The UK's 2014 block opt-out
1. On 1 December 2014, the UK will cease to be bound
by around 110 EU police and criminal justice measures which are
subject to the UK's block opt-out.
At the same time, the Government proposes that the UK should
rejoin 35 of these measures which it considers to be in the UK's
national interest. Both Houses of Parliament have endorsed the
Government's decision to exercise the UK's block opt-out. The
debate and vote in the House of Commons took place on 15 July
2013. The Government has undertaken to hold a further debate
and vote on the 35 measures it proposes to rejoin:
"For the avoidance of doubt, we reaffirm our
commitment to hold a second vote in both Houses of Parliament
before making a formal application to rejoin any measures. We
continue to believe that in order for this debate to be as informed
as possible, it should be held after we have reached 'in principle'
agreement on those measures we will seek to rejoin."
2. Should the Government want to avoid a gap in the
application of these 35 measures to the UK, proceedings in Parliament
and the necessary decisions at EU level to confirm UK participation
in the 35 measures must be completed no later than 1 December
2014 or, in the event of delay, necessary transitional measures
would have to be agreed by that date.
3. The purpose of this Report is to inform the forthcoming
debate and vote in the House of Commons by providing a brief guide
to the block opt-out and an update on the latest developments
concerning the measures the Government proposes to seek to rejoin.
It is intended to complement the more detailed information and
analysis contained in our earlier Report, The UK's block opt-out
of pre-Lisbon criminal law and policing measures and in the
Reports produced by the Home Affairs and Justice Select Committees
concerning measures within their areas of responsibility. The
relevant Reports are listed in Annex 3.
4. There are two further Annexes to this Report.
The first consists of a timeline setting out the steps leading
up to the forthcoming debate and vote in Parliament. The second
provides a tabular overview of the 35 measures the Government
proposes to rejoin.
What is the block opt-out?
5. The block opt-out principally concerns the powers
of the Commission and the Court of Justice in relation to EU police
and criminal justice measures. From 1 December 2014, the Court
of Justice will exercise full jurisdiction over all EU
police and criminal justice measures, and national courts across
the EU will be able to seek preliminary rulings from the Court
on the validity or interpretation of a particular measure. Although
most Member States already
accept the Court's jurisdiction, a significant minority
including the UK does not. In addition, the Commission
will be able to bring infringement proceedings before the Court
and request a fine if Member States are deemed not to have implemented
the measures correctly.
6. The change in the powers of the Commission and
the Court of Justice are particularly significant for the UK.
Under transitional provisions agreed during the Lisbon Treaty
negotiations (set out in Protocol 36 to the EU Treaties), the
enhanced powers of the Court and the Commission only apply to
EU police and criminal justice measures amended or newly adopted
after that Treaty entered into force, on 1 December 2009,
but not to the 110-odd measures that pre-date the Treaty. The
UK is not bound by any post-Lisbon EU police and criminal
justice measures unless it chooses to opt in.
The Government therefore has the opportunity, in each case, to
weigh the advantages of participation against the risk of ceding
greater powers to the Commission or the Court. By contrast, pre-Lisbon
EU police and criminal justice measures were agreed by unanimity,
each Member State had a veto, none was required to accept the
jurisdiction of the Court, and the Commission lacked any direct
enforcement powers. It is these measures all still binding
on the UK which will be brought within the full jurisdiction
of the Court and subject to the Commission's enforcement powers
from 1 December 2014.
7. Successive British Governments have resisted the
extension of the powers of the Commission and Court in relation
to EU police and criminal justice measures. As a result, the
transitional provisions contained in Protocol 36 include a special
safeguard for the UK. Article 10(4) of the Protocol gives the
UK, alone, the right to decide to opt out en masse of all
pre-Lisbon EU police and criminal measures. The Prime Minister
formally notified the Council of the UK's decision to exercise
the block opt-out on 24 July 2013, following a debate and vote
in the House of Commons on 15 July. The block opt-out will take
effect on 1 December 2014. EU police and criminal justice measures
within the scope of the block opt-out will cease to apply to the
UK from that date.
Which measures are subject to
the block opt-out?
8. A number of significant and contentious police
and criminal justice measures are subject to the block opt-out.
They include the European Arrest Warrant and the European Supervision
Order, as well as measures creating EU Agencies responsible for
strengthening cross-border cooperation on, and coordination of,
policing (Europol) and judicial cooperation matters (Eurojust).
