and Articles 72 TFEU.
Sixthly, Article 346(a) TFEU states that 'no Member State shall
be obliged to supply information the disclosure of which it
considers contrary to the essential interests of its security'.
Finally, under Article 276 TFEU, the ECJ expressly has no jurisdiction
to review (amongst other things) '...the exercise of the responsibilities
incumbent upon Member States with regard to the maintenance of
law and order and the safeguarding of internal security'.
Paragraph 238
From the Government's evidence we conclude that the European
Image Archiving System database is a useful tool used regularly
by UK agencies for the detection of falsified documents; that
alternative arrangements would allow the UK to exchange documents
with other Member States; but that without an equivalent database
such arrangements would be time-consuming to establish and less
comprehensive in scope.
The Government agrees with the Committee that the European Image
Archiving System is a useful tool and welcomes the support of
the Committee for rejoining this measure.
Paragraphs 256 and 257
From the Government's evidence, and the evidence given by enforcement
and prosecution authorities to the House of Lords opt-out inquiry,
we conclude that these measures have allowed more information
to be obtained on EU offenders in the UK and on UK nationals convicted
elsewhere in the EU, which has obvious benefits for bail hearings,
prosecutions and probation and prison services. But we ask the
Government to say whether, were Member States to comply with Article
22 of the 1959 Council of Europe Convention by sending an annual
list to concerned Member States of non-nationals who had been
convicted, and by responding to information requests, the previous
regime would have provided an effective mechanism to achieve the
same ends as these EU measures.
We note the Government says the UK "expects to designate"
the existing Central Authority as the competent authority under
the Framework Decision. We ask the Government to clarify whether
both measures are fully implemented in the UK; and if not, when
they will be.
We do not think that full implementation of the regime in the
1959 convention would achieve the same aims as are met by the
ECRIS regime set out in 2009/315/JHA and 2009/316/JHA. We think
that a return to the regime in the 1959 Convention would lead
to fewer notifications being sent by Member States and many fewer
requests being made by Member States, including the UK.
It would also mean a substantially slower system. A conviction
notification concerning a British national now reaches the UK
shortly after conviction. Providing a list up to a year in arrears
would mean that the authorities in the UK would not have the foreign
conviction available to them, and so would not be able to take
it into account in bail, bad character and sentencing decisions.
The information would also not be available for disclosures issued
by any of the three Disclosure Agencies.
While the 1959 Convention did produce a number of notifications
from some countries there were hardly any requests made. This
suggests that the regime did not work and so needed reform. Using
a reconstituted 1959 Convention to increase the number of requests
would be very difficult. Letters of Requests would still have
to be made by Judicial Authorities - in England and Wales by the
Crown Prosecution Service, by a small number of other state prosecutors
or by a court. They are printed, translated, documents sent by
post to other Prosecutors or to courts. There is no timescale
by which replies should be sent. In contrast the current regime
involves short messages being sent electronically between central
authorities which hold the necessary information and must reply
in ten days. We make about 15,000 outgoing requests a year, transferring
this to the CPS would be a huge burden on them. In practice, we
would expect many fewer requests to be made.
The current Central Authority sits within the ACPO (Association
of Chief Police Officers) Criminal Records Office. The Government
is currently reviewing the activities of the ACPO Criminal Records
Office. Thus it is possible that, in future, the Central Authority
will remain doing its current work while sitting within a different
organisation.
The UK operates both instruments using Common Law powers to exchange
information if doing so is necessary for the prevention and detection
of crime. We are examining whether there is a legislative need
to provide additional legal certainty in this area.
Paragraph 265
The Lisbon Treaty brought data processing in what was the Third
Pillar into the scope of the Community method (QMV, co-decision
and the jurisdiction of the Commission and Court of Justice.)
Accordingly, the draft Directive which will replace this measure
is based on Article 16 TFEU, rather than within the JHA provisions
of Title V TFEU. The UK no longer has a right to opt out of the
replacement Directive. Pending the conclusion of the negotiations
on the draft Directive it would lead to legal uncertainty in the
processing of personal data were the UK to opt-out of this Framework
Decision. We ask the Government to provide a specific assessment
of the potential effects of full Court of Justice jurisdiction
on the Framework Decision.
A fully functional law enforcement and criminal justice system
within the EU needs to share data in an appropriate manner to
protect the public and the rights of individuals. The Data Protection
Framework Decision 2008 ensures UK citizens' data is protected
while simultaneously allowing for the necessary data sharing on
criminal matters with EU partners. In evidence given by the Association
of Chief Police Officers at the inquiry undertaken by the House
of Lords European Union Committee they said that "the
UK needs to remain a part of this measure. The reason is that
other states may not agree to share such data with any other state
under these provisions unless they remain within it".
On 25 January 2012 the Commission published a proposal for a new
Directive that will repeal and replace the Framework Decision.
Negotiations on the Directive are ongoing. The Commission is
aiming for the Directive to be adopted by May 2014. The Directive
will be subject to ECJ jurisdiction
The Government concluded that it was in the UK interest to participate
in the proposed Directive in order to ensure that vital data sharing
for law enforcement purposes with EU partners would not be compromised.
Moreover, the effect of Article 6a of the UK's opt-in Protocol
(Protocol 21) means that the Directive will not apply to internal
processing of data as far as the UK is concerned (e.g. processing
between the Metropolitan Police and West Midlands Police). It
will only apply to cross-border data processing. In that sense
the application of the Directive will mirror the application of
the Framework Decision, as far as the UK is concerned, because
the Framework Decision only applies to cross-border processing.
The UK is also negotiating to remove internal processing from
the scope of the Directive for all Member States. The Government
does not consider that the Commission has provided sufficient
evidence to justify including internal processing in the scope
of the Directive.
Paragraph 274
From the Government's evidence, it concludes that CIS plays
a valuable role in combating customs offences and that there is
no alternative that is as effective. We ask the Government to
say what mechanisms UK customs law enforcement services use to
share information with their counterparts in non-EU States, and
how well these mechanisms work.
Electronic sharing of sensitive customs criminal data outside
the EU is not commonplace. Information-sharing on specific cases
with non-EU states is generally through letters of request or
Interpol. Interpol have their own information-sharing arrangements
and some customs information is shared via these routes, facilitated
by the NCA. These are not as effective as CIS.
The World Customs Organisation (WCO) also collects and analyses
data on smuggling and fraud trends. As part of this the UK supplies
the WCO with trend data (not personal data) such as seizure statistics
on drugs smuggling. Whilst the WCO
data on customs smuggling and fraud trends is a helpful input
to understanding the bigger picture on these issues it cannot
be compared in operational terms to CIS.
Paragraph 281
The Government has provided no evidence of why it is in the
national interest to opt back into this measure, particularly
because the objectives appear to be achievable without it, and
because the Government has decided not to opt back into the Council
Decision on investigation and prosecution of genocide, crimes
against humanity and war crimes (measure 51).
Unlike the wide-ranging nature of the European Judicial Network
(EJN) the Genocide Network has a focused remit and brings together
Contact Points with specific expertise in an important and specialised
area of law. Our decision to remain part of it is an example
of the UK's commitment to investigating the most heinous crimes
of genocide, crimes against humanity and war crimes without placing
any burdensome obligations on the UK in regard to how such crimes
should be investigated or prosecuted.
In contrast the Council Decision on the investigation and prosecution
of genocide, crimes against humanity and war crimes has very little
practical value to those investigating and prosecuting these crimes
and places burdensome and impractical obligations on Member States
in terms of information sharing.
Paragraph 291
It is unclear from the Government's evidence how necessary
it considers these measures to be, and what the impact would be
for controlling football match violence of not opting back into
these measures. We ask it to provide this information.
Controlling the impact of violence and disorder at
football matches with an international dimension would be more
difficult if the UK did not rejoin this measure. This is because,
as Command Paper 8671 notes, the measure 'establishes a dedicated
channel to facilitate policy cooperation and share intelligence
on football supporters so that travelling fans are policed on
their behaviour not their reputation'.
Command Paper 8671 also noted that, 'the measure
has improved the functioning and effectiveness of the National
Football Information Points' (NFIP). Not opting back in would
make things more difficult at an operational level because we
would be reliant on the goodwill of the other Member States to
continue to share information with us, and to accept our information.
Our relationships with Russia and Ukraine serve as good examples
of the increased difficulty when reliant solely on goodwill.
Whilst the UK continues to share information with their authorities
when UK clubs (or national teams) participate in UEFA or FIFA
competitions against their teams the lack of structures and obligations
makes it more difficult to identify the correct agency with which
to engage and means that, generally, less information of a poorer
quality is exchanged.
For example, when Swansea City recently played Kuban
Krasnodor in the Europa League the Russian police did not make
the relevant invitation for a UK police deployment. This meant
that South Wales Police could not travel to Russia to support
the local policing operation and, crucially, provide reassurance
to UK citizens travelling in support of their team.
Not rejoining these measures could also undermine
the UK's ability to influence both the operational and strategic
direction of a European-wide policy on tackling football disorder.
For example, we would lose influence over the future development
of the Europe-wide NFIP website for sharing information. This
is essential for planning football policing operations to ensure
an appropriate level and style of policing is adopted. This is
in the interests of the over 100,000 UK citizens who travel overseas
to support their teams each season.
Paragraph 300
Although this is an administrative measure with
little national impact, we nonetheless would have expected the
Government to provide far more evidence on why it thinks the UK
should opt back into this measure, and what it thinks would happen
if it did not. We look forward to receiving this information.
The peer evaluation mechanism enables Member States
to evaluate the application and implementation, by each other,
of instruments designed to combat international organised crime.
The Government have always stressed that there should
be a proper evaluation before any consideration of future legislative
proposals. Indeed the Security Minister has articulated the UK
Government position on evaluation at JHA Council meetings and
on 29 October during the Eurojust Regulation opt-in debate on
the floor of the House said:
"Fundamentally, we do not consider that the
new Eurojust proposal is even needed at this time. The current
legislation is still undergoing a peer evaluation which will not
complete until next year, and the Commission has not put forward
a convincing case as to why the new proposal is needed".
The outcomes of such peer reviews have resulted in
measures that have attempted to improve the operation of the EAW.
For example, the fourth round of mutual evaluations[12]
considered the use of the EAW for trivial offences. This directly
led to the development and publication of the revised EAW handbook
in 2010/11 which sought to address the proportionality problem.
The UK was central to the development of the revised handbook,
and although the impact has not been as desired, these are issues
the UK continues to lead on at the EU level, for example in the
context of the European Parliament's 'own initiative' report.
Paragraph 308
We ask the Government to provide an evaluation
of the usefulness of CEPOL to date for national police forces,
without which we are unable to assess the validity of the Government's
reasons for opting back into this Decision. We also ask for an
update on the negotiations on the future structure and location
of CEPOL.
The Government believes that in its current form
the UK benefits from its participation in CEPOL. ACPO agrees with
the Government and has stated publically that:
"Given the global nature of crime any facility
that assists in training and the sharing of experiences and ideas
across the EU is intrinsically a good thing and a positive force
in UK policing."
We would also note the high level of attendance by
UK officers at courses run by CEPOL over the last six years;
2007: 90
2008: 111
2009: 115
2010: 105
2011: 71
2012: 108
The UK has played an important role in focusing CEPOL
on areas that meet our national interests. Training covers areas
such as Security Sector Reform, European Action Service, and Capability
and Capacity Building in West Africa to tackle organised criminality
aligned to the Serious Organised Crime Threat Assessment and EU
Policy Cycle.
CEPOL activity is relevant for strengthening operational
and managerial knowledge but also very relevant for strengthening
police cooperation. Police officers and trainers from Member States
have access to a CEPOL run Exchange Programme, which
is entirely free for the UK at point of access. It
allows senior officers from across the EU a chance to spend time
with colleagues in other Member States to try jointly to solve
common issues. There is an operational focus to tackling cross
border issues and in EU immigrant communities that have settled
in the UK.
At the Justice and Home Affairs Council on 8 October
Member States agreed by common accord to support Hungary's bid
to host the European Police College (CEPOL). On 13 November a
Member State Initiative (MSI) was submitted to the Council formally
proposing the change. It is sponsored by all the EU Member States
except the UK, Ireland and Denmark.
Paragraph 315
The Government's evidence gives reasons for both
opting back in and opting out, without expressing a preference.
This again is an example of the deficiency of reasoning that characterises
much of Command Paper 8671. We expect the Government to provide
persuasive evidence of why the UK should opt back into this Decision,
given that the consequences of not doing so seem of little practical
effect. We also ask the Government to explain the relationship
between this Decision and Directive 2011/92/EU on combating the
sexual abuse and sexual exploitation of children and child pornography,
to which the Government opted in post-Lisbon.
