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 4: THE COURT OF JUSTICE OF THE EUROPEAN UNION, THE RELATIONSHIP BETWEEN UK AND EU LAW, AND THE COMMISSION

Background

62. The UK is currently bound, as a matter of law, by all of the pre-Lisbon PCJ measures, which were agreed by unanimity in Council. If the Government were not to exercise the opt-out and remained bound by those measures, two changes would occur on 1 December 2014: the measures would become subject to the jurisdiction of the CJEU, including its power to give preliminary rulings regarding the interpretation of EU law in cases referred to it by national courts and tribunals, and the Commission would be able to initiate infringement proceedings against Member States for not implementing particular PCJ measures or for doing so incorrectly. This will be the position in all other Member States from 1 December 2014.

63. Under the Treaty of Amsterdam the CJEU only had jurisdiction to give preliminary rulings on the validity and interpretation of pre-Lisbon PCJ measures in response to references from a national court if the Member State concerned had made a declaration accepting the CJEU's jurisdiction. Eleven Member States made such a declaration in 1999, but the UK did not, alongside France, Ireland and Denmark, among others.[67] In 1999 the CJEU also acquired jurisdiction over the remaining JHA areas—asylum, immigration and civil law—with respect to all the Member States. This will continue to be the case whether or not the opt-out is exercised.

64. In their written evidence the CJEU confirmed that the majority of the CJEU's 41 judgments concerning PCJ measures so far were concerned with three measures—the Framework Decision on the standing of victims in criminal proceedings, the EAW Framework Decision and the Schengen Implementing Convention (regarding the principle of ne bis in idem).[68]

The Court of Justice of the European Union and the European Court of Human Rights

65. The CJEU is charged with ensuring that "in the interpretation and application of the Treaties, the law is observed".[69] The CJEU has jurisdiction notably to hear: (i) infringement actions against Member States by the Commission or other Member States for non-compliance with EU law; (ii) preliminary references—providing interpretative judgments at the request of national courts and tribunals in order to help them decide a case with an EU law dimension; (iii) reviewing the legality of acts by the EU institutions, including actions for annulment of EU legislation or to require an institution to act, brought by a Member State or by one of the EU institutions. Alongside Member States' courts and tribunals, it ensures the uniform application and interpretation of EU law.[70]

66. It is important to emphasise that the CJEU only has jurisdiction over matters of EU law. The Bar Council of England and Wales stressed that the CJEU does not deliver final rulings on cases before national courts, either in fact or in law, but merely interprets the applicable EU law.[71] Similarly, Jodie Blackstock, from JUSTICE, noted that, when a national court makes preliminary references to the CJEU, the CJEU limits itself to interpreting EU law and does not interfere with its application in the Member State concerned.[72] The Lord Advocate made a similar point.[73]

67. While the CJEU in Luxembourg and the European Court of Human Rights (ECtHR) in Strasbourg are regularly confused by journalists, politicians and the public alike, they are distinct entities with different roles and functions. The ECtHR is an international court established by the Council of Europe—a separate intergovernmental organisation of 47 member states—and is charged with hearing applications alleging that a contracting state has breached the provisions in the European Convention on Human Rights (ECHR).[74] Applications can be lodged by individuals, groups of individuals or other contracting states, and, besides judgments, the ECtHR can also issue advisory opinions. There are connections between the EU and the Council of Europe. All the Member States of the EU are also members of the Council of Europe and are parties to the ECHR, which the ECtHR upholds. Fundamental rights as guaranteed by the ECHR constitute part of the "general principles" of EU law and, following changes introduced by the Treaty of Lisbon, the EU is committed to accede to the ECHR in its own right.

Other international courts with jurisdiction over the UK

68. The UK is also subject to the jurisdiction of a number of other international courts, including the International Court of Justice; the International Criminal Court; the International Tribunal for the Law of the Sea; the World Trade Organisation Dispute Settlement Body; and the Court of Justice of the European Free Trade Association States.

