CHAPTER 3: The Lisbon Treaty and Subsequent
The general Lisbon Treaty changes
26. Impetus was given to legislation in the areas
of criminal procedure law by the Lisbon Treaty which came into
force on 1 December 2009. It amended the former third pillar and
incorporated it into the mainstream EU framework. The resulting
institutional changes are set out in Box 3.
The institutional changes of the Lisbon
Treaty on mutual recognition and criminal procedure law
- The European Parliament must act with the Council
in adopting legislation. The European Parliament encourages more
to be done at EU level for defendants and victims.
- The Council acts by qualified majority voting.
- The Commission's role as the initiator of legislation
is enhanced whilst that of Member States is reduced.
- The EU can adopt legislation which is capable
of having direct effect.
- The Commission assumes its normal role of "guardian
of the Treaty" with a power to bring infringement proceedings
which can, ultimately, lead to fines for recalcitrant Member States.
- The Court of Justice assumes its usual powers
to rule on the validity and meaning of EU legal instruments.
27. The Treaty embedded the principle that judicial
co-operation in criminal matters was to be based on the principle
of mutual recognition and conferred an express power for the EU
to legislate to prescribe the rules and procedure for ensuring
mutual recognition of all forms of judgments and judicial decisions.
There is currently only one further mutual recognition proposal
on the table, for a European Investigation Order. This would be
issued by a judicial authority in order to have investigative
measures, such as searches of premises, carried out in another
Member State. It would replace the European Evidence Warrant.
This proposal is still under discussion in the Council and awaits
its first reading by the European Parliament.
28. In respect of criminal procedure, power is
now expressly conferred upon the EU to legislate on
- the mutual admissibility of evidence between
- the rights of individuals in criminal procedure,
- the rights of victims of crime, and
- any other specific aspects of criminal procedure
which the Council has identified in advance, acting unanimously
and with the consent of the European Parliament.
29. However the sensitive nature of EU competence
in this area is still recognised by the following safeguards built
into the Treaty:
- The scope of EU competence remains narrowly circumscribed.
The EU may legislate using only directives
to "establish minimum rules" in defined areas of criminal
procedure "to the extent necessary to facilitate mutual recognition
of judgments and judicial decisions and judicial and police co-operation
in criminal matters having a cross-border dimension" and
such legislation "shall take into account the differences
between the legal traditions and systems of the Member States".
- There is an "emergency brake" enabling
a Member State which considers its criminal justice system to
be fundamentally affected by proposed EU legislation to suspend
the legislative procedure and bring the matter before the European
Council which, by consensus only, can remit the matter back to
the Council to continue the legislative procedure. In the event
of there being no consensus, at least nine Member States can proceed
amongst themselves by way of enhanced co-operation.
- The Court of Justice may not "review the
validity or proportionality of operations carried out by the police
or other law-enforcement services of a Member State or the exercise
of the responsibilities incumbent upon Member States with regard
to the maintenance of law and order and the safeguarding of internal
- There are transitional provisions
retaining the existing limitations on infringement proceedings
and Court of Justice jurisdiction in relation to pre-Lisbon legal
instruments until December 2014, with a specific power for the
UK to opt out of any subsisting pre-Lisbon legislation by May
30. The Lisbon Treaty changes have facilitated
and given impetus to the adoption of EU criminal procedure legislation.
The UK opt-in
31. Moving the former third pillar measures into
the part of the new Treaty on the functioning of the European
Union which deals with the areas of freedom, security and justice,
also means that these Treaty provisions do not, in principle,
apply to the UK, Ireland and Demark, but, in accordance with Protocol
21, the UK and Ireland may opt in to proposals and legislation.
32. This opt-in may be exercised at either of
- Within three months of a new proposal being presented
to the Council, in which case the UK participates fully in the
adoption of the proposal. The opt-in takes automatic effect and
the UK is able to vote on the proposal. Once such legislation
is adopted it applies in the UK, even if it voted against.
- At any time after the adoption of legislation
the UK may apply to opt in, in which case the Commission can confirm
the participation of the UK and set out any necessary transitional
provisions. If the Commission does not do so the UK can ask the
Council (with the UK not participating) to decide the matter.