Tackling child pornography
is a priority for the Government. Child pornography is a uniquely
horrific crime, in that not only is the victim abused, but that
abuse is reinforced and perpetuated by the sharing of the images
of it. The Prime Minister's speech on 22 July made clear
that it is essential that we are more active in tackling online
images of child sexual abuse, and that every sector has a part
to play in this.
Following this speech, the Government has initiated
a major programme of work, both itself and with the internet industry,
to prevent access to these images, to remove those images, and
to identify the offenders who create and share them. The
internet summit on 18 November, led by the Prime Minister, set
out the work that has been done so far, including search engines
changing their algorithms to make it harder for these images to
be accessed. The Government reiterated its commitment to use the
new National Crime Agency - with over 4,000 dedicated staff -
to provide a step-change in our enforcement action to bring paedophiles
to justice.
The Council Decision supports this work through driving
Member States to have appropriate mechanisms in place to allow
the public and industry to report these images; to provide specialist
law enforcement units to tackle the perpetrators and safeguard
the victims; and to work with industry to restrict access to the
images online. In particular, the ability for law enforcement
to operate quickly at international level is essential. In this
regard we would note the duty placed on Member States by Article
2(1) of this Council Decision to ensure that 'the speediest possible
cooperation' happens in relation to cooperation on such crimes.
The Council Decision focuses on ensuring that where
child pornography is identified online there are structures in
place for it to be reported, that there are law enforcement units
capable of investigating such offences, that national units work
with Europol and with international counterparts, and that there
is cooperation with industry to eliminate child pornography from
the internet. The Directive focuses on ensuring that Member
States treat certain activities associated with child pornography
as criminal offences and that they have the legal capability
to provide for the removal of criminal content at source where
hosted in their jurisdiction, and to endeavour to block
content hosted outside if it cannot be removed.
Paragraphs 323 and 324
As with our comments above, the Government's reasons
for wishing to opt back into this Decision are lacking. In the
absence of providing them, we conclude there is little evidence
to recommend the Government's approach.
This Decision makes reference to the Prüm
Decisions, which the Government does not intend to rejoin. We
ask the Government whether this raises a doubt about the coherence
of the measures it seeks to rejoin with the measures it does not.
As part of the Police Chiefs Task Force in 2001 the
UK was a founding member of the ATLAS network of special interventions
units. Currently, the ATLAS network helps to coordinate the meetings,
training, exchange visits and sharing of tactical information
foreseen by this measure. Membership of ATLAS allows the UK Counter
Terrorism Specialist Firearms Officer network the chance to benchmark
and peer compare capability, tactics, kit and training with EU
police counterparts. The police have made it clear to us
that they very much value ATLAS and the Government would not wish
to put at risk its membership of this important network.
The Government does not believe that there is an
inconsistency in rejoining this measure and not rejoining Prüm.
Recital 5 in the chapeau of the Decision specifically states
that it does not apply to the same situations as the Prüm
decision.
Paragraph 330
We conclude the Secretariat is necessary if the
UK is to continue to be bound by the Europol Convention MoJ measure
Data Protection secretariat
The Government agrees with the Committee that we
should rejoin the Data Protection Secretariat.
Paragraphs 353 and 361
We note from the evidence provided by the Government,
and by the investigation agencies to the House of Lords opt-out
inquiry, that in their view Article 40 of the Schengen Convention
is a useful instrument for the UK's investigation of serious international
crime. Although Article 40 is not the only way for UK requests
for continued cross-border surveillance to be made, it appears
to be the most effective. The ILOR route is often slow with significant
time delays and the process does not cater well for ongoing surveillance,
which is why Article 40 was introduced. There is a risk that if
the UK opts out of Article 40, its ILOR requests will be deemed
a lower priority than other Member States' requests. But we ask
the Government to put the figure of 154 outbound requests and
five inbound, which seems relatively few, in the context of the
number of requests made or received between the UK and non-EU
Member States in relation to cross-border surveillance over the
same period. We also ask that it provides us with a general assessment
of how effectively such non-EU requests have operated.
Our comments on the previous measures apply equally
to the Schengen handbook
Article 40 is a mechanism for police to police cooperation
between Schengen States. There is no other international equivalent
and we are not aware of any similar request being made to non-Schengen
States.
If such a request were to be made to another State
it would, most likely, need to be done by way of an International
Letter of Request (ILOR). Generally
speaking a UK - EU operation under Article 40 lasts less than
24 hours and certainly not more than 48 hours, so speed is of
the essence. This is why it works well on a police to police basis.
However, an ILOR requires
the involvement of a prosecutor in order to prepare a report briefing
and compose the ILOR. This is a time consuming process and there
is limited availability out of hours. The ILOR then needs to be
properly transmitted with many States only accepting a hard copy.
Consequently, this is not an attractive alternative and may explain
the lack of non-Schengen requests.
Paragraph 369
From the evidence provided by the Government,
and by the investigative agencies to the House of Lords inquiry,
we conclude that the alerts generated by SIS II enable national
authorities to locate missing or wanted persons considerably more
quickly than through bilateral requests. We also note the total
spend on the UK joining SIS II to date is £83 million, with
a further £24 million forecast.
The Government agrees that there will be considerable
benefits to rejoining and connecting to SIS II.
Paragraphs 402, 403 and 404
We conclude from the evidence provided by the
Government, and by investigation agencies to the House of Lords
opt-out inquiry, that Europol makes a contribution to more effective
police cooperation in the fight against cross border crime in
the EU. We comment later in the Report on the Government's proposal
not to rejoin seven associated measures on the grounds that UK
participation is not necessary.
The existing Europol Decision contains various
obligations on Member States, such as a requirement to "supply
Europol on their own initiative with the information and intelligence
necessary for it to carry out its tasks". The practical meaning
of this obligation, and others, is open to interpretation, and
if the UK opts back into the Europol Decision the CJEU will be
the final arbiter of what the UK is required to do.
We have in mind that EU justice and home affairs
measures "shall not affect the exercise of the responsibilities
incumbent upon Member States with regard to the maintenance of
law and order and the safeguarding of internal security"
and that the Court of Justice has no jurisdiction to review the
exercise of those responsibilities or "the validity or proportionality
of operations carried out by the police or other law enforcement
services of a Member State". We ask the Government to say
whether it considers these Treaty safeguards to be a cast-iron
guarantee that the Court of Justice will not adjudicate on any
operations conducted by UK law enforcement agencies, or the laws
governing such operations. We ask this in the context not just
of Europol but also of all other cross-border cooperation measures
which the Government is intending to rejoin; or, conversely, to
explain where it thinks the Court's new jurisdiction might affect
such operations.
The Government agrees with the Committee that Articles
4(2) TEU and 72 and 276 TFEU are important safeguards which provide
that that the ECJ has no jurisdiction to review the validity or
proportionality of operations carried out by the UK police or
other law enforcement services. Should this ever come into
question, the Government will rely on its Treaty rights.
We have no reason to doubt that the ECJ will not respect the
position of Member States under the Treaties.
Paragraphs 405 and 406
We ask the Government what assessment it has made
of possibilities for maintaining cooperation with Europol without
opting back into the Europol Decision. Europol has, for instance,
cooperation agreements with various non-EU countries. The UK may,
for example, be able to negotiate provisions in the new Europol
Regulation that enable satisfactory cooperation with Europol,
without the UK having to opt in to the EU legislation founding
that body and thereby subject itself to full CJEU jurisdiction
with no ability to opt out again. Other Member States would have
an interest in maintaining cooperation with the UK. If the Government
has not made any such assessment, we ask it to do so as a matter
of urgency and to provide the results to
We note that if the Government decides to opt
into the revised Europol Regulation, the opt-in decision will
be subject to the House's enhanced scrutiny procedures, which
will include the House agreeing a Government motion in favour
of opting in before the EU institutions are formally notified
of the Government's decision
The Government has considered fully the possibility
and feasibility of attempting to maintain existing co-operation
with Europol without rejoining the current Council Decision. This
includes consideration of whether or not limited participation
with Europol along the lines of the operational cooperation which
is permitted between the UK and Member States as a result of the
Frontex Regulation would be appropriate.
The Government has concluded that there are clear
benefits to maintaining full participation in the current Council
Decision and that pursuing an alternative model would have a detrimental
impact on our ability to tackle cross-border crime.
The UK's exclusion from having full participation
with Frontex flows from its decision not to opt into the external
borders part of Schengen acquis. The Frontex Regulation was nevertheless
drafted in such a way to require Frontex to facilitate operational
cooperation between the UK and Member States on a case by case
basis (Article 12(1) of the Frontex Regulation).
The position in relation to Europol is different.
The biggest difference is that the current Europol Decision does
not contain an equivalent to Article 12(1) of the Frontex Regulation.
Furthermore, the nature of Frontex lends itself much better to
UK involvement on a case by case basis than the current Europol
Decision does. Europol's role in facilitating information exchange
requires Member States to be engaged with it constantly, uploading
and receiving information on a day to day basis which Europol
then draws together. It would not currently be practical for us
to dip in and out of cooperation as we can with Frontex. Police
forces have also been very clear that they would be very concerned
if this, as is likely, led to a reduction in the flow of intelligence
to the UK.
Equally, we do not consider that it is feasible to
negotiate such a deal at this time. Member States have made it
clear to us that if we wish to continue cooperating with them
through Europol we must rejoin the current Council Decision. However,
negotiations on the new Europol Regulation will require this issue
to be considered further. This is because of the special position
of Denmark under the Treaties. The Government has not opted in
to the new Europol Regulation, but has committed to do so post-adoption
provided Europol is not given the power to direct national law
enforcement agencies to: initiate investigations; or share data
that conflicts with national security. Whilst we remain fully
committed to achieving a successful outcome to negotiations we
will, of course, need to identify possible alternative arrangements
in the case that the final text remains unacceptable.
Parliament will be consulted in the usual way as
regards any future opt-in decision.
Paragraph 422
We conclude from the evidence provided by the
Government, and by prosecution authorities and the former President
of Eurojust to the House of Lords opt-out inquiry, that Eurojust
makes a contribution to more effective cooperation between Member
State investigative authorities in the fight against cross border
crime in the EU.
We agree that Eurojust, in its current form, allows
for more effective cooperation between Member States.
Paragraphs 423-425
The current Eurojust Decision contains various
obligations on Member States; they must, for instance, "ensure
continuous and effective contribution to the achievement by Eurojust
of its objectives". The practical meaning of this obligation,
and others, is open to interpretation, and if the UK opts back
in to the Eurojust Decision the Court of Justice will be the final
arbiter of the requirements the UK must meet.
As with Europol, we ask the Government what assessment
it has made of possibilities for maintaining cooperation with
Eurojust without opting back in to the Eurojust Decision. Eurojust
has, for instance, cooperation agreements with several non-EU
countries. The UK may, for example, be able to negotiate provisions
in the new Eurojust Regulation that enable satisfactory cooperation
with Eurojust, without the UK having to opt in to the EU legislation
founding that body and thereby subject itself to full CJEU jurisdiction
with no ability to opt out again. Other Member States would have
an interest in maintaining cooperation with the UK. If the Government
has not made any such assessment, we ask it to do so as a matter
of urgency and to provide the results to Parliament.
We note that the Government has decided not to
opt into the revised Eurojust proposal, but will consider opting
in after adoption.
The Government considers that its response provided
on this issue in relation to Europol is equally valid here.
Paragraph 437
We conclude from the evidence provided by the
Government, and by investigative authorities to the House of Lords
opt-out inquiry, that Joint Investigation Teams can make a contribution
to the fight against cross border crime in the EU.
The Government agrees that Joint Investigation Teams
are a valuable tool in the fight against crime.
Paragraph 447
Naples II is used by HM Revenue and Customs and
Border Force to share information about serious international
customs offences on a daily basis. Some alternative options for
co-operation exist, but these are less effective. We therefore
conclude that this Convention is a useful instrument in the fight
against these crimes. However, we ask the Government to explain
in more detail how UK customs authorities cooperate with non-EU
Member State authorities with the same intentions, and to provide
us with an assessment of how effectively such exchanges of information
work.
The Government agrees that Naples II is a useful
instrument and that is why it is seeking to rejoin it.
There is no real multilateral equivalent of the Naples
II Convention in force that allows for the same level of cooperation
with non-EU States. Instead the UK must rely mainly on bilateral
arrangements - the terms of which will vary - or EU Agreements
with third countries, although most of the latter cover only non-criminal
matters.