Democratic accountability and the rule of law

69. Open Europe has stated that EU cooperation on PCJ matters, including the role of the CJEU, has negative implications for the UK's "democratic control" of these matters.[75] The Fresh Start Project has also argued that the UK should retain "national democratic accountability over such a vital area of policy and law-making".[76] However, Justice Across Borders considered these arguments to be misrepresentations as "Democracy is underpinned by the rule of law. Independent courts uphold the rule of law and are not directly accountable to Parliament under any system".[77] The Centre for European Legal Studies (CELS) also criticised the suggestion that, unlike the UK's own courts, the CJEU was not democratically accountable, saying that "Behind this notion lies a serious misapprehension about the nature of the courts in countries that respect the rule of law and the separation of judicial and legislative powers. Our national courts apply the laws that are made by Parliament—and also those made by the EU, where these are applicable. But in no other sense are they "directly accountable", whether to Parliament or to the voters—any more than are the courts at Luxembourg".[78]

70. A number of witnesses emphasised the role of the CJEU in upholding the rule of law. James Wolffe QC, from the Faculty of Advocates, told us that its jurisdiction over EU law was a "necessary part of the rule of law in Europe"[79] and Dr Gavin Barrett stated that "Very serious cooperation is going on in the police and criminal law field at European level, and it is appropriate to have judicial control over that. It is not appropriate to have that level of power without a corresponding increase of protection of the individual, provided in part by the courts".[80] The LibDem UK MEPs remarked that "The jurisdiction of the CJEU should not be viewed as unacceptable meddling in our legal system, but as an opportunity to ensure that the rule of law triumphs over political backsliding or inept administration in other Member States".[81]

71. As many of the police and criminal justice measures engage the fundamental rights of EU citizens, including UK nationals travelling or living in other Member States, we believe that the CJEU has an important role to play, alongside Member States' domestic courts, in safeguarding these rights and upholding the rule of law.

The UK's common law systems

72. The beginning of Title V TFEU states that "The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States".[82] Despite this, concerns have been raised that the UK's common law systems are under threat from the development of EU law and any extension of the CJEU's jurisdiction and the Commission's enforcement powers.

73. UKIP's view was that EU PCJ measures had "mainly failed to achieve any legitimate purposes, but instead has placed our own legal system into a situation of a constitutional crisis, with sovereignty, rule of law, and our most fundamental liberties all in jeopardy".[83] Open Europe, Dominic Raab MP and the Fresh Start Project have also noted the distinctiveness of the UK's common law systems, from civil or continental legal systems, and the need for their preservation.[84] The Lord Chancellor emphasised the distinctive nature of the UK common law systems and stressed that the Government had to be very careful before it ceded sovereignty over those systems, which may unexpectedly impinge or erode some of their principles while also effectively making the CJEU the supreme court in the UK with the ability to evolve its jurisprudence accordingly.[85] However, he made it clear that he was "not accusing the European Court of trying to subvert the British system of justice in the common law".[86]

74. Many of our other witnesses told us that they did not have any such concerns. The Law Society of England and Wales (LSEW), the Law Society of Scotland (LSS), the Bar Council of England and Wales, the Faculty of Advocates, the Lord Advocate, Hugo Brady and Jago Russell from FTI told us that they were not aware of any negative implications for either English and Welsh or Scots law.[87] The CELS and Jeremy Hill, from Justice Across Borders, agreed that the PCJ measures did not pose a threat to the common law, instead suggesting that "if anything, they involve cultural transfers in the other direction".[88] Dr Maria O'Neill, from University of Abertay Dundee, told us that interaction between EU and common law is irrelevant to the provisions on cross border law enforcement[89] and the DPP stated that bodies such as Eurojust worked well as an "interface" between common law and civil law jurisdictions.[90]

75. The LibDem UK MEPs told us that, in the context of the European Parliament, the UK common law systems were usually accommodated because of a high regard for the UK legal system.[91] Baroness Sarah Ludford MEP, a member of the European Parliament's Civil Liberties, Justice and Home Affairs (LIBE) Committee, did not accept that there was a threat to the UK legal systems from EU cooperation, saying that it was not right to generalise all continental systems as being of one type and all common law systems of another. She also stated that "the point of European co-operation is to make those legal, policing and law enforcement systems talk to each other, not to make things uniform … I always stress that the word "harmony" means to sing together; it does not mean to have one voice".[92] Another member of the LIBE Committee, Claude Moraes MEP, stressed that other Member States also had their own distinctive legal traditions,[93] while Klaus-Heiner Lehne MEP, the Chair of the European Parliament's Legal Affairs (JURI) Committee, stated that his Committee had a lot of respect for different national traditions and were not conscious of any EU proposals or jurisdiction that may interfere with these.[94]

76. Each Member State has a distinct legal system. The United Kingdom has an essentially common law system, including within it three distinct jurisdictions—England and Wales, Scotland and Northern Ireland. The overwhelming weight of evidence suggests that none of the pre-Lisbon police and criminal justice measures undermines the United Kingdom's common law systems in any way and would not do so if they became justiciable in the CJEU.

A pan-European criminal law code?

