CHAPTER 9: SHOULD THE GOVERNMENT EXERCISE
249. This Chapter considers the potential consequences
for the UK if the Government decide to exercise the block opt-out,
notwithstanding the possibility that they may attempt to rejoin
a number of measures. We begin by summarising the main arguments
for and against exercising the block opt-out that we have considered
The arguments for and against
exercising the opt-out
250. The reasons for exercising the opt-out given
by those who support that option can be summarised as follows:
- The risks associated with extending
the jurisdiction of the CJEU in relation to the pre-Lisbon PCJ
measures to include the UK, including the risk of judicial activism
and the potential for undermining the UK's common law systems;
- The loss of national control over areas of police
and criminal justice policy;
- Many of the PCJ measures are of little use or
- Many of the areas of cooperation could be achieved
by non-legislative means or through alternative arrangements;
- The opportunity to use the opt-out to promote
the reform of certain measures.
251. Those who oppose the exercise of the opt-out
give the following reasons:
- The pre-Lisbon measures are in
the UK's national interest and some are vital to our internal
- The measures are beneficial to UK citizens who
may become the victims of crime or suspected of committing a crime
in another Member State;
- The CJEU's jurisdiction would provide the benefits
of legal clarity and the stronger and more consistent application
of EU measures across the EU;
- There is no risk to the UK's common law systems
and no evidence of any harm caused to those systems from any of
the PCJ measures;
- Withdrawing from some of those PCJ measures would
result in the UK having to rely upon less effective means of cooperation;
- The UK would lose influence over existing and
future EU police and criminal justice policies and agencies.
252. Those who are opposed also cite the following
risks were the opt-out to be exercised and the UK sought to rejoin
- The procedures for rejoining measures
are uncertain and depend on the decisions of the Commission and
the other Member States;
- Timing-whether it will be practicable to rejoin
measures without any hiatus in their application;
- Cost-the potential to incur "financial consequences"
assessed by the Commission, and sunk costs (for example, contributions
to the development of SIS II if the UK did not rejoin that system).
The practical consequences of
exercising the opt-out
253. Many of our witnesses raised concerns about
the possibility of the opt-out reducing the operational effectiveness
of police and law enforcement authorities in tackling cross-border
crime, in the UK and the other Member States, thereby reducing
their opportunities to prevent crime and apprehend criminals.
This would result from, among other things, the UK losing the
ability to participate in JITs, EU databases, such as SIS II,
and the ability to exchange information with other Member States
through Eurojust and Europol.
LOSS OF INFLUENCE
254. Helen Malcolm QC remarked that the UK had
been at the forefront of the development of international criminal
law since the Nuremberg Trials.
We also heard that British nationals had played prominent roles
in the development of these policies from the very beginning of
EU JHA cooperation.
This was demonstrated by the fact that the current Director of
Europol is British; two former Presidents of Eurojust have been
British (both of whom provided us with evidenceMike Kennedy
and Aled Williams);
and the location of CEPOL at Bramshill in England. The first two
Director-Generals of the former DG JHA were also British.
William Hughes referred to the high regard in which UK law enforcement
officials were held within bodies such as the European Police
Chiefs Task Force and COSI, which had subsumed it.
Rob Wainwright remarked that "Most of Europol's internal
architecture, its current policies and its strategy are very much
defined in British terms at the moment".
David Anderson QC, the Independent Reviewer of Terrorism Legislation,
referred to the UK's influence on counter-terrorism policy across
the EU while others told us that systems and approaches which
had originally been developed in the UK had influenced the creation
of similar EU-wide equivalents, including Europol's Organised
Crime Threat Assessment survey, the organised crime policy cycle,
the European Criminal Intelligence Model and SIS II.
255. Some of our witnesses expressed fears that
this historic influence could be jeopardised, sending negative
signals to law enforcement authorities in the other Member States,
while also diluting British input into the operation of key EU
agencies and the development of future PCJ measures, despite the
fact that all of these would continue to impact upon the UK regardless
of the opt-out being exercised.
