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


181.  This chapter considers some of the most significant measures that were raised by our witnesses. In the absence of the Government's promised Explanatory Memorandums and of an indicative list of measures they would seek to rejoin in the event of the opt-out being exercised, we were not in a position to draw final conclusions on the measures subject to the opt-out as a whole. We may need to return to this matter in a subsequent report.

"Defunct" measures

182.  The Home Secretary's 15 October 2012 statement mentioned that some of the PCJ measures were "now, in fact, entirely defunct". We asked the Government to provide a list of the measures they considered to fall into this category. As their analysis of the measures was not yet complete, they provided a provisional list of three measures.[330] No further list had been made available by the time this report was adopted. The Home Secretary confirmed that the final list of defunct measures would be made available as soon as possible. She believed that a defunct measure could still have potential implications for the UK.[331]

183.  While some of our witnesses agreed that some of the measures could indeed be defunct, none of them considered this to be a valid reason for exercising the opt-out, as these measures were also considered to be harmless insofar as the UK was concerned.[332] Beyond the Government, only Dominic Raab MP has named measures he considers to be defunct, including the Convention on Driving Disqualifications.[333]

184.  In general terms, and quite separately from the opt-out decision itself, other witnesses suggested that it would be a good idea for the Commission to conduct a "spring clean" of any redundant or obsolete measures, with a view to either amending or repealing them.[334] Director-General Le Bail confirmed that the Commission was conducting a more general "fitness check" of all EU legislation to make sure it was all still relevant and Stefano Manservisi, the Director-General of DG HOME at the Commission, stated that any such measures would have to be repealed in the same manner as they were adopted.[335] We note that on 15 March 2013, in the context of reducing regulatory burdens on SMEs, the European Council agreed to "identify and propose … the withdrawal of regulations that are no longer of use.[336]

185.  We do not consider that the existence of "defunct" measures on the list caught by the opt-out decision should be a material factor in deciding whether or not to exercise the opt-out. If some measures are indeed defunct then they are likely to be harmless insofar as the United Kingdom is concerned. However, we welcome the Commission's intention to review the corpus of police and criminal justice measures to identify those which no longer serve any purpose with a view to either amending or repealing them without further delay.

Harmonisation measures

186.  About a dozen measures have been adopted by the EU which seek to "establish minimum rules concerning the definition of criminal offences and sanctions" regarding particularly serious cross-border crimes. Among other things these measures include Framework Decisions on terrorism, drug-dealing, fraud, and racism and xenophobia. In his evidence, the Lord Chancellor sought to make a distinction between measures to combat international crime and those that "take us a step further towards the integration of the justice system, towards common penalties in every country for individual crimes, towards common processes".[337] He did not identify particular measures but he may well have been referring to these measures on offences and penalties.

187.  The CELS have stated that the vast majority of these measures required no changes to be made to UK law because these offences were already criminalised at the time of each measure's adoption and that if the UK were to withdraw it would make little difference in each instance unless it wanted to decriminalise the measures in question.[338] The DPP echoed this view and said that as a result the measures were "not particularly" helpful for prosecutors and that little use was made of them.[339] Likewise, the Lord Advocate did not consider these measures to be important in the Scottish context.[340]

188.  The Fresh Start Project has stated that these measures are "predominantly irrelevant to cross-border operational co-operation" so should be left to "elected and accountable UK law-makers to decide and the UK Supreme Court to interpret".[341] Dominic Raab MP has stated that there would be no need for the Government to rejoin these measures, particularly the one concerning racism and xenophobia as such matters are more appropriately dealt with at the domestic level.[342] ACPO suggested that the measure concerning terrorism could potentially weaken UK legislation in this area and these concerns have been echoed by Open Europe.[343] However, in response to this point, Jodie Blackstock made it clear that a standard "non-regression" clause in the harmonisation measures prevented the diminution of pre-existing domestic laws in the same area,[344] while FTI pointed out that the same measures did not prevent the UK from going further than any of the provisions contained therein.[345]

189.  While it is clear from the assessment of these harmonisation measures that there are differences of opinion as to their use and value, we do not consider them to be "building blocks" of a pan-European justice system.

