19 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 the Home Affairs and Justice Committees
|
| Document details | (a) Council Decision concerning the notification of the United Kingdom of its wish to take part in some of the provisions of the Schengen acquis which are contained in acts of the Union in the field of police cooperation and judicial cooperation in criminal matters and amending Decisions 2000/365/EC and 2004/926/EC
(b) Commission Decision on the notification by the United Kingdom of its wish to participate in acts of the Union in the field of police cooperation and judicial cooperation in criminal matters adopted before the entry into force of the Treaty of Lisbon and which are not part of the Schengen acquis
|
| Legal base | (a) Article 10(5) of Protocol No. 36 on Transitional Provisions and Article 4 of Protocol No. 19 on the Schengen acquis integrated into the framework of the European Union; unanimity
(b) Article 10(5) of Protocol No. 36 on Transitional Provisions, Article 4 of Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, and Article 331(1) TFEU
|
| Department
Document numbers
| (Both) Home Office
(a) (36549), —; (b) (36550), —
|
Summary and Committee's conclusions
19.1 On 1 December 2014, the UK ceased to be bound by a number
of EU police and criminal justice measures which were adopted
before the Lisbon Treaty took effect, on 1 December 2009. The
Prime Minister notified the Government's decision to opt out en
masse of these measures in July 2013, following a debate and
vote in both Houses of Parliament.
19.2 On 20 November 2014, the Prime Minister formally
notified the Council and Commission of the UK's wish to rejoin
35 of the measures subject to the block opt-out, with effect from
1 December 2014, following a further debate and vote in both Houses
of Parliament.[52] The
35 measures are listed in Command Paper 8897. They comprise six
Schengen measures and 29 non-Schengen measures. UK participation
in the Schengen measures requires the unanimous agreement of the
Council (including the UK). By contrast, UK participation in the
non-Schengen measures may be determined by the Commission alone,
provided it is satisfied that the UK has fulfilled the conditions
for participation.
19.3 The purpose of the Council and Commission Decisions
deposited for scrutiny is to confirm UK participation in the 35
measures. The Council Decision — document (a) — sets
out the provisions of the Schengen acquis which will continue
to apply to the UK from 1 December 2014, including the six pre-Lisbon
Schengen measures subject to the block opt-out which the UK has
chosen to rejoin. It does so by amending two earlier Council Decisions,
adopted in 2000 and 2004, determining which parts of that acquis
apply to the UK and when they take effect. The Commission Decision
— document (b) — confirms UK participation in the
remaining 29 non-Schengen measures listed in Command Paper 8897.
19.4 Both Decisions were adopted, and took effect,
on 1 December 2014. The Government submitted its Explanatory Memorandum
on document (a) on 4 December 2014. Its Explanatory Memorandum
on document (b) followed on 9 December. In addition, the Home
and Justice Secretaries wrote to us on 10 December confirming
that the necessary processes to enable the UK to rejoin the 35
EU police and criminal justice measures listed in Command Paper
8897, with effect on 1 December 2014, had been completed on time.
They also confirm that the Government has overridden our scrutiny
reserve on two Council Decisions — the first, adopted on
27 November 2014, establishing the financial consequences of the
UK's block opt-out decision and the second, adopted on 1 December
2014, confirming UK participation in six Schengen measures subject
to the block opt-out.
19.5 As we have made clear in previous correspondence
with the Home and Justice Secretaries, we can see no good reason
why Explanatory Memoranda could not have been submitted before
the 1 December 2014 deadline, even if official texts were not
available. Cabinet Office guidance on Parliamentary scrutiny of
EU documents specifically makes provision for such an eventuality.
19.6 The Government's mis-handling of the scrutiny
process has resulted in two avoidable scrutiny overrides, the
first concerning a Council Decision on the financial consequences
of the UK's block opt-out which we last considered on 3 December,
the second a Council Decision establishing which provisions of
the Schengen acquis will continue to bind the UK from 1
December 2014. We invite the Home and Justice Secretaries to give
oral evidence at the earliest opportunity to explain the Government's
failure to meet its Parliamentary scrutiny obligations in relation
to the 35 EU police and criminal justice measures which the UK
has now rejoined, as well as the Government's overall handling
of the block opt-out process.