Other witnesses remarked that as British nationals would continue
moving about the EUto live, travel, work, and occasionally
become embroiled in the criminal justice system of another Member
Stateit was important for the UK to remain fully engaged
in this area in order to ensure that standards of justice remained
high across the EU. Disengaging would make it harder to achieve
Vice-President Reding is reported to have said: "It's going
to damage Britain
All these elements of collaboration between
security forces and police co-operation have been built up in
order to combat crime and catch criminals
said this will result in the UK being sidelined".
256. Martin Howe QC was not convinced that the
UK's influence in any of these areas would diminish if it exercised
the opt-out. The
Home Secretary agreed that the UK had played a leading role in
many JHA areas but said that, regardless of the opt-out decision,
they would continue to play a full role in JHA matters, within
the Council and beyond and that she did not accept that this necessarily
had to be on the basis of EU legislative measures.
UKIP were of the view that exercising the opt-out would improve
the UK's relations with the other Member States rather than make
257. Article 10(4) of Protocol 36 states that
"The Council, acting by a qualified majority on a proposal
from the Commission, may also adopt a decision determining that
the UK shall bear the direct financial consequences, if any, necessarily
and unavoidably incurred as a result of the cessation of its participation
in those acts".
258. The Faculty of Advocates and the LSS considered
that the adverse financial consequences could be substantial,
and cited the UK's withdrawal from CEPOL, EU databases and SIS
II as potentially incurring costs.
We also heard suggestions that the UK could be liable for the
costs incurred domestically and in the other Member States resulting
from any transitional arrangements; the development, negotiation
and agreement of alternative arrangements and measures; any subsequent
amendments to Member States' domestic law and any legal costs
which may be incurred as a result of litigation.
Director-General Manservisi told us, however, that the financial
consequences would be assessed "in quite a restrictive way",
including whether the impact on the EU budget should be borne
by the UK or the other Member States.
Timothy Kirkhope MEP and Anthea McIntyre MEP also emphasised the
potential budgetary implications for the UK if it had to rely
upon 27 bilateral arrangements, in times of financial restraint,
instead of more cost and time effective central EU facilities.
259. The Government told us that, until discussions
were at a more advanced stage with the EU Institutions and other
Member States, it was impossible to say with any certainty whether
the UK would be held liable for any costs, but they considered
a "high threshold" would have to be met before this
proved to be the case.
Despite the clear wording contained in Article 10, UKIP considered
that there would be no legal grounds to impose costs on the UK.
260. It is too early to speculate about the
potential financial consequences for the United Kingdom which
would result from a decision to exercise the opt-out. However,
we urge the Government to take all necessary and reasonable steps
to minimise any potential costs. We expect this issue to be considered
in more detail in the Government's Impact Assessment when it is
The Irish dimension
261. We were first alerted to the Irish dimension
when we took evidence from the former Home Secretary, Charles
Clarke, for an earlier inquiry.
A number of other witnesses expressed concern about the potential
consequences of the opt-out decision for the close working relationship
between the UK and the Republic of Ireland on policing, security
and criminal justice matters, partly as a result of the Common
Travel Area, and in the context of the shared land border between
Ireland and Northern Ireland. The historical backdrop is well
known, including cross-border organised crime and terrorist activity,
which continues to be a problem.
ANGLO-IRISH COOPERATION ON POLICING
AND CRIMINAL JUSTICE MATTERS
262. The Minister of Justice in the Northern
Ireland Executive, David Ford MLA, told us that as a result of
the peace process the last decade had seen greater cooperation
between authorities on both sides of the border, which had been
enhanced by the devolution of policing and justice powers to the
Northern Ireland Assembly in 2010.
With the PSNI and Dr Gavin Barrett, he also emphasised the
practical and operational considerations that arose from the land
border in the context of the opt-out decision.
263. After an informal JHA Ministerial meeting,
which took place in Dublin on 16 January 2013, at the beginning
of the Irish Presidency of the EU, the Minister for Justice and
Equality in the Irish Government, Alan Shatter TD, told the Irish
Times that it would be a "mistake" for the UK to end
its involvement in PCJ measures, as such a move could have implications
for the peace process since the measures were of "crucial
importance" in dealing with terrorism and organised crime
between Northern Ireland and the Republic of Ireland. He said
that the opt-out could affect the exchange of "crucial information
that protects people's lives when there are threats" and
also stated he was not "entirely convinced that the full
implications of opting out of the range of instruments were necessarily
fully assessed when the [15 October 2012] announcement was made".