Mutual recognition measures

190.  The principle of mutual recognition requires the decisions and rulings of the courts in one Member State to be accepted by the courts in other Member States and enforced on the same terms as their own. This principle has formed the cornerstone of judicial co-operation in both civil and criminal matters within the EU since the adoption of the Tampere Programme for EU JHA cooperation in 1999 and about a dozen measures have since been adopted on this basis. Two of these—the European Arrest Warrant and the European Supervision Order—have already been considered in Chapter 6. The other measures concern the mutual recognition of freezing orders; fines; confiscation orders, probation orders; and of prison sentences. In general terms, this Committee has been consistently supportive of these measures during the scrutiny process.

191.  In Chapter 4 we referred to the views of some witnesses that the UK had supported, indeed promoted, the principle of mutual recognition from the beginning. Professor Peers also told us that "in light of that fact, other Member States will think it is very peculiar that we turn our back on a system that we played such a large role in developing".[346] UKIP were less convinced by the merits of mutual recognition measures, stating that "Mutual recognition effectively means that every ex-communist prosecutor or judge in an East European state run by a local mafia is given an equal standing to the judges in the Old Bailey".[347]

192.  A number of our witnesses stressed the importance of the mutual recognition measure on the transfer of prison sentences.[348] The Lord Chancellor told us that this measure, which entered into force on 5 December 2011, had "many potential advantages".[349] While the Government confirmed that no prisoners had yet been transferred from England and Wales to other Member States under the measure, 157 prisoners have been identified for potential transfer and they noted that EU nationals from other Member States accounted for approximately 36 per cent (3,950) of the current prison population of foreign nationals. They expected the remaining Member States to have implemented the measure by 2014 and once this was the case they expected to see the number of prisoners transferred steadily increasing. With regard to the mutual recognition measure on freezing orders they confirmed that so far they had only received six incoming requests pursuant to this measure and had not made any outgoing requests.[350]

EU agencies and measures encouraging cross-border cooperation


193.  The European Police Office (Europol) aims to improve the coordination of Member States' law enforcement agencies to tackle cross-border crime through the exchange of intelligence. It was established in 1995 and is currently constituted on the basis of a Council Decision adopted in 2009, the draft of which was the subject of a report by this Committee in 2008.[351] Many of our witnesses considered it to be a useful agency[352], including the Home Secretary who thought Rob Wainwright was doing a "very good job" as its Director.[353] However, UKIP considered that Europol was modelling itself on the FBI and that there were well-founded concerns that it has the potential to develop into a "political secret police".[354]

194.  Rob Wainwright told us that, if the UK stopped participating in Europol, in his opinion there was no doubt that it would become more difficult for it to investigate international crimes in operational terms, as it would no longer have access to Europol's information, analysis and intelligence; forensic and technical support; training; threat assessments or strategic analysis; and lose the right to post liaison officers in The Hague. He said "It would increase the risk of serious crimes, therefore, going undetected or not prevented in the UK" and as the UK was a common destination for drug and people trafficking "Any diminution of the UK's capability to deal with those problems would clearly increase public safety risk". He also said that the UK's involvement in Europol was a much more efficient and cost-effective arrangement through having access to 40 countries in one place rather than through a network of bilateral arrangements.[355] He stressed that in general Europol was a very cost-effective organisation, which had recently made efficiency savings, and only constituted a tiny fraction of the JHA budget (0.77 per cent).[356] Mike Kennedy and William Hughes agreed that it provided good value for money.[357]

195.  Rob Wainwright told us that the consequences for Europol if the UK were to leave the agency "would be pretty disastrous, frankly … Quite simply, we are stronger together if we stay together; it is as simple as that". He explained that the UK was the first or second most important Member State in terms of the volume of intelligence shared and amount of operational work that is conducted through Europol, with over 50 per cent of cases having a British dimension, either because it is led by them or involves them. If the UK left, then this would also go against the international trend, as a number of non-EU countries are seeking to establish liaison offices in The Hague at the same time as the UK, and other Member States, are closing bilateral liaison officer posts elsewhere in Europe in order to centralise them in Europol.[358] He told us that over the last three years UK law enforcement agencies had doubled the amount of evidence they were sharing with Europol; and SOCA was also relying upon Europol intelligence to a greater extent than before.[359]