19.7 The manner in which the Council has chosen
to confirm UK participation in the six Schengen measures subject
to the block opt-out could hardly be more obscure or less transparent.
We therefore welcome the publication in the C Series of the Official
Journal of consolidated versions of the amended 2000 and 2004
Council Decisions.[53]
The same Official Journal also includes a list of pre-Lisbon EU
police and criminal justice measures which ceased to apply to
the UK on 1 December 2014. As we have noted in earlier Reports,
there are discrepancies between the Commission list and the Government's
own list[54] which
appear not to have been resolved.[55]
We consider that a definitive list establishing the measures which
no longer apply to the UK is essential in the interests of transparency
and legal certainty. We expect the Home and Justice Secretaries
to explain how the Government intends to resolve the remaining
discrepancies at our evidence session.
19.8 As the Council and Commission Decisions deposited
for scrutiny were adopted and took effect on 1 December 2014,
we see no further purpose in retaining them under scrutiny. In
clearing them from scrutiny, we draw these instruments, and our
observations, to the attention of the Home Affairs and Justice
Select Committees.
Full details of
the documents: (a) Council
Decision concerning the notification of the United Kingdom of
Great Britain and Northern Ireland of its wish to take part in
some of the provisions of the Schengen acquis which are
contained in acts of the Union in the field of police cooperation
and judicial cooperation in criminal matters and amending Decisions
2000/365/EC and 2004/926/EC: (36549), —; (b) Commission
Decision on the notification by the United Kingdom of Great Britain
and Northern Ireland of its wish to participate in acts of the
Union in the field of police cooperation and judicial cooperation
in criminal matters adopted before the entry into force of the
Treaty of Lisbon and which are not part of the Schengen acquis:
(36550), —.
Background
19.9 With effect from 1 December 2014, the UK is
no longer bound by a number of pre-Lisbon EU police and criminal
justice measures. The precise number is unclear. According to
the Government, the UK has opted out of more than 100 measures.
A list published in the C Series (Information and Notices) of
the Official Journal on 1 December 2014 indicates that 75 measures
no longer apply to the UK.[56]
19.10 The UK's right to opt out of pre-Lisbon EU
police and criminal justice measures en masse is set out
in Protocol No. 36 on Transitional Provisions annexed to the EU
Treaties ("Protocol 36"). Article 10(4) of Protocol
36 contains provisions to address the legal, practical and financial
consequences of the UK's block opt-out decision. On 27 November,
the Council adopted two Decisions, one on financial consequences,
the other on consequential and transitional arrangements. Both
Decisions are binding on the UK, but the UK was only entitled
to vote on the Decision on financial consequences. Further information
on these Decisions is contained in our Nineteenth and Twenty-fourth
Reports, agreed on 5 November and 3 December 2014 and listed at
the end of this chapter. We asked the Government to explain how
the UK voted at the Council and whether it had overridden scrutiny.
19.11 Command Papers 8671 and 8897, published in
July 2013 and July 2014, indicated that, subject to a vote in
both Houses of Parliament, the Government considered that it would
be in the UK's national interest to rejoin 35 of the measures
which would otherwise cease to apply on 1 December 2014. The procedures
for doing so are set out in Article 10(5) of Protocol 36 which,
in turn refers to Protocol No. 19 on the Schengen acquis
integrated into the framework of the European Union for Schengen
measures, and to Protocol No. 21 on the position of the United
Kingdom in respect of the area of freedom, security and justice
for non-Schengen measures. Article 4 of Protocol No. 19 requires
UK participation in Schengen measures to be agreed by the Council
by unanimity. As regards non-Schengen measures, Article 4 of Protocol
No. 21 provides for the application of Article 331(1) of the Treaty
on the Functioning of the European Union (TFEU) under which the
Commission is entrusted with determining whether the UK has fulfilled
the necessary conditions for participation. These conditions stipulate
that the EU institutions and the UK shall:
"seek to re-establish the widest possible
measure of participation of the United Kingdom in the acquis
of the Union in the area of freedom, security and justice without
seriously affecting the practical operability of the various parts
thereof, while respecting their coherence."[57]
19.12 Further detailed information and analysis on
the UK's block opt-out decision, and the measures the Government
has now rejoined, is contained in the Reports listed at the end
of this chapter which we, and our colleagues on the Home Affairs
and Justice Committees in the Commons and the European Union Committee
in the Lords, have published over the last eighteen months.