He also stated that the Irish Government were "very anxious
to provide whatever assistance is necessary to resolve any concerns
The PSNI raised similar concerns.
264. Dr Gavin Barrett told us that there
would certainly be implications for Ireland if the opt-out was
exercised and it "would be very regrettable to see a well
functioning system of criminal law cooperation of this nature
operating between our two countries jeopardised [because] of concerns
that really have nothing to do with either of our systems".
He stated that the close cooperation between the two countries
was based upon a "veritable Gordian Knot" of domestic
and EU measures. Of the EU measures, Europol; the criminal and
customs mutual legal assistance measures; some drugs and organised
crime measures; information exchange measures; and those concerning
databases of criminal records and false documents, were all important
and replacing them would be a challenge. He said there was "absolutely
no doubt that the European Arrest Warrant is the one that is inspiring
the most concern".
He also suggested that because of the similarities between their
legal systems Ireland would be concerned about the possibility
of losing the UK as a large Member State and an ally in the EU
JHA domain. However, while he had no doubt that the Irish preference
would be for the opt-out not to be exercised, he also suggested
that the UK Government could rely upon a lot of "good will"
from Ireland whatever decision was eventually made.
265. The Government told us that they valued
the close working relationship with Ireland in these areas and
that the Home Secretary and the Lord Chancellor had met with Irish
Ministers to discuss the opt-out decision and welcomed their views
on the matter.
They were confident that effective cooperation between the two
Member States would continue in the future.
Dominic Raab MP told us that he understood the sensitivities
involved but did not consider these to be "insurmountable".
THE EUROPEAN ARREST WARRANT
266. Before the EAW entered into force in the
UK and Ireland both countries were signatories to the 1957 Council
of Europe Convention on Extradition. Ireland ratified the Convention
in 1966, the UK in 1991. Both countries enacted domestic legislationthe
Backing of Warrants (Republic of Ireland) Act 1965 in the UK
and the Extradition Act, 1965, in Irelandto regulate extradition
between the two countries.
From 1 January 2004 these arrangements were replaced by the EAW.
267. PSNI stated that since 2004, of the 50 EAW
requests that Northern Ireland made to other Member States, 30
of these had been made to Ireland.
Dr Gavin Barrett told us that the extradition figures between
the two countries were "striking", with 170 out of the
601 individuals (28 per cent) surrendered by Ireland between 2004
and 2011 being surrendered to the UK, and 160 out of the 184 individuals
(87 per cent) surrendered to Ireland during the same period being
surrendered by the UK.
268. David Ford MLA, PSNI, Dr Maria O'Neill
and Dr Gavin Barrett emphasised the operational benefits
that the EAW had provided between the two countries.
Commander Gibson told us "trying to manage the tensions in
IrelandNorth, Southwithout the ability to extradite
effectively seems to me very difficult".
Hugo Brady suggested that the Irish Government were concerned
that if the 1957 Convention had to be relied upon in place of
the EAW then it would become harder to extradite Irish nationals
for political offences.
The exception for political offences in the Convention, according
to the COPFS, had previously led to the refusal of requests by
the UK in serious cases.
269. David Ford MLA told us that Alan Shatter
TD shared his concerns about the UK possibly leaving the EAW and
had confirmed that Ireland no longer had the necessary legislation
in place for the Council of Europe Convention to be implemented.
Dr Gavin Barrett confirmed that the Convention system no
longer applied in Ireland with respect to the UK and would require
legislation to bring it back into force. While he suggested that
relying upon the Convention was possible in theory, he did not
consider that it would provide a satisfactory basis for an alternative
system of extradition between the two countries "with all
the defects, all its imperfections, all its outdatedness, all
its afflictions and all its potential for endless litigation with
an uncertain outcome in relation to the surrender of individuals".
He also stated that if the UK were to withdraw from the EAW then
Ireland would want to replace it with something just as efficient
and that the more notice they had to begin preparing alternatives
the better, but that it would be "positively dangerous"
if any void developed between the old and new systems.