196.  The EU's Judicial Cooperation Unit (Eurojust) aims to improve the coordination of investigations and prosecutions among Member States' competent judicial authorities. It was established by a 2002 Council Decision, which was amended in 2009. This Committee published a report on its operation in 2004.[360] Many of our witnesses considered Eurojust to be a useful agency.[361] Michèle Coninsx told us that if the UK left Eurojust it would be unable to benefit from its services, including the judicial co-ordination meetings, judicial cooperation agreements with third countries, office facilities, the facilitation of mutual legal assistance requests, the acceleration and execution of EAWs and the funding and establishment of Joint Investigation Teams (JITs).[362]

197.  The DPP stressed that the UK's involvement in Eurojust provided many benefits with the coordination meetings being the most important. He also considered Eurojust to be good value for money, costing the UK a relatively modest £360,000 per annum. Costs would be much greater if the UK were to rely upon a network of bilateral liaison magistrates in each country instead of the centralised liaison facilities made available in The Hague. He also provided some examples of where Eurojust had been of practical benefit to the CPS.[363] The Lord Advocate also considered Eurojust to be very beneficial in terms of encouraging a coordinated approach to cross-border investigations, among other things, and he said that he would be concerned if the UK left this body.[364]

198.  Dominic Raab MP contrasted the large increases in Eurojust's budget over the years with its performance and suggested it could benefit from more evaluation of its operations.[365] While UKIP accepted that it was of "some utility", it also suggested that its advice function could be provided by international law firms on a private basis.[366] The Home Secretary told us it was difficult to indicate Eurojust's degree of effectiveness based upon the casework data that was available for 2011 and 2012.[367]


199.  CEPOL is currently located in England at Bramshill. Many of our witnesses considered it to be a useful body,[368] including ACPO who told us that it played a positive role in UK policing; and its location also allowed the UK to influence police teaching at senior level, while enhancing the reputation of its own policing across the EU.[369] However UKIP was concerned that the organisation was being misused for "indoctrination" purposes and to advance the "Euro-federalist political agenda".[370]

200.  The possibility of merging CEPOL with Europol is discussed in Chapter 8.


201.  A JIT consists of judicial and police authorities from at least two Member States, who conduct a specific cross-border criminal investigation for a limited period. When we considered them in our report on the EU's Internal Security Strategy, the Government told us they considered JITs to be a "valuable tool" and supported the Commission's plan to expand their use.[371] Many of our witness also cited JITs as being a useful measure.[372] Rob Wainwright and Michèle Coninsx told us that their use had greatly increased over the years, with the UK being involved in an average of nine out of 30 JITs per annum.[373] Eurojust subsequently confirmed that, in 2011/12, the UK participated in the most JITs of any Member State.[374] The DPP also stressed that JITs provided benefits including speedier cross-border coordination, enabling the deployment of UK law enforcement authorities to other Member States, providing all participating Member States with direct access to the same evidence, as well as the increased admissibility of this evidence, which was commonly challenged before the courts under the previous bilateral agreements. He also provided examples of where JITs had been of practical benefit to the CPS.[375]

Measures concerning the exchange of information


202.  The Schengen Information System (SIS) is a database system which enables the collection and exchange of information relating to immigration, policing and criminal law throughout the EU. The UK does not currently participate in the SIS but is scheduled to participate in the second generation system (SIS II) from towards the end of 2014. It will only have access to the policing and criminal law data. SIS II was originally due to become operational in 2007 but experienced severe delays since its inception and eventually became operational for the other Member States on 9 April 2013. The Committee reported on the development of SIS II in 2007.[376] The Government have confirmed that the UK's total projected spend, on its preparations to join SIS II at the end of the financial year 2012/13, will be £83.3 million.[377] Many of our witnesses expected that this would become a valuable measure once it becomes operational in the UK.[378]


203.  The Framework Decision on the exchange of criminal records requires Member States that convict non-nationals to send notifications of those convictions, including any updates, to the home Member State of those non-nationals. Member States can also request detailed information about convictions from another Member State, which can then be taken into consideration in their domestic criminal proceedings. A related Framework Decision established ECRIS, a computer system which allows the efficient exchange of these records. The whole system became operational in April 2012. Many of our witnesses emphasised the benefits of this system.[379]

