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 8: THE PROCEDURE FOR REJOINING PARTICULAR POLICE AND CRIMINAL JUSTICE MEASURES

The Procedure

209. If the Government decide to exercise the opt-out, the Commission will present a proposal for a Decision to the Council, to be decided by QMV, regarding transitional arrangements, which may allow for the continued application of some measures to and in the UK—outstanding EAWs for example—for a defined period. The UK will not participate in the adoption of this decision.

210. If the opt-out has been exercised, then the UK may "at any time afterwards" notify the Council of its "wish" to participate in—or rejoin—measures that have ceased to apply to it by virtue of that decision. Once the UK has rejoined a particular PCJ measure by this route then that measure will become subject to the CJEU's jurisdiction and the Commission's enforcement powers. The procedure is set out in Articles 10(4) and (5) of Protocol 36, reproduced in Box 9.

BOX 9

Text of transitional and financial provisions in Articles 10(4) and (5), Protocol (No 36)

(4) The Council, acting by a qualified majority on a proposal from the Commission, shall determine the necessary consequential and transitional arrangements. The United Kingdom shall not participate in the adoption of this decision. A qualified majority of the Council shall be defined in accordance with Article 238(3)(a) of the Treaty on the Functioning of the European Union. The Council, acting by a qualified majority on a proposal from the Commission, may also adopt a decision determining that the United Kingdom shall bear the financial consequences, if any, necessarily and unavoidably incurred as a result of the cessation of its participation in those acts.

(5) The United Kingdom may, at any time afterwards, notify the Council of its wish to participate in acts which have ceased to apply to it pursuant to paragraph 4, first subparagraph. In that case, the relevant provisions of the Protocol on the Schengen acquis integrated into the framework of the European Union or of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, as the case may be, shall apply. The powers of the institutions with regard to those acts shall be those set out in the Treaties. When acting under the relevant Protocols, the Union institutions and the United Kingdom shall seek to re-establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence.

211. The majority of the PCJ measures subject to the opt-out do not form part of the Schengen acquis.[389] We should make clear that, for non-Schengen measures, it is the Commission that will primarily determine any application to opt back in. The procedure for rejoining the non-Schengen measures is for the UK to notify the Commission and the Council of its wish to rejoin. The Commission must "confirm" the participation of the UK in the measures concerned within four months of the UK's notification of its intention to opt back in. Transitional measures may be imposed if necessary. If the Commission is not satisfied that the UK fulfils all the conditions for participating in the measures, it must set out what the UK must do to bring itself into compliance and a deadline for a further examination of the notification to opt back in. If, after the deadline, the Commission is still not satisfied, the UK may refer the matter to the Council for determination. The Council would act by QMV. The UK would not have a vote.[390]

212. The procedure in relation to Schengen measures requires a decision of the Council, acting by unanimity (so one Member State could block the adoption of a decision). The UK would participate in the adoption of such decisions.

213. Article 10(5) of Protocol 36 provides that the EU Institutions and the UK must seek to "re-establish the widest possible measure of participation of the UK" but "without seriously affecting the practical operability" of the EU acquis on freedom, security and justice. The European Parliament will not have a formal role in this process but is likely to be kept informed by the Commission.[391]

Discussions with the other Member States

214. As the other Member States will play an important role in many aspects of the procedures that will apply to any UK attempts to rejoin certain measures, we asked the Government what contact they had made with the other Member States to this effect. The Government told us that they had written to the Interior and Justice Ministers of all Member States following the 15 October 2012 announcement and had also had discussions with their counterparts at the October and December JHA Councils.[392] The Home Secretary told us that bilateral discussions were now underway, at the ministerial and official level, on the implications for areas that the UK may opt-out of, as well as the areas where they may wish to rejoin. She said that after a final decision on the opt-out has been made following votes in both Houses, further discussions will take place with those Member States at a "different level" regarding the subsequent decisions in the Council.[393]

215. When we asked for an account of those discussions, the Home Secretary told us that they did not feel it would be appropriate to disclose this as to do so "would potentially put in jeopardy the willingness of other Member States to … have open discussions with us".[394] The Government also rejected a similar request which the Committee made in writing, in a letter to the Home Secretary and the Lord Chancellor dated 19 December 2012.[395]

216. We regret that the Government have not provided us with even a summary of the reactions of the other Member States to the Government's intention to exercise the opt-out, as these may be critical in assessing the potential success or otherwise of negotiations regarding any attempts by the United Kingdom to rejoin particular measures.