The other main method of information-sharing available
for use with non-EU States is MLA. MLA requests are undertaken
by issuing formal Letters of Request. It is not unusual for a
request for evidence to take many months to gather and in some
instances it has taken 18 months for information to be provided.
A request under MLA can cover a request for any type of information,
including criminal matters. The MLA mechanism is not designed
for urgent requests
and intelligence-building exercises in the way that the
Naples II Convention is used for customs cooperation between EU
States. Cooperation with non-EU States is, therefore, less swift
and less comprehensive than our cooperation with EU States.
Paragraph 451
The Government describes these measures variously
as not in force (No. 119), defunct (Nos. 6 and 22), or no longer
valid (No. 131). Whilst it is clear that the instruments remain
part of the EU's justice and home affairs acquis until such time
as they are formally repealed, we accept that none appears to
be in use and that there is no reason for the UK to remain bound
by them.
We agree that there is no need for the UK to remain
bound by these measures.
Paragraph 456
Even if the Government is correct in its assessment
that opting back into these measures is not necessary, we note
that the substance of the commitments accepted by the UK by virtue
of its participation in the original Accession Agreements would
simply be carried over to a new Council Decision and so remain
unaltered. We conclude, therefore, that this could be described
as an opt-out on a technicality and does not signify any lessening
in the current level of UK participation in the Schengen acquis.
The Government notes the Committees finding in this
respect and remains committed to rejoining the Schengen Convention
and associated measures in a way that allows for cooperation with
all participating States.
Paragraph 457
Given the technical nature of these measures,
and their importance in paving the way to the establishment of
the second generation Schengen Information System (SIS II), it
is difficult to determine whether or not UK participation in some
or all of them may be required until such time as SIS II becomes
operational in the UK. It is clear, however, that these measures
are ancillary to the Government's recommendation to opt back into
Council Decision 2007/533/JHA establishing SIS II (No. 128) and,
as a consequence, to participate in SIS II from the end of 2014.
As indicated above, non-participation in these measures would
not, in any event, signify any lessening in the current level
of UK participation in the Schengen acquis.
The Government believes that it is only necessary
to rejoin Council Decision 2007/533/JHA in order to be able to
operate SIS II effectively.
Paragraph 458
The Schengen acquis on telecommunications (No.
116) is intended to establish the technical standards required
to develop an interoperable cross-border digital radio system
for police and customs services. As the UK has adopted the relevant
standards, the Government considers that non-participation would
have no operational impact, not least because "no equipment
manufacturer has put in place the interfaces and technologies"
to allow for seamless cross-border operations. We note the possible
loss of UK influence in developing future technical standards
but accept that the consequences of non-participation for the
UK, at present, would appear to be minimal.
The Government agrees that it is not necessary to
rejoin this measure. We would also note, in line with Command
Paper 8671, that we have adopted the standards of Tetra and ETSI
referred to in the Decision and that we have made as much progress
as possible within the existing technology constraints to meet
the requirements of the Decision. Work to develop the necessary
technology will continue irrespective of the UK's participation
in this measure.
Paragraph 459
The Schengen acquis on the payment of police informers
(No. 118) takes the form of a set of common principles establishing
non-binding guidelines for the payment of informers which are
intended to serve as a benchmark for the development of similar
national provisions, enhance cooperation between police forces
and customs authorities, and discourage "informer tourism"
amongst those seeking the most favourable financial return. The
guidelines are stated to be without prejudice to national provisions.
The regulatory framework in the UK is set out in the Regulation
of Investigatory Powers Act 2000 and the Regulation of Investigatory
Powers (Scotland) Act 2000, with practical aspects concerning
the management and payment of informers set out in ACPO guidelines.
The Government considers that the existing national framework
is adequate. As this measure takes the form of non-binding guidelines,
we accept that the consequences of non-participation for the UK
would appear to be minimal.
The Government continues to consider that the existing
national framework is more than adequate and that we do not need
to participate in this measure.
Paragraph 460
The final Schengen measure within this category
concerns the secondment of police liaison officers to other Schengen
States to provide advice and assistance on security matters at
the external borders (No. 117). Each secondment must be based
on a bilateral agreement. The Government notes that the measure
establishes a non-binding framework for the reciprocal secondment
of police liaison officers, but adds that "due to its nature
and legal base, the UK does not actually participate." We
note that this measure is not listed in the 2000 Council Decision
establishing the elements of the Schengen acquis in which the
UK participates and ask the Government to explain why it is included
in the list of measures subject to the block opt-out.
This measure is included in the block opt-out because,
under Article 10(1) of Protocol 36, all 'acts of the Union in
the field of police cooperation and judicial cooperation in criminal
matters which have been adopted before the entry into force of
the Treaty of Lisbon' are subject to the transitional provisions
on the powers of the Commission and the ECJ. The UK's rights
under Article 10(4) of Protocol 36 bite on all those measures
referred to in Article 10(1).
Paragraphs 464 and 465
However, this still leaves Council Decision 2009/968/JHA
which sets out rules for the handling and protection of Europol
information by Member States, requires them to use agreed classification
levels, and to report any security breaches. The Council Decision
also establishes a Security Committee, composed of representatives
of Member States and Europol, to provide advice to Europol's Director
and Management Board on security policy, including the application
of Europol's Security Manual. Whilst it may be possible for the
UK to comply with the requirements set out in Council Decision
2009/968/JHA without formally participating in it, not least because
Article 10(2) of the Decision envisages that the protection of
Europol information may be secured "by a variety of measures
in accordance with national legislation and regulations",
it is difficult to see how the UK could continue to be represented
on the Security Committee. We therefore ask the Government to
confirm that non-participation in this measure would remove the
legal base for UK representation on the Security Committee and
to explain the legal, policy and operational implications of UK
exclusion from the work of this Committee.
We raise two further concerns. First, the Government's
Explanatory Memorandum does not consider whether UK participation
in the 2009 Council Decision establishing Europol, but not in
the seven associated measures, would satisfy the conditions set
out in Article 10(5) of Protocol No. 36 on coherence and practical
operability, particularly as the measures are integral to the
way in which Europol operates. Nor does it consider the feasibility
— political as well as legal — of the UK continuing
to participate in Europol without being subject to the same obligations
as other participating Member States. Greater clarity on these
issues is essential, not least to safeguard against the possibility
that participation in some or all of the measures could be imposed
as a prior condition for UK participation in Europol itself.
We are clear that we support Europol on its current
terms and will seek to rejoin the main Europol measure (2009/371/JHA).
We do not believe that we need to rejoin the associated
measures to participate in Europol. These measures have no material
impact on UK participation, or that of any other State, and they
have no impact on our ability to cooperate with others through
Europol. That will be the basis for our discussions with the Commission.
However, we have repeatedly acknowledged, including
at the evidence session with the House of Lords European Union
Committee, that the final package of measures will be subject
to negotiations with the Commission Indeed the Home Secretary
stated to that Committee that 'this is going to be a process
of negotiation' and 'of course we have yet to sit down
with the European Commission and discuss the list of 35 measures'.
The Security Committee is advisory. The key issue
is for UK nationals to be on the Management Board and staff of
Europol to ensure that UK best practice is already at the heart
of the organisation. There would be nothing to prevent the Security
Committee inviting a representative of the UK to participate in
its meeting.
Paragraph 466
Second, we note that a new draft Europol Regulation
has been proposed which, if adopted, would repeal and replace
the 2009 Decision establishing Europol and many, if not all, of
the seven associated measures which the Government does not propose
to rejoin. The Government has expressed its intention to opt in
once the draft Regulation has been adopted, provided it has been
amended to reflect the UK's negotiating objectives. It is generally
accepted that the new Regulation will not have been adopted or
entered into force by 1 December 2014 when the UK's block opt-out
will take effect. As a result, the 2009 Council Decision will
continue to apply after 1 December 2014, as will, for Member States
other than the UK, the seven associated measures. Given that the
Government has made clear that it does not intend to rejoin these
measures, we seek an assurance that they will not be re-introduced
"by the back door" in the form of transitional measures
to bridge the gap between the block opt-out taking effect and
the new Europol Regulation entering into force.
Article 78 of the draft Europol Regulation provides
that, "all legislative measures implementing [the Europol
Council Decision] are repealed from the date of application of
this Regulation".
This does not make entirely clear which of the seven
Europol implementing measures are considered "legislative",
and thus subject to repeal. We are pressing for this to be made
clear on the face of the Europol Regulation itself.
Paragraph 467
Joint Action 96/698/JHA (No. 4) establishes guidelines
for the development of national Memoranda of Understanding (MoUs)
between customs authorities and businesses to combat drug trafficking.
These are intended to strengthen cooperation and may include,
for example, the provision of advance cargo or passenger data.
The Government considers that the UK is compliant with the Joint
Action, even though it does not require any domestic implementing
legislation. It notes that MoUs have been used to support customs
controls in the UK for an extended period of time and would continue,
whether or not the UK participates in the Joint Action. The Joint
Action is intended to encourage all Member States to establish
Memoranda of Understanding in line with best practice at international
level. We accept that the consequences of non-participation for
the UK would appear to be minimal.
The Government agrees that there is no need to rejoin
this measure.
Paragraph 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.
According to Article 29 of the EIO the following
five pre-Lisbon measures will be replaced, either in full or in
part, as between participating Member States:
· MLAC;
· Protocol to the MLAC;
· Freezing Orders Framework Decision;
· European Evidence Warrant; and
· Articles 48-52 of the Schengen Convention.
All the measures listed are currently subject to
the 2014 decision. Mark Harper's letter of 16 December 2013 said;
"You also requested an explanation of how
the adoption of the EIO will affect the MLA measures which are
subject to the 2014 decision. At this time it is not possible
to give a definitive answer as discussions on this technical issue
are still ongoing. This is primarily due to the position
of Denmark and Ireland, and we hope to provide a more detailed
explanation in
response to your report of 6 November on the 2014 decision, when
the situation should be clearer."
Although the text of Article 29 has been agreed,
there still remains uncertainty about the extent that the EIO
will repeal or replace the listed measures as between participating
States (i.e. including the UK) and Denmark and Ireland. We are
actively participating in the ongoing discussions on this complex
issue, but do not now expect it be resolved until early next year.
As soon as there is a common understanding of this matter we will
update you.
Paragraph 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.
The Government is cognisant of the need to avoid
an operational gap developing between an old measure ceasing to
apply to the UK and a new measure becoming operational. Where
such risks arise the Government conducts a full assessment of
the risks and looks at how best these can be mitigated. In the
case of the EIO we believe that falling back on the 1959 Convention
will allow such risk to be mitigated.
In future cases, including after 1 December 2014,
the Government will prioritise the negotiation of the Articles
in the new measure that look at the transitional period and aim
to secure drafting that provides legal clarity for practitioners.
Paragraph 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.
From 1 December 2014 the UK basis for MLA with Denmark
will be the relevant Council of Europe instruments and any Schengen
or EU measures we have opted back into.
All Member States have ratified and brought into
force the 1959 Convention and the 1st Additional Protocol.
Croatia, Greece, Italy and Ireland have not implemented the MLAC
and these four (plus Estonia) have not fully implemented the Protocol
to the MLAC. Our current MLA relationship with these countries
is based on the 1959 Convention (and it's Protocols as appropriate).
This has posed no practical difficulties and there is no evidence
of the UK providing or receiving a different level of service,
in MLA terms, with these countries.
The principal benefit of the MLAC over the 1959 Convention
(and the 1st Additional Protocol) is the provision
for Joint Investigations Teams (JITs; Article 13). There
is an almost identical provision for JITs in the 2nd
Additional Protocol to the 1959 Convention (Article 20), although
to date, only 17 EU Member States have brought the 2nd
Additional Protocol into force (including UK and Denmark).
The importance of being able to form JITs with other Member States
is recognised and that is why the Government is seeking to rejoin
the JIT measure (number 38 on the list). This measure is
applicable in all Member States and provides the broadest coverage
in this respect.
The MLAC includes specific provisions on the interception
of telecommunications (Articles 17-22) and the Protocol includes
a specific provision on account monitoring (Article 3) of the
Protocol. There are no equivalent specific provisions in
the 1959 Convention or its Protocols. However, these provisions
are rarely used (for instance, according to UK Central Authority
records, there have been fewer than 10 incoming requests for account
monitoring orders and fewer than 10 requests for intercept of
communications). Article 1 of the 1959 Convention states that
the contracting parties undertake to afford 'the widest measure
of mutual assistance'. It is therefore a wide ranging instrument
which provides, and will continue to provide, a basis for MLA
even, in some cases, where there is no explicit provision for
a particular type of investigative measure.