270. We share the concerns that have been
raised by the Irish and Northern Irish Justice Ministers regarding
the potential damage that exercising the opt-out could cause to
cooperation between the United Kingdom and Ireland on tackling
cross-border crime and terrorism. With regard to the potential
loss of the EAW in this context, we do not consider that the 1957
Council of Europe Convention on Extradition would provide an adequate
alternative for extradition between the two countries.
Should the opt-out be exercised?
271. UKIP, the Fresh Start Project and Martin
Howe QC were in favour of the opt-out being exercised and did
not consider that the Government should seek to rejoin any of
the PCJ measures.
Open Europe and Dominic Raab MP also support the opt-out
being exercised but agree that the Government should seek to rejoin
useful measures on a case-by-case basis.
Andrea McIntyre, a Conservative MEP on the LIBE Committee, was
also in favour
but Monika Hohlmeier MEP, a member of the LIBE Committee, told
us that the European People's Party would prefer the UK not to
exercise the opt-out.
In contrast to his Westminster colleagues, Sajjad Karim MEP, the
European Conservatives and Reformists Group coordinator on the
JURI Committee, told us that in his view the Government would
not achieve "some or any of the stated public aims"
by exercising the opt-out and then rejoining particular measures.
272. A clear majority of our witnesses were not
in favour of the Government exercising the opt-out, including
the LSS, the LSEW, the Bar Council, the Faculty of Advocates,
the Police Foundation, the LibDem UK MEPs, Dr Maria O'Neill,
Hugo Brady, Professor Peers, Jodie Blackstock and William
Hughes. Professor Spencer
and Helen Malcolm QC were also both "emphatically" opposed
to the opt-out.
When we took evidence from Charles Clarke, for an earlier inquiry,
he told us that he regretted that the previous government had
negotiated the opt-out because as a former Home Secretary he did
not consider it to have been necessary and hoped that the present
Government would decide not to exercise it.
273. The Lord Advocate told us that the Scottish
Government had not yet reached a position on the opt-out but their
written evidence made it clear that they considered that a decision
should not be taken "without a clear and compelling case,
which would justify the potential disruption to existing cross-border
co-operation and practical measures that assist authorities in
tackling serious and organised crimes".
David Anderson QC did not express a view either way but said his
only concern was that the Government should not put at risk its
ability to rely on PCJ measures, which were of genuine assistance
in the fight against terrorism.
274. We were struck by the clear and preponderant
view among our witnesses from the legal, law enforcement and prosecutorial
professions as to the potentially negative implications for the
United Kingdom either of exercising the opt-out or ceasing to
participate in particular measures.
275. On the basis of the evidence we have
received we do not consider that the Government have made a convincing
case for exercising the opt-out. We are not persuaded by the arguments
in favour of exercising the opt-out which some witnesses have
made, and we find that the evidence supports the reasoning of
those opposed to its exercise. Opting out of the police and
criminal justice measures would have significant adverse negative
repercussions for the internal security of the United Kingdom
and the administration of criminal justice in the United Kingdom.
276. We do not believe that any possible alternative
arrangements, which would involve a great deal of work to conceive,
would be worth it simply to avoid the jurisdiction of the CJEU,
which we do not believe poses an objective threat and whose jurisdiction
in this area cannot be completely excluded in any event.
451 CELS,OptingoutofEUCriminallaw(byProfessorJohnSpencer,ProfessorStevePeersandDrAliciaHinarejos);CER,Cameron'sEuropean'owngoal'(byHugoBrady);FacultyofAdvocates,LSEW,Jean-ClaudePiris,ACPOS,BarCouncil,Europol,WilliamHughes,JUSTICE,DrMariaO'Neill,MikeKennedy,COPFS,TimothyKirkhopeMEPandAntheaMcIntyreMEP,Q111,Q209 Back
Mike Kennedy became the first President of Eurojust and held the
position from 2002 to 2007. Aled Williams held the position from
2010 to 2012. Back
Adrian Fortescue became the first Director General of DG
JHA on its creation in 1999, having already worked on JHA matters
in the Commission for a number of years. JonathanFaullthenheldthispositionfrom2003-2010,untilitwassplitintwotoformDGJUSTICEandDGHOME.HeisnowtheDirectorGeneralofDGInternalMarketandServices. Back