8 The UK's 2014 block opt-out decision
| Committee's assessment
| Politically important
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| Committee's decision
| Not cleared from scrutiny; further information requested
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| Document details
| Commission staff working document: Revised preliminary list of the former third pillar acquis
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| Legal base
| — |
| Department
| Home Office
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Summary and Committee's conclusions
8.1 This Commission staff working document
contains a list of police and criminal justice measures —
'the former third pillar acquis' — agreed before
the Lisbon Treaty entered into force on 1 December 2009. Its
purpose is to identify, as comprehensively as possible, the measures
which are subject to Article 10 of Protocol No. 36 on Transitional
Provisions, annexed to the EU Treaties. The Commission document
is significant for two reasons. First, it establishes the measures
which will be subject to the full jurisdiction of the Court of
Justice and the enforcement powers of the Commission. A minority
of Member States (including the UK) do not accept the Court's
full jurisdiction for EU police and criminal justice measures
agreed under the intergovernmental arrangements in place before
the Lisbon Treaty took effect. From 1 December 2014, following
the expiry of a five-year transitional period, all Member States
participating in these measures will be bound to do so. Second,
Article 10(4) of Protocol No. 36 contains a specific provision
authorising the UK to opt out en masse of all of these
pre-Lisbon measures. On 24 July 2013, the Prime Minister formally
notified the EU institutions that the UK had decided to exercise
its block opt-out. The list helps to clarify which measures will
cease to apply to the UK from 1 December 2014.
8.2 The Government has published its
own list of measures which it considers are subject to the UK's
block opt-out — the latest version is reproduced as an Annex
in the Government's response to our Report, The 2014 block
opt-out — engaging with Parliament.[29]
The Government's list, and the revised list produced by the Commission,
are both provisional. The actual number of measures subject to
Article 10 of Protocol No. 36 will continue evolve until the five-year
transitional period expires and the UK's block opt-out takes effect
on 1 December 2014. This is because pre-Lisbon police and criminal
justice measures which are amended, or repealed and replaced —
a process referred to as "Lisbonisation" — immediately
become subject to the full jurisdiction of the Court of Justice
and Commission enforcement powers once they take effect. As regards
the UK, pre-Lisbon police and criminal justice measures cease
to be subject to the block opt-out if the UK has opted into a
subsequent (post-Lisbon) amending or replacement measure.[30]
8.3 The Government informed Parliament
in July 2013 of its intention to seek to rejoin 35 measures which,
at that time, were subject to the block opt-out. These measures
are listed in Command Paper 8671. The Government gave an undertaking
to the House, last July, that it would not open formal discussions
with the Commission, Council and Member States on rejoining these
measures before the end of October 2013, the deadline agreed for
the submission of Reports by the European Scrutiny, Home Affairs
and Justice Committees.[31]
The Government's Responses to each Report were published in January
2014.[32] A further
Joint Report of the European Scrutiny, Home Affairs and Justice
Committees was published in March 2014 underlining the importance
of Parliament's role in scrutinising the Government's approach
to the 2014 block opt-out decision and calling for an early debate
and vote on the floor of the House on the measures the UK should
seek to rejoin before negotiations began. The Committees
considered that a debate and vote on a 'done-deal', once the negotiation
process had been completed, would be a very poor substitute.
8.4 We do not routinely scrutinise Commission
staff working documents, as many are technical in nature and have
little legal or political significance. We asked the Government
to deposit this Commission document for three reasons. First,
despite undertaking to "continue to engage with Parliament
as appropriate",[33]
the Government has not provided any formal update to Parliament
on the process or progress of negotiations on the measures that
it wishes to rejoin. Second, the Commission document has an obvious
bearing on negotiations on the UK's block opt-out to the extent
that it establishes which measure are within the scope of Article
10 of Protocol No. 36. It is the only such document, to our knowledge,
that is not marked limité. Its contents may therefore
be disclosed to Parliament. Whilst the Government is at liberty
to share other limité documents with us, subject
to strict handling rules, it has so far chosen not to do so.
Third, the document provides a useful commentary on measures which
have been 'Lisbonised' and, given the variable geometry that applies
to pre- and post-Lisbon measures, which Member States will continue
to be bound by them.