The Council Decision — document (a)
19.13 The Council Decision amends earlier Council
Decisions adopted in 2000 and 2004 establishing the provisions
of the Schengen acquis which are applicable to the UK and
the date on which they take effect. The amendments delete provisions
which no longer apply to the UK and set out exhaustively which
provisions continue to apply from 1 December 2014. These include
the six Schengen measures subject to the UK's block opt-out which
the UK has rejoined.[58]
19.14 The UK was entitled to take part in the vote
(by unanimity) on this Council Decision.
The Commission Decision — document (b)
19.15 The Commission Decision confirms UK participation
in the 29 non-Schengen measures listed in Command Paper 8897 with
effect from 1 December 2014 — the list of measures is reproduced
in an Annex to the Decision.[59]
The Council has no formal role in the adoption of the Decision
and, accordingly, no vote took place.
The Government's Explanatory Memorandum of 4 December
2014 on the Council Decision — document (a)
19.16 The Minister for Modern Slavery and Organised
Crime (Karen Bradley) describes the outcome of the agreement reached
with the Commission and Council to rejoin "35 vital police
and criminal justice measures in the national interest".[60]
Her first Explanatory Memorandum deals with the six Schengen measures
the UK has rejoined.
19.17 The Minister explains that the Council Decision
amends the earlier 2000 and 2004 Council Decisions authorising
the UK to take part in some provisions of the Schengen acquis.
She continues:
"Amending these Decisions hereby permits
the UK to rejoin those elements now agreed with the Council and,
where appropriate, allows the existing legal text to remain untouched.
As the Schengen acquis has been built up in different layers
of successive legislation and as different parts of the Schengen
acquis have applied and continue to apply to Member States
and the associated EEA States and Switzerland in different ways
(for example in relation to mutual legal assistance and extradition)
references to the various successive layers have not been deleted
from the 2000 and 2004 Decisions so that they can continue to
have effect as necessary."[61]
19.18 The Minister notes that the Decision "simply
gives effect to the decision by the Government to rejoin the Schengen
elements of the package of 35 measures already endorsed by Parliament".[62]
She adds that some of the measures, including one Schengen measure
on the protection of personal data processed in the framework
of police and judicial cooperation in criminal measures, required
additional secondary legislation to ensure their full transposition
into UK law. This has been achieved by the Criminal Justice and
Data Protection (Protocol No. 36) Regulations 2014.
19.19 The Minister provides a brief description of
the purpose of each of the six pre-Lisbon Schengen measures which,
by virtue of the Council Decision, will continue to apply to the
UK:
"Council Framework Decision 2008/977/JHA
of 27 November 2008 on the protection of personal data processed
in the framework of police and judicial cooperation in criminal
matters.
"The purpose of the Framework Decision is
to establish a set of minimum standards of protection and an appropriate
level of security when Member States exchange personal data within
the framework of police and judicial cooperation in criminal matters.
It applies to 'competent authorities' when they process personal
data in order to prevent, investigate, detect or prosecute crime
or execute criminal penalties in cross-border cases. In the UK
this includes police, the National Crime Agency and many government
departments.
