CHAPTER 10: SUMMARY OF CONCLUSIONS AND
RECOMMENDATIONS
Chapter 1: Introduction
277. We make this report to the House for debate
(paragraph 10).
Chapter 2: Background
278. It is clear that it is the right of the
United Kingdom to exercise the opt-out decision under Article
10, Protocol 36 to the Treaty of Lisbon. This right was recognised
by the other Member States when they chose to ratify the Treaty
of Lisbon (paragraph 32).
Chapter 3: The Government's consultation of Parliament
and stakeholders regarding the opt-out decision
CONSULTATION OF STAKEHOLDERS
279. Given the significant implications of the
opt-out decision we believe that the Government should have conducted
more detailed analysis of this matter, including that of each
measure affected by the opt-out, at a much earlier stage. It is
regrettable that very little work appeared to have been completed
in this respect by the time of the Home Secretary's announcement
on 15 October 2012 (paragraph 55).
280. We regret that the Government have not complied
with their own undertakings to engage effectively with Parliament
regarding the opt-out decision. While understanding the Lord Chancellor's
concern that Parliament should first have been informed of the
Government's inclination to opt out, before they entered into
detailed discussions with the Devolved Administrations and stakeholders,
we still consider that it would have been wise to have sought
the views of the Devolved Administrations and other stakeholders
at a much earlier stage before reaching even a provisional decision
on the merits of opting out (paragraph 56).
REVIEW OF THE BALANCE OF COMPETENCES BETWEEN THE
UK AND THE EU
281. It is unfortunate that the Government have
decided to commence their Balance of Competences review of the
EU's police and criminal justice competence in spring 2014, at
which point the opt-out decision is likely to have been made.
In any event, we expect the Government to take account of this
report during their consideration of that particular range of
competences (paragraph 59).
THE UK'S FUTURE ROLE IN THE EU
282. We believe that the nature and extent of
the United Kingdom's continued involvement in EU policing and
justice cooperation should be considered on their own merits,
and should not become obscured by the wider debate about the United
Kingdom's relationship with the EU (paragraph 61).
Chapter 4: The Court of Justice of the European
Union, the relationship between UK and EU law, and the Commission
DEMOCRATIC ACCOUNTABILITY AND THE RULE OF LAW
283. As many of the police and criminal justice
measures engage the fundamental rights of EU citizens, including
UK nationals travelling or living in other Member States, we believe
that the CJEU has an important role to play, alongside Member
States' domestic courts, in safeguarding these rights and upholding
the rule of law (paragraph 71).
THE UK'S COMMON LAW SYSTEMS
284. Each Member State has a distinct legal system.
The United Kingdom has an essentially common law system, including
within it three distinct jurisdictions—England and Wales,
Scotland and Northern Ireland. The overwhelming weight of evidence
suggests that none of the pre-Lisbon police and criminal justice
measures undermines the United Kingdom's common law systems in
any way and would not do so if they became justiciable in the
CJEU (paragraph 76).
A PAN-EUROPEAN CRIMINAL LAW CODE?
285. We consider the stated concerns about the
possible development of a pan-EU criminal code to be misplaced.
There is at present no evidence that the Commission has any intention
of developing such a code and even were it minded to do so, the
United Kingdom would not be compelled to participate in such a
venture thanks to its right under Protocol 21 to the Treaties
not to opt in to proposals in this area (paragraph 79).
"JUDICIAL ACTIVISM" AND "UNEXPECTED
JUDGMENTS"
286. We have considered the CJEU judgments concerning
pre-Lisbon police and criminal justice measures and we can discern
no convincing evidence that the CJEU has been either judicially
activist or that its rulings set out to undermine the autonomy
of Member States' criminal justice systems (paragraph 89).
287. We do not consider the Government's concerns
about unexpected judgments being made by the CJEU to be a reasonable
or substantive reason for rejecting the CJEU's jurisdiction in
relation to the pre-Lisbon PCJ measures. All courts, including
the UK Supreme Court, can make unexpected judgments which are
not necessarily favourable to the executive. This is an inevitable
consequence of upholding the rule of law. However, we do accept
the Lord Chancellor's point that in the case of decisions of international
courts, there is not the same flexibility to legislate to overturn
such decisions as there is within our domestic system (paragraph 90).
