Eleventh Report of Session 2019–21 Contents

7Protecting victims of crime after Brexit49

These EU documents are politically important because:

  • they concern two EU Directives on the protection of individuals who are (or are at risk of becoming) victims of crime which will cease to apply after transition; and
  • the substantive provisions and protections afforded by one of the Directives (on victims’ rights) will form part of retained EU law and continue to be available after transition, whereas those provided for in the other Directive (on the European Protection Order) will not.

Action

  • Write to the Parliamentary Under-Secretary at the Ministry of Justice (Mr Alex Chalk MP) asking him to clarify the practical consequences for actual or potential victims of crime after transition.
  • Draw to the attention of the Justice Committee, the Home Affairs Committee and the Committee on the Future Relationship with the European Union.

Overview

7.1These European Commission reports concern the implementation by EU Member States of two EU criminal law measures, the first a 2012 Directive (“the Victims’ Rights Directive”) establishing minimum standards on the rights, support and protection available to victims of crime, the second a 2011 Directive (“the European Protection Order Directive”) providing a mechanism for transferring certain forms of protection granted by a domestic court in criminal cases to another jurisdiction within the EU. The UK opted into both EU Directives and they will continue to apply in the UK until the end of the post-exit transition period provided for in the EU/UK Withdrawal Agreement.50

7.2The Victims’ Rights Directive applies to all criminal proceedings within the EU, regardless of the victim’s residence status, citizenship or nationality. It sets minimum rules which are intended to ensure that victims of crime receive appropriate information, support and protection and that they can participate in criminal proceedings. The Commission concludes in its report that implementation of the Directive is “not satisfactory”, highlighting shortcomings in most EU Member States, and says it is taking action (including infringement proceedings) to address these deficiencies.

7.3By contrast, the Commission concludes that Member States’ implementation of the European Protection Order Directive is “satisfactory overall” while noting that the instrument is “under-used”, with only 37 European Protection Orders (“EPOs”) issued and 15 executed since the Directive took effect in January 2015 and the end of 2018. It suggests that legal practitioners and those who may benefit from the EPO are not fully aware that this form of cross-border protection is available when moving to or staying in another Member State.

7.4In his Explanatory Memorandum on the report on the Victims’ Rights Directive, the Parliamentary Under-Secretary at the Ministry of Justice (Mr Alex Chalk MP) tells us that the Directive itself will cease to apply to the UK after 31 December 2020 (the date on which the post-exit transition period is expected to end), but the common minimum standards enshrined in it will continue to apply as domestic law. He notes that the UK is not amongst the Member States in which implementation of the Directive is deemed to be unsatisfactory by the Commission.

7.5The Minister’s Explanatory Memorandum on the report on the European Protection Order Directive notes that this Directive will also cease to apply to the UK after 31 December 2020, subject to “winding down provisions” for any cases ongoing on that date.51

Analysis

7.6The Minister confirms that the minimum EU-wide rules established by the Victims’ Rights Directive will “remain in domestic law” after transition as they form part of the retained EU law which is preserved by the European Union (Withdrawal) Act 2018. The common minimum standards will also be available to UK citizens or residents involved in criminal proceedings elsewhere in the EU after the end of transition.

7.7By contrast, the European Protection Order Directive is based on the principle of mutual recognition. Its purpose is to extend the territorial scope of the protection available under domestic law by allowing certain types of protective measures, such as a restraining order made by a court in the UK to safeguard a victim of domestic abuse, to be transferred to another Member State and enforced there. The Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019 (“the 2019 Regulations”)52 revoke the Regulations giving effect to the European Protection Order Directive in England and Wales and in Northern Ireland from the end of the transition period,53 using the power conferred on Ministers by section 8 of the European Union (Withdrawal) Act 2018 to correct deficiencies in retained EU law. In its Explanatory Memorandum accompanying the 2019 Regulations, the Government says that the reciprocity between EU Member States on which the operation of the European Protection Order depends will end after transition, adding:

The UK Parliament cannot legislate to require EU Member States to continue to apply the rules set out [by the European Protection Order Directive] and [the Directive] will no longer apply to the UK. Retaining domestic legislation that implements reciprocal obligations would mean that inoperative and deficient legislation would remain on the statute book.