204.  ACPOS told us that opting out of this measure would have a severe negative impact on the ability of UK law enforcement authorities to assess fully the risks and criminal history of foreign nationals residing in the UK and accused of committing crimes here.[380] The DPP also stressed that without them a defendant from another Member State would be presented as a person of good character and that prosecutors would be unable to deploy bad character evidence. He explained that the ready availability of this information was crucial and that "operationally" one of the "biggest risks" they had identified of the UK withdrawing from these measures was the possibility that someone who would otherwise not have been granted bail, because they might commit a further serious offence, might be given bail.[381] Dominic Raab MP agreed that cross-border criminal record checks brought obvious benefits but suggested that this could be facilitated on an "administrative" basis without the need for an underpinning EU measure.[382]

205.  The Government told us that from August to October 2012 the UK had made 7,872 notifications, regarding convictions and updates, and received 2,070 notifications in the same period. From August to October 2012 the UK made 5,492 outgoing requests and received 1,165 incoming requests. Replies to approximately 30 per cent of the outgoing requests disclosed previous convictions.[383]


206.  Some of our witnesses referred to the Prüm Decisions, which implement the Prüm Treaty into EU law.[384] The Decisions aim to introduce procedures for promoting the fast, efficient and inexpensive means of cross-border data exchange regarding DNA, fingerprint and vehicle registration data. Member States were obliged to have implemented all of the Decisions' provisions by 2011. The Fresh Start Project have voiced concerns about the Prüm regime, including the potential consequences for ordinary citizens, the disproportionate burden it may place on the UK, as well as data protection issues and the risk of mistaken identifications.[385] The Home Secretary reminded the Committee that the Government had already made it clear that they would not be implementing the Prüm Decisions in the short term, primarily because of the costs involved.[386]

Measures detrimental to the UK

207.  Beyond concerns about the EAW, which we have already discussed in Chapter 6, very few of our witnesses drew our attention to any specific measures that they considered to be detrimental to the interests of the UK. Dominic Raab MP expressed concerns about the sharing of data[387] and UKIP considered that many of the measures posed a serious threat to civil liberties and the rule of law in the UK.[388]

208.  We therefore consider that there are compelling reasons of national interest for the United Kingdom to remain full participants in most of the measures and agencies referred to in this Chapter. As to the remainder we have identified no persuasive reason for the United Kingdom to withdraw from them.

330   AnnexBtotheletterfromtheHomeSecretaryandtheLordChancellortoLordBoswellofAynhodated1February2013.Containedinthevolumeofevidence,whichisavailableonline.ThesedefunctmeasureswereoriginallymentionedintheGovernment'swrittenevidence.TheredundantmeasuresareconsideredinChapter4. Back

331   Q283 Back

332   FacultyofAdvocates,LSS,BarCouncil,LSEW,Jean-ClaudePiris,DrMariaO'Neill,Q53 Back

333   OpenEurope,CooperationNotControl(byDominicRaabMP) Back

334   BarCouncil,LSEW,Jean-ClaudePiris,DrMariaO'Neill,Q33,Q40,Q47,Q63,Q105,Q127,Q155 Back

335   Q203 Back

336   EuropeanCouncilConclusions,14March2013 Back

337   Q290 Back

338   CELS,OptingoutofEUCriminallaw(byProfessorJohnSpencer,ProfessorStevePeersandDrAliciaHinarejos).AlsoseeBarCouncilandLSEWsupplementaryevidence Back

339   Q224 Back

340   Q270 Back

341   FreshStartProject,ManifestoforChange Back

342   OpenEurope,CooperationNotControl(byDominicRaabMP) Back

343   OpenEurope,AnUnavoidableChoice(byStephenBooth,ChristopherHowarthandVincenzoScarpetta);Q104 Back

344   Q112 Back

345   FTI Back

346   Q44 Back

347   UKIP Back

348   CER,Cameron'sEuropean'owngoal'(byHugoBrady);JusticeAcrossBorders,JUSTICE,LetterfromDavidFordMLAtoLordBoswellofAynhodated12December.Containedinthevolumeofevidence,whichisavailableonline. Back

349   Q292 Back

350   UKGovernment Back

351   EUCommittee,EUROPOL:Coordinatingthefightagainstseriousandorganisedcrime(29thReportofSession2007-08,HLPaper183) Back

352   ACPO,ACPOS,Piris,MikeKennedy,JUSTICE,LSS,PSNI,Europol,JusticeAcrossBorders,LSEW,PoliceFoundation,WilliamHughes,TimothyKirkhopeMEPandAntheaMcIntyreMEP,Q235 Back