THE DRAFTING AND APPLICATION OF THE POLICE AND CRIMINAL
JUSTICE MEASURES
288. We believe that the ability of courts in
the United Kingdom to make preliminary references to the CJEU
should help to promote the consistent application and interpretation
of police and criminal justice measures both in the United Kingdom
and across the EU (paragraph 96).
POST-LISBON POLICE AND CRIMINAL JUSTICE OPT-INS
289. We note that the CJEU already has jurisdiction
over pre-Lisbon EU civil, asylum and immigration measures. The
Government have raised no concerns about the CJEU's role in these
areas. We further note that the CJEU has, or will have, jurisdiction
also over the post-Lisbon police and criminal justice measures
to which the Government have decided to opt in. No concerns have
been raised about the CJEU's prospective role over these measures
by the Government. We welcome this clear evidence that the Government
therefore have no objection of principle to accepting the CJEU's
jurisdiction (paragraph 104).
290. We have not identified any significant,
objective justification for avoiding the jurisdiction of the CJEU
over the pre-Lisbon police and criminal justice measures in the
United Kingdom (paragraph 105).
EUROPEAN PUBLIC PROSECUTOR
291. In the context of the opt-out decision,
concerns about the prospective role of a European public prosecutor
are misplaced. The United Kingdom has the right not to opt-in
to any such proposal and the Government have already announced
that they have no intention of doing so. Furthermore, even were
they to wish to opt in, the European Union Act 2011 would require
a referendum to be held and primary legislation to be passed before
they could do so. We therefore consider that the consideration
of this particular issue should have no bearing on the 2014 opt-out
decision (paragraph 110).
THE COMMISSION'S ENFORCEMENT POWERS AND UNIMPLEMENTED
POLICE AND CRIMINAL JUSTICE MEASURES IN THE UK
292. We consider that it is unlikely that the
United Kingdom will become subject to infringement proceedings
by the Commission regarding the non-implementation of these police
and criminal justice measures in the short term. But in any case
we believe that the Government should take steps to implement
those of value (paragraph 115).
Chapter 5: Alternative arrangements for cross-border
cooperation
THE NEED FOR CROSS-BORDER POLICE AND CRIMINAL JUSTICE
COOPERATION
293. Cross-border cooperation on policing and
criminal justice matters between the United Kingdom and the other
Member States is an essential element in tackling security threats
such as terrorism and organised crime. In the early twenty-first
century no Member State can hope to assure its internal security
or the enforcement of the rule of law without such cooperation
(paragraph 118).
ALTERNATIVE ARRANGEMENTS FOR CROSS-BORDER COOPERATION
294. We recognise the theoretical possibility
for the United Kingdom to conclude multiple bilateral and multilateral
agreements with the other Member States, in place of some existing
EU measures, and that other Member States would have an interest
in putting effective mechanisms in place. But this would be a
time-consuming and uncertain process, with the only claimed benefit
being tailor-made arrangements excluding the CJEU's jurisdiction.
In some cases new bilateral agreements would be dependent on the
legislative timetable of the other Member States, which may accord
them a low priority (paragraph 136).
295. We consider that the most effective way
for the United Kingdom to cooperate with other Member States is
to remain engaged in the existing EU measures in this area (paragraph 137).
296. If the United Kingdom reverted to Council
of Europe Conventions instead of the equivalent EU measures, this
would raise legal complications, and could also result in more
cumbersome, expensive and weaker procedures. It would also weaken
the ability of the United Kingdom's police and law enforcement
authorities to cooperate with the equivalent authorities in other
Member States regarding cross-border crime (paragraph 138).
THE FRONTEX "MODEL"
297. We consider the possibility of the United
Kingdom cooperating with Europol or Eurojust on the same basis
that it currently does with Frontex to be neither practical nor
desirable, as it would reduce the benefits that the United Kingdom
currently enjoys through its full participation in both EU agencies
(paragraph 141).