However, not all pre-Lisbon EU police and criminal justice measures
remain within the scope of the block opt-out. The right conferred
on the UK to opt out en masse of such measures does not
extend to those which have been amended or repealed and replaced
since the Lisbon Treaty took effect on 1 December 2009 by further
measures in which the UK has chosen to participate. For example,
in 2011 the UK opted into a draft Directive on attacks against
information systems which replaces a pre-Lisbon Framework Decision
agreed in 2005. The UK's decision to opt into the Directive,
and its subsequent adoption in August 2013, has removed the 2005
Framework Decision from the scope of the block opt-out. Moreover,
as the Directive is a post-Lisbon measure, all Member States participating
in it are bound to accept the enhanced powers of the Commission
and the Court of Justice. Member States are required to transpose
the Directive into their national laws by 4 September 2015. If
they fail to do so, the Commission may initiate infringement proceedings.
9. Negotiations on EU police and criminal justice
measures which will amend or repeal and replace pre-Lisbon measures
will continue up to 1 December 2014. Measures currently under
negotiation include draft Regulations on Europol (the European
Police Office) and Eurojust (the EU's judicial cooperation agency)
which, if adopted, will repeal a number of pre-Lisbon Council
Decisions. Although none of these negotiations are expected to
conclude before 1 December 2014, and so should not affect the
scope of the UK's block opt-out, they illustrate the difficulty
of ascertaining how many pre-Lisbon measures will, by then, remain
subject to the UK's block opt-out.
Even at this late stage, there remain differences between the
list of measures which the Government considers are subject to
the UK's block opt-out, and the Commission's list, which will
need to be resolved in order to ensure that there is complete
clarity as to the measures which will cease to apply to the UK
on 1 December 2014.
Opting back into individual measures
10. The UK's block opt-out is accompanied by a right,
"at any time afterwards", to seek to rejoin individual
measures that have ceased to apply to the UK on 1 December 2014.
The procedures for doing so are set out in Article 10(5) of Protocol
36 and depend on whether a measure is linked to the so-called
Schengen acquis the body of rules put in place
to maintain security within the borderless Schengen free movement
area. The UK maintains its own border controls and does not participate
in the Schengen free movement area, but has chosen to take part
in Schengen rules on cross-border police and criminal judicial
cooperation. The UK also intends to connect to the second generation
Schengen Information System SIS II a law enforcement database
containing 'real time' information on individuals wanted for extradition,
missing persons, and lost or stolen identity documents
by the end of 2014.
11. For Schengen measures, the Council has to agree
the UK's request to opt back in by unanimity. For non-Schengen
measures, the initial decision rests with the Commission. If,
however, the Commission considers that the UK has not fulfilled
the conditions for participating in the measures it wishes to
rejoin, the UK may refer the matter to the Council for a decision
by qualified majority. In both cases, the EU institutions and
the UK are required to "seek to establish the widest possible
measure of participation", whilst ensuring that selective
participation by the UK does not seriously affect the practical
operability of the various parts of the EU's justice and home
affairs acquis and that it respects the coherence of that
12. If the UK does opt back into measures which are
within the scope of its block opt-out, the EU Treaties as they
stand do not allow the UK a further opportunity to opt out of
13. Command Paper 8671, published in July 2013, included
a list of 35 measures five of them Schengen, the remaining
30 non-Schengen measures which the Government considered
would be in the UK's national interest to rejoin. According to
the Home Secretary, the 35 measures would:
"help us to cooperate with our European
neighbours to combat cross-border crime and keep our country safe."
14. She described the "vast majority" of
the 35 measures as:
"uncontroversial, and based on the very
sensible principle of 'cooperation not control'."
15. A similar, but not identical, list of 35 measures
was included in Command Paper 8897, published on 3 July 2014.
This revised list reflects the outcome of "detailed technical
level discussions with the Commission and Council" on the
measures the UK will seek to rejoin.
The outcome comprises 35 measures, of which 29 are non-Schengen
and 6 are Schengen measures. According to the Home and Justice
Secretaries, the Government, "backed by the clear views expressed
in Parliament", has been able to "resist many of the
changes demanded by the Commission and other Member States".
16. The following paragraphs describe the changes
made to the original list of 35 measures in Command Paper 8671
as a result of negotiations between the UK, Commission and Council.
The explanation for the changes (in italics after each measure)
draws on information provided by the Home and Justice Secretaries.
Changes to the list of measures
the UK will seek to rejoin
17. One measure has moved from the non-Schengen
to the Schengen list:
Framework Decision 2008/977/JHA on the protection of personal
data processed in the framework of police and judicial cooperation
in criminal matters.
18. In 2012, the UK decided not to opt out of a post-Lisbon
Directive that will, when adopted, replace this Framework Decision.
This new Directive will be decided by a qualified majority in
the Council and co-decision with the European Parliament.
