12 The UK's 2014 block opt-out decision
| Committee's assessment
| Legally and politically important |
| Committee's decision | Cleared from scrutiny; drawn to the attention of Home Affairs and Justice Select Committees
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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 | —
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| Department | Home Office
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| Document numbers | (36117), 9883/14, SWD(14) 166
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Summary and Committee's conclusions
12.1 This Commission staff working document contains
a list of EU 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 the measures which are subject to Article 10 of Protocol
No. 36 on Transitional Provisions, annexed to the EU Treaties.
Article 10 sets out transitional arrangements for EU police and
criminal justice measures adopted before the Lisbon Treaty entered
into force on 1 December 2009. From 1 December 2014, following
the expiry of a five-year transitional period, all Member States
participating in these measures will be bound to accept the full
jurisdiction of the Court of Justice and the enforcement powers
of the Commission. The Commission document establishes which measures
will be subject to these powers.
12.2 The UK has a right, set out in Article 10(4)
of Protocol No. 36, to opt out en masse of all of these
pre-Lisbon police and criminal justice 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 Commission
document also establishes which measures are subject to the UK's
block opt-out and will cease to apply to the UK from 1 December
2014.
12.3 Our earlier Reports provide detailed background
on the UK's 2014 block opt-out decision. They also highlight a
number of discrepancies in the list of measures included in the
Commission document and in the Government's own list of measures
subject to the UK's block opt-out which it made available to Parliament
in June 2013, and revised in September 2013. These principally
concern eight Council Decisions authorising the conclusion of
Agreements with various third countries on security procedures
governing the exchange of classified information (a ninth Council
Decision, concerning an Agreement with Croatia, has been superseded
following Croatia's accession to the EU on 1 July 2013). The Decisions
concern both justice and home affairs matters and the EU's Common
Foreign and Security Policy and have a dual legal base to reflect
their dual purpose.
12.4 The Government's view, which it says has not
been challenged by other Member States, is that the UK will cease
to be bound by the police and criminal justice elements of the
Decisions from 1 December 2014, whilst remaining bound by the
CFSP elements. The Government also notes that the Commission list
has "indicative value only" and that, in the event of
a dispute, it will be for the Court of Justice to determine whether
individual measures form part of 'the relevant former third pillar
acquis' for the purposes of Article 10 of Protocol 36.
12.5 In our Thirteenth Report, agreed on 15 October
2014, we asked the Minister for Modern Slavery and Organised Crime
(Karen Bradley) to clarify whether a definitive list of measures
subject to Article 10 of Protocol 36, accepted by the Commission
and all Member States, would be published by 1 December 2014,
adding that such a list was, in our view, essential to ensure
transparency in determining which measures would become subject
to the jurisdiction of the Court of Justice and Commission enforcement
powers from that date and which, in the UK's case, would cease
to apply to it.
12.6 We also suggested that the approach advocated
by the Minister — to treat the provisions of the Agreements,
to the extent that they concern police and criminal justice matters,
as severable — raised both legal and practical difficulties.
We noted, first, that the obligations contained in the Agreements
only bind the EU (the Council, the High Representative for Common
Foreign and Security Policy, the Council General Secretariat and
the Commission) and the relevant third country contracting party.
Unlike mixed agreements to which the EU and Member States are
parties, the UK is unable to assume the obligations contained
in the Agreements on the exchange of classified information in
its own capacity. We asked the Minister to explain how the police
and criminal justice elements of the Agreements could be treated
as severable without affecting the legal validity of the Agreements.
12.7 Second, we noted that the UK would continue
to participate in a significant number of EU police and criminal
justice measures after the block opt-out takes effect on 1 December
2014. We asked the Minister to explain how the UK's opt-out of
these Agreements would affect the exchange of classified information
between the EU and a third country contracting party relating
to measures, such as human trafficking, online child pornography,
and other forms of serious crime, in which the UK continued to
participate.
12.8 The Minister does not directly respond to
our questions concerning the possible legal and practical difficulties
flowing from the Government's position that the police and criminal
justice elements of the Agreements attached to the Council Decisions
are subject to the UK's block opt-out. She reiterates that the
Government's position "has not been questioned by other Member
States" and that it could only be formally challenged by
means of a referral to the Court of Justice. Whilst this may well
be the case, the fact that discrepancies remain in the list of
measures subject to the block opt-out drawn up respectively by
the Commission and the Government illustrates the degree of uncertainty
that remains as the 1 December 2014 deadline approaches, as well
as a lack of transparency as to the measures which will become
subject to the jurisdiction of the Court of Justice or, in the
UK's case, cease to apply to it. As the Minister indicates that
the Commission does intend to publish a revised list of measures,
we clear the Commission staff working document from scrutiny but
ask the Government to ensure that the revised list is deposited
for scrutiny.