Paragraph 484
We accept that the risk of infraction is particularly
acute in relation to the Prüm Decisions, given the significant
delay before the UK would be in a position to implement them in
full, and that the Government's pragmatic approach is justified
in this case. The Government's decision not to rejoin the Prüm
Decisions with effect from 1 December 2014 does not, however,
prevent the Government from doing so at a later stage. We note
that significant investment will be required to implement Prüm
in full, and that the Government has succeeded in securing EU
funding to take forward work on the DNA elements. Although the
Government has stated that its acceptance of funding should not
be taken as an indication that it intends to opt back into Prüm,
we think that a clearer statement of its intentions regarding
future UK participation in Prüm is warranted.
The EU funded work on the DNA elements of Prüm,
and other considerations by the Government, is designed to give
the next Government a clear set of options on whether or not it
should seek to rejoin Prüm. The work will look at the cost
of implementing Prüm as well as the operational benefits
that would result from being able to check the DNA and fingerprint
databases of other EU countries and whether they would benefit
from accessing DNA and fingerprints held in the UK, which will
include DNA and fingerprints of foreign nationals. It will also
look at whether there is operational benefit to the UK being made
aware, virtually instantly, of vehicle registration details of
EU registered cars being driven on UK roads. Our work will also
consider the civil liberties implications of such data sharing
in all three Prüm categories.
Paragraphs 494, 495, 496, 497 and 550
The Government's Explanatory Memoranda on all
of the minimum standards measures indicate that UK law meets or
exceeds the minimum requirements and would remain in place, even
if the Government were to decide not to opt back into them. In
some cases, they highlight a "reputational risk" if
the UK were to opt out, on the grounds that opting-out might be
perceived as a lessening of the UK's commitment to combat serious
and organised crime or to tackle hate crime. Given the serious
nature of the criminal offences covered by these measures, it
is unclear why the reputational risk associated with opting-out
is considered more significant for some than others.
We infer from the statements made by the Home
and Justice Secretaries to Parliament in July, and their oral
evidence to this Committee on 10 October, that the Government's
recommendation to opt out en masse of all of these minimum standards
measures is based on the principle that substantive criminal laws
and penalties should not be "imposed" by Brussels but
should be determined by the UK. The Explanatory Memoranda also
suggest that opting out offers a pragmatic solution, given that
the Government does not intend to depart from EU minimum standards
by repealing existing domestic legislation, that other Member
States will continue to remain bound by the measures, and that
the deterrent effect should therefore remain broadly the same
in all criminal jurisdictions across the European Union.
Whilst we accept that the practical impact of
opting out of this set of pre-Lisbon measures is likely to be
minimal, the Government's approach raises a broader issue about
the basis for future UK cooperation with EU partners on criminal
law matters. Opting out might suggest that the Government intends
voluntarily to comply with minimum standards in EU criminal law
without being bound to do so or to accept the jurisdiction of
the Court of Justice. Yet this is difficult to reconcile with
the Government's decision to opt into post-Lisbon Directives establishing
minimum standards and penalties on cybercrime and trafficking
in human beings, presumably because it perceives some benefit
in shaping the content of EU criminal law or, as the Government's
Explanatory Memorandum on one of the pre-Lisbon measures indicates,
using EU law as a means of assisting with "EU-wide enforcement
of UK law".
We raised this issue with the Home and Justice
Secretaries during their evidence session, in an attempt to establish
whether the Government draws a distinction, as a matter of principle,
between retrospectively opting out of measures which have already
been implemented by the UK, but opting in prospectively to draft
EU legislation establishing minimum standards for substantive
criminal law matters. Both suggested, in the case of human trafficking,
that it was "such a transnational issue" as to warrant
UK participation. We trust that the Government's response to our
Report will provide a more detailed explanation of how the decision
of principle taken by the Government in relation to these pre-Lisbon
minimum standards measures will affect its approach to similar
post-Lisbon measures.
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", or by the
Home Secretary that it is "not for Europe to impose minimum
standards on our police and criminal justice system", 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).
We are very clear that there is no need to remain
bound by minimum standard measures and that, in general, Parliament
should have the final say on the criminal law of this country.
That continues to be our starting position.
Every post-Lisbon measure is considered on a case-by-case
basis with a collective Government decision made on whether or
not to participate in individual measures. This follows consultation
with Parliament. We would note that the House of Commons voted
to support the Government decision to opt in post-adoption to
the human trafficking measure.
Paragraph 500
Opting out of the Convention would remove the
existing legal base for mutual recognition arrangements with Ireland,
necessitate the negotiation of a new bilateral agreement, and
require changes to domestic legislation. Rejoining the Convention
would have cost implications, which the Government estimates at
£31 million over ten years, if all Member States were to
ratify it, but there would also be potential road safety benefits.
We assume that the Government sees some value in establishing
alternative bilateral arrangements with Ireland to give effect
to the mutual recognition of driving disqualifications, given
the flow of people and traffic between the UK and Ireland. We
would welcome a clearer indication of the feasibility of establishing
such arrangements by 1 December 2014.
We note the comments from the Committee about the
potential benefits of this measure in supporting cooperation with
the Republic of Ireland. As we have said throughout, the impact
of the common land border has been an important consideration
in coming to a view on the measures we will seek to rejoin. We
agree with the Committee that the Government should continue to
take account of the common land border and can confirm we are
doing so.
Nevertheless, the Government does not accept that
there is a need for us to rejoin this measure, with the accompanying
risk of it becoming subject to full ECJ jurisdiction in the future.
The Government notes that Command Paper 8671 states that rejoining
this measure, should it be fully implemented, carries the risk
of 'ten-year costs of £31 million' but notes that
the benefits are 'not easily quantifiable'.
As your report finds, the Convention's value to the
UK is primarily concerned with underpinning cooperation with the
Republic of Ireland. Consequently, we believe that this is an
example of where a separate bilateral agreement will be a suitable
alternative to the current arrangements. We have had initial discussions
about establishing a bilateral arrangement with Ireland in this
area and hope to conclude a suitable agreement ahead of the expiry
of the transitional period on 1 December 2014. Home Office Ministers
are liaising closely with Ministerial counterparts in the Department
of Transport and we are hopeful that we can make swift progress
on this matter. The Government will report back on progress in
due course.
Paragraph 503
Whilst we are grateful for the Justice Secretary's
oral explanation, at our evidence session on 10 October 2013,
of the Government's reasons for not opting into the Framework
Decision on the mutual recognition of judgments and probation
decisions (No. 88), it serves to underline the inadequacies of
the Government's Explanatory Memorandum which merely alludes to
"a lack of clear understanding about how this measure will
operate in practice." As we have stated earlier in our Report,
the basis on which the Government has assessed the national interest
in each case must be transparent and open to scrutiny by Parliament.
The Explanatory Memoranda constitute the Government's formal evidence
to Parliament and should provide sufficient information to enable
Parliament to weigh the risks and benefits of participation. Given
that the Government does not intend to rejoin the Framework Decision
relating to probation orders, we ask whether it considers that
a 1964 Council of Europe Convention on the Supervision of Conditionally
Sentenced or Conditionally Released Offenders offers an alternative
basis for cooperation and, if so, how likely the UK and other
Member States are to sign and ratify it.
The 1964 Council of Europe Convention on the Supervision
of Conditionally Sentenced or Conditionally Released Offenders
does not deal with either community sentences or post-custodial
licence, but only deferred and suspended sentences. Therefore
we do not consider it as an alternative means of achieving the
same ends as the Framework Decision and the UK has no plans to
sign or ratify it at this stage. We are not aware of this Convention
having been widely used to date and we understand that only 13
EU Member States have ratified and that a further four have signed
it but not ratified it. We do not know if other EU Member States
are planning to sign or ratify this in the future.
Paragraph 504
Framework Decision 2009/905/JHA (No. 99) requires
forensic laboratories to be accredited to a common international
standard (set out in EN ISO/IEC 17025) in order to ensure the
reliability and validity of their activities and establish a legal
base for the mutual recognition of the results. It sets a compliance
deadline of 30 November 2013 for DNA profiles and 30 November
2015 for dactyloscopic (fingerprint) data. The Government is confident
that UK laboratories can meet the standard set out in the Framework
Decision without participating in it, whilst acknowledging its
broader contribution in driving up standards elsewhere. In its
recent Report on Forensic Science, the Science and Technology
Committee underlined the benefit of accreditation as a means of
ensuring compliance with quality standards and urged the Government
to consider the consequences of not opting back into the Framework
Decision. We would add that quality assurance in this area is
of particular importance in the context of cross-border police
investigations in order to ensure that forensic evidence obtained
in one Member State and used in court proceedings in another Member
State is recognised as being reliable. We ask the Government to
tell us how soon UK forensic laboratories will be in a position
to comply with the common international standard set out in the
Framework Decision (even though they will no longer be under a
legal obligation to do so) and whether it is likely to be within
the timescales envisaged.
UK Forensic Labs that produce DNA profiles have been
accredited to ISO 17025 for many years now and, indeed, cannot
load DNA profiles to the DNA database without such accreditation.
Paragraph 508
As the psychoactive substances subject to EU-wide
control measures are already controlled substances under domestic
legislation, and are likely to remain so regardless of EU law,
we accept that the public health implications of opting out of
Council Decisions 1999/615/JHA, 2002/188/JHA, 2003/847/JHA, 2008/206/JHA
(Nos. 20, 36, 50 and 76) will be minimal. We note that a decision
to opt out of the parent legislation — Council Decision
2005/387/JHA (No. 62) — would, however, remove the possibility
for the UK to participate in the existing rapid information exchange
mechanism and in any post-Lisbon EU-wide control measures based
on the 2005 Decision. Given the prevalence of internet purchasing
and the ease with which new psychoactive substances can be marketed
and sold across borders, we ask the Government to explain what
other channels it intends to use to "influence EU and Member
States' legal responses" to the emergence of new psychoactive
substances.
The UK has one of the most extensive legal responses
to new psychoactive substances (NPS) in the EU. It is our
intention to continue to provide information, including information
on harms and prevalence as well as the actions the UK takes on
drug control, to the European Monitoring Centre for Drug and Drug
Addiction and the EU Commission.
As well as bilateral exchanges, there are also a
number of channels through which we inform the EU and Member States
of the UK's response to new psychoactive substances and look to
influence. These include the Horizontal Drugs Group which coordinates
EU drugs policy, the network of Member States' legal correspondents
and the Synthetic Drugs EMPACT project under the EU Policy Cycle
on Organised Crime which is designed to build operational collaboration
on Organised Crime priorities amongst EU Member States and other
law enforcement agencies.
The UN's Early Warning Advisory, launched this year,
is another mechanism through which we share information on NPS.
Paragraph 513
We accept that these are not the most significant
instruments subject to the block opt-out, and that there will
doubtless be possibilities for information exchange to continue
outside of a formal EU framework. We note, however, that Joint
Action 96/699/JHA (No. 5) and Council Decision 2005/671/JHA (No.
66) both require Member States to share information with Europol
and/or Eurojust. Although the Government indicates that it intends
to continue doing so on a voluntary basis, it does not address
the possibility that other Member States may object to the UK
remaining within Europol and Eurojust, while divesting itself
of any obligation to provide information which those other Member
States are legally bound to provide. We ask the Government whether
it considers that these differences in the degree of compulsion
attached to participation in Europol and Eurojust could be regarded
as undermining the coherence of the acquis which the UK proposes
to rejoin.
The Government does not consider that non-participation
in these measures would undermine the coherence of the acquis
which it proposes to rejoin.
Paragraph 522
All of these Networks, Contact Points and Directories
seek to strengthen practical cross-border cooperation, albeit
with varying degrees of engagement by Member States. They appear
to impose few obligations on Member States, beyond designating
appropriate contact points, and might therefore be considered
more consistent with the Government's objective of "cooperation
not control", and considerably less susceptible to unexpected
or unwelcome Court of Justice rulings, than many of the measures
it proposes to rejoin. The knowledge and contacts already acquired
within these networks would tend to indicate that the short-term
consequences of opting out of these measures are likely to be
minimal. We are disappointed that the Government's Explanatory
Memoranda do not, however, address the potential longer-term impact
of leaving some of the networks, notably the European Judicial
Network (No. 89), given its expertise in mutual legal assistance
procedures.