19. Four measures have been removed from the
list. Two are no longer subject to the block opt-out as they
have been amended, or certain provisions replaced, by later measures
in which the UK has chosen to participate:
Framework Decision 2003/577/JHA on the execution within the EU
of orders freezing property or evidence: certain provisions
of the Framework Decision have been replaced by the Directive
on the European Investigation Order; and
Decision 2005/681/JHA establishing the European Police College
(CEPOL): the Council Decision was amended by a Regulation extablishing
a new location for CEPOL.
20. The remaining two measures removed from the list
are still subject to the block opt-out and will cease to apply
to the UK from 1 December 2014:
Decision 2002/494/JHA setting up a European network of contact
points in respect of persons responsible for genocide, crimes
against humanity and war crimes: the Government no longer intends
to rejoin the European Genocide Network but will, instead, seek
to rejoin the European Judicial Network (see below);
Decision 2008/617/JHA on the improvement of cooperation between
the special intervention units of Member States in crisis situations:
the Commission considers that this measure is linked to the
Prüm Decisions which the Government does not intend to rejoin
(at this stage).
21. Four measures have been added to the list
of measures the UK will seek to rejoin, three relating to Europol
and one to the European Judicial Network:
Decision 2008/976/JHA establishing the European Judicial Network:
the Government's decision to rejoin this measure has been influenced
by the submission of further evidence from the Lord Advocate,
the Crown Prosecution Service and other Member States on its operational
benefits in tackling crime;
Decision 2009/934/JHA on implementing rules governing Europol's
relations with partners, including the exchange of personal data
and classified information: the Government now accepts that rejoining
this Europol measure, and the two below, is necessary to continue
UK participation in Europol;
Decision 2009/936/JHA on implementing rules for Europol analysis
work files; and
Decision 2009/968/JHA adopting rules on the confidentiality of
22. As a result of these changes, the UK will seek
to rejoin 29 non-Schengen measures, one fewer than listed
in Command Paper 8671.
23. One measure has moved from the non-Schengen
to the Schengen list:
Framework Decision 2008/977/JHA on the protection of personal
data processed in the framework of police and judicial cooperation
in criminal matters.
24. One measure has been removed from the
list and will be subject to the UK's block opt-out:
(98)52 Handbook on cross-border police cooperation: this
measure is now considered to be obsolete.
25. One measure has been added to the list:
Decision 2007/171/EC laying down the network requirements for
the second generation Schengen Information System: this measure
is considered by other Member States to be integral to the operation
of SIS II.
26. Another change, not reflected in the total number
of Schengen measures the UK will seek to rejoin, concerns UK participation
in the Schengen Implementing Convention. Three provisions have
been removed (Articles 48, 49(b)-(f) and 51 concerning
mutual assistance in criminal matters) and eleven added
(Articles 59-66 on extradition, and Articles 67-69 on the transfer
of the enforcement of criminal judgments, but only 'to the extent
necessary in relation to the associated EFTA States' Iceland,
Norway, Switzerland and Liechtenstein).
27. As a result of these changes, the UK will seek
to rejoin 6 Schengen measures, one more than listed in
Command Paper 8671.
How significant are the changes
to the measures the Government proposes to rejoin?
28. Taken as a whole, the changes do not appear to
affect the overall balance of the package of measures that the
Government proposes to rejoin. Some changes are a consequence
of measures ceasing to be subject to the block opt-out; others,
such as the additional measures relating to Europol or SIS II,
are ancillary to the Government's decision to participate in Europol
and SIS II and may therefore be regarded as necessary on grounds
of coherence and practical operability.
29. The total number of measures the Government proposes
to rejoin has remained constant, at 35. This net figure should,
however, be viewed within a broader context. First, there has
been a gradual reduction in the number of measures subject to
the block opt-out during the period in which negotiations between
the UK and the Commission and Council have been taking place,
without a corresponding reduction in the number the Government
proposes to rejoin.
30. Second, the Home Secretary has indicated that
the Commission and other Member States were keen for the UK to
rejoin three additional measures: two so-called "Prüm"
Decisions concerning cross-border cooperation on serious crime
and terrorism, and a Framework Decision on probation.
During the general debate on the UK's block opt-out on 10 July
2014, the Home Secretary explained that the UK would not rejoin
Prüm on 1 December 2014, but added:
"In order for the House to consider the
matter carefully, the Government will produce a business and implementation
case and run a small-scale pilot with all the necessary safeguards
in place. We will publish that by way of a Command Paper and
bring the issue back to Parliament so that it can be debated in
an informed way. We are working towards doing so by the end of
next year. However, the decision on whether to rejoin Prüm
would be one for Parliament."
