House of Lords - EU police and criminal justice measures: The UK's 2014 opt-out decision

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

CHAPTER 3: THE GOVERNMENT'S CONSULTATION OF PARLIAMENT AND STAKEHOLDERS REGARDING THE OPT-OUT DECISION

Statements regarding the possible exercise of the opt-out

33. The Conservative 2010 General Election manifesto sought a mandate to negotiate the return of "criminal justice" powers, among others, from the EU to the UK.[31] In contrast the Liberal Democrat's 2010 manifesto contained a pledge to "Keep Britain part of international crime-fighting measures such as the European Arrest Warrant, European Police Office (Europol), Eurojust, and the European Criminal Records Information System, while ensuring high standards of justice".[32] The Labour party manifesto made no reference to this matter.[33]

34. The first time the handling of the 2014 opt-out decision was brought to the attention of Parliament by the Government was on 20 January 2011, when the Minister for Europe, David Lidington MP, made a Written Ministerial Statement concerning the Government's decision to strengthen parliamentary scrutiny of EU business, including individual opt-in and Schengen opt-out decisions. Regarding the 2014 opt-out decision he stated that

"Parliament should have the right to give its view on a decision of such importance. The Government therefore commit to a vote in both Houses of Parliament before they make a formal decision on whether they wish to opt-out. The Government will conduct further consultations on the arrangements for this vote, in particular with the European Scrutiny Committees, and the Commons and Lords Home Affairs and Justice Select Committees and a further announcement will be made in due course".[34]

35. On 21 December 2011, the Home Secretary sent a letter to the European Scrutiny Committee in the House of Commons and this Committee, which repeated these undertakings, and also provided—for the first time—a list of the approximately 130 PCJ measures that they considered would fall within the scope of the block opt-out. The list included 109 third pillar measures and 24 Schengen-building measures. We understand that this list was produced following discussion between the Government and the Council Secretariat. Also listed were the PCJ measures that the Government had opted in to post-Lisbon and which would repeal and replace, or amend, pre-Lisbon PCJ measures (and as a result fall outside the scope of the opt-out). The Home Secretary wrote to Lord Boswell of Aynho, the Chairman of this Committee, on 18 September and 15 October 2012, updating the list of measures and repeating the earlier undertakings.

36. By the time of the second letter, the Prime Minister had stated, during a media interview in Rio de Janeiro on 28 September 2012, that the opt-out decision had "to be done before the end of the year, and the opt-out is there. We'll be exercising that opt-out". Later that day the Deputy Prime Minister warned about the dangers of opting-out of measures such as the EAW and stated that "Any opt-out in this area is still under review and discussion. Our decision must follow the interests of national security, public safety and Britain's international reputation for leadership on cross-border security matters".[35]

37. On 9 October, Lord Boswell of Aynho, sent a letter to the Home Secretary expressing his dismay at the Prime Minister's announcement, as it appeared to cut across the Government's undertakings to consult both Houses before making an opt-out decision, and sought clarity from the Government about their official position on the matter.[36]

38. In a statement to the House of Commons on 15 October, the Home Secretary adopted a more nuanced position saying that the Government's "current thinking" was that the opt-out should be exercised and that it would be subject to a vote in both Houses; and undertaking (again) to consult a wide range of Committees in both Houses before reaching a definitive position. The Home Secretary later told us that this was an "agreed Coalition Government statement".[37]

39. On 23 January 2013 the Prime Minister delivered a major speech on Europe, in which he stated that the Government were "Launching a process to return some existing justice and home affairs powers".[38]

40. All these statements preceded any engagement of the consultation processes set out in the Minister for Europe and the Home Secretary's undertakings.

The Government's analysis of the EU police and criminal justice measures

41. On 1 February 2013 the Government told us that their analysis of each PCJ measure falling within the scope of the opt-out decision began "in earnest" in December 2011 when the initial list of measures was first made available to the Committee.[39] This analysis would seek to establish which of the measures was in the national interest, which would be informed by each measure's contribution to public safety and security, as well as its impact on civil liberties and rights.[40] However, they also stated that they would not be able to confirm when they expected to complete this analysis until discussions with "operational partners, EU institutions, Member States and other interested parties have taken place".[41]

42. The Home Secretary also told us that "The basis on which the Government indicated its current intention was an initial exercise in looking at the measures and making an assessment of the benefits of the measures to the UK. That work continues in greater detail" and "this was not a decision that this Government suddenly came to".[42]