77. The Fresh Start Project has stated that the PCJ measures are "widely regarded as stepping stones towards a pan-European criminal code, decided by qualified majority voting, overseen by the Commission and enforced by the ECJ and a European Public Prosecutor".[95] Open Europe's view is that the CJEU has a history of ruling in favour of "ever closer union" and therefore the UK would be taking a gamble if it chose to cede more sovereignty to the CJEU.[96] Dominic Raab MP used similar language, referring to the "Commission's stated ambition of developing a uniform pan-EU criminal code" and considering the opt-out decision to be an "important historic juncture" in this context.[97] The Lord Chancellor emphasised that while some PCJ measures were about international crime fighting, others concerned "judicial harmonisation", which were the "building blocks of a European justice system".[98] Martin Howe QC told us that "the only serious argument for staying in is if you believe it is in our national interest to participate in the creation of a super-state with an integrated criminal law".[99]

78. Professor John Spencer, from the CELS, dismissed the notion of a pan-European criminal law code as a "Euro-myth", but said that "Even if there were such a plan, there is nothing in any of these … measures that contribute towards it; quite the opposite, a large body of them are mutual recognition measures designed to try to enable the Member States' diverse legal systems to continue to work co-operatively while maintaining their diversity". He also stated that the idea of mutual recognition "was basically a British invention put forward to preclude the case for having any kind of pan-European criminal code".[100] Justice Across Borders, Helen Malcolm QC, from the Bar Council, and Mike Kennedy, a former President of Eurojust and former Chief Operating Officer at the Crown Prosecution Service (CPS), were also sceptical about any moves in this direction[101] and JUSTICE remarked that, if there were, then the UK could simply decide not to opt-in under Protocol 21.[102] Klaus-Heiner Lehne MEP stressed that no such proposals had been suggested by the Commission, who had instead adopted a "very careful approach to criminal law" and that there was "no chance" of a majority of Member States supporting something of this nature, nor of MEPs in the European Parliament.[103]

79. We consider the stated concerns about the possible development of a pan-EU criminal code to be misplaced. There is at present no evidence that the Commission has any intention of developing such a code and even were it minded to do so, the United Kingdom would not be compelled to participate in such a venture thanks to its right under Protocol 21 to the Treaties not to opt in to proposals in this area.

"Judicial activism" and "unexpected judgments"

80. A number of witnesses made reference to the CJEU's "judicial activism" and the problems that could be caused by its "unexpected judgments".

81. UKIP stated that "The significance of subjection to the jurisdiction of European Court of Justice must not be underestimated. [The] ECJ is a 'political' court of very poor judicial quality, and it should be expected to use its new powers to actively promote the EU-integrationist constitutional agenda, rather than uphold the rule of law or do justice in individual cases" and that it "often does not keep its judgement within the limits of the question referred by the national court, but seeks to intrude into the national court's area of competence. For example, rather than simply resolving the 'EU law' question, ECJ would seek to re-write the national court's findings of fact".[104]

82. Stephen Booth, from Open Europe, told us that the CJEU had made rulings "that national Ministers had no idea or anticipation of that have radically changed the nature of secondary legislation at the EU level, not necessarily in this field but in other fields as well" and that the risks presented by the CJEU's jurisdiction outweighed the benefits of not opting-out.[105] Martin Howe QC made a similar point and also told us that, if the Government did not opt-out, "then these practical measures will be interpreted by a court that has avowedly said that it will interpret all measures under the Treaties in the light of the overall objective of furthering European unity". He also stated that CJEU judges were, by and large, "integrationist enthusiasts".[106] However, he agreed that the CJEU was capable of making judgments that respected the autonomy of national systems and perhaps even improve the operation of PCJ measures, on occasion.[107] Timothy Kirkhope MEP remarked that all EU institutions had ambitions to extend their competence, including the CJEU,[108] and the Lord Chancellor made this point with regard to international courts more generally.[109]

83. The Lord Chancellor went on to tell us that "The courts are there to take decisions independently of the Executive; sometimes I may find them infuriating. I may sometimes disagree if I am directly involved in it and regret a judgment … if I do not like the decision the court takes I should change the law as a legislator, I should not attack the court. However, in the case of the international courts we do not have that same flexibility".[110] Martin Howe QC made a similar point[111] and Stephen Booth considered that "In such a sensitive area … the UK has potentially set itself up for unintended and unexpected consequences, which … are very difficult to amend once they are in EU law".[112]