33. The Coalition Agreement commits the Government
to assessing all measures in this area on a case by case basis,
with a view to maximising the country's security, protecting Britain's
civil liberties and preserving the integrity of our criminal justice
34. The Rt Hon Kenneth Clarke MP QC, Secretary
of State for Justice and Lord Chancellor, outlined how the opt-in
works in practice. If the opt-in to a proposal is exercised then
the UK fully participates in negotiations. If it does not opt
in at this stage then the UK can still negotiate to achieve an
acceptable text to which it can opt in once the legislation has
been adopted, although its influence in the negotiations would
be diminished by the fact that the UK does not have a vote and
cannot therefore form part of a blocking minority. Its negotiating
power depends on the likelihood of actually opting in to the adopted
legislation and the extent to which other Member States want the
UK to do so.
35. Witnesses were generally sympathetic to the
UK exercising the opt-in in relation to criminal procedure legislation.
Professor Spencer asserted that the UK should be pushing
hard for the criminal procedure Roadmap measures and characterised
the UK's case by case policy on the opt-in as being "essentially
opportunistic". Both he and the Bar Council made a specific
link to the high standards in the UK which means not only that
there is unlikely to be significant disruption to UK law, but
also that we can bring a beneficial influence in creating a sufficiently
high pan-EU standard.
36. Professor Mitsilegas, Professor of
European Criminal Law and Director, Criminal Justice Centre, Queen
Mary, University of London, considered it difficult for the UK
to argue that it can continue to participate in mutual recognition
if it refuses to participate in measures which are deemed necessary
for its operation.
Vice-President Reding and the CCBE similarly emphasised the deleterious
effect of non-participation by the UK on European integration
and mutual trust.
It appears to us that an advantage of the UK opting in to EU legislation
prescribing minimum rights is that this legislation, which is
translated into all EU languages and readily available throughout
the EU, would make it clear that these rights applied in the UK.
If the UK does not participate in the EU legislation a judge of
another Member State asked to operate mutual recognition involving
the UK, but unfamiliar with UK law, would have to use more difficult
means to obtain assurance that UK domestic law does indeed provide
37. Whilst there were a number of suggestions
that failure to opt in could adversely affect UK citizens travelling
abroad, such a consequence
would not arise directly from the UK's non-participation, because
the other Member States (except Denmark and possibly Ireland)
would still be applying the EU prescribed minimum rules.
Such disadvantage could, however, arise indirectly from the fact
that the UK's non-participation in negotiations led to lower minimum
38. Baroness Ludford cautioned the UK against
an inconsistent and haphazard approach resulting from individual
decisions conditioned mainly by political considerations, and
also cautioned against the UK using its opt-in as a negotiating
tactic. She thought that UK non-participation in negotiations,
arguably, denied UK MEPs their voice. She favoured a presumption
that the UK should opt in, rebuttable by manifest incompatibility
with, or disruption to, the UK criminal law system.
The Lord Chancellor reflected this in his evidence: "Assuming
that the general objective of the proposal is one with which we
are perfectly comfortable, I would prefer to opt in because I
think that it gives a greater role and influence at an early stage
of the subsequent negotiations and you have a vote in the course
of any decisions on drafting, so you can be in a better position
to remedy any queries you have about it".
39. The UK has, on the whole, opted in to proposals
relating to criminal procedure at the earlier stage of negotiations.
The exceptions are the proposal for access to a lawyer and the
proposal for human trafficking. We look at the former in more
detail in Chapter 6. The UK did eventually opt in to the latter
having refrained from doing so earlier for reasons which this
Committee in the course of its scrutiny considered were unjustified.
40. In practice the case by case approach
to the UK opt-in set out in the Coalition Agreement has resulted
in the Government opting in to proposals for criminal procedure
legislation. We agree that the UK should opt in to proposals for
criminal procedure legislation at an early stage unless there
is clear justification for not doing so.
41. Professor Peers mooted the point that
the existence of the "emergency brake" could have an
impact on the decision by the UK whether or not to opt in, on
the grounds that we could take the risk of having to negotiate
away an unacceptable provision, in the knowledge that if this
did not succeed then we could invoke the emergency brake. He accepted,
however, that doing so would look particularly odd.