12.9 We note that, with little more than a month
remaining before the UK's block opt-out takes effect, on 1 December
2014, the Government has yet to schedule a debate and vote on
the measures it intends to seek to rejoin. Moreover, on 26 September
the Commission published two draft Council Decisions based on
Article 10(4) of Protocol 36. The first determines the financial
consequences which the UK shall bear as a result of exercising
the block opt-out.[45]
The second sets out "consequential and transitional arrangements"
and includes provision for 35 of the measures subject to the block
opt-out to continue to apply to the UK until 7 December 2014.[46]
We have not yet received the Government's Explanatory Memoranda
on these draft Decisions, which were due on 16 October 2014. A
delay of nearly two weeks, given the imminence of the 1 December
deadline, is wholly unacceptable. The Government has repeatedly
expressed its commitment to engaging fully with Parliament and
rejected the criticisms that we and the Home Affairs and Justice
Committees have made regarding its failure to do so in a timely,
open and constructive manner. As we have stated previously, the
slow and unpredictable drip-feed of information to Parliament
is inimical to effective scrutiny. We ask the Minister to provide
a detailed explanation of the reasons for the delay in making
the Government's Explanatory Memoranda available to Parliament
before the end of this week, failing which we shall expect her
to do so in person before our Committee. We are drawing our observations
to the attention of the Home Affairs and Justice Select Committees.
Full details of the document:
Commission staff working document: Revised preliminary list
of the former third pillar acquis: (36117), 9883/14, SWD(14)
166.
Background
12.10 Our earlier Reports describe the content of
the Commission document and the Government's Explanatory Memorandum,
as well as the broader context concerning the UK's 2014 block
opt-out decision. More detailed information is available in the
Reports of the European Scrutiny, Home Affairs and Justice Committees.
All relevant Reports are listed at the end of this chapter.
The Minister's letter of 27 October 2014
12.11 The Minister (Karen Bradley) explains that
Member States were invited to comment on the Commission's provisional
list of measures scheduled to come within the jurisdiction of
the Court of Justice from 1 December 2014. She continues:
"The United Kingdom provided such comments,
as did other Member States. Although the Commission has not yet
confirmed a date for publishing a revised list of measures, it
has indicated its intention to do so. It is important to stress
once again, however, that the Commission's revised list would
not be definitive. Only the ECJ [Court of Justice of the European
Union] could make a final judgment on whether a measure applies
to a Member State."
12.12 Turning to the scope of the UK's block opt-out,
the Minister notes:
"The Government is clear that the opt-out
afforded to the UK by Protocol 36 applies to all pre-Lisbon measures
'in the field of police cooperation and judicial cooperation
in criminal matters' (see Article 10(1) of Protocol 36, my emphasis).
Therefore measures with joint legal bases are also subject to
the opt-out in relation to the police and criminal justice elements.
As was pointed out in my previous letter, this interpretation,
which could only be formally challenged by being referred to the
ECJ, has not been questioned by other Member States. The effect
of the Government's position is that only the limited jurisdiction
of the ECJ which applies in relation to the Common Foreign and
Security Policy (CFSP) can apply to the measures in so far as
they relate to the UK."
12.13 Finally, with regard to the exchange of information
with third countries, the Minister adds:
"The Government does not consider that its
decision to opt out of the police and criminal justice cooperation
elements of these third country agreements is an impediment to
the exchange of relevant information between the EU and third
countries. This decision does not affect the ability of UK authorities
to share data with third countries."
12.14 The Minister reiterates her commitment to engage
further with the Committee "on this important matter".
Previous Committee Reports
Thirteenth Report, HC 219-xiii (2014-15), chapter
23 (15 October 2014); Ninth Report HC 219-ix (2014-15), chapter
17 (3 September 2014); Fifth Report HC 219-v (2014-15), chapter
8 (2 July 2014). The following Reports are also relevant: Thirty-seventh
Report HC 798 (2012-13), 22 March 2013; Eighth Report HC 605 (2013-14),
31 October 2013; Ninth Report HC 615 (2013-14), 31 October 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 (2013-14), 26 March 2014.
45 (36368), 13680/14, COM(14) 595. Back
46
(36369), 13683/14 + ADD 1, COM(14) 596. Back
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