CHAPTER 1: Introduction
The opt-out decision
1. Article 10 of Protocol 36 to the EU Treaties
(added by the Treaty of Lisbon) enables the Government to decide,
at the latest by 31 May 2014, whether or not the UK should continue
to be bound by the approximately 130 police and criminal justice
(PCJ) measures which were adopted before the Treaty of Lisbon
entered into force, or whether it should exercise its right to
opt out of them all. No other Member State has this option under
Protocol 36. The text of Article 10 is in Box 1.[1]
2. If the Government do not opt out then 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 on 1 December 2014 in relation to the
UK as they will to all the other Member States. If the Government
do exercise the opt-out, on 1 December 2014 the changes to the
jurisdiction of the CJEU and the powers of the Commission will
come into effect for all the Member States except the UK. The
status quo is not an option for any Member State. For the UK,
if the opt-out is exercised, all the measures will cease to apply
to it (subject to the possibility of opting back in)—hence
it is referred to as a "block opt-out"—or, if
the opt-out is not exercised, the measures will continue to apply
and the changes concerning the CJEU and the Commission will come
into effect as they will for the rest of the Member States.
3. The PCJ measures in question fall into the
following categories:
- measures for mutual recognition
of national decisions such as the European Arrest Warrant (EAW);
- measures harmonising the definitions of certain
criminal offences and minimum penalties;
- measures on criminal procedure;
- measures to facilitate cross-border cooperation,
in particular between police and law enforcement agencies, including
the exchange of information and the investigation of crime;
- measures establishing EU agencies (Europol, Eurojust
and the European Police College (CEPOL));
- agreements with third countries on information
sharing, mutual legal assistance and extradition; and
- a number of Schengen-building measures.
BOX 1
Text of Articles 10(1) to (4), Protocol
(No 36) on transitional provisions
| (1) As a transitional measure, and with respect to 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, the powers of the institutions shall be the following at the date of entry into force of that Treaty: the powers of the Commission under Article 258 of the Treaty on the Functioning of the European Union shall not be applicable and the powers of the Court of Justice of the European Union under Title VI of the Treaty on European Union, in the version in force before the entry into force of the Treaty of Lisbon, shall remain the same, including where they have been accepted under Article 35(2) of the said Treaty on European Union.
(2) The amendment of an act referred to in paragraph 1 shall entail the applicability of the powers of the institutions referred to in that paragraph as set out in the Treaties with respect to the amended act for those Member States to which that amended act shall apply.
(3) In any case, the transitional measure mentioned in paragraph 1 shall cease to have effect five years after the date of entry into force of the Treaty of Lisbon.
(4) At the latest six months before the expiry of the transitional period referred to in paragraph 3, the United Kingdom may notify to the Council that it does not accept, with respect to the acts referred to in paragraph 1, the powers of the institutions referred to in paragraph 1 as set out in the Treaties. In case the United Kingdom has made that notification, all acts referred to in paragraph 1 shall cease to apply to it as from the date of expiry of the transitional period referred to in paragraph 3. This subparagraph shall not apply with respect to the amended acts which are applicable to the United Kingdom as referred to in paragraph 2.
|
The Government's statement to Parliament on
15 October 2012
4. In a statement to the House of Commons on 15 October 2012,
the Home Secretary said that "we do not need to remain bound
by all of the pre-Lisbon measures. Operational experience shows
that some of the pre-Lisbon measures are useful, some less so;
and some are now, in fact, entirely defunct" and that the
Government's "current thinking" was that the UK should
opt out of all the pre-Lisbon measures and negotiate to opt back
in to individual measures that it is in the national interest
to rejoin. The Home Secretary also repeated an earlier Government
undertaking to hold votes in both Houses of Parliament, as well
as to consult the relevant Parliamentary committees—including
this Committee—on the organisation of these votes, before
reaching a final decision on whether or not the opt-out should
be exercised.[2]
The Committee's inquiry
5. Even before the Home Secretary's statement on 15 October
2012, this Committee's Justice, Institutions and Consumer Protection
Sub-Committee and its Home Affairs, Health and Education Sub-Committee
had identified this matter as one of great significance, with
far ranging implications not only for the security of the UK but
also for the other Member States and the EU as a whole. Both Sub-Committees
regularly scrutinise individual EU measures including those to
which opt-in provisions apply under Protocol 21 to the EU Treaties
or to which a decision not to opt-out apply in the case of Schengen-building
measures.[3] They therefore
decided to conduct a joint inquiry, which was announced on 1 November
2012, shortly after the Home Secretary's statement. A substantial
amount of written evidence was received before Christmas 2012
and the Sub-Committees held 17 oral evidence sessions, with a
total of 40 individuals, in January and February 2013, including
a visit to Brussels on 29 and 30 January.