"Convention implementing the Schengen
Agreement of 1985: Article 39 to the extent that this provision
has not been replaced by Council Framework Decision 2006/960/JHA,
Article 40, Article 42 and 43 (to the extent that they relate
to Article 40), Article 44, Article 46, Article 47 (except (2)(c)
and (4)), Article 54, Article 55, Article 56, Article 57, Article
58, Articles 59 to 69 (to the extent necessary in relation to
the Associated EFTA States), Article 71, Article 72, Article 126,
Article 127, Article 128, Article 129, Article 130, and Final
Act - Declaration No. 3 (concerning Article 71(2))
"Council Decision 2000/586/JHA of 28
September 2000 establishing a procedure for amending Articles
40(4) and (5), 41(7) and 65(2) of the Convention implementing
the Schengen Agreement of 14 June 1985 on the gradual abolition
of checks at common borders
"Council Decision 2003/725/JHA of 2 October
2003 amending the provisions of Article 40(1) and (7) of the Convention
implementing the Schengen Agreement of 14 June 1985 on the gradual
abolition of checks at common borders
"The Schengen Convention (as amended by
two measures which are also listed) aims to tackle the threat
of cross-border crime by facilitating police cooperation and cross-border
surveillance. Article 40 allows UK law enforcement officers to
cooperate across borders in Schengen States.
"Council Decision 2007/533/JHA of 12
June 2007 on the establishment, operation and use of the second
generation Schengen Information System (SIS II)
"Commission Decision 2007/171/EC of 16
March 2007 laying down the network requirements for the Schengen
Information System
"SIS II is an EU database which allows Member
States to exchange alerts in relation to missing and wanted people
and objects. It will also become the primary means of transmitting
data about people wanted on Arrest Warrants. The UK will connect
to SIS II as soon as possible after 1 December 2014. Commission
Decision 2007/171/EC sets out specific and detailed technical
requirements on the development of SIS II."[63]
The Government's Explanatory Memorandum of 9 December
2014 on the Commission Decision — document (b)
19.20 In their joint Explanatory Memorandum, the
Minister for Modern Slavery and Organised Crime (Karen Bradley)
and the Parliamentary Under-Secretary of State at the Ministry
of Justice (Shailesh Vara) note that UK participation in the 29
non-Schengen measures subject to the block opt-out was determined
by the Commission. They add:
"Following completion of the requisite internal
processes the European Commission adopted this Decision on 1 December."[64]
19.21 The Commission Decision "simply gives
effect to the decision by the Government to rejoin the non-Schengen
elements of the package of 35 measures already endorsed by Parliament".[65]
Some measures, however, required additional secondary legislation
to complete their transposition into UK law. This was achieved
by the Criminal Justice and Data Protection (Protocol No. 36)
Regulations 2014 ("the Regulations").[66]
19.22 The Explanatory Memorandum provides a brief
summary of the policy implications of the 29 non-Schengen measures
which the UK has rejoined:
"Council Decision 2007/845/JHA concerning
cooperation between Asset Recovery Offices of the Member States
in the field of tracing and identification of proceeds from, or
property related to, crime
"This Council Decision obliges Member States
to set up or designate national Asset Recovery Offices (ARO) to
facilitate, through cooperation, the tracing and identification
of the proceeds of crime and other crime related assets by exchanging
information and best practice. Requests for information are regulated
by set time limits mandated by (the 'Swedish Initiative'). The
UK sent 277 requests for assistance to EU Member States through
the ARO network in 2012 alone, demonstrating its value as an effective
communication mechanism.
"Council Decision 2000/375/JHA to combat
child pornography on the internet
"The measure to combat child pornography
on the internet sets out how Member States should tackle online
child abuse images through the development of an appropriate law
enforcement response, close working with the internet industry,
and international cooperation. [The] Association of Chief Police
Officers (ACPO) supports the Government's decision to rejoin
the measure.
"Council Framework Decision 2006/783/JHA
on the application of the principle of mutual recognition to confiscation
orders
"The Confiscation Orders measure is to ensure
all Member States have effective rules governing the confiscation
of proceeds from crime, and that they can confiscate not only
property that is or which represents the proceeds of the crime
for which the individual has been convicted, but also other property
that is or represents the proceeds of other criminal activity
by the convicted individual.