8.5 We have used as our basis for
comparison with the Commission list, the list published by the
Government in its Response to our Report, The 2014 block opt-out
— engaging with Parliament.[34]
The Minister refers in her Explanatory Memorandum to a revised
Government list produced in September 2013, after the publication
of Command Paper 8671. This has given rise to some discrepancies
in our analysis and that provided by the Minister, particularly
as regards the classification of some measures as Schengen or
non-Schengen. We ask the Minister to ensure that any further
changes to its own or the Commission's list are brought to our
attention promptly. We note her view that the Commission list
"is relevant to the UK only in relation to the measures that
the UK seeks to rejoin" but do not agree with it. It is
essential that Parliament is fully informed of all the measures
which will cease to apply to the UK with effect from 1 December
2014, as well as those that the Government intends to seek to
rejoin.
8.6 We do not understand the rationale
for the Minister's assertion that five Council Decisions concerning
the Schengen Information System should be included in the list
of measures subject to the block opt-out. Given that the Government
has made clear its intention to participate in the second generation
Schengen Information System (SIS II) and to rejoin the necessary
measures to enable it to do so, we accept that the fate of these
five measures has little practical significance. Nonetheless,
our understanding is that the UK does participate in these measures
— the Minister's Explanatory Memorandum suggests otherwise
— but that four of the five have been repealed and the fifth
is no longer valid now that SIS II is fully operational in those
Member States that participated in its predecessor, SIS 1+. We
invite the Minister to provide a clearer explanation of the status
of these Decisions.
8.7 We ask the Minister to confirm,
in terms, that other Member States accept that the Council Decisions
authorising the conclusion of Agreements with various third countries
on security procedures governing the exchange of classified information
are within the scope of the UK's block opt-out and that the Commission's
list will be revised accordingly. We also ask her to clarify
the scope of the UK's opt-out in relation to these measures, as
requested in our Report, The UK's block opt-out of pre-Lisbon
criminal law and policing measures, given that the
Agreements also concern the EU's Common Foreign and Security Policy
(CFSP).[35]
8.8 Finally, we again remind the
Government of its commitment to "continue to engage with
Parliament as appropriate" on the UK's block opt-out.[36]
The Government can be under no illusion as to the importance
that we — along with the Home Affairs and Justice Committees
— attach to this commitment. We understand that a political
agreement with the Commission and Council on the measures the
UK will formally seek to rejoin is within grasp. A Council press
release on the outcome of the General Affairs Council on 24 June
noted "the conclusion reached between the Commission and
the UK on the list of non-Schengen ex-third pillar measures which
the UK will seek to rejoin, as well as the solution concerning
the Prüm Decisions and the Probation Framework Decision,
as explained by the Commission and the UK." The press release
also noted "a broad technical agreement" on the Schengen
measures that the UK will seek to rejoin.
8.9 None of this information has
been communicated to us by the Government, despite being asked
in advance of the General Affairs Council to indicate whether
the UK's 2014 block opt-out decision would be discussed and to
share any relevant documents with us. We can only conclude that
the Government's commitment to engage with Parliament has been
denuded of meaningful content by the addition of "as appropriate".
We ask the Minister whether she considers that the absence of
any progress reports on negotiations, and our reliance on information
gleaned from press releases and the document databases of other
national parliaments,[37]
is an appropriate way for Government to engage with Parliament.
8.10 We are drawing our observations
to the attention of the Home Affairs and Justice Select Committees.
Meanwhile, pending the Minister's reply, the Commission staff
working document remains under scrutiny.
Full details of the
documents: Commission staff
working document: Revised preliminary list of the former third
pillar acquis: (36117), 9883/13, SWD(14) 166.
The Commission staff working document
8.11 The Commission list comprises 123
measures, 13 fewer than the list published by the Government in
June 2013.[38] Both
lists are divided into Schengen and non-Schengen measures. We
summarise the main differences between the two lists in the following
paragraphs.
Measures in the Commission list which are
not included in the UK list
8.12 The Commission list includes seven
measures which are not in the UK list:
· a Council Act of 10 March
1995 drawing up the Convention on simplified extradition procedures
between the Member States of the European Union;
· a Council Act of 27 September
1996 drawing up the Convention relating to extradition between
Member States of the European Union;
· a Council Act of 29 November
1996 drawing up the Protocol on the interpretation, by way of
preliminary rulings, by the Court of Justice of the Convention
on the protection of the European Communities' financial interests;
· Council Decision 2006/967/EC
on the signing of the Agreement between the European Union and
Iceland and Norway on the surrender procedure to be applied between
them;
· Council Decision 2009/820/CFSP
on the conclusion of an Agreement on extradition and an Agreement
on mutual legal assistance between the EU and the United States
of America;[39]
· Declaration of the Schengen
Executive Committee of 9 February 1998 on the abduction of minors
(SCH/Com-ex (97) decl. 13 rev 2); and
· Council Decision 2008/633/JHA
concerning law enforcement access to the Visa Information System.