84. Professor Steve Peers told us "by and large if you look at that body of case law, there is no evidence of judicial activism". He considered that, on the whole, the CJEU had been "relatively deferential to Member States, particularly as regards national criminal procedure and the Framework Decision on crime victims" with several recent judgments stating explicitly that the EU measure could not be interpreted "to undercut the fundamental elements of the national criminal justice systems of Member States". He and the CELS did not accept that the CJEU had federalist ambitions.[113] FTI considered that there is "little evidence" to suggest that the CJEU is judicially activist or that its judgments undermined the UK common law systems.[114] The CER has stated that the Government and other critics of the CJEU had not yet articulated any precise threats posed by the extension of its jurisdiction to the UK legal system and that there was "no evidence to back up the claim that [it] would be inherently bad for Britain".[115] Jodie Blackstock welcomed the potential role of the CJEU in improving justice rather than being expansionist.[116] Jeremy Hill considered that the CJEU's jurisprudential record was "sound" and could not be described as "wayward or activist".[117] Professor Anagnostopoulos, from the Council of Bars and Law Societies of Europe (CCBE), told us that they were optimistic rather than critical of CJEU judgments and had not detected any evidence of judicial activism.[118] The LSEW remarked that unexpected judgments were an "inevitable feature of all legal systems where courts have a role in interpreting legislation" and that uncertainty was unlikely to be avoided by exercising the opt-out, which would generate greater complexities instead.[119] The Lord Advocate had no concerns about the role of the CJEU in relation to Scots law.

85. The Lord Advocate also remarked that the recent Radu judgment[120] could have adopted an expansionist approach but did not.[121] Helen Malcolm QC echoed this point.[122] The Lord Chancellor did not expect the CJEU to make an expansionist judgment in every instance but he emphasised that it "definitely does happen"; having seen this being demonstrated very clearly during his time as Employment Minister.[123]

The judgments of the Court of Justice of the European Union

86. A number of witnesses cited particular CJEU judgments to support their arguments about the intentions of the CJEU. A summary of some of these judgments, including their citations, is provided in Appendix 5.

87. The Government, Martin Howe QC, Open Europe, Dominic Raab MP and UKIP have all cited judgments in support of their view that the CJEU undermined UK law, but only one of these cases—Pupino—concerned a pre-Lisbon PCJ measure. Open Europe cited the Metock and Pupino judgments as examples of the CJEU's judicial activism.[124] The Home Secretary cited the Metock judgment, which concerned free movement, as a reason why the Government were wary of accepting the CJEU's jurisdiction; stating that this unexpected ruling had led to an increase in sham marriages.[125] Martin Howe QC was particularly critical of the CJEU's extension of the EU "doctrine of conforming interpretation" to Framework Decisions in Pupino because while the UK "presumption of conformity" did not override the wishes of Parliament the former EU doctrine often would.[126] The Government also referred to the Pupino case but did not suggest that they disagreed with the judgment.[127] Martin Howe QC referred to the Association Belge des Consommateurs Test-Achats judgment, in which the CJEU had struck down the derogation in the Gender Directive regarding insurance companies on the basis that it was non-compliant with the Charter of Fundamental Rights.[128] Stephen Booth also referred to the insurance case and Open Europe has referred to the SiMAP and Jaeger judgments concerning the Working Time Directive, which they considered had created significant burdens on the UK.[129]

88. FTI considered Metock to be a positive judgment,[130] while the LSEW and the Bar Council stated that it reflected an "orthodox and entirely foreseeable view of EU law", which expressly recognised the right of Member States to protect themselves from the conferral of rights by fraudulent means, including by sham marriages, and that there was no evidence of the CJEU attempting to interfere in domestic law.[131] With regard to the Pupino judgment the LibDem UK MEPs stated that it was "hardly surprising or shocking" and remarked that the Government could not have been too concerned about it as they had decided to opt-in to the post-Lisbon PCJ Directive that replaced it.[132] Professor Anagnostopoulos agreed, saying that the CCBE did not consider Pupino to have adopted a "subversive approach".[133] With regard to Martin Howe QC's point about judicial interpretation, the LSEW and the Bar Council considered that the two doctrines to which he referred produced a similar result.[134] The LibDem UK MEPs, FTI, the Bar Council and JUSTICE also cited other CJEU judgments concerning PCJ measures, including Pupino, as having regularly deferred to the autonomy of national systems. These included Gueye and Sanchez; X; Giovanardi; Advocaten voor de Wereld; Wolzenburg; and Radu.[135]

89. We have considered the CJEU judgments concerning pre-Lisbon police and criminal justice measures and we can discern no convincing evidence that the CJEU has been either judicially activist or that its rulings set out to undermine the autonomy of Member States' criminal justice systems.

90. We do not consider the Government's concerns about unexpected judgments being made by the CJEU to be a reasonable or substantive reason for rejecting the CJEU's jurisdiction in relation to the pre-Lisbon PCJ measures. All courts, including the UK Supreme Court, can make unexpected judgments which are not necessarily favourable to the executive. This is an inevitable consequence of upholding the rule of law. However, we do accept the Lord Chancellor's point that in the case of decisions of international courts, there is not the same flexibility to legislate to overturn such decisions as there is within our domestic system.

