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 5: ALTERNATIVE ARRANGEMENTS FOR CROSS-BORDER COOPERATION

The need for cross-border police and criminal justice cooperation

116. None of our witnesses doubted the need for the UK to cooperate with other Member States on cross-border policing and criminal justice matters. The Police Foundation stated that most modern criminal activity was organised, international and cross-border in character.[197] The Government also emphasised that the scope of the threat was global in nature, and that they were committed to working closely with international partners to safeguard the UK's national security.[198]

117. We note that this approach is reflected in the 2010 National Security Strategy, which emphasises the UK's "vital partnership" with the EU.[199] In the Government's 2011 organised crime strategy—Local to Global—they promise actively to participate in the Standing Committee on Internal Security (COSI); develop their cooperation with Europol and Eurojust; and support more operational collaboration between law enforcement agencies in the other Member States.[200] The Prime Minister's speech on Europe also acknowledged the EU's important role in tackling terrorism and organised crime.[201]

118. Cross-border cooperation on policing and criminal justice matters between the United Kingdom and the other Member States is an essential element in tackling security threats such as terrorism and organised crime. In the early twenty-first century no Member State can hope to assure its internal security or the enforcement of the rule of law without such cooperation.

Alternative arrangements for cross-border cooperation

119. A number of witnesses suggested that if the opt-out was exercised it would be possible for the UK to fall back on alternative arrangements for cross-border cooperation with the other Member States. We therefore considered how practical or feasible any alternative arrangements could be, including the likelihood that other Member States would be able or willing to facilitate such an approach.

120. Open Europe and the Fresh Start Project have both suggested that "practical cooperation" and "operational effectiveness" could readily be achieved with other Member States without relying upon EU measures to do so.[202] Dominic Raab MP agreed, stating that "functional cooperation" could be achieved through "ad hoc" bilateral or multilateral cooperation, pursuant to a Memorandum of Understanding (MoU) coupled as necessary with domestic implementing legislation, or—where an international legal basis is required—a treaty framework or EU instrument that is not supervised and enforced by the Commission and the CJEU. He cited SOCA's conclusion of MoUs with the US, Australia, New Zealand and Canada regarding cyber crime as examples of this.[203] He has also said that "Far from reflecting ideological Euroscepticism, this approach is designed to increase the prospects of, and scope for, operational law enforcement cooperation, by maximising the forms and models through which it can be delivered".[204]

121. UKIP stressed that Council of Europe Conventions and other non-EU mechanisms of international cooperation were already well developed and provided an "adequate" legal framework which, though the change may cause some inconvenience for law enforcement authorities, they saw no practical problems with falling back on it.[205] Martin Howe QC told us that if it was possible to achieve the practical benefits from securing extradition and other means of JHA cooperation, which avoided being subject to the jurisdiction of the CJEU, then he firmly believed that the UK should pursue such an approach.[206]

122. The Government also suggested, if the opt-out was exercised, that reliance on alternative arrangements would be possible, through the negotiation of bilateral agreements that would effectively replace certain EU measures; reliance on pre-existing Council of Europe Conventions or bilateral agreements; or by rejoining certain PCJ measures if considered beneficial. In some instances they considered that no alternative agreement may be required in order for cooperation to continue.[207] The Home Secretary emphasised her preference for "practical co-operation at a working level", which did not necessarily require EU legal measures. In this respect the Government were examining each PCJ measure and asking "Could we achieve the same aims in different ways?"[208] The Lord Chancellor told us that it was "theoretically possible" to have bilateral and multilateral arrangements with other Member States but that there were no recent precedents due to the existing EU arrangements. He referred instead to what he called the Government's plentiful experience of negotiating bilateral agreements with third countries, citing a prisoner transfer agreement with Albania as an example.[209]

123. Many of our witnesses were unconvinced about the merits of relying upon alternative arrangements. The Scottish Government stressed that it was incumbent on the UK Government to demonstrate that any alternative arrangements would be more effective in combating cross-border crime.[210] The DPP told us that the opt-out would not present any problems in some areas, particularly those that were subject to future EU measures or where there were already workable bilateral arrangements in place. However, he added, in relation to other areas "failure to opt back in could result in an uncertain, cumbersome and fragmented approach, which is likely to have a damaging impact on the prosecution of crime in England and Wales, unless equally effective measures replace them".[211]

124. The Bar Council stated that it would be undesirable to rely upon alternative arrangements, which it referred to as cumbersome, inconsistent and less efficient.[212] The LibDem UK MEPs said that operating outside of the EU frameworks would "inevitably cause legal conflicts and extended procedures which would be not only ineffective but costly".[213] The Association of Chief Police Officers in Scotland (ACPOS) told us that the existing EU measures provided Scottish police forces with efficient tools that they had come to rely upon and that reverting to previous arrangements would be cumbersome, unwieldy and "a retrograde step in modern policing".[214]