"Council Decision 2009/917/JHA on the
use of information technology for customs purposes
"This Council Decision establishes a 'Customs
Information System' (CIS) and permits customs law enforcement
services in Member States to use these electronic information-sharing
services to assist each other in combating customs crimes, such
as smuggling of drugs, weapons and tobacco. CIS enables activity
under Naples II, which has assisted in a number of successful
HMRC investigations into cigarette and alcohol fraud, and an oil
laundering operation in 2011. These successes prevented over £120
million in potential revenue losses to the UK Exchequer.
"Council Decision 2000/641/JHA establishing
a secretariat for the joint supervisory data-protection bodies
set up by the Convention on the establishment of a European Police
Office (Europol Convention), the Convention on the Use of Information
Technology for Customs Purposes and the Convention implementing
the Schengen Agreement on the gradual abolition of checks at the
common borders (Schengen Convention)
"This measure establishes a single, independent
joint secretariat for the joint supervisory data protection bodies
set up under the Europol Convention (now Europol Council Decision),
the Convention on the Use of Information Technology for Customs
Purposes (now CIS) and the Schengen Convention.
"Council Framework Decision 2002/584/JHA
on the European Arrest Warrant and the surrender procedures between
Member States
"The purpose of the Arrest Warrant is to
speed up the extradition process between Member States, reducing
the potential for administrative delay under previous extradition
arrangements. The Arrest Warrant removed certain barriers to extradition
that existed under previous extradition arrangements (the 1957
Council of Europe Convention, or ECE) including the nationality
of those sought and applicable limitation periods, where the extradition
offence would be time-barred under the law of the requested State.
Under the ECE there are 13 countries with an absolute bar on extraditing
their own nationals to the UK and a further 9 who have made reservations
to that effect to the Convention. These include countries like
Spain, Slovakia, France, Germany, Greece and Latvia.
"Council Framework Decision 2009/315/JHA
on the organisation and content of the exchange of information
extracted from the criminal record between Member States and Council
Decision 2009/316/JHA on the establishment of the European Criminal
Records Information System (ECRIS) in application of Article 11
of Framework Decision 2009/315/JHA
"The two ECRIS measures require Member States
to inform each other about convictions of EU nationals in another
Member State and permit Member States to request the previous
convictions of individuals from the Member State of nationality.
In cases involving criminal proceedings, the requesting Member
State must provide any information held in national records. In
cases that are not criminal proceedings the requested Member State
need only provide the information if their national law allows.
The Regulations make provision to implement these measures, including
designating the Chief Constable of Hampshire, under whom the Association
of Chief Police Officers (ACPO) Criminal Records Office formally
operates, as the UK's central authority.
"Council Decision 2008/976/JHA on the
European Judicial Network
"The aim of the European Judicial Network
(EJN) is to improve judicial cooperation between Member States
at both the legal and practical level in order to combat serious
crime. The importance of the EJN has been highlighted by a number
of senior figures in the field of criminal justice including the
Rt Hon Frank Mulholland QC, the Lord Advocate.
"Council Decision 2002/187/JHA setting
up Eurojust with a view to reinforcing the fight against serious
crime, Council Decision 2009/426/JHA on the strengthening of Eurojust
and amending Decision 2002/187/JHA setting up Eurojust with a
view to reinforcing the fight against serious crime and Council
Decision 2003/659/JHA amending Decision 2002/187/JHA setting up
Eurojust with a view to reinforcing the fight against serious
crime
"Eurojust is mandated to "stimulate
and improve" co-ordination and co-operation between Member
States in cross-border criminal investigations and prosecutions.
This can involve advising on the requirements of different legal
systems, supporting the operation of mutual legal assistance (judicial
cooperation) arrangements, bringing together national authorities
in coordination meetings, and providing funding and technical
support to Joint Investigation Teams (JITs).
"Council Decision 2009/371/JHA establishing
the European Police Office (Europol), Council Decision 2009/934/JHA
adopting the implementing rules governing Europol's relations
with partners, including the exchange of personal data and classified
information, Council Decision 2009/936/JHA adopting the implementing
rules for Europol analysis work files and Council Decision 2009/968/JHA
adopting the rules on the confidentiality of Europol information
"The Europol Council Decision establishes
the European Police Office (the implementing measures in relation
to Europol which are also on the list are essential to the UK's
membership of Europol). Together, the measures aim to make Europe
safer through the provision of support and assistance to Member
States in the fight against organised crime and terrorism. Europol
has scope to participate in JITs, further supporting Member States
in ongoing criminal investigations. Operation Trivium III is a
recent example of the cooperation undertaken through Europol.