The drafting and application of the police and criminal justice measures

91. The Government told us that the "vast majority" of pre-Lisbon PCJ measures were not drafted with CJEU jurisdiction in mind and had often been agreed at the "lowest common denominator" in order to secure unanimity. As a result, much of the drafting was "not of a high standard and may be open to expansive interpretation by the ECJ". Their concerns were also compounded by the fact that the CJEU had ruled "in unexpected and unhelpful ways from a UK perspective".[136] Stephen Booth made the same point.[137] The Lord Chancellor elaborated, saying "They are not always necessarily the most perfect legal instruments. If they are passed over to the jurisdiction of the European Court—which has a remit to encourage and support European integration—then I would expect in a number of cases the jurisprudence to evolve in a way that goes beyond the detail of the original measures".[138] He cited the pre-Lisbon Framework Decision on the standing of victims as an example of a measure that could have caused problems in this regard. However, he stated that these issues had now been clarified, which was why the Government had decided to opt-in to the post-Lisbon Directive, which had replaced that Framework Decision.[139]

92. Jeremy Hill disagreed, stating that those drafting the pre-Lisbon PCJ measures "were conscious that they were legal texts and were focused on the wording".[140] He also stated that, in general, EU measures were commonly drafted in more general terms than domestic legislation so the CJEU was often faced with the challenge of how to interpret provisions that may not always be entirely clear in that context, which they considered it had managed to do very well.[141] Jodie Blackstock agreed, adding that the Council and Commission Legal Services were always consulted before a measure was adopted.[142]

93. Many of our witnesses welcomed the prospect of the CJEU's jurisdiction and the Commission's enforcement powers as potentially bringing significant advantages in terms of ensuring the consistent application and interpretation of PCJ measures, including national courts being allowed to make preliminary references.[143] FTI made reference to a decision of the UK Supreme Court in which Baroness Hale of Richmond commented that the inability of the court to refer a question to the CJEU made it difficult to interpret unclear points of EU law.[144] They also stressed the CJEU's role in ensuring that measures were applied in conformity with basic fair trial standards.[145] Open Europe acknowledged these benefits, in theory, but stressed that they had to be weighed against the potential costs, including loss of national sovereignty and control.[146] The COPFS said that even if the UK was not subject to the CJEU in certain areas of PCJ cooperation it would be "unduly optimistic" to suppose that the opt-out would insulate UK court decisions from being influenced by CJEU judgments alongside other foreign and international jurisprudence.[147]

94. We considered this point in our report on the Lisbon Treaty and concluded that "The increase in the jurisdiction of the ECJ is a significant development. It replaces the complex existing regime of jurisdiction with a clear and uniform rule and is likely to increase consistency and legal certainty in the application of EU law".[148]

95. The Government are concerned about submitting the pre-Lisbon measures to the CJEU's jurisdiction apparently on the ground that these measures were not prepared and adopted with the CJEU's jurisdiction in mind. It is difficult to draw general conclusions from the detailed drafting of individual measures but we note that 19 Member States had by 2010 accepted the jurisdiction of the CJEU.

96. We believe that the ability of courts in the United Kingdom to make preliminary references to the CJEU should help to promote the consistent application and interpretation of police and criminal justice measures both in the United Kingdom and across the EU.

Concerns about caseload volume and delays

97. A number of our witnesses expressed concerns about the impact of the extension of the CJEU's jurisdiction, including the facility for national courts to make preliminary references, on its workload and the possible delays that may be caused as a result. We have considered the CJEU's workload in a previous report[149] and it will also be the subject of a forthcoming follow-up report.

98. UKIP expressed concerns about possible delays.[150] JUSTICE also acknowledged capacity and logistical issues but did not consider this to be a good reason for exercising the opt-out.[151] The Bar Council, Justice Across Borders and Professor Anagnostopoulos also had concerns about delays but believed that these issues were either already being addressed or would be in the near future.[152]

99. In order for cases to be dealt with quickly in situations where national courts make a request to the CJEU for a preliminary reference, where an individual is held in custody, a fast track preliminary ruling procedure was introduced prior to the Treaty of Lisbon.[153] Martin Howe QC considered that the availability of preliminary rulings to UK courts would result in "very significant delays" notwithstanding the fast track procedure, which he stated was rarely used.[154] The Bar Council, the Faculty of Advocates and the LSEW all referred to the existence of the fast track procedure as a mitigating factor in this respect.[155] The CELS stated that there was no risk of serious delay due to the existence of this facility.[156]