125. JUSTICE stated that it would take an incredibly long time to negotiate a series of alternative bilateral agreements with 27 other Member States for some of the 130 PCJ measures, and Mary Honeyball MEP, a member of the JURI Committee, considered the prospect of 130 bilateral agreements to be "completely ridiculous" and a "recipe for total chaos", which had not been thought through.[215] The Association of Chief Police Officers (ACPO) thought this "would be a massive step back for UK policing that would benefit no one".[216]

Working under the old arrangements

126. We asked some of our witnesses, who had experienced cross-border work under the pre-EU arrangements, for their thoughts on how well it had worked. William Hughes, the former Director-General of SOCA, told us that a great deal of progress had been made in this area over the last ten years and that previously it was a "very convoluted and complex legal process, which I certainly would not want to go back to". He said that its protracted nature allowed criminals to divest themselves of assets and destroy evidence in the meantime, and because it only concentrated on serious crimes, a lot of cases "fell by the wayside" and intelligence was not shared properly. He considered that alternative arrangements "would fall considerably short on effectiveness, timeliness and simple workability". He also stressed the importance of the personalities involved, saying that the UK's relationship with some of its neighbours used to be dreadful.[217]

127. Mike Kennedy agreed, stating that the prior arrangements often depended on trust and confidence developing between individuals over a long period of time, which would be disrupted when the individuals concerned moved posts or retired. He said that permanent bodies such as Europol and Eurojust had provided benefits by replacing these hit-or-miss arrangements and making multilateral cooperation easier and quicker, which was essential in responding to international crime effectively. If the UK fell back on the old arrangements then the uncertainty of ad-hoc cooperation would return and new relationships would have to be fostered all over again. He concluded that the UK would be unable "even at very substantial cost to the UK taxpayer, to replicate the 21st century arrangements, tools, facilities and networks that are currently available" to investigators and prosecutors under the PCJ measures.[218]

Council of Europe Conventions

128. A number of witnesses referred to pre-existing Council of Europe Conventions, many of which had been replaced by equivalent EU measures. A list of these is provided in Table 1. We consider the possible reversion to the 1957 Council of Europe Convention on Extradition in the following chapter, which concerns the EAW.

TABLE 1

Council of Europe Conventions, the equivalent EU measures, and
their status

Council of Europe Convention	Status	Equivalent EU PCJ measure	Status
ETS 24 Convention on Extradition (1957)	Ratified by all 27 Member States + Croatia	Framework Decision on the European Arrest Warrant	In force
ETS 30 Convention on Mutual Assistance in Criminal Matters (1959)	Ratified by all 27 Member States + Croatia	EU MLA Conventions + Protocols Framework Decision on the European Evidence Warrant	Not in force but due to be replaced by a post-Lisbon measure (EIO)
ETS 51 Convention on the Supervision of Conditionally Sentenced or Conditionally Released Offenders (1964)	Ratified by 12 (+ Croatia) and signed by 4 Member States; not including the UK	Framework Decision on the European Supervision Order	In force but not implemented in the UK
ETS 70 Convention on the International Validity of Criminal Judgments (1970)	Ratified by 12 and signed by 6 Member States; not including the UK or Croatia	Framework Decisions on taking account of previous convictions and ECRIS	In force
ETS 90 Convention on the Suppression of Terrorism (1977)	Ratified by all 27 Member States + Croatia	Framework Decision on combating terrorism	In force
ETS 112 Convention on the Transfer of Sentenced Persons (1983)	Ratified by all 27 Member States + Croatia	Framework Decision on transfer of sentences and alternative sanctions	In force
ETS 141 Convention Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (1990)	Ratified by all 27 Member States + Croatia	Framework Decision on Confiscation of Crime-Related Proceeds, Instrumentalities and Property	In force
ETS 173 Criminal Law Convention on Corruption (1999)	Ratified by 24 (+ Croatia) and signed by 3 Member States; including Austria, Germany and Italy	Framework Decision on combating corruption in the private sector	In force

Source: Statewatch, The UK's planned 'block opt-out' from EU justice and policing measures in 2014 (October 2012)

129. Some of our witnesses noted that, while the Council of Europe Conventions provided alternative legal frameworks in some instances, they did not cover all of the same areas as the PCJ measures; were less detailed and more cumbersome than these measures; and, in many cases, had not been signed or ratified by the UK or all of the other Member States, which rendered them less effective as a result.[219] The CELS said that if the UK wanted to rely upon them then it would have to ratify the ones that did not yet apply to the UK and also encourage other non-participating Member States to do the same.[220] The LSEW and the LSS also stated that even where the Conventions had been ratified their implementation in some Member States may have been superseded by subsequent EU measures. This would make relying upon them impractical, requiring bilateral agreements to be negotiated instead.[221]