31. As regards the Framework Decision on probation,
the Justice Secretary informed the House:
"We have indicated to the Commission [
that we will take another look at the measure when there is enough
evidence of it working and of its impacts to see whether there
would be benefits to the UK in taking part. To support that decision,
we will publish for Parliament an assessment of the potential
impacts. Clearly, we will not agree to join this or any further
JHA measure unless it is in our national interest to do so."
32. The timescales foreseen for reviewing the case
for UK participation in these three measures suggest that the
final decision will be for the next Parliament.
33. Command Paper 8897 includes 22 Impact Assessments
covering the 35 measures the Government proposes to rejoin. Their
purpose is to:
"present the evidence base supporting the
rationale for intervention and estimate the likely costs and benefits."
34. The Impact Assessments assume that the UK will
have implemented, and be fully compliant with, all of the 35 measures
by 1 December 2014 but recognise, in some cases, a degree of "policy
uncertainty about the level of implementation" in other Member
States that could affect the calculation of costs and benefits.
35. We have considered the internal consistency of
the Impact Assessments in light of preparatory work undertaken
by the House of Commons Scrutiny Unit. To help inform the forthcoming
debate and vote on the 35 measures the Government proposes to
rejoin, we have found examples which we consider give rise to
the questions and comments highlighted in bold italics below.
WOULD OPTING BACK INTO CERTAIN MEASURES
MAKE A SIGNIFICANT PRACTICAL DIFFERENCE FOR THE UK?
36. The evidence contained in some Impact Assessments
does not demonstrate that opting back in to a particular measure
would make a significant practical difference for the UK.
Combating child pornography on the internet
Council Decision 2000/375/JHA
The Impact Assessment states that the UK already
complies with the Council Decision and would continue to
do so even if it were not to opt back into the measure. The UK's
existing legislation and law enforcement capability are used both
for EU and non-EU work. There is little evidence in the
Impact Assessment to demonstrate that the Council Decision significantly
enhances the UK's law enforcement capability. The Impact Assessment
suggests that the measure may help to ensure that UK intelligence
made available to other Member States is acted on more quickly.
However, in Command Paper 8671, published in July 2013,
the Government said this of the scenario in which the UK were
to decide not to opt back into the Council Decision:
There is a risk that it might reduce our influence
with other Member States on improving their work in this area,
however, it is unlikely that the efforts of other countries would
be reduced as a result.
The instrument provides a framework for cooperation
but allows this to occur through other channels (for example,
Mutual Legal Assistance and Joint Investigation Teams). This
is foreseen in Article 2 of the measure. If we did not participate
in this measure, we could continue to work with a wide range of
international partners to tackle this problem through these cooperation
Organised crime Joint Action 97/827/JHA
The Impact Assessment notes that, if the UK were
to opt out of the Joint Action, it would no longer be able to
take part in peer evaluation exercises which enable Member States
to identify capability gaps in tackling international organised
crime. The UK could continue to participate in working group
meetings to discuss the content of evaluation reports, but would
have reduced powers to influence the drafting process and the
final report. The Impact Assessment cites a number of non-monetised
benefits resulting from UK involvement in the formal peer evaluation
process, such as advancing the case for proportionality to be
considered in the practical operation of European Arrest Warrant.
Given that continuing participation in working groups would
be possible if the UK were to opt out, it is not self-evident
that opting back into the Joint Action is necessary to obtain
CAN THE BENEFITS OF UK PARTICIPATION
BE READILY AND RELIABLY QUANTIFIED?
37. In cases where the benefits of opting back
into a measure cannot be easily quantified, the Impact Assessments
rely on an assertion that the non-monetised benefits of participation
outweigh the quantified costs (which are often relatively small).
Analysis could be improved by giving more examples of how a particular
measure has been of benefit to the UK.
European Image Archiving System (FADO)
Joint Action 98/700/JHA
The Impact Assessment suggests that the costs of
running FADO an online system for identifying false and
authentic documents are modest. If the UK were to opt
out of FADO, Government departments and agencies would only be
able to access the PRADO system, which has limited information
on authentic documents and none on false documents. The
Government's view that the non-monetised benefits of participation
in FADO through increased detection of false documents
and identity fraud outweigh the relatively small costs
involved appears reasonable. However, the Impact Assessment makes
clear that there is "insufficient evidence to determine the
extent of additional detection due solely to FADO".
This is because FADO activities are not logged separately by
officers in the UK's National Document Fraud Unit but are incorporated
into day to day work. Practical examples of FADO's contribution
to the detection of identify fraud would have helped to make a
more convincing case for continuing UK participation.
Moreover, the Impact Assessment does not consider the possibility
of negotiating alternative access arrangements to the FADO system.
HAS EQUAL WEIGHT BEEN GIVEN TO THE
BENEFITS AND DRAWBACKS OF UK PARTICIPATION?