100. Professor Peers also stressed that, despite the fact that many of the largest Member States had already accepted the CJEU's jurisdiction, the volume of cases received each year concerning PCJ measures was low and that there was no reason to think that this would increase suddenly when the CJEU assumed full jurisdiction at the end of 2014.[157]

Post-Lisbon police and criminal justice opt-ins

101. The LibDem UK MEPs noted that the Government had opted in to the majority of post-Lisbon measures, which indicated, in their view, that the Government considered those measures to be valuable for the UK.[158] The LSEW and FTI noted that the jurisdiction of the CJEU would automatically apply to these measures, so exercising the opt-out would not remove the UK from the jurisdiction of the CJEU on PCJ measures altogether.[159] Regarding the proposed Proceeds of Crime Directive, to which the Government had chosen not to opt-in to at this stage, the DPP and the Lord Advocate considered that it would be helpful if they did so.[160] This Committee has supported the UK's participation in the majority of these measures, some of which are listed in Box 3.[161]

BOX 3

List of post-Lisbon police and criminal justice measures and the Government's participation

Measures that will repeal and replace, or amend, measures on the opt-out list:

Initiative of the Kingdom of Belgium, the Republic of Bulgaria,the Republic of Estonia, the Kingdom of Spain, the Republic of Austria, the Republic of Slovenia and the Kingdom of Sweden for a Directive regarding the European Investigation Order in criminal matters, which will replace Council Framework Decision 2008/978/JHA [European Evidence Warrant], and apply instead of corresponding provisions of Schengen Convention, Council of Europe Convention and Protocols on mutual assistance, and EU Convention and Protocol on mutual assistance [opted in]
Proposal for a Directive on attacks against information systems and repealing Council Framework Decision 2005/222/JHA [opted in]
Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA [adopted and applies to the UK]
Directive 2011/92/EU on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA [adopted and applies to the UK]
Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA [adopted and applies to the UK]
Proposal for a Directive on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection of prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data, which would replace Council Framework Decision 2008/977/JHA [did not opt out]
Proposal for a Directive on the freezing and confiscation of proceeds of crime in the European Union, which would replace Council Framework Decision 2005/212/JHA [did not opt in]
Proposal for a Directive on the fight against fraud to the Union's financial interests by means of criminal law, which would replace the Convention on protection of EU financial interests and its Protocols [not subject to the opt-in]
Proposal for a Regulation on the establishment of an evaluation mechanism to verify the application of the Schengen acquis, which would replace SCH/Com-ex (98) 26 def setting up a Standing Committee on the evaluation and implementation of Schengen [did not opt-out]
Proposal for a Directive on the protection of the euro and other currencies against counterfeiting by criminal law, and replacing Council Framework Decision 2000/383/JHA [opt-in period still running]
Proposal for a Regulation on the European Union Agency for Law Enforcement Cooperation and Training (Europol) and repealing Decisions 2009/371/JHA and 2005/681/JHA [opt-in period still running]

Measures that do not replace pre-Lisbon PCJ measures on the opt-out list

Directive 2010/64/EU on the right to interpretation and translation in the framework of criminal proceedings [adopted and applies to the UK]
Directive 2011/99/EU on the European protection order [adopted and applies to the UK]
Proposal for a Directive on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest [did not opt in]
Directive 2012/13/EU on the right to information in criminal proceedings [adopted and applies to the UK]
Regulation 542/2010 amending Decision 2008/839/JHA on migration from the SIS to SIS II [adopted and applies to the UK]
Proposal for a Directive on the use of Passenger Name Record data for the prevention, detection, investigation and presentation of terrorist offences and crime [opted in]
Proposal for Directive on criminal sanctions for insider dealing and market manipulation [did not opt in]

102. However, Stephen Booth's concerns about the CJEU's potential judicial activism also extended to these measures[162] and Martin Howe QC told us that he had "very serious reservations of principle about the Government's decision to opt in to" the majority of these measures, saying that his preference would be not to opt-in to any at all.[163] The Fresh Start Project has advocated the negotiation of Treaty change to allow the UK to opt out of these measures, particularly the European Investigation Order (EIO), and UKIP also stated that further work along these lines was necessary.[164] We consider this possibility further in Chapter 5.

