House of Commons - The UK's 2014 block opt-out decision: summary and update Report

The UK's 2014 block opt-out decision: summary and update Report - European Scrutiny Committee Contents

The UK's 2014 block opt-out decision

Introduction

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.[1] 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]

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.[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[4] 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.[5] 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.[6] 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.[7]

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 acquis.[8]

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 them.

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:

14. She described the "vast majority" of the 35 measures as:

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.[11] 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".[12]

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.[13]

Changes to the list of measures the UK will seek to rejoin

Non-Schengen measures

17. One measure has moved from the non-Schengen to the Schengen list:

· Council 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.[14]

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:

· Council 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

· Council 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:

· Council 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); and

· Council 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:

· Council 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;

· Council 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;

· Council Decision 2009/936/JHA on implementing rules for Europol analysis work files; and

· Council Decision 2009/968/JHA adopting rules on the confidentiality of Europol information.

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.

Schengen measures

23. One measure has moved from the non-Schengen to the Schengen list:

· Council 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:

· SCH/Com-ex (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:

· Commission 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.[15]

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.[16] 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:

31. As regards the Framework Decision on probation, the Justice Secretary informed the House:

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.

Impact Assessments

33. Command Paper 8897 includes 22 Impact Assessments covering the 35 measures the Government proposes to rejoin. Their purpose is to:

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.[20]

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.

Examples:

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 mechanisms.[21]

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 these benefits.

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.

Example:

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".[22] 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.

Example:

European Arrest Warrant (EAW) — Framework Decision 2002/584/JHA

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.[23] In such cases, analysis in the Impact Assessment could be improved by providing some explanation for the disparity.

Examples:

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 Decision 2002/584/JHA

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".[24]

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.

Examples:

Transfer of Prisoners — Framework Decision 2008/909/JHA

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.[25] 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.[26] 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 2009/829/JHA

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".[27] 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 assessments".[28] 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 them effectively.

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 each other".[29] 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 criminal assets.

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 BEEN ASSESSED?

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:

45. The position of the European Commission was explained by the Government in its response to a written question on 9 September 2014:

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.

Examples:

European Arrest Warrant (EAW) - Framework Decision 2002/584/JHA

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 decisions.

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 legislation.

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.

Examples:

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 measures.

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".[32]

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.

Examples:

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 2008/976/JHA

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.

Conclusion

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.[33] 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 high.

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

2 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

3 The list also includes two Reports on the 2014 block opt-out published by the EU Select Committee in the House of Lords. Back

4 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

5 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

6 The UK has not opted into the draft Regulations concerning Europol and Eurojust, but may consider a post-adoption opt-in. Back

7 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

8 See Article 10(5) of Protocol 36. Back

9 HC Deb, 9 July 2013, col. 177 Back

10 HC Deb, 15 July 2013, col. 78 Back

11 Cm 8897, p.2 Back

12 Letter of 3 July to the Chair of the European Scrutiny Committee. Back