7.8The effect of the 2019 Regulations after transition is that “the UK will no longer be able to issue requests to other EU Member States and expect them to be acted upon, nor can any remaining EU Member State issue a request to the UK”. The Explanatory Memorandum continues:

It is not feasible to operate the European Protection Order Directive unilaterally, as the European Protection Order Directive requires ongoing communication and cooperation between the issuing and executing EU Member States; this framework of cooperation would not exist after a no deal exit. Equally, if the UK continued to issue European Protection Orders unilaterally, it would create a false sense of protection, as European Protection Orders issued by the UK would not necessarily be enforced in EU Member States. By revoking the implementing legislation, the Statutory Instrument recognises this and corrects what would otherwise be a deficiency in the legislative framework.

7.9The 2019 Regulations include some “transitional and savings provisions” for requests straddling the date on which the post-exit transition period ends, though the Government expects there to be very few. Only four requests have been made to the UK, and the same number made by the UK, to recognise and enforce a European Protection Order since the Directive took effect in January 2015.54

Action

7.10Write to the Minister noting that both Directives will cease to apply to and in the UK after transition, that the substantive provisions and protections afforded by the Victims’ Rights Directive will nonetheless form part of retained EU law and continue to be available, whereas those provided for in the European Protection Order Directive will not, and asking him to clarify the practical consequences for actual or potential victims of crime after transition.

Letter to the Parliamentary Under-Secretary of State (Mr Alex Chalk MP), Ministry of Justice

Thank you for your Explanatory Memoranda on two European Commission reports assessing Member States’ implementation of two EU criminal law Directives, one on victims’ rights,55 the other on the European Protection Order.56 You confirm that the UK opted into both Directives and that they will cease to apply at the end of the post-exit transition period provided for in the EU/UK Withdrawal Agreement.57

Both Directives have as a common purpose the effective protection of individuals who are (or are at risk of becoming) victims of crime. The Directive on victims’ rights establishes minimum EU-wide rules on standards for the protection of victims in criminal proceedings which all Member States must meet and may choose to exceed. By contrast, the Directive on the European Protection Order is based on the principle of mutual recognition. It seeks to ensure that protection measures taken in one Member State to safeguard an individual against a criminal act that may endanger their life, physical, psychological or sexual integrity, dignity or personal liberty can be maintained and continued if that individual moves (even temporarily) to another Member State.

You confirm that the common minimum standards set out in the victims’ rights Directive will be “unaffected by the end of the transition period [and] they will remain in domestic law”. This is because they have been incorporated into domestic law and form part of the retained EU law which is preserved by the European Union (Withdrawal) Act 2018. The common minimum standards will also, of course, be available to UK citizens or residents involved in criminal proceedings elsewhere in the EU.

This is not the case for the cross-border protection measures provided for in the Directive on the European Protection Order. The Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019 (“the 2019 Regulations”) revoke the Regulations giving effect to the European Protection Order Directive. As the Government’s Explanatory Memorandum on these Regulations recognises, it is not feasible for the UK to seek to operate the European Protection Order unilaterally as it requires “ongoing communication and cooperation between the issuing and executing EU Member States” and a framework to enable this would require a further agreement between the EU and the UK.58 With this in mind, we ask you to explain:

I look forward to receiving your response within ten working days.


49 (a) Commission report on the implementation of Directive 2011/99/EU on the European protection order; Council number —; COM (2020) 187; Legal base —; Ministry of Justice; Devolved Administrations consulted; ESC number 41249.
(b) Commission report on the implementation of Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime and replacing Framework Decision 2001/220/JHA; Council number —; COM (2020) 188; Legal base —; Ministry of Justice; Devolved Administrations consulted; ESC number 41248

50 See Article 127 of the EU/UK Withdrawal Agreement.

51 See Article 62(1)(k) in Part III of the EU/UK Withdrawal Agreement on separation provisions.

52 Statutory Instrument 2019 No. 780

53 Although the 2019 Regulations state that they come into force “on exit day” (31 January 2020), paragraph 1 of Schedule 5 of the European Union (Withdrawal Agreement) Act 2020 changes the date on which they take effect to the end of the transition period.

54 See paragraph 7.4 of the Explanatory Memorandum on the 2019 Regulations.

55 Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime and replacing Framework Decision 2001/220/JHA.

56 Directive 2011/99/EU on the European protection order.

57 See Article 127 of the EU/UK Withdrawal Agreement.

58 See paragraph 7.3 of the Explanatory Memorandum on the 2019 Regulations.




Published: 17 June 2020