This operation saw 1,073 suspected criminals arrested in a joint
operation between international police teams. The figures showed
that foreign suspects were seized for crimes including rape, threats
to kill, serious assault and drugs offences following vital information
being shared across Europe.
"Council Framework Decision 2009/829/JHA
on the application, between Member States of the European Union,
of the principle of mutual recognition to decisions of supervision
measures as an alternative to provisional detention
"The European Supervision Order (ESO) enables
a suspect or defendant subject to a pre-trial non-custodial supervision
measure (such as supervised bail) in a Member State in which they
are not resident, to be supervised in their home, or other, Member
State until such time as their trial takes place. The Framework
Decision does not oblige Member States to release defendants on
bail or to seek supervision of bail conditions by another Member
State. If the court of the Member State in which the offence is
alleged to have been committed considers bail or some kind of
supervised bail is not appropriate, the defendant may be remanded
in custody or made subject to supervised bail in that Member State
pending trial according to national law.
"Joint Action 98/700/JHA concerning the
setting up of a European Image Archiving System (FADO)
"FADO is a computerised archive containing
images and textual information relating to falsified and authentic
identity documents such as passports, identity cards, visas, residence
permits and driving licences. It was devised and financed by the
EU. FADO is used daily by Border Force and other enforcement agencies.
"Council Decision 2000/642/JHA concerning
arrangements for cooperation between financial intelligence units
of Member States in respect of exchanging information
"This Decision is to enable the improved
disclosure and exchange of financial information between Member
States' Financial Investigation Units (FIUs) in combating money
laundering. The UK FIU routinely uses this service. It receives
about 30 requests per month from units in other Member States
and submits about 40 requests per month on behalf of UK law enforcement
agencies.
"Council Decision 2002/348/JHA concerning
security in connection with football matches with an international
dimension and Council Decision 2007/412/JHA amending Decision
2002/348/JHA concerning security in connection with football matches
with an international dimension
"These measures set up the National Football
Information Points to coordinate and facilitate international
police co-operation and information exchange in connection with
football matches with an international dimension. Every season
more than 100,000 football fans from the UK travel overseas to
watch club and international teams in European matches. Operational
experience has demonstrated that cooperation with countries not
subject to the measure, such as Russia and Ukraine, has been more
difficult than with countries that are in the measure. ACPO have
said that this measure is vital.
"Joint Action 97/827/JHA establishing
a mechanism for evaluating the application and implementation
at national level of international undertakings in the fight against
organized crime
"This instrument enables the operation of
the Working Party on General Matters including Evaluation (GENVAL).
GENVAL focuses on EU Member States' cooperation in countering
serious and organised crime. Some of the evaluations such as the
practical operation of the Arrest Warrant had some positive effects
in that the UK was able to push for proportionality to be a consideration.
"Council Framework Decision 2002/465/JHA
on joint investigation teams
"This Framework Decision aims to prevent
and combat crime (especially drug trafficking, people trafficking
and terrorism) by providing for closer cooperation between police
forces, customs authorities and other competent authorities in
Member States. The measure sets out a framework for the establishment
and operation of JITs between two or more Member States and sets
clear parameters for operational coordination. Operation Golf
is an example of a successful JIT. In the UK this resulted in
20 investigations, 126 arrests and 26 vulnerable children being
were taken into protective custody. 18 individuals were arrested
in Romania and prosecuted for trafficking 272 minors to the UK.
"Council Framework Decision 2005/214/JHA
on the application of the principle of mutual recognition to financial
penalties
"This Framework Decision requires Member
States to collect financial penalties (of over £55.31 or
€70) transferred by other Member States, as they would a
domestic financial penalty. The enforcing Member State that collects
the financial penalty can keep it (but compensation order monies
must be remitted back to the victim).