103. The Government's position is to approach each post-Lisbon PCJ proposal on a case-by-case basis and the Lord Chancellor stated that the Government had already decided to opt in where it was in the "national interest" to do so, which was essentially the same assessment that they were making regarding the opt-out decision as a whole.[165] He also stated that he would never rule out accepting the CJEU's jurisdiction—they had already accepted it regarding the measures in which they had decided to participate—but that they needed to be "very careful" before deciding to do so.[166] The LSEW considered that if the UK accepted the CJEU's jurisdiction for some measures but not for others then this would risk creating "incoherence and further complexity".[167]

104. We note that the CJEU already has jurisdiction over pre-Lisbon EU civil, asylum and immigration measures. The Government have raised no concerns about the CJEU's role in these areas. We further note that the CJEU has, or will have, jurisdiction also over the post-Lisbon police and criminal justice measures to which the Government have decided to opt in. No concerns have been raised about the CJEU's prospective role over these measures by the Government. We welcome this clear evidence that the Government therefore have no objection of principle to accepting the CJEU's jurisdiction.

105. We have not identified any significant, objective justification for avoiding the jurisdiction of the CJEU over the pre-Lisbon police and criminal justice measures in the United Kingdom.

European public prosecutor

106. The Treaty of Lisbon foresees the possible creation of a European Public Prosecutor's Office (EPPO) "from Eurojust" in order to combat crimes affecting the EU's financial interests.[168] The decision to set up an EPPO would be taken by the Council acting by unanimity after obtaining the consent of the European Parliament, or in the absence of unanimity, nine or more Member States could take such a proposal forward under the enhanced cooperation procedure.[169] The Commission's proposal is expected to be published before the summer.[170] Michle Coninsx, the President of Eurojust, told us that she understood that a separate Regulation would be published concerning Eurojust alongside one on the EPPO.[171]

107. Since its inclusion as part of the Corpus Juris project in April 1997 the idea of a European Public Prosecutor in whatever form has proved controversial for successive UK Governments.[172] On 6 February 2012, over 100 Conservative backbench MPs signed a letter to the Telegraph, supporting the opt-out and also saying, among other things, "We do not wish to subordinate UK authorities to a pan-European public prosecutor".[173] The Coalition Agreement says that "Britain will not participate in the establishment of any European Public Prosecutor"[174] and the European Union Act 2011 has made its creation subject to a referendum and an Act of Parliament.[175] We have recently considered the creation of an EPPO in our report on fraud against the EU's finances.[176]

108. Both Dominic Raab MP and the Fresh Start Project make reference to a speech by President Barroso, the President of the Commission, which he delivered in September 2012, when he confirmed the Commission's intention to introduce a proposal for an EPPO.[177] While they did not make any reference to the UK's option not to participate in the EPPO, other witnesses were clear that the UK would not be obliged to participate. Justice Across Borders noted that the perceived connection between the prosecutor and Eurojust stemmed from the language of the relevant Treaty provision but it was also clear that the UK did not need to opt in and if it did that a referendum would be required.[178] Jodie Blackstock considered the UK's exclusion from participating in the EPPO to be "cast-iron" in this respect.[179] However, UKIP told us that Eurojust was destined to "mutate" into the EPPO and that it would be better for the UK to opt out of both.[180] Timothy Kirkhope MEP and Anthea McIntyre MEP, both members of the LIBE Committee, told us that, if the UK is to continue participating in Eurojust, it must consider how to achieve this without being required to participate in the EPPO.[181] Mike Kennedy considered such concerns to be misguided, saying that the UK and other Member States opposed to the creation of an EPPO would not be in danger of becoming subject to this body simply by retaining a seat in Eurojust.[182]

109. Professor Anagnostopoulos told us that the CCBE had concerns about the proposed EPPO and did not consider it to be a priority.[183] They also suggested that, as the UK did not need to opt in to any proposal on the EPPO, that consideration should not influence the opt-out decision.[184] The LSEW and Justice Across Borders agreed that it was a separate consideration from the opt-out decision.[185] Evanna Fruithoff, from the Bar Council, said it was likely that the proposal would proceed by way of enhanced cooperation, because of opposition from a number of Member States, not just the UK.[186] Klaus-Heiner Lehne MEP also expressed opposition to the creation of an EPPO.[187]

110. In the context of the opt-out decision, concerns about the prospective role of a European public prosecutor are misplaced. The United Kingdom has the right not to opt-in to any such proposal and the Government have already announced that they have no intention of doing so. Furthermore, even were they to wish to opt in, the European Union Act 2011 would require a referendum to be held and primary legislation to be passed before they could do so. We therefore consider that the consideration of this particular issue should have no bearing on the 2014 opt-out decision.