Consultation of Parliament

43. From the very beginning the Government have consistently emphasised the role that Parliament should play in helping them to reach a final decision on the opt-out. We also note that the Prime Minister emphasised the role of democratic accountability in his January 2013 speech, in which he called for a "bigger and more significant role for national parliaments" as "the true source of real democratic legitimacy and accountability in the EU".[43] However, the Government's stated good intentions have repeatedly been undermined by delay and the limited provision of information. This led the Committee to question the Government's commitment to engage effectively with Parliament about the opt-out decision, as well as undermining our ability to scrutinise this important and very complex matter. This has been illustrated by the frequent late receipt of correspondence from the Home Office and Ministry of Justice, in response to our questions about the opt-out decision; the late receipt of five Explanatory Memorandums (EMs) detailing all of the PCJ measures caught by the opt-out, which the Government promised to deposit with our Committee and the European Scrutiny Committee in the House of Commons between early January and mid-February, but by the stage that this report was adopted had not yet been made available;[44] and the late notification that officials would not be permitted to meet with the Committee.[45] No satisfactory explanation has ever been provided for each of these unfortunate developments but the Home Secretary apologised for the delayed provision of the EMs when she gave evidence on 13 February.[46] The absence so far of any list of measures that the Government would like to rejoin, were the opt-out to be exercised, is considered separately in Chapter 8.

44. We note that the European Scrutiny Committee in the House of Commons has voiced similar concerns.[47]

45. The Home Secretary and the Lord Chancellor did not agree that more prior consultation should have taken place ahead of the 15 October 2012 statement. The Home Secretary stressed that Parliament was now more fully consulted on European matters than under any previous Government and that "The final decision will be taken following reports that have been received and views that have been taken from a wide variety of organisations, individuals and groupings within Parliament". The Lord Chancellor told us that, since the 15 October statement, the Government had "significantly accelerated, enhanced and deepened the nature of the discussions we have been having about these issues, having made an initial statement to Parliament to indicate a direction of travel" and that he would make no apology for adopting that approach.[48]

Consultation of the Devolved Administrations

46. Scotland and Northern Ireland are both separate legal jurisdictions within the UK, alongside that of England and Wales.[49] They each have distinct criminal justice systems.[50] We consider the possible impact of the opt-out decision on the UK's relationship with the Republic of Ireland in Chapter 9.

47. Kenny MacAskill MSP, the Cabinet Secretary for Justice in the Scottish Government, told us that

"Given the potential implications for the efficient operation of justice in Scotland, I wrote to UK Ministers in April 2012 and again in August 2012, emphasising the need for effective dialogue and consultation before any decision on the opt-out was taken. I was disappointed, therefore, that no prior notification was received by Scottish Ministers ahead of the Home Secretary's statement on 15 October confirming the UK Government's preferred position".[51]

Another member of the Scottish Government, Frank Mulholland QC, the Lord Advocate, confirmed that he had not been consulted prior to the Home Secretary's statement either.[52]

48. David Ford MLA, the Minister of Justice in the Northern Ireland Executive, told us that he had received assurances from the Home Secretary and the Lord Chancellor that, in making their decision, the devolution settlements would be taken into account, together with the practical implications of all the options for all parts of the UK. While he welcomed these assurances he also told us that he remained concerned that "the potentially very significant effects on Northern Ireland may not be fully recognised in Whitehall" and that "It is vital that the decisions made are those in the best interests of all parts of the UK".[53]

49. It was subsequently confirmed that James Brokenshire MP, the Security Minister, met all of the above Ministers during January 2013.[54] The Lord Chancellor also confirmed that he had met David Ford MLA in early February 2013.[55]

50. Regular meetings of a Joint Ministerial Committee (JMC), which includes representatives of the UK Government, the Scottish Government, Northern Ireland Executive and Welsh Government, take place to discuss matters of common interest. We note that meetings of the Joint Ministerial Committee (Europe) took place on 11 June 2012 and 15 October 2012, the day of the Home Secretary's statement, but it is unclear whether the opt-out decision was discussed at either of these meetings.[56]

51. The Home Secretary told us that there were prior consultations at the official level with the Devolved Administrations, which had continued after the 15 October statement, with additional consultations at the ministerial level.[57]

Consultation of stakeholders

52. It is common for the Government to consult interested and relevant stakeholders about proposed policy developments, by undertaking formal consultations, and through informal meetings between relevant officials and stakeholders. With regard to any significant change in the law, we would expect the UK legal professions to be consulted. While the Bar Council of England and Wales and the Law Societies of England and Wales, Scotland and Northern Ireland called on the Government to conduct a full public consultation about the decision following the Prime Minister's remarks in Brazil, no such consultation took place.[58] The Bar Council and the Law Society of England and Wales told us that "before indicating any intention concerning the question of whether to exercise the opt-out, the Government should first have consulted publicly on the question, including on its potential practical and legal implications".[59] We understand that a meeting between Government officials and the Law Society subsequently took place on 30 January 2013 and with JUSTICE and Fair Trials International (FTI), regarding the EAW, in early February. We also understand that a meeting was to be held with the Bar Council.[60]