"Council Act of 18th December 1997 drawing
up the Convention on mutual assistance and cooperation between
customs administrations (Naples II)
"Naples II provides for customs co-operation
and mutual assistance between customs authorities. It allows the
disclosure of information for the purposes of the detection, prevention,
investigation and prosecution of crime. It is also the legal base
which allows for the sharing of information during Joint Customs
Operations with other Member States. The measure also provides
for "special forms of cöoperation" between customs
authorities such as surveillance, covert and joint investigations.
"Council Framework Decision 2008/909/JHA
on the application of the principle of mutual recognition to judgments
in criminal matters imposing custodial sentences or measures involving
deprivation of liberty for the purposes of their enforcement in
the European Union
"This measure provides for the compulsory
transfer of foreign national offenders between Member States without
the consent of the prisoner. It also restricts the circumstances
by which a Member State can refuse to accept back one of its nationals.
The measure enables non-British EU nationals held in prisons in
the UK to be returned to their country of nationality to serve
their sentences, and for British nationals held in other Member
States to be returned to serve their sentences in the UK.
"Council Framework Decision 2006/960/JHA
on simplifying the exchange of information and intelligence between
law enforcement authorities of the Member States of the European
Union
"This measure seeks to simplify the exchange
of information and intelligence between law enforcement authorities
in Member States for the purposes of conducting criminal investigations
or criminal intelligence operations. It provides a systemised
(standard form to be used) and time bound (eight hours) process
for the exchange of information between Member State's law enforcement
agencies. The Regulations transpose the measure into domestic
law. In 2011 there were 271 outbound requests made from AROs via
this Framework Decision and 53 inbound requests.
"Council Framework Decision 2008/675/JHA
on taking account of convictions in the Member States of the European
Union in the course of new criminal proceedings
"This Framework Decision requires courts
in the Member States to take account of a defendant's previous
convictions in any other Member State 'to the extent previous
national convictions are taken into account'.
"Council Framework Decision 2009/299/JHA
amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA,
2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural
rights of persons and fostering the application of the principle
of mutual recognition to decisions rendered in the absence of
the person concerned at the trial ('trials in absentia')
"There are several EU measures which deal
with the issue of judgments in absentia (decisions handed
down following a trial at which the person concerned did not appear
personally). These instruments deal with the recognition of decisions
handed down in absentia in different ways and require mutual
recognition of judgments. This Framework Decision aligns the criteria
and amends each of the relevant measures to ensure adequate safeguards
for the defendant. The Framework Decisions amended by this measure
which the Government has indicated it intends to seek to rejoin
are those concerning the Arrest Warrant, confiscation orders,
mutual recognition of financial penalties and prisoner transfers."[67]
Letter of 10 December 2014 from the Home and Justice
Secretaries
19.23 The Home and Justice Secretaries (Mrs Theresa
May and Chris Grayling respectively), write in response to a letter
we sent following our meeting on 26 November explaining that we
were not willing to be bounced into clearing from scrutiny draft
Council Decisions on the financial consequences of the UK's block
opt-out, and on transitional arrangements, given the Government's
delay in responding to questions we had raised at our meeting
on 5 November.[68]
19.24 The Home and Justice Secretaries confirm that
the processes required to ensure UK participation in the 35 EU
police and criminal justice measures listed in Command Paper 8897
were concluded on 1 December "without any issues". They
continue:
"We regret that your Committee was unable
to clear the draft Council Decisions on transitional arrangements
and financial consequences from scrutiny at your meeting of 26
November. Both Decisions were approved by other Member States
and adopted at the Transport, Telecommunications and Energy (TTE)
Council on 27 November. The UK did not have a vote on the Transitional
Decision, but voted in favour of the Financial Consequences Decision
in order to secure the deal we had reached with other Member States
and ensure that the package of measures could come into operation
as soon as possible.
"Separately, the Government also voted,
via the written procedure, to approve the adoption of the Schengen
Council Decision in order for it to enter into force on 1 December
without an operational gap occurring. This followed extensive
Parliamentary consideration of this matter in both Houses. Whilst
this involved a breach of the Scrutiny Reserve Resolution, this
technical Decision did no more than approve the UK's participation
in the Schengen measures that had already been endorsed by Parliament.