Rejoining particular police and criminal justice measures

217. In a previous report, the Committee considered the Government's prospects of rejoining particular measures were the opt-out to be exercised, and concluded "We share the scepticism that it will be possible for the UK to "pick and mix" by opting out of all the subsisting pre-Lisbon legislation and immediately opting back in to some only".[396]

218. Many of our witnesses also suggested that this may not be a straightforward process, and would incur risks, depending on the reaction of the other Member States to any attempt by the Government to "cherry pick" particular measures. Others suggested that the requirement for unanimity in the Council for Schengen-related measures would inevitably lead to difficulties and could lead to conditions being imposed by some Member States in order to provide their consent.[397] Some witnesses noted that the Council had, in the past, refused requests by the UK to participate in pre-Lisbon Schengen measures, including the Visa Information System and Frontex.[398]

219. Some witnesses considered that the wording of Article 10(5), obliging the EU institutions and the UK to "seek to re-establish the widest possible measure of participation of the UK" in those measures "without seriously affecting the practical operability" of those measures and "respecting their coherence" meant that it was unlikely that the Commission and the Council would refuse the UK permission to rejoin certain measures subject to the practicality and coherence requirements being met.[399] Professor Peers considered that this wording arguably placed a "binding obligation" on the Commission to allow the UK to participate and that a "fairly high threshold" would have to be reached before it could refuse permission. However, as this threshold may be interpreted differently by some Member States or the Commission, given the risks involved, he considered that it would be better not to exercise the opt-out at all.[400]

220. While Jean-Claude Piris considered that the Government's approach to the opt-out would be based on a "gamble", in principle, he considered that it would also be in interests of the other Member States for the UK to rejoin some measures.[401] Dominic Raab MP has stated that the other Member States have a strong "vested interest" in the UK remaining part of some PCJ measures, because of its expertise and experience, and that attempting to isolate the UK would substantially weaken EU cooperation in this area.[402]

221. Director-Generals Manservisi and Le Bail told us that the process for rejoining measures could not begin until the Government had notified the Council of their decision on the opt-out and, if it is to be exercised, which of the measures they would like to rejoin. However, the Commissioners for Justice and Home Affairs, Vice-President Reding and Commissioner Malmstrm, have both been reported as saying that it will not be an automatic process. Vice-President Reding, in particular, has stated that it will be "complex, time-consuming, leave a lot of legal uncertainty and … problems".[403]

222. The Government did not comment on their prospects for rejoining particular PCJ measures beyond confirming that the UK has a Treaty right to seek to do so.[404] However, when the former Lord Chancellor, Kenneth Clarke MP, spoke to us about this matter for a previous inquiry he was sceptical that the UK would be allowed to adopt a "pick and mix" approach.[405] According to Open Europe, James Brokenshire MP, the Security Minister, has also suggested that any conditions attached by the Commission might only allow the UK to join groups of related measures, some of which they might like and others they might not.[406]

223. While in our discussion with the Commission we found no inclination on their part to obstruct or make the process of opting back in difficult, seeking to rejoin particular measures would not necessarily be automatic or straightforward. Either the Commission, or where appropriate, the Council, may seek to impose conditions on such requests.

How interconnected are the police and criminal justice measures?

224. Many of our witnesses considered that some of the PCJ measures were interconnected and that they were much more effective when used as a package during cross-border investigations and prosecutions. As a result, if the UK only rejoined particular measures, then this may present technical difficulties, as well as undermining the utility of the package as a whole.[407]

225. Among other examples, we heard that JITs were connected to Eurojust, as they received funding from this agency; that Europol was an integral part of the SIS; that Eurojust played an important role regarding EAWs, freezing and asset recovery orders, and the transfer of criminal proceedings; and that Eurojust and Europol regularly work closely together.[408] Europol stated that it was only "indirectly" affected by some measures, including SIS and JITs.[409] The LSEW and the Bar Council stated that some groups of measures must naturally "stand or fall together" such as the Eurojust measures and the measures allowing for the exchange of criminal records and establishing ECRIS.[410]

226. Directors-General Manservisi and Le Bail told us that the Commission was currently assessing coherence issues but that further work was contingent upon a precise list of the measures that the Government would like to rejoin being made available. They added that "it is very difficult to define coherence in particular in a system where all measures support each other".[411]

227. The Home Secretary agreed and told us that their discussions with the Commission were attempting to clarify exactly which measures were interconnected and to what degree, which would have an impact on the measures that they may wish to rejoin. She accepted that it may either prove necessary for the UK to rejoin or opt in to a related measure and that the Commission may make this a requirement during the negotiations.[412]

228. From the evidence given to us by the Commission, it is clear that they consider adherence to the principle of coherence a matter of paramount importance. Any application to rejoin measures must meet that test.

