EU police and criminal justice measures: The UK's 2014 opt-out decision - European Union Committee Contents



Under Protocol 36 to the EU Treaties, the Government must decide whether or not the UK should continue to be bound by around 130 EU police and criminal justice (PCJ) measures which were adopted before the Treaty of Lisbon entered into force in 2009, or whether it should exercise its right to opt out of them all. That decision must be made at the latest by 31 May 2014.

If the Government do not opt out, on 1 December 2014 these measures will become subject to the jurisdiction of the Court of Justice of the European Union (CJEU) and the enforcement powers of the European Commission. If the Government do exercise the opt-out, the PCJ measures will cease to apply to the UK on 1 December 2014. The CJEU's jurisdiction and the Commission's enforcement powers will then apply in relation to the measures for all the Member States except the UK. The UK may later rejoin any of the measures subject to conditions set out in the Protocol. On 15 October 2012, the Home Secretary said the Government's "current thinking" was that the UK should opt out of all the pre-Lisbon measures and negotiate to rejoin individual measures where that is in the national interest. Shortly after this announcement we commenced our inquiry into the decision that needs to be taken by the Government. The Government have undertaken to consult both Houses of Parliament before it reaches a final decision, and this report is intended to support that process.

The decision on the opt-out is one of great significance, with far-reaching implications not only for the UK but also for the other Member States and the EU as a whole. Cross-border cooperation on policing and criminal justice matters is an essential element in tackling security threats such as terrorism and organised crime in the twenty-first century.

In the course of taking evidence from a wide range of witnesses, we found that supporters of the opt-out have several areas of concern, including:

  • The risks associated with extending the jurisdiction of the CJEU in relation
  • to the pre-Lisbon PCJ measures to include the UK, including the risk of  "judicial activism" and the potential for undermining the UK's common law  systems;
  • The loss of national control over areas of police and criminal justice policy;
  • Many of the PCJ measures are of little use or are defunct;
  • Many of the areas of cooperation could be achieved by non-legislative means or   through alternative arrangements;

They also wish the UK to use the opt-out to promote the reform of certain measures, in particular the European Arrest Warrant (EAW).

Opponents of the opt-out, on the other hand, considered that:

  • The pre-Lisbon measures are in the UK's national interest and some are vital
  • to our internal security;
  • The measures are beneficial to UK citizens who may become the victims of
  • crime or are suspected of committing a crime in another Member State and also  in permitting the rapid extradition of criminals from other Member States who  have come to the UK;
  • The CJEU's jurisdiction would provide the benefits of legal clarity and the stronger and more consistent application of EU measures across the EU;
  • There is no risk to the UK's common law systems and there has been no

  evidence of any harm caused to those systems from any PCJ measures or  judgments;

  • Withdrawing from some of those PCJ measures would result in the UK having
  • to rely upon less effective means of cooperation;
  • The UK would lose influence over existing and future EU police and criminal

  justice policies and agencies.

We conclude that the concerns of proponents of opting out, in particular as regards the role of the CJEU, were not supported by the evidence we received and did not provide a convincing reason for exercising the opt-out. We have failed to identify any significant, objective, justification for avoiding the jurisdiction of the CJEU over the pre-Lisbon PCJ measures in the UK and note that the Government appeared to share that view in respect of the number of post-Lisbon PCJ measures to which they have opted in. Indeed, we believe that the CJEU has an important role to play, alongside Member States' domestic courts, in safeguarding the rights of citizens and upholding the rule of law.

It would be theoretically possible for the UK to continue cooperating with other Member States through alternative arrangements, but we found that these would raise legal complications, and result in more cumbersome, expensive and less effective procedures, thus weakening the hand of the UK's police and law enforcement authorities. The negotiation of any new arrangements would also be a time-consuming and uncertain process. The most effective way for the UK to cooperate with other Member States is to remain engaged in the existing EU measures in this area.

The European Arrest Warrant is the single most important of the measures which are subject to the opt-out decision. In some cases, the operation of the EAW has resulted in serious injustices, but these arose from the consequences of extradition, including long periods of pre-trial detention in poor prison conditions, which could occur under any alternative system of extradition. Relying upon alternative extradition arrangements is highly unlikely to address the criticisms directed at the EAW and would inevitably render the extradition process more protracted and cumbersome, potentially undermining public safety. The best way to achieve improvements in the operation of the EAW is through negotiations with the other Member States, the use of existing provisions in national law, informal judicial cooperation, the development of EU jurisprudence and the immediate implementation of flanking EU measures such as the European Supervision Order.

If the opt-out is exercised, the UK may seek to rejoin individual PCJ measures but this process would not necessarily be automatic or straightforward. Witnesses who opposed exercising the opt-out were concerned that the procedures for rejoining measures are uncertain and depend on the decisions of the Commission and the other Member States; about timing (whether it would be practicable to rejoin measures without any hiatus in their application); and about cost (the potential to incur financial consequences assessed by the Commission, and sunk costs, for example, substantial multi-million pound contributions to the development of second generation Schengen Information System (SIS II) if the UK did not rejoin

that system). Watertight transitional arrangements would have to be agreed, and there is a clear risk that gaps and legal uncertainties would arise.

We are unable to form a firm view on the merits and adequacy of any list of measures that the Government might seek to rejoin, were the opt-out to be exercised, since they have not provided us with any list of measures they might seek to rejoin, nor even a summary of the reactions of the other Member States to the Government's intention to exercise the opt-out, which may be critical in assessing the potential success or otherwise of the UK's negotiations to rejoin particular measures. A proper assessment by Parliament of whether or not the opt-out should be exercised is necessarily linked with the measures which the Government wish (or are able) to rejoin.

In light of the evidence we have received, including a preponderant view among our witnesses from the legal, law enforcement and prosecutorial professions, we conclude that the Government have not made a convincing case for exercising the opt-out and that opting out would have significant adverse negative repercussions for the internal security of the UK and the administration of criminal justice in the UK, as well as reducing its influence over this area of EU policy.

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