130. The Bar Council considered this possibility to be "neither practical nor desirable" remarking that, if those agreements had been sufficient, there would have been no need to adopt the EU measures replacing them in the first place. Professor Spencer was also unconvinced.[222] Justice Across Borders noted that because the EU measures placed binding legal obligations on Member States this created a stronger legal regime than non-binding mechanisms could.[223] The LSEW also stated that the great advantage of EU measures was that they provided a single framework governing all 27 Member States; with all parties able to become accustomed to a single document, procedure and time limits, thus achieving a significantly more efficient system.[224]

131. While Open Europe had suggested the Conventions as a possible fall back option they also recognised they were more cumbersome and less comprehensive than the EU measures. However, Dominic Raab MP wanted to keep an open mind about their potential use.[225] The Government and UKIP suggested that if the EIO had not become operational by 1 December 2014, and the UK did not rejoin the EU Mutual Legal Assistance Convention, then this type of cooperation could continue on basis of the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters.[226]

The role of the other Member States in facilitating alternative arrangements

132. A number of witnesses emphasised that the negotiation and implementation of, or reversion to, alternative arrangements would depend on the goodwill and legislative timetables of the other Member States.[227]

133. JUSTICE, the LSS, Evanna Fruithoff and Professor Anagnostopoulos remarked that some Member States would need to amend their legislation to bring the UK back within the remit of these arrangements.[228] The LibDem UK MEPs considered it unwise to presume that this would happen expeditiously.[229] Justice Across Borders, who considered that such a process would be fraught with difficulties, were of the view that other Member States may not accord them legislative priority and that discrepancies in the instruments' implementation and interpretation may arise, with no mechanism to rectify them.[230] The Lord Chancellor also recognised that legislation may be necessary in some Member States to bring old bilateral arrangements back into force.[231]

134. FTI, Justice Across Borders and Dr Maria O'Neill also believed that it was unlikely that some Member States would be willing to make special arrangements for the UK; that the UK's negotiating hand would be significantly weaker with no certainty that it would secure its preferred objectives; and that there was a real risk that its requests for assistance under alternative arrangements would not be prioritised and instead go to the "bottom of the pile" as a result of the UK's disengagement from this area.[232]

135. Martin Howe QC asked that "apart from pique, what is to stop [the other Member States] negotiating sensible alternative arrangements?"[233] The Lord Chancellor said "I think my sense is that our partners in Europe will want to work with us and it is in their interest to work with us in the way that it is in our interest to work with them".[234]

136. We recognise the theoretical possibility for the United Kingdom to conclude multiple bilateral and multilateral agreements with the other Member States, in place of some existing EU measures, and that other Member States would have an interest in putting effective mechanisms in place. But this would be a time-consuming and uncertain process, with the only claimed benefit being tailor-made arrangements excluding the CJEU's jurisdiction. In some cases new bilateral agreements would be dependent on the legislative timetable of the other Member States, which may accord them a low priority.

137. We consider that the most effective way for the United Kingdom to cooperate with other Member States is to remain engaged in the existing EU measures in this area.

138. If the United Kingdom reverted to Council of Europe Conventions instead of the equivalent EU measures, this would raise legal complications, and could also result in more cumbersome, expensive and weaker procedures. It would also weaken the ability of the United Kingdom's police and law enforcement authorities to cooperate with the equivalent authorities in other Member States regarding cross-border crime.

The Frontex "model"

139. In addition to the alternative arrangements outlined above, Dominic Raab MP has also suggested that more informal mechanisms could also be developed for the UK to cooperate with EU agencies analogous to the 'Frontex' model, particularly in relation to Europol.[235] The Fresh Start Project has made a similar suggestion.[236] A description of the UK's current involvement in Frontex is set out in Box 5.

BOX 5

The UK's involvement in Frontex

The European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, or 'Frontex', is responsible for coordinating the activities of national border guards in ensuring the security of the EU's external borders. It is based in Warsaw, Poland. Frontex was established by Regulation 2007/2004.

The UK challenged the Council's decision not to allow its full participation in the Frontex Regulation because it was not a member of the Schengen Area, arguing that it was entitled to participate in Schengen-building measures under the EU Treaties. The UK lost its case before the CJEU.[237] As a result it does not participate in the above measure.

However, Article 12 of the Frontex Regulation states that the Agency shall facilitate operational cooperation of the Member States with Ireland and the UK. This has allowed the UK to participate in several joint operations by Frontex subject to the acceptance on a case-by-case basis of the Management Board, on which the UK only has observer status. It has supported these operations both financially and through the provision of technical equipment.