353   Q295 Back

354   UKIP Back

355   Europol,Q133.TimothyKirkhopeMEPandAntheaMcIntyreMEPmadeasimilarpoint. Back

356   Q138 Back

357   MikeKennedy,Q237 Back

358   Europol,QQ133-134 Back

359   Europol,Q135,Q143.TimothyKirkhopeMEPandAntheaMcIntyreMEPmadeasimilarpoint. Back

360   EUCommittee,JudicialCo-operationintheEU:theroleofEurojust(23rdReportofSession2003-04,HLPaper138).ItconcludedthatEurojustwasmeetinga"realandincreasingneedforassistanceinfacilitatingtheinvestigationandprosecutionofcomplexcross-bordercriminalcases",aswellasproviding"amodelofhowtomakeprogressinanareawherethedifferencesbetweennationaljurisdictionsaresogreatthatitwouldbeunrealistictoaimforharmonisation.Itisalsoanexampleofthesortofeffectivepracticalco-operationthatanEUagencycanprovide,whichissometimeslostsightofinmoreideologicaldebates". Back

361   CELS,OptingoutofEUCriminallaw(byProfessorJohnSpencer,ProfessorStevePeersandDrAliciaHinarejos);BarCouncil,Jean-ClaudePiris,MikeKennedy,JUSTICE,LSS,PSNI,PoliceFoundation,JusticeAcrossBorders,LSEW,ACPO,COPFS,WilliamHughes,Q52,Q235 Back

362   Q180,Q190 Back

363   CPS,Q210,Q218 Back

364   Q267 Back

365   Q104 Back

366   UKIP Back

367   Q295.TheGovernmentlaterconfirmedthat18percentofnewcasesopenedatEurojustinthisperiodinvolvedtheUK.SeeLetterfromtheHomeSecretaryandtheLordChancellortoLordBoswellofAynhodated12March2013.Containedinthevolumeofcorrespondence,whichisavailableonline.Eurojustalsoprovidedfiguresintheirwrittenevidence. Back

368   BarCouncil,Jean-ClaudePiris,JUSTICE,LSS,LSEW,ACPO Back

369   ACPO Back

370   UKIP Back

371   EUCommittee,TheEUInternalSecurityStrategy(17thReportofSession2010-12,HLPaper149) Back

372   BarCouncil,ACPOS,MikeKennedy,ACPO,PSNI,LSEW,JusticeAcrossBorders,Q270.APCO,CPS,JusticeAcrossBordersandEurojustprovidedexamplesofsuccessfulJITs. Back

373   Q144,Q180,Q184 Back

374   Eurojust.78JITswereestablishedduringthatperiodandtheUKwasinvolvedin25(32percent) Back

375   CPS,Q210 Back

376   EUCommittee,SchengenInformationSystemII(SISII)(9thReportofSession2006-07,HLPaper49).TheCommitteeconcludedthatthe"SchengenInformationSystem,anditsdevelopmentintoasecondgenerationsystem,aremattersofthehighestrelevancetothiscountry…Webelievethisiswellunderstoodbythepolice,theprosecutingauthorities,andallthoseinvolvedinthecombatingofseriouscross-bordercrime.Theyappreciatethebenefitstobederivedfromthiscountry'sparticipationintheinformationsystem-benefitsnotjustforthiscountry,butforalltheStateswithwhichwecanshareourinformation". Back

377   LetterfromJamesBrokenshireMP,SecurityMinister,toLordBoswellofAyhnodated13December2012.Availableat: 

378   Jean-ClaudePiris,ACPO,ACPOS,PSNI,TimothyKirkhopeMEPandAntheaMcIntyreMEP,Q270 Back

379   COPFS,BarCouncil,Jean-ClaudePiris,PSNI,PoliceFoundation,JusticeAcrossBorders,ACPOS Back

380   ACPOS Back

381   QQ210-211 Back

382   QQ87-88 Back

383   UKGovernment Back

384   Jean-ClaudePiris,ACPOS,PSNI.ThisCommitteeproducedareportontheTreatyin2007-Prüm:aneffectiveweaponagainstterrorismandcrime?(18thReportofSession2006-07,HLPaper90) Back

385   FreshStartProject,ManifestoforChange Back

386   Q285 Back

387   Q89 Back

388   UKIP Back

previous page contents next page

© Parliamentary copyright 2013