The Government, in its letter to your Committee of
7 November 2012, has been clear that it will seek to rejoin a
measure where it 'contributes to public safety and security,
whether practical cooperation is underpinned by the measure, and
whether there would be a detrimental impact on such cooperation
if pursued by other mechanisms'.
It is our view that where we are not seeking to rejoin
a measure there is either no operational need, or there are sufficient
alternatives in place or that can be put in place.
The Government's decision on which measures to rejoin
was based on the evidence before it; this includes the decision
not currently to seek to rejoin the European Judicial Network
(EJN). Whilst the Government does not believe that the ideas
underpinning EJN are without merit we do not consider that the
EJN is a measure that underpins practical cooperation.
Broadly speaking, the EJN is about establishing contact
points to enable and facilitate discussion on matters regarding
judicial cooperation, maintaining a website with information on
judicial cooperation law and practices in European countries,
and a means to establish a regular forum (through plenary sessions)
for Contact Points to meet and discuss these issues. Whilst the
Government recognises that the lists of Contact Points are undoubtedly
helpful, the Government believes, as set out in Command Paper
8671 that;
"it may be possible to maintain those contacts
without formally participating in this Council Decision. Practical
experience has shown that the contacts are not always the right
people to speak to; often the contact points have a coordinating
role. We judge that practitioners will know the names and numbers
of people they need to speak to regularly."
Furthermore, prosecutors consider that Eurojust offers
a more effective mechanism for coordinating and ensuring the right
practical tools are employed in complex or difficult cross-border
cases. We would also note that that Command Paper 8671 evidences
that our, 'experience of the EJN plenary meetings has shown
that they add little or no value',
Paragraph 523
We note that the Government does propose to rejoin
Council Decision 2002/494/JHA (No. 40) requiring Member States
to designate contact points for the exchange of information on
the investigation of crimes against humanity, war crimes and genocide,
as well as Council Decisions 2002/348/JHA and 2007/412/JHA (Nos.
37 and 72) requiring Member States to designate national football
information points to coordinate and facilitate the exchange of
information in connection with football matches with an international
dimension. The Explanatory Memoranda provide no clear justification
for participating in these measures but not the others included
in this category, even though the Government appears to acknowledge
in both cases that the UK's non-participation would not significantly
impede cooperation (but might increase costs). We ask the Government
to address this anomaly in its response to our
The Government has set out its reasoning for joining
Council Decisions 2002/348/JHA and 2007/412/JHA above in response
to Paragraph 291. Equally the reasoning for not rejoining Council
Decision 2002/494/JHA is below in our response to paragraph 538.
We have judged the measures on their individual merits.
Paragraph 529
The Government's commentary on these four Joint
Actions illustrates the deficiencies and inconsistencies in its
Explanatory Memoranda which we alluded to earlier in our Report.
No insight is given into the reasons for opting out of the Joint
Action on liaison magistrates (No. 2), even though the Government
suggests that there might be some operational impact on the UK's
ability to coordinate complex investigations and prosecutions.
We expect the Government's response to address the deficiencies
in analysis which we have highlighted throughout this Report.
We do not accept that there was a deficiency in our
analysis of the measure related to Liaison Magistrates. The Explanatory
Memorandum is perfectly clear that, '[t]he liaison magistrate
network provides quick cross-border co-operation and reduces bureaucracy
as UK law enforcement officials and prosecutors can use the Liaison
Magistrate network to easily identify and co-operate with their
EU counterparts'. It then goes on to note that not having
Liaison Magistrates may have an adverse operational impact but
clearly states that, 'the Joint Action is not in itself a requirement
to allow the Liaison Magistrate network to continue'.
Consequently, we will continue to be able to post
Liaison Magistrates following the opt-out.
Paragraph 531
A number of pre-Lisbon EU instruments deal with
the freezing and confiscation of proceeds of crime. The Government
proposes to opt back into two Framework Decisions (Nos. 48 and
68) which provide for the mutual recognition of confiscation orders
and orders freezing property or evidence, but to opt out of the
remaining measures which seek to approximate laws and procedures
across the EU. The significance of the Government's decision to
opt out of these measures will depend to a large extent on whether
or not it opts into a new draft Directive on confiscation (currently
under negotiation) after it has been adopted. A clearer indication
of the Government's intention in this regard would be helpful.
Meanwhile, we ask the Government to explain whether opting out
of Framework Decision 2001/500/JHA would remove the current obligation
on Member States to give equal priority to freezing or confiscation
requests emanating from the UK and, if so, what impact this might
have for UK law enforcement bodies.
The Government chose not to opt in to the new draft
Directive on freezing and confiscation within the initial three
month window. We expect the Directive to be adopted in early 2014.
At that point, the Government will consider carefully a post-adoption
opt-in. That decision will be subject to Parliamentary scrutiny
in the normal way.
Article 4 of Framework Decision 2001/500/JHA obliges
Member States to ensure that requests for assistance in asset
identification, tracing, freezing or seizing and confiscation
are processed with the same priority as the receiving Member State
accords to such measures in domestic proceedings.
The Government considers Article 4 of 2001/500/JHA
to have been superseded by subsequent European legislation on
information exchange between AROs (2007/845/JHA), and mutual recognition
of freezing and confiscation orders (2003/577/JHA and 2006/783/JHA
respectively). These more recent instruments provide a legal structure
to ensure that UK requests for information for identifying or
tracing assets, and freezing or confiscating property, will be
processed according to agreed minimum standards.
In the case of the ARO Framework Decision, this means
that requests for information will be satisfied within set timescales.
In the case of the mutual recognition framework decisions, orders
will be recognised without further formality and measures will
be taken for 'immediate' execution (see, for example, Article
5(1) of the Freezing Orders measure). These measures oblige other
Member States to provide the UK with a greater degree of cooperation
than the provision in 2001/500/JHA, which only requires requests
for assistance to be treated with the same priority as domestic
proceedings.
The Government's primary concern is the effect of
the measures on practical cooperation. The CPS' experience with
Spain, as outlined above, suggests that the provision in the 2001/500/JHA
measure does not, in practice, lead to effective cooperation.
Therefore the Government believes that the decision not to rejoin
Framework Decision 2001/500/JHA will not have a negative impact
on UK law enforcement agencies.
Paragraph 532
Council Decision 2001/887/JHA (No. 33) requires
Member States to share their analyses of suspected counterfeit
euro notes or coins with Europol, as well as other information
on the investigation and commission of counterfeiting offences
involving the euro. The Government notes that few counterfeit
euros are detected in the UK and that offences related to counterfeiting
of the euro are covered by domestic legislation which would remain
in place if the UK were to opt out of the Council Decision. Nonparticipation
in this measure would appear to raise issues similar to those
we considered earlier in relation to a series of Europol-related
instruments (see paragraphs 465 and 466), namely whether it is
possible for the UK to continue to participate in Europol without
being subject to the same obligations as other participating Member
States on such matters as the provision of information. As we
indicated previously, clarity on this issue is essential to ensure
that Parliament is properly informed of the full implications
of the Government's recommendation to rejoin Europol and the substantive
obligations that its membership will entail.
As has been made clear in our response to similar
points raised above, the Government does not believe that we need
to rejoin measures such as this in order to participate in Europol.
That will be the starting point for our discussions with the Commission.
Paragraph 533
Framework Decision 2009/948/JHA (No. 107) establishes
a framework for determining which Member State should exercise
jurisdiction for criminal proceedings being conducted in two or
more Member States which concern the same facts and the same individual.
It contemplates that Member States will enter into direct consultations
with a view to reaching a consensus and may also refer the matter
to Eurojust, although Eurojust has no power to impose a solution.
The Government considers that the UK is "largely compliant"
as a matter of domestic practice and notes that, if the UK were
to opt out, "other Member States would no longer be compelled
to try to resolve a conflict of jurisdiction where one was evident",
but that they might choose to do so as a matter of domestic policy.
The obligations imposed by this instrument only extend so far
as to require Member States to seek a resolution where there is
a possible conflict of criminal jurisdiction by exchanging information
and initiating direct consultations. We accept that the practical
consequences of opting out are unlikely to be significant in terms
of UK domestic practice, as the procedures for resolving conflicts
of jurisdiction are reflected in existing Crown Prosecution Service
guidance. The Government does not, however, address the possibility
that other Member States may be less willing to cooperate with
the UK once the obligation to seek a resolution has been removed.
As the Committee has explained, the practices provided
for by the Conflicts of Jurisdiction Framework Decision are already
generally established within the UK, and effective cooperation
is already commonplace between the competent authorities of the
UK and those of other Member States. We see no reason why these
practices and that cooperation would not continue even if
the UK were not to remain bound by this Framework Decision, which
the Government sees as adding no real practical value.
As your Committee notes this instrument only requires
Member States to seek a resolution. As such Member States are
not compelled to undertake any further action other than to discuss
the matter further with Eurojust in the event that they can not
resolve the conflict bilaterally. In that event, Eurojust would
act as an arbiter and neither party would be bound by its conclusions.
As such, the Framework Decision essentially only provides for
the ability to compel another Member State to discuss a conflict
of jurisdiction with the UK in the event they do not want to.
However, the Government considers that it is difficult
to see how the ability to compel another Member State to discuss
such an issue would actually increase the chances of a resolution;
if the other Member States are unwilling to even discuss the matter,
it seems unlikely that they would, if compelled to discuss it,
be willing to subsequently change position in order to resolve
the conflict of jurisdiction.
Paragraph 534
Council Decision 2002/966/JHA (No. 45) seeks to
strengthen counter-terrorism capability across the EU by establishing
a mechanism for peer evaluation of Member States' legal systems
and arrangements for combating terrorism. The UK has participated
in two reviews but the evaluation reports have not resulted in
any changes to UK law or practice. The Government suggests that
opting out of the Council Decision should not affect the UK's
ability to influence other Member States and share best practice.
Whilst proposing to opt out of this measure, the Government does
intend to rejoin a Joint Action (No. 13) establishing a similar
peer review mechanism concerning Member States' implementation
of EU and other international instruments to combat organised
crime. As the Government's Explanatory Memorandum indicates, in
both cases, that the UK would be able to cooperate with other
Member States bilaterally, we asked the Home Secretary to explain,
during her oral evidence session, why the Government has recommended
opting back into one but not the other. The reason, she indicated,
was that the Government does not propose to rejoin any terrorism-related
measures which would fall within the scope of the terrorism peer
review mechanism. Whilst welcoming this explanation, we again
reiterate our concern that it was not included in the Explanatory
Memorandum.
The Government continues to believe that it is not
necessary to rejoin Council Decision 2002/996/JHA.
Paragraphs 535 and 536
Council Decisions 2003/170/JHA and 2006/650/JHA
(Nos. 46 and 65) establish a network of police liaison officers
posted by Member States or Europol to a third (non-EU) country
or international organisation and seek to strengthen the exchange
of information on serious criminal threats. The Government notes
that the UK has a large network of overseas liaison officers and
that they would be expected to comply with the obligations set
out in the Council Decisions "as standard practice",
even if the UK ceased to be bound by the measures. We note that
these Decisions are Schengen-building measures establishing a
framework for the use of police liaison officers, as envisaged
in Article 47(4) of the 1990 Schengen Implementing Convention.
Although the UK is currently bound by Article 47(4), the Government
does not propose to rejoin that provision. We therefore foresee
no difficulty in opting out of these Decisions.
We accept that non-participation in these measures
would not affect the UK's ability to post police liaison officers
overseas or their willingness to cooperate with their counterparts
from other Member States and Europol. The Government does not,
however, address the issue of reciprocity and the possibility
that the UK's nonparticipation may diminish the flow of information
to the UK if other Member States are released from their obligation
to exchange information. We note also that the Council Decisions
include obligations relating to Europol which again call into
question the UK's ability to continue to participate in Europol
without being subject to the same obligations as other participating
Member States.
The Government is confident that not rejoining these
measures will not have a detrimental impact on the ability of
UK and other EU States' liaison officers to work together or share
information. In discussions with other States there has not been
any dissent from this view, or concern expressed that we do not
wish to rejoin these measures.
The Government intends to rejoin all the Articles
of the Schengen Convention to which it is currently bound. The
UK is not currently bound by Article 47(4).