140. Rob Wainwright, the Director of Europol, did not think that the UK's participation in Frontex was a good model for its possible involvement with Europol, due to differences in the operation of each body. He considered that relying upon an ad-hoc authorisation process for the UK to participate in specific operations would not be a workable alternative, considering the high proportion of Europol activity that it was involved in. The UK could also lose its place on the Europol management board under such an arrangement, which would dilute its influence, and only full members would be able to access Europol databases. His view was that negotiating such an arrangement would have uncertain results, potentially resulting in "less efficient, less coherent and less extensive" arrangements.[238]

141. We consider the possibility of the United Kingdom cooperating with Europol or Eurojust on the same basis that it currently does with Frontex to be neither practical nor desirable, as it would reduce the benefits that the United Kingdom currently enjoys through its full participation in both EU agencies.

The Danish Justice and Home Affairs opt-out

142. In the longer term, some of our witnesses' preference was for Treaty change to be negotiated so that the UK could participate in JHA matters on a more "flexible" basis. Open Europe has referred to the Danish JHA opt-out as a possible model in this regard, which would allow the UK to continue cooperating with the other Member States on JHA matters but outside the EU legal framework and without being subject to the CJEU's jurisdiction.[239] Dominic Raab MP and the Fresh Start Project have also made similar suggestions.[240] A summary of the Danish JHA opt-out is provided in Box 6.

BOX 6

The Danish Justice and Home Affairs opt-out: Protocol (No 22) on the position of Denmark

After the Treaty of Maastricht was rejected by Danish voters in a 1992 referendum, Denmark secured a series of opt-outs, including from the old JHA Third Pillar, in the Edinburgh Agreement. Following the Treaty of Amsterdam, the Title IV measures under the old First Pillar did not bind Denmark. However, it was possible for Denmark to apply to the Commission to be associated with these measures under parallel intergovernmental agreements. The Commission was not obliged to accept these applications and has rejected three out of six Danish applications. However, the remaining PCJ measures (Title VI) in the old Third Pillar did apply to Denmark. With respect to Schengen-building measures falling under Title VI, Denmark (having joined the Schengen Area) was entitled to implement these measures into their national law 6 months after they had been adopted, and it usually did so. They played no role in the negotiation of those measures.

By Protocol 22 to the EU Treaties Denmark's opt-out was extended to apply to all of Title V TFEU, as was its existing right to implement Schengen-building measures into national law, six months after their adoption, at which point an international legal obligation would be created between Denmark and the other Member States bound by the measure. However, PCJ measures adopted before the entry into force of the Treaty of Lisbon which are amended shall continue to be binding upon and applicable to Denmark.

Under Protocol 22, Denmark is permitted to change its position under the Protocol from a complete opt-out to the case-by-case opt-in arrangement akin to that of Ireland and the UK under Protocol 21, whenever they wish. The Danish government which was elected in 2011 initially intended to hold a referendum in 2012 on converting its JHA opt-out accordingly. However, this possibility has now been placed on indefinite hold.

143. Some of our witnesses identified downsides with such a model. Professor Peers referred to the fact that the Commission had frequently refused permission for the Danes to conclude agreements in certain areas and that when it did agree this was usually made contingent on the acceptance of the CJEU's jurisdiction.[241] The CER agreed, stating that such an arrangement would be a less flexible option for the UK as it would lose its right to opt in.[242] The LibDem UK MEPs also noted the propensity of the Commission to refuse permission for agreements and, although they did not consider the negotiation of such an arrangement to be entirely out of the question, they did think that it would require a great deal of legal preparation and negotiation and that the UK's capacity to influence new proposals would also be reduced.[243] Open Europe also recognised that the UK would have no formal role in negotiating new proposals or amending existing ones and that the Commission may refuse permission for the UK to join measures that it wanted to. They further acknowledged that the other Member States were unlikely to accommodate such an arrangement.[244]

144. We do not consider the negotiation of Treaty change to achieve a Danish-style JHA opt-out for the United Kingdom to be desirable. It would place the United Kingdom in a disadvantageous position with respect to future proposals for police and criminal justice measures by removing both their right to opt in to a proposal and their ability to influence its content through participation in the negotiations. In any event, this possibility has no bearing on the 2014 opt-out decision.

197 ^{PoliceFoundation.AlsoseeJUSTICEandEuropol} Back

198 ^UKGovernment Back

199 ^{HMGovernment,AStrongBritaininanAgeofUncertainty:TheNationalSecurityStrategy,October2010(Cm7953)} Back

200 ^{HMGovernment,LocaltoGlobal:ReducingtheRiskfromOrganisedCrime,2011} Back

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

202 ^{FreshStartProject,ManifestoforChange;Q87,Q108} Back

203 ^{OpenEurope,CooperationNotControl(byDominicRaabMP);Q99,Q107,} Back

204 ^{OpenEurope,CooperationNotControl(byDominicRaabMP)} Back

205 ^UKIP Back

206 ^Q4,Q28 Back

207 ^UKGovernment Back

208 ^Q282 Back