38. Some Impact Assessments provide robust
examples to demonstrate the benefits of participation in a particular
measure, but fail to give equal prominence to the negative effects
for some individuals.
European Arrest Warrant (EAW) Framework
The Impact Assessment states that the EAW provides
a system for the surrender by one Member State to another of individuals
sought for a criminal trial or service of a custodial sentence.
It explains how the EAW has made it easier to bring serious criminals
to justice, such as Hussain Osman (the failed 21/7 bomber) who
fled to Italy and was returned to the UK within 56 days. The
Government does not, however, include in its assessment of non-monetised
costs the detriment caused to British citizens who have been surrendered
to another Member State under the EAW and, in some cases, detained
for lengthy periods of time in poor prison conditions, without
being tried or convicted. Moreover, of the 5,184 individuals
arrested in the UK on the basis of an EAW between April 2009 and
April 2013, the Impact Assessment provides no information on the
number who were sent for trial and convicted.
WOULD UK PARTICIPATION ENSURE RECIPROCAL
BENEFITS AND BURDENS FOR THE UK AND OTHER MEMBER STATES?
39. Rejoining some measures does not appear
to ensure reciprocal benefits and burdens for the UK and other
Member States the UK may be giving proportionately more
assistance to other Member States than it receives in return.
In such cases, analysis in the Impact Assessment could be improved
by providing some explanation for the disparity.
Eurojust Council Decisions 2002/187/JHA,
2003/659/JHA and 2009/426/JHA
The Impact Assessment shows that, in 2013, Eurojust
requested assistance from UK authorities in 186 cases, whereas
the UK requested assistance from Eurojust in 97 cases. The UK
desk is currently working on 349 live operational cases formally
"opened" at Eurojust, most of these (256) at the instigation
of other Member States rather than the UK (93 cases). This pattern
holds true for previous years. The Impact Assessment provides
no explanation of the reasons for the disparity in the number
of requests handled by the UK. Nor does it indicate whether any
other Member States experience a similar imbalance.
European Arrest Warrant (EAW) Framework
The Impact Assessment states that the number of people
arrested in the UK under an EAW issued by another Member State
far exceeds the number of people arrested in other Member States
under an EAW issued by the UK. Between April 2009 and April 2013,
5,184 people were arrested in the UK under an EAW and 4,005 were
surrendered to another EU country. The vast majority of surrenders
95.5% concerned foreign nationals. In the same
period, 573 people were arrested elsewhere in the EU following
an EAW issued by the UK and 507 were surrendered to the UK. Most
of those surrendered to the UK 54% were UK nationals.
The Impact Assessment suggests that the introduction of a new
proportionality test in domestic legislation, as well as additional
safeguards, may lead to a reduction in the number of surrenders
from the UK for relatively minor offences. More detailed
information on the proportion of EAWs issued by the UK and other
Member States that lead to arrests, surrenders, prosecutions and
convictions (or service of a sentence previously imposed) would
be useful in assessing how effective different jurisdictions are
in enforcing EAWs.
Also useful to an evaluation of the costs and
benefits of the EAW would be an assessment of the number of extraditions
from the UK likely to have been blocked by the new provisions
in UK legislation implementing the EAW, had those provisions existed
at the relevant time. However, the Government has indicated,
in answer to a written Parliamentary question, that no such assessment
has taken place, at least with regard to the proportionality test,
saying that this is only intended to stop extradition "in
the most minor cases".
IS THERE SUFFICIENT PRACTICAL EXPERIENCE
TO DEMONSTRATE THAT PARTICIPATION IN A MEASURE WILL BE BENEFICIAL
FOR THE UK?
40. Some Impact Assessments show that the UK
and/or other Member States have not fully implemented a particular
measure so there is very little tangible or practical evidence
to indicate how it will operate or how effective it will be in
the UK. In such cases, evidence and risks may be based on optimistic
assumptions. The Impact Assessments could have included more
robust analysis of the risks involved in remaining bound by such
measures, as well as the impact on the projected costs and benefits
for the UK of partial or non-compliance by other Member States.
Transfer of Prisoners Framework Decision
Although the UK has implemented the Framework Decision,
the Impact Assessment notes that there is "policy uncertainty
about the level of implementation" in other Member States.
It also highlights operational or capacity constraints in some
Member States which might make it difficult for them to implement
the measure effectively, creating delays in the process for transferring
foreign national offenders from the UK to their home country.
Delays and costs may be compounded by an increase in the number
of appeals against transfer on human rights grounds, particularly
if the transfer is to a Member State with poor prison conditions.