Paragraph 538
The Government's Explanatory Memorandum offers
no explanation for its decision to recommend opting back into
Council Decision 2002/494/JHA (No. 40) establishing a network
of contact points responsible for exchanging "any available
information that may be relevant in the context of investigations
into genocide, crimes against humanity and war crimes", but
to opt out of Council Decision 2003/335/JHA (No. 51) which seeks
to increase cooperation in the investigation and prosecution of
these crimes. The exchange of information envisaged under both
Council Decisions is subject to international and domestic data
protection legislation so the degree of data protection should
be the same in both cases. In her oral evidence, the Home Secretary
suggested that there was "a benefit" in remaining within
the contact points network, but that cooperation between contact
points could take place through mutual legal assistance structures
and procedures. We would welcome further information on the benefits
of the contact point network and on the mutual legal assistance
procedures that will apply, in light of the Government's decision
to opt out of the 2000 EU Mutual Legal Assistance Convention and
2001 Protocol (Nos. 25 and 32).
As noted above the Council Decision on the investigation
and prosecution of genocide, crimes against humanity and war crimes
has very little practical value to those investigating and prosecuting
these crimes and places burdensome and impractical obligations
on Member States in terms of the information sharing outside criminal
investigations and proceedings. Information and evidence relating
to the criminal investigations or proceedings into war crimes,
crimes against humanity and genocide can continue without rejoining
this measure using existing structures (such as MLA or the Genocide
Network).
Paragraph 541
We note that all of the Agreements are based on
Articles 24 and 38 of the Treaty on European Union which, before
they were amended by the Lisbon Treaty, conferred competence on
the EU to conclude agreements concerning the EU's Common Foreign
and Security Policy (CFSP) and Police and Judicial Cooperation
in Criminal Matters. The Government indicates that most EU classified
information shared with third countries concerns foreign policy,
including Common Security and Defence Policy (CSDP) missions and
operations. Academic opinion suggests that opting out of these
Agreements would only take effect as regards criminal law and
policing issues and that the UK would remain bound as regards
CFSP and CDSP matters. We ask the Government to confirm the scope
of the block opt-out in relation to these
The Government believes that these measures are properly
included within the scope of the opt-out decision. However, we
acknowledge their unique position given the joint legal base cited.
The position as concerns the CFSP and CSP elements is an area
where we have begun discussing the consequences with the Commission
and Council Legal Services but where no agreement has yet been
reached on the approach to be taken. We will, of course, keep
you updated on those discussions as appropriate.
Paragraph 542
Council Decisions 2003/516/EC, 2009/820/CFSP and
2009/933/CFSP provide for the signature and conclusion of Agreements
between the EU and the United States of America on mutual legal
assistance (No. 101) and on extradition (Nos. 102 and 103). Both
Agreements were proposed as part of a counter-terrorism package
of measures in the aftermath of the 9/11 attacks on New York and
seek to ensure that all Member States apply similar mutual legal
assistance and extradition arrangements in their bilateral relations
with the United States. The Government notes that the Agreements
required a number of changes to be made to the UK's existing bilateral
treaties with the United States on mutual legal assistance and
on extradition. These bilateral treaties (as amended) would remain
in force if the UK were to opt out of the EU/US Agreements. We
note that the Government does not propose to undo the changes
to its bilateral treaties with the United States which resulted
from the EU/US Agreements, and describes the amendments to the
UK's bilateral extradition treaty as "modest improvements
so far as wider UK interests are concerned." The Government
does not specify the nature of the improvements, nor does it indicate
whether the UK would have been able to secure them as readily
if it had been negotiating on its own. We ask the Government to
address both issues in its response to our Report.
The amendments made to the UK-US MLA and Extradition
treaties as required by the EU-US MLA and Extradition Agreements
are provided in the Instrument dated 16 December 2004 (available
online at:
http://www.official-documents.gov.uk/document/cm76/7613/7613.pdf).
The main change to the extradition treaty is that
as a consequence of Article 5(2) of the Agreement, the requirement
for requests from the UK to the US to be certified by an official
of the US Embassy no longer applies. This has simplified the process
of making extradition requests to the US.
In addition, the transmission of additional case
information directly between the Home Office and the US Department
of Justice was formalised by way of Article 10 of the EU - US
Extradition Agreement. Other amendments did not change existing
UK practice.
The key change to the UK-US MLA Treaty as a result
of the EU-US MLA Agreement was the introduction of the use of
video conferencing in the taking of witness evidence (Article
6 of the Agreement). All other changes were of a minor nature.
These amendments were intended to supplement, not
replace the pre-existing arrangements contained in the extant
bilateral treaties. As the amendments will remain in force even
after the opt-out no assessment has been made of whether these
changes could have been negotiated separately. However, it is
noted that the UK and US completed negotiation of the amendments
in 2004, but had to wait until 2010 (when all other Member States
had completed negotiations with the US) for the amended treaties
to enter into force.
Paragraphs 545, 546, 547, 548 and 549
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.
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.
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).
The introduction to our reply deals comprehensively
with this issue.
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).
The Government believes that it has been open and
transparent with Parliament throughout and has replied to the
points raised by this report.
Paragraph 552
The Home Secretary has made clear that the block
opt-out is "first and foremost [..] about bringing powers
back home", a view shared by the Justice Secretary who regards
it as "part of a process of bringing powers back to this
country." 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.
We are clear that the UK is exercising a Treaty right
which is part of the process of bringing powers back home. We
do not accept that the opt-out has resulted in a flow of powers
to Brussels.
If we had done nothing with regards to the opt-out,
the default position was that the UK would become subject to Commission
enforcement powers and the full jurisdiction of the ECJ. The decision
to opt out means that a much smaller set of measures will be subject
to ECJ jurisdiction and Commission enforcement powers. The transitional
period, which ends on 1 December 2014, may have delayed the effect
of this transfer, but we are clear sovereignty passed on the signature
of the Lisbon Treaty.
There are also good legal reasons for this assessment.
For example, when assessing the competence of the EU to act externally
under Article 3(2) TFEU, the extent of internal measures can be
relevant in legal terms in deciding the extent of that competence.
The Prime Minister's letter to the President of the Council of
Ministers on 24 July put beyond doubt that the pre-Lisbon measures
cannot be used in relation to the UK when assessing the extent
of that competence after 1 December 2014 for over ninety measures
that the UK will not seek to rejoin.
The pre-Lisbon measures remain binding on the UK
until 1 December 2014 only by virtue of the transitional provisions
in Protocol 36. As we have said previously, many of these measures
were negotiated without the full enforcement powers of the ECJ
in mind and some are poorly drafted. Although they are binding
now, we are clear that the reality of those measures will change
when they can be enforced before the ECJ. International courts
and tribunals sharpen the effect of public international law and
the ECJ is a particularly significant international court. By
opting out of the measures in question we have considerably reduced
the influence of this Court in matters of policing and criminal
justice in the UK.
Paragraphs 561-574
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. 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".
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.
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.
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.
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.
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.
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.
She also made clear that:
The decision as to the shape and nature of the
vote has not yet been taken.
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.
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.
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.
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.
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.
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.
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.
The Government has been clear throughout that it
will be negotiating with the Commission and other Member States
on the basis of the Government's agreed position. The agreed position
(i.e. the set of 35 measures) is set out in Command Paper 8671.
The Government has been clear throughout this process
that Parliament should play a full and active role in scrutinising
this important matter. We agreed not to commence formal negotiations
with the Commission and other Member States until after 31 October
2013 so that yours and the other Parliamentary Committees had
sufficient time to scrutinise this matter. We received the reports
from the House of Lords EU Committee, the Justice Select Committee
and the Home Affairs Committee on 31 October 2013, and from your
Committee on 7 November.
We have always been clear that the Government will
hold a second vote on the final list of measures we will formally
seek to rejoin. That vote will enable Parliament to scrutinise
the end result of the Government's negotiations with its European
partners and to decide whether or not to support the Government.
As we have said elsewhere in our response to your report, we will
be producing an Impact Assessment on the final list of measures
that we will apply to rejoin and will ensure that this is produced
in good time ahead of the vote.
We are happy to engage with you through the usual
channels to discuss the precise form and timing of the second
vote.
Annex B — Persons returned to the UK from
January 2012 — November 2013.
The National Crime Agency (NCA) is the designated
authority for the receipt and transmission of EAWs in the UK (with
the exception of Scotland, where it is the Crown Office and Procurator
Fiscal Service (COPFS)). They are responsible for recording data
on the use of the EAW and have provided the details below, Sentence
and conviction details are not held by the NCA for management
information purposes, and therefore these details were obtained
from the Crown Prosecution Service (CPS), the COPFS and the Crown
Solicitor's Office Northern Ireland. Some conviction details
are not held centrally by these bodies, and are therefore not
recorded here. In-line with the Data Protection Act, all personal
information has been removed[13].
| Principle Offence
| Extraditing Country
| Convicted |
Sentence |
| Murder | Belgium
| No | |
| Murder | Ireland
| Ongoing |
|
| Murder | Ireland
| Ongoing |
|
| Murder | Ireland
| Yes | Life, minimum of 20 years
|
| Murder | Italy
| No | |
| Murder | Italy
| Ongoing |
|
| Murder | Netherlands
| Yes | Life, minimum of 22 years
|
| Murder | Netherlands
| Ongoing |
|
| Murder | Poland
| Yes | Life, minimum of 26 years
|
| Murder | Poland