8.13 As none of these measures are included
in the UK list, it follows that the Government does not propose
to rejoin any of them.
Measures in the UK list which are not included
in the Commission list
8.14 The UK list includes 16 measures
which are not in the Commission list:
· a Council Decision of 2 December
1999 amending a Council Act of 3 December 1998 laying down staff
regulations applicable to Europol employees;
· nine Council Decisions concerning
the conclusion of Agreements with third countries on security
procedures for the exchange of classified information;
· Council Decision 2004/849/EC
on the signing and provisional application of an Agreement between
the EU and Switzerland concerning its association with the Schengen
acquis; and
· five Council Decisions concerning
the introduction of new functions for the Schengen Information
System and other related matters.
8.15 The Government does not intend
to seek to rejoin any of these measures.
Different categorisation of measures
8.16 The distinction between Schengen
and non-Schengen measures is significant only as regards measures
that the UK wishes to rejoin, since it will determine the relevant
decision-making procedures. Schengen measures require the unanimous
agreement of the Council, whereas UK participation in non-Schengen
measures is determined by the Commission.
8.17 There are five measures which the
Government lists as non-Schengen and which the Commission considers
are wholly or partly Schengen measures. The Government intends
to seek to opt back into one of these measures, Council Framework
Decision 2008/977/JHA on the protection of personal data processed
in the framework of police and judicial cooperation in criminal
matters.
The Government's Explanatory Memorandum of 26
June 2014
8.18 The Minister for Modern Slavery
and Organised Crime (Karen Bradley) informs us that a 'Friends
of Presidency' Working Group was established in March 2014 to
discuss all matters linked to the end of the five-year transitional
period provided for in Article 10 of Protocol No. 36. The latest,
revised list published by the Commission takes account of comments
made by Member States on an earlier list setting out the measures
within the scope of Article 10 as well as recent legislative developments.
The Minister notes that the list has "indicative value only"
and may continue to change up until 1 December 2014. She continues:
"The list does not replace
the publication in the Official Journal of each relevant instrument
or the notification of adopted instruments, which are the only
authoritative formal sources of Union law. Ultimately, in case
of any dispute, only the Court of Justice will be able to determine
whether a measure is part of the relevant former third pillar
acquis."[40]
8.19 The Minister's Explanatory Memorandum
sets out the differences between the Commission list and a revised
list published by the Government in September 2013. The Minister
adds:
"It should be noted that, following
the Prime Minister's letter of 24 July 2013, the UK will cease
to be bound by all of the relevant third pillar acquis,
except where the UK seeks to rejoin measures under Article 10(5)
of Protocol 36, and the UK's participation is confirmed by Council
Decision (in relation to measures forming part of the Schengen
acquis) and Commission Decision (in relation to all other
relevant third pillar acquis). Therefore the Commission
list is relevant to the UK only in relation to the measures that
the UK seeks to rejoin. These are set out in Command Paper 8671."[41]
Measures in the Commission list which are not
included in the UK list
8.20 The Minister accepts that all seven
measures identified by the Commission are subject to Article 10
of Protocol No. 36. She notes that the 1995 and 1996 Extradition
Conventions (contained in the Council Acts of 10 March 1995 and
27 September 1996) have been superseded by the European Arrest
Warrant as between EU Member States, but that both Conventions
apply as between EU Member States and Iceland and Norway by virtue
of a Council Decision agreed in 2003.[42]
The Conventions will be replaced by a 2006 Agreement between
the EU, Iceland and Norway once it enters into force. Council
Decision 2006/697/EC authorised the EU to sign that Agreement
and it is expected to enter into force before 1 December 2014.
The UK has opted into a subsequent Council Decision authorising
the conclusion of the Agreement and will be bound by the Agreement
once it is in force.
8.21 The Minister notes that the Extradition
Agreement between the EU and the United States of America to which
Council Decision 2009/820/CFSP relates is included in the Government's
list, but accepts that a specific reference should be made to
the Council Decision.
8.22 The Council Act of 29 November
1996 concerns a Protocol to the Convention on the Protection of
the European Communities' financial interests. The Convention
and a further Protocol agreed in September 1996 are included in
the Government's list, and the Minister accepts that this Protocol
should also be listed. These instruments will be replaced by
a Directive on the fight against fraud to the EU's financial interests
by means of criminal law (the so-called 'PIF' Directive), once
adopted. The UK has not opted into the Directive.