The Government describes the principal monetised benefit of the
Framework Decision in terms of saving prison places, adding that
the UK's prison estate could be significantly overhauled if sufficient
outward transfers are achieved and sustained.
It calculates that the benefit from being able to send prisoners
back to their home country without their consent would be greater
than the combined costs arising from appeals, deportation, and
the reception of returning British national offenders. It
is not evident that a positive net impact on the scale envisaged
by the Government is achievable, given the degree of uncertainty
about the level of implementation of the measure across the EU
and the extent to which prisoners will be able to frustrate their
transfer using challenges based on EU law.
European Supervision Order Framework Decision
The Impact Assessment assumes that the UK and all
other Member States will have implemented the European Supervision
Order (ESO) by the beginning of 2015, whilst at the same time
acknowledging "policy uncertainty about the level of implementation".
Given this uncertainty in assessing the overall net benefits
of the Framework Decision for the UK, the Government has applied
various "sensitivity tests". These are intended to
ensure that the Impact Assessment is based on a realistic set
of assumptions which take account of variations in the volume
of suspects at home and abroad who are eligible (and apply) for
an ESO, as well as costs associated with imprisonment, bail and
absconding opportunities. Significantly, the Impact Assessment
states that there is "no operative experience to guide the
No consideration appears to have been given to the possibility
that suspects awaiting trial in the UK might be at greater risk
of absconding if they are allowed to serve their bail conditions
in another Member State, or that police authorities in a foreign
jurisdiction may not have such strong incentives to supervise
Mutual Recognition of Confiscation Orders
Framework Decision 2006/783/JHA
The Impact Assessment describes the Framework Decision
as "a radical measure that attempts to harmonise Member States'
approaches to confiscation so that they can interact easily with
Although the Government says that the Framework Decision "puts
in place a simplified, effective and quicker approach to confiscating
the proceeds of crime in another Member State", it acknowledges
that the UK has not used the measure at all, relying instead on
provisions contained in the Proceeds of Crime Act 2002. Given
the lack of operational experience in applying the Framework Decision,
and uncertainty as to the volume of incoming and outgoing requests
for enforcement of confiscation orders, there is little evidence
in the Impact Assessment to support the Government's assertion
that UK participation will result in the confiscation of more
The Impact Assessment explains that the Framework
Decision requires criminal assets exceeding 10,000 to be
divided equally between the Member State issuing the confiscation
order and the Member State executing it. This contrasts with
current practice whereby all of the criminal assets are retained
by the Member State executing the confiscation order. The
Impact Assessment suggests that this loss of revenue will be off-set
by an increase in the volume of criminal assets confiscated under
the Framework Decision, but the evidence base to substantiate
this claim is lacking. The Impact Assessment does not address
the risk that a smaller share of the criminal assets may also
reduce the incentive for the executing Member State to enforce
a confiscation order, or the possibility that the UK may end up
returning 50% of confiscating proceeds to other Member States
without obtaining similar cooperation or benefits in return.
HAVE ALTERNATIVE FORMS OF COOPERATION
41. Little consideration has been given in
the Government's Impact Assessments to the possibility of establishing
alternative forms of cooperation, whether or not legally binding,
even though these were envisaged in Command Paper 8671, published
in July 2013.
42. Command Paper 8671 stated that if the UK were
to exercise the block opt-out, "cooperation with other Member
States could take a number of forms" and that "in some
cases it may be possible to negotiate bilateral treaties with
each Member State or with the EU that would effectively replace
the [EU] instrument in question".
43. The Government went on to explain:
"The position of the other Member States
depends on whether the EU has exclusive competence in that area.
That requires a measure by measure analysis.
"If there is no exclusive competence in
relation to third pillar measures, the other Member States will
not require any permission or authorisation from the EU institutions.
If there is exclusive competence in a particular third pillar
area, while the UK is free to enter into international commitments
after the block opt-out, the other Member States will require
authorisation and agreement from the EU. But in principle, bilateral
or multilateral agreements either with the Member States
individually or collectively would be legally possible
with such authorisation."
44. The Government added:
"In some cases there may simply be no need
for any such agreement to be in place in order for there to be
45. The position of the European Commission was explained
by the Government in its response to a written question on 9 September
The Commission has been clear during negotiations
that a bilateral treaty between the UK and the EU on any matters
falling within the scope of the block opt-out is not feasible.
46. Given the Government's legal analysis in
its July 2013 Command Paper and the precedent set by Denmark,
this appears to be more of a political rather than a legal objection
on the Commission's part. A new College of Commissioners is about
to take office, with its President stating: "I
will work for a fair deal with Britain.
A deal that
accepts the specificities of the UK in the EU, while allowing
the Eurozone to integrate further" (http://juncker.epp.eu/my-priorities).