| Ongoing |
|
| Murder | Romania
| Yes | Life, minimum of 31 years
|
| Murder (breach of licence)
| Spain | Yes
| 6 months |
| Murder | Spain
| Ongoing |
|
| Murder | Poland
| Yes | Life, minimum of 19 years
|
| Rape | Czech Republic
| Yes | 4 years and 6 months
|
| Rape | France
| Yes | 7 years
|
| Rape | France
| Yes | 10 years
|
| Rape | Germany
| Yes | 6 years
|
| Rape | Germany
| No | |
| Rape | Greece
| Ongoing |
|
| Rape | Latvia
| N/A (died before trial)
| |
| Rape | Latvia
| Yes | 20 months
|
| Rape | Poland
| Yes | 3 years and 9 months
|
| Rape | Poland
| Yes | 6 years
|
| Rape | Portugal
| Ongoing |
|
| Rape | Romania
| Yes | 10 years
|
| Rape | Romania
| Yes | 7 years
|
| Rape | Slovakia
| Yes | 12 years
|
| Rape | Slovakia
| Yes | 12 years
|
| Rape | Slovakia
| Yes | 12 years
|
| Rape | Spain
| Yes | 5 years and 6 months
|
| Rape | Spain
| Yes | 9 years and 6 months
|
| Rape | Ireland
| Yes | 16 years
|
| Rape | Spain
| Ongoing |
|
| Rape | Spain
| Yes | 2 years
|
| Rape | Spain
| No | |
| Rape | Lithuania
| Ongoing |
|
| Rape | Spain
| Ongoing |
|
| Rape | Spain
| Yes | Life, minimum of 10 years
|
| Child Sex Offences |
Belgium | Yes
| Not yet sentenced |
| Child Sex Offences |
Bulgaria | Yes
| 2 years and 9 months |
| Child Sex Offences |
Cyprus | Ongoing
| |
| Child Sex Offences |
Czech Republic | Yes
| Returned to serve remainder of sentence
|
| Child Sex Offences |
France | Yes
| 8 years |
| Child Sex Offences |
France | Yes
| 21 months, £2500 costs
|
| Child Sex Offences |
France | Ongoing
| |
| Child Sex Offences |
France | Yes
| 10 months |
| Child Sex Offences |
Germany | Ongoing
| |
| Child Sex Offences |
Gibraltar | Yes
| 6 years |
| Child Sex Offences |
Gibraltar | Yes
| 9 years |
| Child Sex Offences |
Ireland | Yes
| 8 years |
| Child Sex Offences |
Ireland | Yes
| 18 months |
| Child Sex Offences |
Ireland | Ongoing
| |
| Child Sex Offences |
Italy | No
| |
| Child Sex Offences |
Netherlands | Yes
| 5 years |
| Child Sex Offences |
Netherlands | Ongoing
| |
| Child Sex Offences |
Netherlands | Yes
| 18 weeks |
| Child Sex Offences |
Netherlands | No
| |
| Child Sex Offences |
Portugal | Yes
| 15 months |
| Child Sex Offences |
Slovakia | No
| |
| Child Sex Offences |
Spain | Yes
| 10 years |
| Child Sex Offences |
Spain | Yes
| £360 fine |
| Child Sex Offences |
Spain | Yes
| £500 fine, £100 costs, £50 surcharge
|
| Child Sex Offences |
Spain | Yes
| 42 months |
| Child Sex Offences |
Spain | Ongoing
| |
| Child Sex Offences |
Spain | No
| |
| Child Sex Offences |
Ireland | No
| |
| Drugs Trafficking | Belgium
| Yes | 12 Years
|
| Drugs Trafficking | Finland
| Yes | 66 months
|
| Drugs Trafficking | France
| Yes | 8 years
|
| Drugs Trafficking | France
| No |
|
| Drugs Trafficking | Gibraltar
| Yes | Not known
|
| Drugs Trafficking | Greece
| Not Known |
|
| Drugs Trafficking | Greece
| Ongoing |
|
| Drugs Trafficking | Ireland
| Yes | 54 months
|
| Drugs Trafficking | Ireland
| Not Known |
|
| Drugs Trafficking | Ireland
| Ongoing |
|
| Drugs Trafficking | Ireland
| Yes | Unlawfully at large - returned to serve sentence
|
| Drugs Trafficking | Ireland
| Not Known |
|
| Drugs Trafficking | Italy
| Not Known |
|
| Drugs Trafficking | Italy
| Yes | 8 years
|
| Drugs Trafficking | Malta
| Not Known |
|
| Drugs Trafficking | Netherlands
| Yes | 14 years and 8 months
|
| Drugs Trafficking | Netherlands
| Yes | 2 years and 6 months
|
| Drugs Trafficking | Netherlands
| Not Known |
|
| Drugs Trafficking | Netherlands
| Yes | 14 years
|
| Drugs Trafficking | Netherlands
| Ongoing |
|
| Drugs Trafficking | Netherlands
| Yes | 12 years
|
| Drugs Trafficking | Netherlands
| Yes | 18 years
|
| Drugs Trafficking | Netherlands
| Ongoing |
|
| Drugs Trafficking | Netherlands
| Ongoing |
|
| Drugs Trafficking | Netherlands
| Yes | To be sentenced
|
| Drugs Trafficking | Netherlands
| Yes | To be sentenced
|
| Drugs Trafficking | Netherlands
| Ongoing |
|
| Drugs Trafficking | Netherlands
| Yes | 23 years and 6 months
|
| Drugs Trafficking | Netherlands
| Yes | 8 years
|
| Drugs Trafficking | Netherlands
| Yes | 10 years
|
| Drugs Trafficking | Poland
| Yes | 3 months
|
| Drugs Trafficking | Poland
| Yes | 3 months
|
| Drugs Trafficking | Poland
| Yes | 16 months
|
| Drugs Trafficking | Portugal
| Yes | 4 years
|
| Drugs Trafficking | Portugal
| Not Known |
|
| Drugs Trafficking | Spain
| Not Known |
|
| Drugs Trafficking | Spain
| Not Known |
|
| Drugs Trafficking | Spain
| Yes | Returned to serve sentence
|
| Drugs Trafficking | Spain
| Yes | To be sentenced
|
| Drugs Trafficking | Spain
| Not Known |
|
| Drugs Trafficking | Spain
| Yes | Returned to serve sentence
|
| Drugs Trafficking | Spain
| Ongoing |
|
| Drugs Trafficking | Spain
| Yes | 3 years
|
| Drugs Trafficking | Spain
| Not Known |
|
| Drugs Trafficking | Spain
| Yes | 68 months
|
| Drugs Trafficking | Spain
| Yes | 3 years
|
| Drugs Trafficking | Spain
| Yes | 7 years and 6 months
|
| Drugs Trafficking | Spain
| Yes | 22 months
|
| Drugs Trafficking | Spain
| Not Known |
|
| Drugs Trafficking | Spain
| Ongoing |
|
| Drugs Trafficking | Spain
| Ongoing |
|
| Drugs Trafficking | Spain
| Ongoing |
|
| Drugs Trafficking | Spain
| Ongoing |
|
| Drugs Trafficking | Spain
| Ongoing |
|
| Drugs Trafficking | Spain
| Ongoing |
|
| Drugs Trafficking | Spain
| Not Known |
|
| Drugs Trafficking | Spain
| Ongoing |
|
| Drugs Trafficking | Spain
| Yes | 45 months
|
| Drugs Trafficking | Spain
| Yes | 16 years
|
| Drugs Trafficking | Spain
| Ongoing |
|
| Firearm offences | Netherlands
| Yes | Life, minimum of 22 years
|
| Firearm offences | Netherlands
| Yes | Life, minimum of 22 years
|
| Armed Robbery | Germany
| Yes | 11 years and 6 months
|
| Armed Robbery | Spain
| No | |
| Armed Robbery | Germany
| Yes | 6 years
|
| Armed Robbery | Ireland
| No | |
| Armed Robbery | Portugal
| Yes | 7 years and 8 months
|
| Armed Robbery | Spain
| Not Known |
|
| Armed Robbery | Spain
| Yes | 6 years and 6 months
|
| Robbery | Germany
| Yes | 8 years
|
| Robbery | Ireland
| Yes | 9 years and 6 months
|
| Robbery | Ireland
| Yes | To be sentenced
|
| Robbery | Ireland
| Ongoing |
|
| Robbery | Ireland
| Yes | 8 years
|
| Robbery | Ireland
| Yes | 9 months
|
| Robbery | Spain
| Yes | 12 months
|
| Robbery | Spain
| Ongoing |
|
| Robbery | Lithuania
| Yes | 3 years and 4 months
|
| Burglary | Ireland
| Yes | 6 years and 8 months
|
| Burglary | Ireland
| Yes | 1 year and 3 months
|
| Theft | Spain
| Yes | 16 months
|
| Theft | Spain
| Yes | 15 months
|
| Theft | Ireland
| Ongoing |
|
| Theft | France
| Yes | 5 years
|
| Theft | France
| Yes | 2 years
|
| Theft | France
| Yes | 3 years
|
| Theft | France
| Yes | 4 years
|
| Theft | Germany
| Yes | 19 months
|
| Theft | Ireland
| Yes | 11 months
|
| Theft | Ireland
| Not known |
|
| Theft | Ireland
| Yes | 3 years and 3 months
|
| Conspiracy to steal |
Italy | Ongoing
| |
| Fraud | Belgium
| Ongoing |
|
| Fraud | France
| Not known |
|
| Fraud | Germany
| Not known |
|
| Fraud | Germany
| Yes | 11 years
|
| Fraud | Ireland
| Yes | 10 weeks
|
| Fraud | Ireland
| Not known |
|
| Fraud | Ireland
| Not known |
|
| Fraud | Ireland
| Yes | 21 months
|
| Fraud | Italy
| Yes | 6 years
|
| Fraud | Italy
| Yes | 7 years
|
| Fraud | Netherlands
| Yes | 18 months
|
| Fraud | Poland
| Yes | 2 years and 6 months
|
| Fraud | Poland
| Yes | 4 years and 6 months
|
| Fraud | Romania
| Yes | 18 months
|
| Fraud | Spain
| No | |
| Fraud | Spain
| Yes | 3 years and 6 months
|
| Fraud | Spain
| Yes | Not known
|
| Fraud | Spain
| Not known |
|
| Fraud | Spain
| Not known |
|
| Fraud | Spain
| Not known |
|
| Fraud | Spain
| Yes | 2 years and 3 months
|
| Fraud | Spain
| Yes | 40 months
|
| Fraud | Spain
| Yes | 12 months
|
| Fraud | Spain
| Not known |
|
| Fraud | Spain
| Yes | £30,000 POCA (15 months imprisonment if delfaults)
|
| Fraud | Spain
| Yes | 18 months
|
| Fraud | Spain
| Ongoing |
|
| Fraud | Spain
| Not known |
|
| Fraud | Spain
| Yes | 30 months
|
| Fraud | Spain
| Yes | 3 years
|
| Serious Assault | France
| Yes | 187 weeks
|
| GBH | Belgium
| Yes | 8 years
|
| GBH | France
| Yes | 40 months
|
| GBH | Germany
| Yes | 43 months
|
| GBH | Germany
| No | |
| GBH | Ireland
| Yes | 8 years and 10 months
|
| GBH | Ireland
| Yes | 6 years
|
| GBH | Ireland
| Yes | 3 years and 2 months
|
| GBH | Ireland
| Yes | 12 months
|
| GBH | Italy
| Yes | 12 months
|
| GBH | Netherlands
| Yes | 9 years and 5 months
|
| GBH | Romania
| Yes | 27 months
|
| GBH | Spain
| Ongoing |
|
| GBH | Spain
| Not known |
|
| GBH | Spain
| Yes | 8 years and 6 months
|
| GBH | Spain
| Yes | 20 months
|
| ABH | Germany
| Yes | 26 months
|
| ABH | Ireland
| Yes | 10 weeks
|
| Death by dangerous driving
| Cyprus | Yes
| 7 years and 10 months |
| Death by Dangerous Driving
| Netherlands | Yes
| 8 years and 5 months, disqualified for 10 years
|
| Death by careless driving
| Portugal | Yes
| 3 years and 10 months, disqualified for 3 years.
|
| Dangerous Driving | Netherlands
| Yes | 35 months
|
| Driving Offence | Bulgaria
| Yes | 6 months imprisonment and disqualified for 2 years
|
| Driving Offence | Spain
| Yes | 22 months, disqualified 2 years
|
| Immigration and Human Trafficking
| Belgium | Not known
| |
| Immigration and Human Trafficking
| Hungary | Yes
| Not known |
| Immigration and Human Trafficking
| Netherlands | Yes
| 4 years and 9 months |
| Immigration and Human Trafficking
| Poland | Ongoing
| |
| Immigration and Human Trafficking
| Romania | Not known
| |
| Immigration and Human Trafficking
| Romania | Not known
| |
| Money Laundering | Estonia
| Ongoing |
|
| Money Laundering | France
| Yes | 8 months, 4 years if default of POCA
|
| Money Laundering | Germany
| Yes | 4 months, suspended for 2 years
|
| Money Laundering | Germany
| Yes | 10 years
|
| Money Laundering | Spain
| Not known |
|
| Money Laundering | Spain
| Not known |
|
| Counterfeiting | Ireland
| Yes | 18 months, suspended for 3 years
|
| Kidnapping | Spain
| Yes | 6 years and 9 months
|
| Kidnapping | Spain
| Yes | 2 years and 6 months
|
| Harassment, threats to kill
| Italy | Yes
| 18 months |
| Harassment | Spain
| Yes | 2 year Community order and indefinite restraining order
|
| Failure to comply with sex offenders register
| Ireland | Yes
| 8 months |
| Sex Offences/Assault to injury
| Poland | Yes/Yes
| 80 days/6 months |
| Sex Offences | Germany
| Yes | 5 months
|
| Sex Offences | Portugal
| Yes | 5 months
|
| Affray | Portugal
| Yes | 18 months
|
| Other[14]
| Belgium | Not known
| |
| Other | Belgium
| No |
|
| Other | Bulgaria
| Not known |
|
| Other | Germany
| Not known |
|
| Other | Ireland
| Yes | Returned to serve sentence
|
| Other | Ireland
| Yes | To be sentenced
|
| Other | Ireland
| Yes | Returned to serve sentence
|
| Other | Ireland
| Yes | Returned to serve sentence
|
| Other | Netherlands
| Not known |
|
| Other | Poland
| Not known |
|
| Other | Romania
| Yes | 3 years
|
| Other | Spain
| Not known |
|
| Other | Spain
| Ongoing |
|
| Other | Spain
| Ongoing |
|
Annex C — Case Studies: European Arrest Warrant (Jan
2012 — Nov 2013)
The UK, on average, gets back 126 people each year
from other EU member states under a European Arrest Warrant (EAW).
Many of these people are accused of serious offences. The list
below provides examples of serious criminals who have been returned
to face justice. Some of these people would have been highly unlikely
to have been returned without the EAW.
This data was provided by the Crown Prosecution Service,
or was obtained from publically available sources.
· Constantin Nan, who was surrendered
to the UK from Romania in 2013. He was found guilty of the torture
and murder of a retired school teacher in 2010 and was sentenced
to life imprisonment to serve a minimum of 31 years.
· Warwick Spinks, who was returned
to the UK from the Czech Republic in 2012 to serve the remainder
of a sentence imposed in 1994 for the sexual assault of young
boys. He had evaded capture for 15 years after breaching the terms
of his licence in 1997 and his arrest was a result of cooperation
between the National Crime Agency, the Metropolitan Police, Child
Exploitation and Online Protection Centre and Czech police forces.
· Joseph Davies, who was surrendered
from the Netherlands in 2012. He was subsequently convicted of
killing his girlfriend and sentenced to life imprisonment to serve
a minimum of 22 years.
· Fethi Hammadi and Segiu Horvath,
who were surrendered from Spain and Romania respectively in 2012.