8.23 The Minister explains that the
UK is excluded from taking part in Council Decision 2008/633/JHA
concerning law enforcement access to the Visa Information System
as it builds on elements of the Schengen acquis in which
the UK does not participate. She agrees that it should be included
in the Commission list, given its relevance for other Member States,
as should a 1998 Declaration of the Schengen Executive Committee
(now superseded by the Council) concerning child abduction.
Measures in the UK list which are not included
in the Commission list
8.24 The Minister considers that the
five Council Decisions concerning the Schengen Information System
should be included in the Commission list, even though the UK
does not participate in them, because they have only been repealed
for those Member States participating in the second generation
Schengen Information System (SIS II) that have already gone 'live'.
The UK is only scheduled to do so in October 2014, so the measures
remain extant for the UK until then.
8.25 Turning to the nine Council Decisions
concerning the conclusion of Agreements with third countries on
security procedures for the exchange of classified information,
the Minister considers that they contain justice and home affairs
elements and therefore fall within the scope of the UK's block
opt-out and also form part of the relevant pre-Lisbon, third Pillar
acquis for other Member States. Although one of the Agreements
concerns Croatia, now a member of the EU, the Minister notes that
it has not been formally repealed.
8.26 The Minister considers that the
1999 Council Decision concerning Europol staff regulations remains
relevant for Dutch employees and should be included in the Commission
list.
8.27 The Minister accepts that Council
Decision 2004/848/EC authorising the signing of an Agreement associating
Switzerland with the Schengen acquis, as well as a subsequent
Council Decision concluding the Agreement, are no longer within
the scope of the UK's block opt-out as they have been amended
by a further (post-Lisbon) Decision making provision for Liechtenstein
to accede to the Agreement.
Different categorisation of measures
8.28 The Minister accepts that two Framework
Decisions (2002/946/JHA on the facilitation of unauthorised entry,
transit and residence, and 2008/977/JHA on the protection of personal
data processed in the framework of police and criminal judicial
cooperation) and one Council Decision (2003/170/JHA on liaison
officers posted abroad) should be re-categorised as Schengen measures.
8.29 The Government's list of measures
includes Protocols on the Accession of Italy, Spain, Portugal,
Greece, Austria, Denmark, Finland and Sweden to the 1990 Schengen
Convention. The Commission list includes the Agreements of Accession
with each of these countries. The Minister notes that these Agreements
were based on a provision of the Schengen Convention which is
no longer operative, and adds:
"Further to discussions in
the Working Group, the Government considers the better view is
that these provisions are outside the scope of the block opt-out."[43]
8.30 The Minister also considers that
many of the Articles and declarations to the Accession Protocols
referenced in the Government's list concern provisions which have
been superseded.
Previous Committee Reports
None; but see Thirty-seventh Report
HC 798 (2012-13), 22 March 2013; Twenty-first Report HC 683 (2013-14),
7 November 2013; First Joint Report from the European Scrutiny,
Home Affairs and Justice Committees HC 1177, 26 March 2014.
29 First Special Report HC 289, The 2014 block opt-out
- engaging with Parliament: Government Response to the Committee's
Thirty-seventh Report of Session 2012-13, published on 18
June 2013. Back
30
The same is true if the UK has chosen not to opt out of a post-Lisbon
measure amending or replacing a pre-Lisbon Schengen measure. Back
31
See HC 683, 7 November 2013; HC 615, 31 October 2013; and HC 605,
31 October 2013. Back
32
See HC 978, 16 January 2014; HC 954, 10 January 2014; and HC 972,
16 January 2014. Back
33
See the Government's Response to our Report, The UK's block
opt-out of pre-Lisbon criminal law and policing measures,
HC 978, 16 January 2014. Back
34
HC 289, 18 June 2013. Back
35
See para 541 of HC 683, 7 November 2013. Back
36
See p.8, HC 978. Back
37
A number of limité documents pertaining to Article
10 of Protocol No. 36 are listed in the document database of the
Austrian Parliament. Back
38
See HC 289, Annex B. Back
39
This Council Decision is included as a sub-category of the Agreement
on extradition between the EU and the United States of America
in the Government's list published in June 2013 in its Response
to our Report, The 2014 block opt-out - engaging with Parliament,
HC 289. Back
40
See para 11 of the Minister's Explanatory Memorandum. Back
41
See para 13 of the Minister's Explanatory Memorandum. Back
42
Council Decision 2003/169/JHA - this Decision is included in the
Commission and Government lists. Back
43
See para 26 of the Minister's Explanatory Memorandum. Back
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