THE DANISH JUSTICE AND HOME AFFAIRS OPT-OUT
298. We do not consider the negotiation of Treaty
change to achieve a Danish-style Justice and Home Affairs opt-out
for the United Kingdom to be desirable. It would place the United
Kingdom in a disadvantageous position with respect to future proposals
for police and criminal justice measures by removing both their
right to opt in to a proposal and their ability to influence its
content through participation in the negotiations. In any event,
this possibility has no bearing on the 2014 opt-out decision (paragraph 144).
Chapter 6: The European Arrest Warrant
299. We consider the European Arrest Warrant
to be the single most important pre-Lisbon police and criminal
justice measure. If the United Kingdom were to leave the EAW and
rely upon alternative extradition arrangements, it is highly unlikely
that these alternative arrangements would address all the criticisms
directed at the EAW. Furthermore, it is inevitable that the extradition
process would become more protracted and cumbersome, potentially
undermining public safety. If the opt-out is exercised then the
Government should apply to the Commission to rejoin the European
Arrest Warrant so as to avoid any gap in its application (paragraph 160).
300. We acknowledge that in some cases the operation
of the EAW has resulted in serious injustices for UK and other
EU nationals. We do not belittle the seriousness of these cases.
However, those injustices resulted not directly from the operation
of the EAW but from the consequences of extradition, including
long periods of pre-trial detention in poor prison conditions,
which could also occur under any alternative system of extradition
(paragraph 161).
301. In our view UKIP's interpretation of the
Radu judgment is mistaken. It is clear to us that courts
in the United Kingdom continue to have the option to decline an
EAW request on human rights grounds (paragraph 172).
302. We very much regret that the Government
have chosen not to implement the European Supervision Order, pending
their decision on the opt-out being made, and urge them to implement
this measure without further delay. There is no justification
for British citizens to be deprived of the benefits of this measure,
especially as it could help prevent a repeat of the Symeou case
(paragraph 179).
303. We consider that the best way to achieve
improvements in the operation of the EAW is through a process
of negotiations with the other Member States; the use of existing
provisions in national law; informal judicial cooperation; the
development of jurisprudence at the Member State and EU level,
including on matters of proportionality, as well as the immediate
implementation of flanking EU measures such as the European Supervision
Order and the Roadmap procedural rights measures, to which the
Government should opt in where they have not already done so (paragraph 180).
Chapter 7: What would be the consequences of leaving
police and criminal justice measures?
304. 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 (paragraph 185).
305. 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 (paragraph 189).
306. 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
(paragraph 208).
Chapter 8: The procedure for rejoining particular
police and criminal justice measures
DISCUSSIONS WITH THE OTHER MEMBER STATES
307. 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 (paragraph 216).
REJOINING PARTICULAR POLICE AND CRIMINAL JUSTICE
MEASURES
308. 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 (paragraph 223).
HOW INTERCONNECTED ARE THE POLICE AND CRIMINAL JUSTICE
MEASURES?
309. 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 (paragraph 228).
TIMING AND TRANSITIONAL ARRANGEMENTS
310. 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 (paragraph 235).
IF THE OPT-OUT IS EXERCISED WHICH MEASURES SHOULD
THE UK SEEK TO REJOIN?
311. 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 (paragraph 241).
312. 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 (paragraph 245).
313. 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 (paragraph 246).
THE ORGANISATION OF THE VOTE IN THE HOUSE OF LORDS
314. 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 (paragraph 248).
Chapter 9: Should the Government exercise the
opt-out?
THE PRACTICAL CONSEQUENCES OF EXERCISING THE OPT-OUT
315. 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 (paragraph 260).
THE IRISH DIMENSION
316. 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 (paragraph 270).
SHOULD THE OPT-OUT BE EXERCISED?
317. 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 (paragraph 274).
318. 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 (paragraph 275).
319. 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 (paragraph 276).
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