Mr Horvath pled guilty to the rape of one woman, and the attempted
rape of another, and Mr Hammadi pled guilty to the rape of the
second woman -these attacks occurred in 2008. Mr Hammadi was sentenced
to 5 ½ years and Mr Horvath was sentenced to 10 years.
· Harry Kelk, who was surrendered
from Spain in 2012 to face charges arising from the rape, kidnap
and false imprisonment of a 14 year old girl in 1981. He was sentenced
to 9 years and 6 months.
· Jan Dzudza, Matus Tipan and Miroslav
Karicka, who were extradited from Slovakia in 2012, a fellow
accused was arrested in the UK, following which all three men
fled the UK. Once returned, all three pled guilty to conspiracy
to rape and each were sentenced to 12 years imprisonment. Prior
to the adoption of the EAW Framework Decision, Slovakia did not
extradite its own nationals and this bar is still in place for
non-EAW extraditions. It is likely that without the EAW these
men would not have been returned to face justice.
· Ireneusz Melaniuk, who was surrendered
from Poland in 2012, pled guilty to the murder of Peter Avis during
a robbery and was sentenced to life imprisonment, to serve a minimum
of 26 years. Mr Melaniuk was, at that time, on the run from a
prison sentence in Poland for robbery. Prior to the adoption of
the EAW Framework Decision, Poland did not extradite its own nationals.
It is likely that without the EAW Mr Melaniuk would not have been
returned to face justice.
· Rafael Bogusz, was surrendered
from Poland and subsequently pled guilty to the sexual assault
of a woman in 2010. Mr Bogusz hit the woman over the head, before
assaulting her, she ran from her house naked to escape him. He
was sentenced to 3 years and 9 months. Prior to the adoption of
the EAW Framework Decision, Poland did not extradite its own nationals
and as a result it is unlikely that Mr Bogusz would not have been
returned to face justice without the EAW.
· Ignas Judins, who was surrendered
from Latvia in 2013 and subsequently pled guilty to human trafficking
for sexual exploitation. Judins was sentenced to 20 months. Two
other people have also been convicted of human trafficking into
the UK, and one person for the rape of one of the victims. Prior
to the adoption of the EAW Framework Decision, Latvia did not
extradite its own nationals and this bar is still in place for
non EAW extraditions. It is unlikely that Mr Judins would not
have been returned to face justice without the EAW.
· Hugh McBride, who was surrendered
from Ireland in 2010. McBride pled guilty to the indecent assault
of an 8 year old child in 1989. He was sentenced to 18 months
imprisonment in line with the law at that time.
· Thomas Kearney was surrendered
from Ireland in 2013. Kearney was found guilty of the 2012 murder
of David Remmer and sentenced to life imprisonment, to serve a
minimum of 20 years. He stabbed the victim 54 times.
· Alan Bridgen, a former teacher,
was surrendered from the Netherlands to face child sex abuse charges.
Mr Brigden pled guilty to 14 counts of sexual assault against
his former pupils carried out in the 1970s and 1980s and was sentenced
to 5 years imprisonment.
· George Doulat, was returned from
France to serve a 10 year sentence, already imposed for rape,
attempted rape and sexual assault. Mr Doulat fled the UK before
his trial and was convicted in absentia.
· David Graham was surrendered from
France in 2013 to face charges of sexual assault against children.
Mr Graham had fled to France while on police bail in 2006. The
offences occurred in Cambodia but the CPS was able to prosecute
under section 7 of the Sexual Offences Act 2003. Mr Graham was
sentenced to 21 months imprisonment and ordered to pay costs of
£2500.
· Susan Walters was extradited from
Spain, where she had been living, to face historical charges of
child sexual assault. She pled guilty to 25 charges of aiding
and abetting the rape of her children in the 1970s and 80s by
her former partner. She was sentenced to 10 years imprisonment.
· Stefan Hornak, was extradited from
the Czech Republic in 2012. Hornak pled guilty to four charges
relating to trafficking within and into the UK for sexual exploitation,
and controlling prostitution for gain. He was later convicted
of three counts of rape of the same woman who he had trafficked
to the UK. Hornak was convicted to 4 years and 6 months imprisonment.
Prior to the adoption of the EAW Framework Decision, the Czech
Republic did not extradite its own nationals and this bar is still
in place for non EAW extraditions. It is likely that without the
EAW Mr Hornak would not have been returned to face justice.
· Peter Sidney Scott was returned
from France to face charges of historic child sex offences. He
had fled to France to escape investigation when the first complaints
were made against him. He pled guilty to a number of offences
and was sentenced to 8 years imprisonment.
· Suleman Babar was returned from
Belgium and charged with attempted murder. Babar offered a plea
to wounding with intent to inflict GBH and was sentenced to 8
years. Prior to the adoption of the EAW Framework Decision, Belgium
did not extradite its own nationals and this bar is still in place
for non EAW extraditions. It is likely that without the EAW Mr
Babar would not have been returned to face justice
· Leslie Day was extradited from
Ireland in February 2013 to face charges relating to the rape
and sexual assault of a young child in the 1990s. He pleaded guilty
to rape, attempted rape, four counts of indecent assault and gross
indecency with a child. Day was sentenced to 8 years.
· Piotr Skwierczynski was charged
with rape on 13 December 2001 and a trial date was set for April
2002. While on bail, Skwierczynski failed to appear at Court for
the trial and a warrant for his arrest was issued. He was returned
from Poland in June 2013 and convicted of one count of rape. He
was sentenced to 6 years imprisonment. Prior to the adoption of
the EAW Framework Decision, Poland did not extradite its own nationals.
It is likely that without the EAW Mr Skwierczynski would not have
been returned to face justice.
· Nawaz Cheema Muhammed Shah was
surrendered from Spain in 2012 to face charges of rape. He was
convicted of raping his victim while she slept and sentenced to
2 years imprisonment.
· Richard Carl Williams who was already
a registered sex offender and had a history of forcibly entering
properties and committing acts of rape, was surrendered from Spain
in 2012 to face similar charges. He was convicted of rape and
sentenced to life imprisonment, with a minimum sentence of 10
years.
Annex D — Sentence details of nationals
returned from countries which, prior to the operation of the EAW,
did not extradite their own nationals.
The NCA and CPS have provided a sample of own national
offenders from countries which, prior to the operation of the
EAW, did not extradite their own nationals. These countries had
entered a reservation to the European Convention on Extradition
1957 stating that they would not extradite their own nationals.
Only those cases where the person had been convicted, and the
conviction and sentence details were recorded by the Crown
Prosecition Service, the Crown Office and Procurator Fiscal Service,
the Crown Solicitor's Office Northern Ireland, or in publically
available sources, have been included. Cases where the person
was acquitted, or the charges were dropped, or the conviction
details have not been recorded have not been included[15].
| Principal Offence
| Extraditing Country/Nationality
| Sentence details
|
| Murder | France
| Life, minimum of 15 years
|
| Murder | Poland
| Life, minimum of 19 years
|
| Murder | Poland
| Life, minimum of 26 years
|
| Murder | Lithuania
| Life, minimum of 20 years
|
| Manslaughter | France
| 4 years |
| Manslaughter | Lithuania
| 10 years |
| Manslaughter | Lithuania
| 6 years |
| Rape | Netherlands
| 14 years |
| Rape | Portugal
| 5 years |
| Rape | Lithuania
| 6 years |
| Rape | Poland
| 3 years and 9 months |
| Child Sex Offences |
Poland | 3 months, and 7 years on sex offenders register
|
| Child Sex Offences |
Poland | 4 years
|
| Child Sex Offences |
France | 22 weeks, and 7 years on sex offenders register
|
| Sexual assault | Poland
| 9 months |
| Sex offences | Poland
| 80 days |
| Death by dangerous driving
| Poland | 5 years, disqualified for 5 years
|
| Causing death by careless driving
| Germany | 8 months and 2 years disqualification
|
| Causing death by careless driving
| Portugal | 3 years 10 months
|
| Driving Offences | Poland
| £500 fine, 12 months disqualification
|
| Grievous Bodily Harm |
Cyprus | 10 months
|
| Grievous Bodily Harm |
France | Community order, mental health requirement 3 years.
|
| Grievous Bodily Harm |
Netherlands | 12 months
|
| Grievous Bodily Harm |
Poland | 7 years and 11 months
|
| Grievous Bodily Harm |
France | 40 months
|
| Actual Bodily Harm |
France | 9 months
|
| s.18 wounding | Poland
| 8 and a half years |
| s.20 wounding | Lithuania
| 15 months |
| Drugs Trafficking | Netherlands
| 13 years |
| Drugs Trafficking | Netherlands
| 18 years |
| Drugs Trafficking | Poland
| 12 months |
| Drugs Trafficking | Netherlands
| 11 and a half years |
| Drugs Trafficking | Netherlands
| 6 years |
| Drugs Trafficking | Netherlands
| 4 years |
| Drugs Trafficking | Poland
| 3 months |
| Drugs Trafficking | Poland
| 3 months |
| Drugs Trafficking | Netherlands
| 23 years and 9 months |
| Drugs Trafficking | Netherlands
| 8 years |
| Drugs Trafficking | Netherlands
| 10 years |
| Drugs Trafficking | Poland
| 16 months |
| Robbery | Portugal
| 33 months |
| Burglary | Poland
| 42 months |
| Theft | Netherlands
| 2 years |
| Theft | France
| 3 years |
| Theft | Portugal
| 8 months |
| Fraud | Hungary
| 15 months |
| Fraud | Poland
| 18 months |
| Fraud | Poland
| 3 months |
| Fraud | Poland
| 4 years 6 months |
| Fraud | Lithuania
| 5 months |
| Money Laundering | Netherlands
| 12 months |
| Money Laundering | Netherlands
| 5 years |
| Immigration & Human Trafficking
| Netherlands | 18 months
|
| Immigration & Human Trafficking
| Netherlands | 18 months
|
| Immigration & Human Trafficking
| Netherlands | 18 months
|
| Immigration & Human Trafficking
| Netherlands | 18 months
|
| Immigration & Human Trafficking
| Netherlands | 18 months
|
| Immigration & Human Trafficking
| Netherlands | 16 months
|
| Other[16]
| Poland | 30 weeks
|
| Other | Germany
| 5 years |
2 Including triable-either-way offences. Back
3
In 2012, the conviction ratio for all offences was 83%, a decrease
of less than one percentage point on 2011. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/203958/criminal-justice-stats-dec-12.pdf Back
4
Analysis undertaken in conjunction with the NCA and the CPS. Back
5
Due to the way data is recorded, the conviction details of all
persons surrendered are not held centrally. The analysis has
been conducted only on the known conviction details. Back
6
According to NCA statistics, of the 507 people surrendered to
the UK, 277, or 54%, were UK nationals. Back
7
Some of the countries with a nationality bar to extradition would
have extradited an own national if they had an assurance that
they would be returned to serve sentence (such as the Netherlands).
The conviction details at Annex C includes Dutch nationals surrendered
from the Netherlands. For the purpose of this analysis we have
not relied on people extradited from Romania or Hungary as the
requirements are exceptional. Back
8
The UK asked other EU countries for this information, not
all countries have responded to this request for information and
there may be other countries to add to this list. Back
9
Italy has a constitutional bar, but it does not have effect if
the surrender of own nationals is provided for by the relevant
extradition arrangements [for example a particular bilateral treaty],
it is unclear what the position with the UK would be if extradition
was not governed by the EAW. Back
10
As with Italy, Ireland has a constitutional bar, but it does not
have effect if the surrender of own nationals is provided for
by the relevant extradition arrangements, it is unclear what the
position would be if extradition was not governed by the EAW. Back
11
In the cases of Campbell and Boson the UK courts
have found that prison conditions in Lithuania and Greece respectively
are not compliant with Article 3 of the ECHR. Back
12
8302/4/09. Back
13
In some incidences the original EAW referred to a more serious
crime than the person was finally convicted of. As far as possible,
the above reflects what the person was convicted of. Back
14
The NCA categorise the offences as above. The category "other"
is used for all crimes that do not fit into any other category. Back
15
In addition, under the ECE, extradition could be barred for own
nationals even if a reservation had not been entered, if there
is a constitutional bar in place. The following EU countries
still have a constitutional bar in place, which we believe could
prevent the extradition, to the UK, of their nationals if we no
longer operated the EAW. These are; Italy, Slovakia, Austria,
Belgium, Sweden, Finland, Latvia, Czech Republic and Ireland.
These countries were not included within the initial sample for
the purpose of this analysis. Back
16
The NCA categorise the offences as above. The category "other"
is used for all crimes that do not fit into any other category. Back
| 