53. Keir Starmer QC, the Director of Public Prosecutions (DPP), told us that his office was not formally consulted before the 15 October statement but that he had been given a "proper opportunity" to make his views known subsequently.[61]

54. The Home Secretary told us on 13 February 2013

"The Justice Secretary and I held a meeting last month with representatives of ACPO, SOCA, the Metropolitan Police, HMRC, the National Crime Agency, which we are establishing, and the Security Service, and this month we have met with the Director of Public Prosecutions and the Serious Fraud Office. There are bilateral discussions taking place as well with other Ministers, and officials have been meeting with a variety of other interested parties, such as the Law Society, Open Europe and the Centre for European Legal Studies, so we are trying to cast our net wide in terms of talking to and hearing from people about these issues".[62]

55. Given the significant implications of the opt-out decision we believe that the Government should have conducted more detailed analysis of this matter, including that of each measure affected by the opt-out, at a much earlier stage. It is regrettable that very little work appeared to have been completed in this respect by the time of the Home Secretary's announcement on 15 October 2012.

56. We regret that the Government have not complied with their own undertakings to engage effectively with Parliament regarding the opt-out decision. While understanding the Lord Chancellor's concern that Parliament should first have been informed of the Government's inclination to opt out, before they entered into detailed discussions with the Devolved Administrations and stakeholders, we still consider that it would have been wise to have sought the views of the Devolved Administrations and other stakeholders at a much earlier stage before reaching even a provisional decision on the merits of opting out.

Review of the Balance of Competences between the UK and the EU

57. On 12 July 2012 the Foreign Secretary announced that the Government were carrying out a 'Review of the Balance of Competences between the UK and the EU', including how each EU competence was used, and what it meant for the UK and the national interest.[63] The Review will involve Government departments conducting subject-by-subject "audits" of EU competences through the consultation of stakeholders and the relevant Parliamentary committees, before producing a report on each policy area. It is intended that all of these reports will have been produced by the end of 2014. The review of the EU's police and criminal justice competence has been scheduled to take place between spring and autumn in 2014; that is to say after the 31 May 2014 deadline for exercising the opt-out.

58. We asked the Government how the opt-out decision related to the Balance of Competences Review. They replied that

"The 2014 opt-out is a separate decision that is provided for under the EU Treaties and one which we are obliged to make; the Balance of Competence review is a commitment in the Coalition Programme for Government. The review aims to deepen public understanding of the nature of our EU membership and provide a constructive and serious contribution to the wider European debate about modernising, reforming and improving the EU. As such, the review must be considered separately from the 2014 decision".[64]

59. It is unfortunate that the Government have decided to commence their Balance of Competences review of the EU's police and criminal justice competence in spring 2014, at which point the opt-out decision is likely to have been made. In any event, we expect the Government to take account of this report during their consideration of that particular range of competences.

The UK's future role in the EU

60. When we asked the Government what the wider implications would be for the UK's relations with the EU if the opt-out were to be exercised they replied: "The Government has been working hard to make it clear to other Member States and EU partners that this is a one-off decision granted by the Treaty of Lisbon and as such can be considered separate from other areas of EU cooperation. We have been clear that this decision is not about the UK disengaging from Europe and that the Government remains committed to playing a leading role in the EU. We continue to engage with Member States and the EU institutions to make these points clear and ensure that our wider relations with our EU partners are not affected".[65] The Home Secretary later repeated this point and also told us that she had received no evidence to suggest that the opt-out was having any impact on other areas of EU cooperation, including in the JHA area.[66]

61. We believe that the nature and extent of the United Kingdom's continued involvement in EU policing and justice cooperation should be considered on their own merits, and should not become obscured by the wider debate about the United Kingdom's relationship with the EU.

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33 A future fair for all, Labour Manifesto 2010 Back

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36 ^{LetterfromLordBoswellofAynhototheHomeSecretarydated9October2012.Containedinthevolumeofcorrespondence,whichisavailableonline.} Back

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38 ^{PrimeMinister'sspeech,BritainandEurope,23January2013} Back

39 ^{LetterfromtheHomeSecretaryandtheLordChancellortoLordBoswellofAynhodated1February2013.Containedinthevolumeofcorrespondence,whichisavailableonline.} Back

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