Timing and transitional arrangements

229. Some of our witnesses expressed concerns about the uncertainty that may arise as to the timing of any notification to rejoin measures and legal lacunae which may arise during the period between the opt-out (if exercised) taking effect on 1 December 2014 and the date on which the Government rejoins particular measures.[413]

230. Director-General Manservisi stated that technical legal discussions were ongoing between the Commission and Government regarding the "concrete matter" of when the UK could notify its wish to rejoin certain measures—on 1 June 2014 or 1 December 2014.[414] Professor Peers considered that Article 10 placed no time limit on when the Government could seek to rejoin measures and that they could notify their desire to do so "at any time" although they were likely to do so in advance of the 31 May 2014 deadline.[415]

231. Some witnesses referred to the EAW as an example of the complications and uncertainty that could arise for individuals facing extradition, including the scope for legal challenges.[416] Notwithstanding possible transitional arrangements to the contrary, the CELS have stated that the natural consequence of the UK leaving the mutual recognition measures is that it would no longer be obliged to execute EAWs, and other court orders, that were received from other Member States and vice versa.[417] Professor Peers referred to potential complications with the transition from the EAW to the Council of Europe Convention on Extradition and the execution of EAWs issued before the opt-out date, saying that it was likely to be difficult to draft a transitional arrangement "that perfectly clearly caters for all of the important legal issues and that is not subject to many different questions of interpretation or even validity".[418] Writing for Statewatch he has also suggested that the Council may decide that the transitional arrangements should require any EAWs transmitted to the UK by other Member States before 1 December 2014 to be executed in the interim period and vice versa.[419] Helen Malcolm QC believed that clients subject to an EAW could experience a great deal of uncertainty if these were placed on hold from 1 December 2014 until alternative arrangements come into effect.[420]

232. In order to allow enough time for these complex issues to be addressed, and for new measures to be developed, CER, Open Europe, Martin Howe QC, Timothy Kirkhope MEP and Anthea McIntyre MEP and Jeremy Hill have all suggested that the opt-out decision should be made sooner rather than later in order to allow for a long enough lead-in period.[421] Professor Peers, on behalf of Statewatch, has suggested that the Government's best approach would be to apply to rejoin specific measures as soon as it has officially notified its decision on the opt-out, to allow the EU institutions to decide during the period between 1 June 2014 and 1 December 2014 that the measures concerned will continue to apply to the UK from 1 December 2014, without any gap in their application.[422] Europol and Mike Kennedy emphasised these risks should be mitigated by carefully drafted transitional arrangements[423] but the CELS and Statewatch have stated that these arrangements may be subject to legal challenges in the UK or other Member States, as well as forming the subject of preliminary references to the CJEU.[424]

233. The Director-Generals told us that the transitional arrangements will be produced on the basis of "technical examination" but that more formal discussions could not begin until the Government had made their decision on the opt-out and on the list of measures they wish to rejoin. However, substantial work was already ongoing to prepare the ground as they were keen to minimise complexities in this area. Director-General Manservisi told us that "We are perfectly aware of the fact that we are entering into a situation that could legally be very unstable and unclear", including the risk of potential legal challenges.[425]

234. The Home Secretary stated that timetabling discussions were taking place with the Commission and that the Government were "working to ensure that the transitional arrangements are such that measures continue to apply as far as possible to the UK during that period" and she was "not intending that there will be any significant gap between the initial opt-out and the opting back into any individual measures that we would choose to opt back into".[426]

235. Considering the legal complexities and uncertainty that may arise, were the Government to exercise the opt-out and seek to rejoin particular police and criminal justice measures, the Government would have done well to have commenced negotiations at a much earlier stage. We consider it to be imperative that, in the Home Secretary's own words, there should not be any significant gap between the initial entry into force of the opt-out, were it to be exercised, and rejoining certain measures. The longer it takes for the Government to agree a definitive list of police and criminal justice measures that it wishes to rejoin, the less time they will have to negotiate these with the Commission and the Council, as well as agreeing watertight transitional arrangements. That in turn will increase the risk of gaps and uncertainties developing in the interim period.

If the opt-out is exercised which measures should the UK seek to rejoin?

