SUMMARY
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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