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 9: SHOULD THE GOVERNMENT EXERCISE THE OPT-OUT?

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 so far.

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 are defunct;
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 security;
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 measures:

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

OPERATIONAL DIFFICULTIES

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.[451] 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.[452] We also heard that British nationals had played prominent roles in the development of these policies from the very beginning of EU JHA cooperation.[453] 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 evidence—Mike Kennedy and Aled Williams);[454] and the location of CEPOL at Bramshill in England. The first two Director-Generals of the former DG JHA were also British.[455] 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.[456] 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".[457] 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.[458]

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.[459] Other witnesses remarked that as British nationals would continue moving about the EU—to live, travel, work, and occasionally become embroiled in the criminal justice system of another Member State—it 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 high standards.[460] 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 … everyone has said this will result in the UK being sidelined".[461]

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.[462] 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.[463] UKIP were of the view that exercising the opt-out would improve the UK's relations with the other Member States rather than make them worse.[464]

FINANCIAL CONSEQUENCES

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,[465] and cited the UK's withdrawal from CEPOL, EU databases and SIS II as potentially incurring costs.[466] 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.[467] 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.[468] 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.[469]

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.[470] Despite the clear wording contained in Article 10, UKIP considered that there would be no legal grounds to impose costs on the UK.[471]

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 eventually forthcoming.

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.[472] 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.[473] 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.[474]

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 that exist".[475] The PSNI raised similar concerns.[476]

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".[477] 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.[478]

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.[479] They were confident that effective cooperation between the two Member States would continue in the future.[480] Dominic Raab MP told us that he understood the sensitivities involved but did not consider these to be "insurmountable".[481]

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 legislation—the Backing of Warrants (Republic of Ireland) Act 1965 in the UK[482] and the Extradition Act, 1965, in Ireland—to regulate extradition between the two countries.[483] From 1 January 2004 these arrangements were replaced by the EAW.[484]

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.[485] 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.[486]

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.[487] Commander Gibson told us "trying to manage the tensions in Ireland—North, South—without the ability to extradite effectively seems to me very difficult".[488] 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.[489] 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.[490]

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.[491] 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.[492]

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.[493] 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.[494] Andrea McIntyre, a Conservative MEP on the LIBE Committee, was also in favour[495] 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.[496] 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.[497]

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.[498] Professor Spencer and Helen Malcolm QC were also both "emphatically" opposed to the opt-out.[499] 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.[500]

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".[501] 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.[502]

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.

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454 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

455 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

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