236. If the opt-out is exercised then some of our witnesses suggested that the Government should seek to rejoin as many measures as possible, beyond those that had been identified as defunct.[427] Professor Peers referred to rejoining a core list of 44 measures, including all of the mutual recognition measures, Eurojust, Europol, SIS II and the Prüm Decisions.[428] On the same basis, Jeremy Hill referred to a core list of 29-45 measures, which included the EAW, Europol and Eurojust, among others.[429] Stephen Booth stated that rejoining certain measures should not be ruled out[430] and Dominic Raab MP agreed, identifying 60 measures of "some practical value" to the UK, including Eurojust, Europol, CEPOL, criminal records/ECRIS, JITs, SIS II, mutual legal assistance, prisoner transfers and the EAW.[431] ACPO analysed 108 of the measures that they considered to be concerned with law enforcement and stated that the Government should seek to rejoin 29 measures, of which 13 were considered to be vital. These included Eurojust, Europol, criminal records/ECRIS, JITs, SIS II and the EAW. They also listed another 55 measures that they had no view on as leaving them would have no impact on UK policing; 12 measures that they did not think should be rejoined;[432] and another 12 measures that were likely to be replaced by post-Lisbon measures.[433] The Lord Advocate also suggested that the Government should seek to rejoin 17 measures, including Eurojust, Europol, criminal records/ECRIS, JITs, SIS II, the European Judicial Network, the ESO and the EAW.[434]

237. During the course of the Committee's inquiry it became clear that the list of measures that the Government may wish to rejoin, were the opt-out to be exercised, was the subject of protracted negotiations between the two parties in the Coalition Government.[435] The Lord Chancellor confirmed this[436] and said that negotiations could not begin in Brussels until an agreement had been reached in this respect. However, he was unable to indicate when they would be able to present Parliament with the list, saying "All I can say is that as soon as we are in a position to provide … a list we will do so".[437] The Government have already undertaken to provide an Impact Assessment on the final package of measures that they wish to rejoin.[438]

238. Director-General Manservisi told us that technical legal discussions were ongoing between the Commission and the Government to identify all of the measures which fell within the scope of Protocol 36. Director-General Le Bail indicated that the list of 'Justice' measures had been finalised.[439]

239. Aside from these discussions, the total number of measures on the list also remains uncertain. This is because it is subject to the publication of further Commission proposals which may amend or replace pre-Lisbon measures ahead of the 1 December 2014 deadline, and which are subject to a decision by the Government on whether or not to opt-in, as well as existing proposals to amend or replace pre-Lisbon measures that may or may not be adopted before 1 December 2014.[440]

240. This raises the complicated matter of when pre-Lisbon measures can be deemed to have been "amended", therefore triggering their removal from the list of measures subject to the opt-out.[441] We asked the Government for their view on this and they replied that this was being discussed with the Commission and Council Legal Services in order to reach a "shared understanding", including whether "adoption" or "entry into force" is the date on which the underlying pre-Lisbon measures cease to fall within the scope of the opt-out decision. They confirmed that no firm agreement had yet been reached; that there were a number of possible scenarios that could apply in this regard and that Parliament will be updated once this issue has been resolved.[442]

241. We are unable to form a firm view on the list of measures that we consider the Government should seek to rejoin, were the opt-out to be exercised, until they provide us with their provisional list of measures, and supporting analysis contained in an Impact Assessment. A proper assessment by Parliament of whether or not the opt-out should be exercised is necessarily linked with which measures the Government wish, and are able, to rejoin.

THE FORTHCOMING PROPOSALS FOR EUROPOL AND EUROJUST REGULATIONS

242. In 2012, the Commission announced that proposals for two new Regulations to adapt Europol and Eurojust, following the entry into force of the Treaty of Lisbon, would be proposed to the Council in 2013. The Europol Regulation was duly published on 27 March 2013[443] and the Eurojust Regulation is expected to be published before the summer. If the Government were to exercise their right to opt in to the negotiations on both of these proposals within three months of their publication and they took effect before December 2014, then they would no longer fall within the scope of the opt-out decision. The Home Secretary considered that the UK's involvement in both of these EU agencies would be determined separately from the opt-out decision, saying "I do not believe Europol and Eurojust will be in the list". With respect to Europol the Home Secretary's view was contingent upon the proposal not containing any provision for the agency to gain coercive powers or requirements on Member States to forward data to it.[444]