The Commission's enforcement powers and unimplemented police and criminal justice measures in the UK

111. The majority of our witnesses expressed no concerns about the prospect of the Commission assuming enforcement powers over the implementation of the pre-or post-Lisbon PCJ measures in the UK. The Faculty of Advocates stated that, although the Commission's infringement role may not be popular with governments, it is essential to ensure that the law is applied fairly.[188] Many of our witnesses also mentioned the UK's strong record of implementing EU legislation and considered that there was no substantial risk of infringement proceedings being brought against the UK by the Commission in the short term.[189]

112. The Government however confirmed that 15 pre-Lisbon PCJ measures had not yet been fully implemented in the UK and that their non-implementation should be considered in the context of the opt-out decision.[190] Some of these are considered to be defunct and others will be superseded by post-Lisbon PCJ measures once they enter into force. The measures are listed in Box 4.

BOX 4

List of pre-Lisbon police and criminal justice measures that have not
yet been implemented in full by the UK

Council Framework Decision 2003/577/JHA on the execution in the European Union of orders freezing property or evidence [to be partially superseded by the EIO]
Council Decision 2005/211/JHA concerning the introduction of some new functions for the Schengen Information System, including in the fight against terrorism; and Council Decisions 2006/228/JHA, 2006/229/JHA & 2006/631/JHA fixing the date of application of certain provisions of Decision 2005/211/JHA
Council Framework Decision 2006/783/JHA on the application of the principle of mutual recognitions to confiscation orders [European Confiscation Order]
Council Decision 2008/615/JHA on stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime; and Council Decision 2008/616/JHA on its implementation [the Prüm Decisions]
Council Framework Decision 2008/978/JHA on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters [European Evidence Warrant, to be superseded by the EIO]
Council Framework Decision 2009/905/JHA on accreditation of forensic service providers carrying out laboratory activities
Council Framework decision 2009/829/JHA on the application between Member States of the European Union of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention [European Supervision Order]
Council Framework Decision 2008/947/JHA on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions [European Probation Order]
Council Framework Decision 2009/948/JHA on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings
Council Framework Decision 2009/299/JHA amending Framework Decisions 2002/584/JHA, 2005/514/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial [amendment to the EAW Framework Decision]
Agreement on Cooperation in Proceedings for Road Traffic Offences and the Enforcement of Financial Penalties Imposed in Respect Thereof (SCH/III (96)25rev18) [considered to be defunct]

113. The FTI, CER and JUSTICE all considered that it was unfortunate that the Government had chosen not to implement these measures[191] and Jeremy Hill thought that they "would help enhance the protection of British citizens".[192] The DPP also considered the non-implementation of the asset recovery measures to be "unhelpful" as they had to rely upon slower and less reliable bilateral arrangements to freeze assets and to enforce confiscation orders as a result.[193]

114. The Lord Chancellor told us that there was no single reason why these measures had not been implemented but it was sometimes for financial or legislative reasons, not only in the UK but also other Member States.[194] UKIP said the Government had good grounds for not implementing these measures, including civil liberties concerns,[195] while Dominic Raab MP was clear that the Government were under no obligation to do so.[196]

115. We consider that it is unlikely that the United Kingdom will become subject to infringement proceedings by the Commission regarding the non-implementation of these police and criminal justice measures in the short term. But in any case we believe that the Government should take steps to implement those of value.

67 ^{Sincethen,eightotherMemberStateshaveacceptedCJEUjurisdiction.} Back

68 ^{CJEU.Thisprinciplerestrictsthepossibilityofadefendantbeingprosecutedrepeatedlyonthebasisofthesameoffence,actorfacts.} Back

69 ^{Article19(1)TEU.} Back

70 ^{TheCJEUissplitintothreetiers:theuppertieristheCourtofJustice(CJ)whichwasformerlyknownastheEuropeanCourtofJustice(ECJ);beneaththeCJistheGeneralCourt(GC)whichwasformerlyknownastheCourtofFirstInstance(CFI);andthethirdtierconsistsofaspecialisedcourt,theCivilServiceTribunal(CST).} Back

71 ^BarCouncil Back

72 ^JUSTICE Back

73 ^Q268 Back

74 ^{ThejudgesoftheECtHRareelectedbytheParliamentaryAssemblyoftheCouncilofEurope(PACE)byamajorityofthevotescastfromlistsofthreecandidatesnominatedbyeachmemberstate.} Back

75 ^{OpenEurope,AnUnavoidableChoice(byStephenBooth,ChristopherHowarthandVincenzoScarpetta)} Back

76 ^{FreshStartProject,ManifestoforChange} Back

77 ^{JusticeAcrossBorders} Back

78 ^{CELS,OptingoutofEUCriminallaw(byProfessorJohnSpencer,ProfessorStevePeersandDrAliciaHinarejos)} Back