Given this, the Government need not have abandoned the option
of a bilateral UK-EU treaty.
European Arrest Warrant (EAW) - Framework Decision
The Impact Assessment only assesses the effect
of relying on the 1957 European Convention on Extradition if the
UK does not opt back in to the EAW. It does not examine
the option of a new UK-EU treaty on extradition, which could omit
some of the bars to extradition that exist under the 1957 Convention
but include much better safeguards for British citizens than the
EAW, such as only requiring extradition for truly serious offences,
allowing greater or complete scope for extradition to be blocked
where the alleged offence is not a crime under UK law, and allowing
British courts to conduct an assessment of the likelihood of a
fair trial within a reasonable timeframe in the requesting EU
country without the EU Court of Justice able to override their
Policing international football matches - Decision
2002/348/JHA as amended by Decision 2007/412/JHA
The Impact Assessment says that not opting back
in to this EU legislation establishing a network of 'National
Football Information Points' (NFIPs), one in each Member State,
would risk the exchange of information between the UK and other
Member States relevant to the policing of football matches with
an international dimension. However, there is no evidence
that the Government has assessed the possibility of the UK remaining
outside this EU legislation but maintaining its NFIP and continuing
to exchange relevant information with the NFIPs of other Member
States, under memoranda of understanding if a more structured
process is required. This would avoid the possibility of EU Court
of Justice intervention in how these football matches are policed
in the UK, which would arise if the UK opts back in to this EU
HOW VALID IS THE GOVERNMENT'S ASSUMPTION
THAT THE UK'S CONTRIBUTION TO THE EU BUDGET COULD NOT BE REDUCED
IF THE UK WERE TO OPT OUT OF CERTAIN MEASURES?
47. Some Impact Assessments make the assumption
that the UK's contribution to the EU budget would not change even
if the UK were to opt-out of the measures concerned. This makes
the costs of opting out, as well as the relative benefits of opting
back in, greater than would have been the case if a decision to
opt out was accompanied by a commensurate reduction in the UK's
contribution to the EU budget.
Europol Council Decisions 2009/371/JHA,
2009/934/JHA, 2009/936/JHA and 2009/968/JHA
The Impact Assessment assumes that the UK will have
to pay £8.4m per annum on Europol membership up until 2020
as part of the commitments agreed for the EU budget for 2014-20,
regardless of whether or not the UK opts back into the Europol
Eurojust Council Decisions 2002/187/JHA,
2003/659/JHA and 2009/426/JHA
Similarly, the Impact Assessment states that Eurojust
receives funding from the EU general budget to which the UK contributes
and that "legal advice is that non-participation in this
measure will not lead to a return of funds from the EU general
budget. It is assumed that the UK funding of this measure will
continue whether the UK seeks to rejoin or not".
Neither Impact Assessment indicates whether
the Government has sought to question the assumption that it would
be unable to negotiate a reduction in its contribution to the
EU budget if the UK were to opt out. For instance, Protocol No.
21 to the EU Treaties on the position of the UK and Ireland in
respect of the area of freedom, security and justice provides
that the UK does not typically bear any financial consequences
of EU justice and home affairs measures it does not opt into,
other than "administrative costs entailed for the [EU] institutions".
Nor do the Impact Assessments consider how securing a budget
reduction would affect the calculation of the costs and benefits
of UK participation in the measures.
ARE THE BENEFITS TO THE UK DEPENDENT
ON OPTING INTO OTHER MEASURES?
48. Some of the benefits referred to in the
Impact Assessments are largely derived from UK participation in
other related measures.
Organised crime Joint Action 97/827/JHA
One of the non-monetised benefits of participating
in the Joint Action is to provide a forum in which the UK has
been able to advance the case for proportionality to be considered
when deciding whether or not to issue a European Arrest Warrant
(EAW). The significance of this benefit would be greatly
reduced if the UK were to opt out of the EAW.
European Judicial Network Council Decision
The principal monetised benefit of participating
in the European Judicial Network (EJN) is that funding to attend
meetings is provided by Eurojust. If the UK were to opt
out of Eurojust, continuing participation in the EJN would depend
exclusively on non-monetised benefits, such as closer legal and
judicial cooperation between Member States.
33. During the last 18 months, the European Scrutiny,
Home Affairs and Justice Committees in the House of Commons, and
the EU Select Committee in the House of Lords, have produced a
series of Reports to inform Members of both Houses of the legally
complex and politically contentious issues associated with the
UK's 2014 block opt-out decision. All of the Committees have
been united in a common endeavour: to scrutinise the Government's
approach and to place as much information as possible in the public
domain. It has, at times, been an uphill battle due to delays
and omissions in the Government's provision of information.