Given unanimity was required for the measure to pass the Government
had to vote in favour. This was necessary to avoid a legal vacuum
which could have arisen otherwise and to allow negotiations to
conclude. Although this document was not deposited with Parliament
within the normal timescales it has now been deposited and the
Government has provided an Explanatory Memoranda [sic] to accompany
the Decision.
"The Government did not receive a copy,
either finalised or in draft form, of the Commission Decision
approving the UK's application to rejoin the 29 non-Schengen measures
before it was adopted on 1 December and as a result we were unable
to provide a copy to Parliament. As expected this Decision contained
no more than a short provision approving the UK's application
to rejoin the 29 non-Schengen measures already agreed by both
Houses of Parliament and full details of all of these measures
are included in Command Paper 8897: Decision pursuant to Article
10(5) of Protocol 36 to the Treaty on the Functioning of the European
Union. There is no requirement for this document to undergo
formal scrutiny, or for it to be deposited in Parliament. Nevertheless,
the Government will provide it alongside an Explanatory Memorandum
for your Committee's consideration."
19.25 The Home and Justice Secretaries conclude:
"We are confident that the deal reached
is a good one for all parties and that the smaller package of
measures that we have rejoined will give our police and law enforcement
agencies vital and practical tools to tackle serious crimes and
keep our country safe."
Previous Committee Reports
None, but see the following Reports of the European
Scrutiny, Home Affairs and Justice Committees are 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); Seventeenth
Report HC 762 (2014-15), (4 November 2014); Nineteenth Report
HC 219-xviii (2014-15), chapter 2 (5 November 2014); Twenty-fourth
Report HC 219-xxiii (2014-15), chapter 14 (3 December 2014). See
also the following Reports of the European Union Committee in
the House of Lords: Thirteenth Report HL Paper 159 (2012-13),
(23 April 2013); Fifth Report HL Paper 69 (2013-14), (31 October
2013).
52 Two debates took place in the House of Commons.
The first, on 10 November 2014, was on a Government motion to
approve the draft Criminal Justice and Data Protection (Protocol
No. 36) Regulations 2014. The second, on 19 November 2014,
was on an Opposition motion to endorse the Government's formal
application to rejoin 35 EU justice and home affairs measures,
including the European Arrest Warrant. Back
53
See OJ No. C 430, 01.12.2014, pp.1-16. Back
54
See Annex A. Back
55
See: Sixteenth Report HC 219-xvi (2014-15), chapter 12 (29 October
2014), Thirteenth Report HC 219-xiii (2014-15), chapter 23 (15
October 2014), Ninth Report HC 219-ix (2014-15), chapter 17 (3
September 2014) and our Fifth Report HC 219-v (2014-15), chapter
8 (2 July 2014). Back
56
OJ No. C 430, 01.12.2014, pp.17-22. Back
57
Article 10(5) of Protocol No. 36. Back
58
Council Decision 2014/857/EU, OJ No. L 345, 01.12.2014, pp.1-5. Back
59
Commission Decision 2014/858/EU, OJ No. L 345, 01.12.2014, pp.6-9. Back
60
Para 3 of the Minister's Explanatory Memorandum on document (a). Back
61
Para 10 of the Minister's Explanatory Memorandum on document (a). Back
62
Para 17 of the Minister's Explanatory Memorandum on document (a). Back
63
Paras 18-20 of the Minister's Explanatory Memorandum on document
(a). Back
64
Para 8 of the Explanatory Memorandum on document (b). Back
65
Para 13 of the Explanatory Memorandum on document (b). Back
66
S.I. 2014/3141, as amended by The Criminal Justice and Data Protection
(Protocol No. 36) (Amendment) Regulations 2014 (S.I. 2014/3191). Back
67
Paras 14-35 of the Government's Explanatory Memorandum on document
(b). Back
68
Letter of 26 November 2014 from the Chair of the European Scrutiny
Committee to the Home and Justice Secretaries. Back
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