42. It is notable that the emergency brake
has not yet been used by any Member State in relation to criminal
The Victims Roadmap
43. The explicit competence for measures on the
rights of victims of crime introduced by the Lisbon Treaty is
now supported by a Roadmap setting out general objectives for
future legislation in this area, highlighting five specific measures
to be pursued. These
are set out in Box 4.
The Roadmap for strengthening the rights
and protection of victims, in particular in criminal proceedings
- Measure A: a new directive on the standing of
victims in criminal proceedings which would apply to a broader
category of victims, extend the rights previously available and
give them more detailed and concrete expression. This has been
agreed in the Council and is awaiting a first reading by the European
- Measure B: recommendations providing guidance
and best practice to facilitate implementation of the new Directive
on the standing of victims in criminal proceedings. No proposal
has yet been published by the Commission.
- Measure C: mutual recognition of protection measures
for victims in civil matters. The original Commission proposal
for a "European Protection Order" has now been limited
to protection granted in the course of criminal proceedings. It
has been agreed in the Council and is awaiting a first reading
by the European Parliament. It is now complemented by a proposal
for the mutual recognition of protection measures in civil matters
which is under negotiation in the Council.
Separate instruments were needed because the mutual recognition
sought covered orders by both civil and criminal courts and distinct
Treaty bases are required.
- Measure D: a review of the 2004 Directive on
compensation to crime victims. This review has not yet been undertaken,
but the Commission's Work Programme for 2012 envisages bringing
forward legislation to ensure that victims of crime receive fair
and appropriate compensation in all Member States.
- Measure E: recommendations, guidance and best
practice in implementing EU legislation concerning vulnerable
44. The protection of victims is also enhanced
by the recently adopted provisions to protect victims of human
trafficking and victims of child sex abuse and sexual exploitation
included in directives intended to combat these crimes.
We have supported, in principle, the proposals that have been
43 Q 50 (Vice-President Reding); Baroness Ludford,
para 1. Back
At least a quarter of Member States must take the initiative to
propose legislation whereas previously any one Member State could
do so. Back
Direct effect is the principle that a directive may, in appropriate
circumstances, confer on individuals rights and obligations which
must be recognised by national courts. Back
Article 82(1) TFEU. Back
The proposal was made at the initiative of seven Member States,
not including the UK. Back
Article 82(2) TFEU. Back
Which accord a degree of flexibility, as Member States need only
ensure that their national legislation achieves the results required
by the Directive. Back
Article 82(2) TFEU. Back
Article 82(3) TFEU. Back
Article 276 TFEU. Back
Title VII of Protocol 36. The UK opt-in and the implications of
Protocol 36 are considered at Chapter 6. Back
Protocol 21 deals with the UK and Ireland opt-in. Back
Article 3. Back
Article 4. Back
Ministry of Justice, para 2. Back
QQ 68 and 69. Back
QQ 2 and 23; Bar Council, para 3.1, Q 19. Back
Professor Mitsilegas, para 10. Back
QQ 45 and 46; CCBE, para 32. Back
Fair Trials International, para 5, Q 46 (Vice-President Reding). Back
Denmark does not participate at all in any of these matters, and
Ireland has the same arrangement for opting in as the UK. Back
Baroness Ludford, paras 17-19. Back
Q 68. Back
Relevant correspondence concerning this proposal is found at
Q 23. Back
Council Resolution of 10 June 2011, OJ C 187, 28.6.2011, p1. Back
COM(2011) 275. Back
COM(2011) 276. This is based on the civil judicial co-operation
provisions of the TFEU. Back
Directive 2011/36 on preventing and combating trafficking in human
beings and protecting its victims, and replacing Council Framework
Decision 2002/629; and Directive 2011/92/ JHA on combating the
sexual abuse and sexual exploitation of children and child pornography,
and replacing Council Framework Decision 2004/68/JHA. Back
Relevant correspondence concerning these proposals is found at
and http://www.parliament.uk/documents/lords-committees/eu-sub-com-e/cwm/CwMSubEDec2010onwards.pdf Back