243. Before it was published, Rob Wainwright told us that the Europol Regulation would be concerned with housekeeping matters rather than revolutionising Europol's legal framework. With regard to the possibility that the Regulation could also seek to merge Europol and CEPOL he said that he was not enthusiastic about this prospect, primarily because of the resource implications. He also suggested that the LIBE Committee were unsupportive of such a move. He was uncertain if the new Europol Regulation would be adopted by the Council by 1 December 2014 partly due to the expected hiatus in the proceedings of the European Parliament that year for elections.[445] Europol considered that the potentially adverse consequences of exercising the opt-out could be mitigated by the Government choosing to opt in to the proposed Regulation as soon as possible.[446] With regard to the forthcoming Eurojust Regulation Michèle Coninsx stated that "The timing here is essential because you have time between June 2014 and 1 December 2014, and there might be a chance that you fall out of the basket, so to speak, and that is a risk which I think is realistic".[447]

244. Professor Peers also noted that the six measures concerning Europol and the three measures concerning Eurojust would potentially be removed from the list of measures caught by the opt-out, if the Government decided to opt into the new Regulations.[448] Europol also confirmed that five of the Europol measures on the list were "directly connected" to each other.[449]

245. In our view it is in the United Kingdom's interest to remain a full participant in both Europol and Eurojust. The steadily increasing use that the UK law enforcement authorities make of both these agencies is testimony to their value.

246. If the Government choose to opt in to the proposals for Europol and Eurojust Regulations, thus potentially removing the consideration of the United Kingdom's engagement in these agencies from the wider matter of the opt-out decision, we urge them to take care to avoid any gaps developing between the opt-out decision, if it is exercised, taking effect on 1 December 2014 and these new measures entering into force.

The organisation of the vote in the House of Lords

247. In her statement to the House of Commons on 15 October 2012, the Home Secretary said "… as with many EU matters the process of decision-making is a complicated one. We wish to ensure that before that point we give this House and the other place sufficient time to consider this important matter … However, discussions are ongoing within Government and therefore no formal notification will be given to the Council until we have reached agreement on the measures that we wish to opt back into … The Government will then aim to bring forward a vote in both Houses of Parliament. The timeframe for this vote will depend on progress in our discussions with the Commission and Council. An update will be provided to Parliament early in the New Year on when we can expect the vote to take place".[450]

248. If, despite the view expressed in paragraph 275, the Government decide to exercise the opt-out, in our view the House should not be asked to vote on that decision without simultaneously being provided with and invited to pronounce on the list of police and criminal justice measures that the Government (a) consider to be defunct, (b) wish to rejoin and (c) do not wish to rejoin with, in each case, an explanation of the alternative arrangements that are envisaged.

389 ^{WithreferencetothelistofmeasurescontainedinAppendix4,24areSchengenmeasuresandtheremaining109arenon-Schengenmeasures.} Back

390 ^{Protocol21andArticle331(1)TFEU} Back

391 ^Q165,Q194 Back

392 ^UKGovernment Back

393 ^Q280 Back

394 ^Q281 Back

395 ^{SeetheresponseletterfromtheHomeSecretaryandtheLordChancellortoLordBoswellofAynhodated1February2013.Containedinthevolumeofcorrespondence,whichisavailableonline.} Back

396 ^{EUCommittee,TheEuropeanUnion'sPolicyonCriminalProcedure(30thReportofSession2010-12,HLPaper288),paragraph115} Back

397 ^{CELS,OptingoutofEUCriminallaw(byProfessorJohnSpencer,ProfessorStevePeersandDrAliciaHinarejos);CER,Cameron'sEuropean'owngoal'andBritain's2014justiceopt-out:WhyitbodesillforCameron'sEUstrategy(byHugoBrady);LibDemUKMEPs,BarCouncil,FacultyofAdvocates,LSEW,LSS,Jean-ClaudePiris,ACPOS,DavidAndersonQC,WilliamHughes,MikeKennedy,PoliceFoundation,DrMariaO'Neill,JUSTICE,JusticeAcrossBorders,TimothyKirkhopeMEPandAntheaMcIntyreMEP,Q38,Q63,Q127,Q165,Q166} Back

398 ^LibDemUKMEPs^,BarCouncil Back

399 ^{LibDemUKMEPs,BarCouncil,DrMariaO'Neill,LSEW} Back

400 ^{Statewatch,TheUK'splanned'blockopt-out'fromEUjusticeandpolicingmeasuresin2014(byProfessorStevePeers);Q38} Back