6. Before and during the inquiry, there was also
a significant amount of public interest in the opt-out decision,
which was demonstrated by the publication of a number of high
quality and detailed reports on this matter by external organisations,
as well as a number of stakeholder seminars. These reports proved
particularly useful to the Committee and are referred to, where
appropriate, in this report. For reference, a list of these documents
is provided in Appendix 7 to this report.
7. This report considers the merits of exercising
the opt-out as well as identifying what we consider to be the
most important PCJ measures for the UK. In the absence so far
of any indicative list of measures that the Government, in the
context of their intention to exercise the opt-out, would like
to rejoin, with their reasons for doing so, we have not felt able
to make a firm recommendation on that aspect.
8. In Chapter 2 we set out the background to
our report, including a detailed overview of the development of
EU justice and home affairs measures and the UK's involvement
with this area of EU cooperation. In Chapter 3 we make clear our
dissatisfaction with the Government's consultation of Parliament,
and of the Devolved Administrations and other stakeholders. We
then, in Chapter 4, consider the CJEU's record so far of its jurisdiction
over PCJ measures, and the interaction of UK and EU law. The practicalities
for the UK of relying upon alternative arrangements for cross-border
cooperation are considered in Chapter 5. Because of its importance,
Chapter 6 deals specifically with the EAW and examines the implications
if the UK were to withdraw from that measure, as well as the prospects
for its reform. In Chapter 7 we consider the consequences for
the UK if it were to exercise the block opt-out and not rejoin
certain measures. We examine the process for rejoining particular
PCJ measures and the complexities that may arise during this process
in Chapter 8. In Chapter 9, we consider whether or not the Government
should exercise the opt-out; and certain key considerations if
they choose to do so, including the Irish dimension.
9. The members of the Justice, Institutions and
Consumer Protection Sub-Committee and of the Home Affairs, Health
and Education Sub-Committee who conducted this joint inquiry are
listed in Appendix 1, showing their declared interests. We are
most grateful to all those who gave us written and oral evidence;
they are listed in Appendix 2. The call for evidence that we issued
is reproduced in Appendix 3. A list of the approximately 130 PCJ
measures caught by the opt-out decision, as at the date we adopted
this report, is provided in Appendix 4. A summary of EU and UK
court judgments which were cited in the evidence we received is
provided in Appendix 5 and statistics regarding the use of the
EAW are set out in Appendix 6. The list of documents referred
to in paragraph 6 above is provided in Appendix 7 and a glossary
of terms and acronyms is contained in Appendix 8. The evidence
we received is available online, as is the correspondence between
the Committee and the Government.[4]
10. We make this report to the House for debate.
1 TheremainderofArticle10(4)andArticle10(5)toProtocol36appearsinBox10atthebeginningofChapter8 Back
2
OralMinisterialStatementregardingEuropeanJusticeandHomeAffairsPowersbytheHomeSecretary,HCDeb15October2012cols34-45;repeatedintheHouseofLordsbytheMinisterofStateforJusticeandDeputyLeaderoftheHouse,HLDeb15October2012cols1302-1310. Back
3
Theopt-inarrangementsunderProtocol21aredistinctfromtheopt-outunderProtocol36whichisthesubjectofthisreport.There
are also distinctopt-outarrangementsunderProtocol19. Back
4
http://www.parliament.uk/business/committees/committees-a-z/lords-select/eu-home-affairs-sub-committee-f-/inquiries/parliament-2010/protocol-36/ Back
|