34. As we made clear in our earlier Report, The
2014 block opt-out: engaging with Parliament, the Government's
decision on the block opt-out, and on the measures it proposes
to rejoin, will have potentially far-reaching implications.
It will affect how and where policies and laws on these matters
are formulated, interpreted and enforced. It will affect UK citizens
who may be sought for, or involved in, criminal proceedings in
another EU Member State and how suspects who have fled abroad
are brought to justice in the UK. Above all, it will affect the
way in which the Government seeks to ensure public safety and
security while protecting its citizens' freedoms.
49. We concluded in our subsequent Report, The
UK's block opt-out of pre-Lisbon criminal law and policing measures:
"A significant number of the measures which
the Government does not intend to rejoin, such as those establishing
cross-border contact points, networks, directories, or non-binding
forms of guidance or peer evaluation, are those least likely to
be susceptible to infraction proceedings or to adverse rulings
by the Court of Justice. By contrast, although numerically far
smaller, many of the measures the Government does propose to rejoin
are far more likely to be susceptible to control by the Commission
and Court of Justice because of their inherent significance.
As a result, the potential for adverse judgments must be considered
"Whilst it is undoubtedly the case that
the UK will divest itself of a significant number of obligations
arsing 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."
50. As the final vote approaches (although the date
remains uncertain), we trust that our latest Report will help
to clarify the main outstanding issues so that Members of the
House are better able to hold the Government to account.
51. We take this opportunity to remind the Government
that we expect a separate motion to be tabled for each of the
35 measures it proposes to rejoin.
1 EU police and criminal justice measures is a shorthand
description for "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" (Article 10 of Protocol 36 to the EU Treaties). Back
Letter of 6 April 2014 from the Home and Justice Secretaries (Mrs
Theresa May and Chris Grayling) to the Chairs of the European
Scrutiny, Home Affairs and Justice Committees. Back
The list also includes two Reports on the 2014 block opt-out published
by the EU Select Committee in the House of Lords. Back
Member States that already accept the jurisdiction of the Court
of Justice are Austria, Belgium, Czech Republic, Finland, France,
Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg,
Netherlands, Portugal, Slovenia, Spain and Sweden. Back
The reverse is true for the relatively small number of EU police
and criminal justice measures which build on existing Schengen
measures in which the UK participates. In such cases, the UK will
be bound unless it decides to opt out. Back
The UK has not opted into the draft Regulations concerning Europol
and Eurojust, but may consider a post-adoption opt-in. Back
For further details, see Commission staff working document, Revised
preliminary list of the former third pillar acquis, (36117),
9883/13: 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 Fifth Report HC 219-v (2014-15), chapter
8 (2 July 2014). Back
See Article 10(5) of Protocol 36. Back
HC Deb, 9 July 2013, col. 177 Back
HC Deb, 15 July 2013, col. 78 Back
Cm 8897, p.2 Back
Letter of 3 July to the Chair of the European Scrutiny Committee. Back
See (33646), 5833/12: Twelfth Report HC 219-xii (2014-15), chapter
8 (10 September 2014). Back
This is because the Government has opted into, or is considering
opting into post-adoption, a number of post-Lisbon police and
criminal justice measures which amend, or repeal and replace,
pre-Lisbon measures. Examples include: a 2005 Decision establishing
the European Police College (CEPOL) which is no longer subject
to the block opt-out, following the Government's decision to opt
into an amending Regulation; and a possible post-adoption opt-in
to a 2014 Directive on the freezing and confiscation of proceeds
of crime. Back
Council Decisions 2008/615/JHA and 2008/616JHA and Framework Decision
HC Deb, 10 July 2014, col. 492. Back
HC Deb, 10 July 2014, col. 549. Back
See p.9 of the Command Paper. Back
See, for example, the Impact Assessments on the Prisoner Transfer
Framework Decision (p.203 of Cm 8897) and on the European Supervision
Order (p.219 of Cm 8897). Back
Cm 8671, p.89, paras 42-43. Back
Cm 8897, p.18. Back
On the other hand, there are examples of measures which the UK
proposes to rejoin in which the UK is a net user (e.g. requests
for cross-border surveillance under Article 40 of the Schengen
HC Deb, 9 September 2014, col. 578W Back
Cm 8897, p.204. Back
Cm 8897, p.207. Back
Cm 8897, p.219. Back
Cm 8897, p.219. Back
Cm 8897, p.106. Back
Cm 8671, p.80, paras 271-276. Back
HC Deb, 9 September 2014, col. 578W. Back
Cm 8897, p.85. Back
See our Thirty-seventh Report of Session 2012-13, HC 798. Back
See our Twenty-first Report of Session 2013-14, HC 683, paras