The UK's opt-in Protocol: implications of the Government's approach - European Union Committee Contents


CHAPTER 2: THE OPT-IN PROTOCOL IN CONTENT AND PRACTICE


Title V

22.  Prior to the entry into force of the Lisbon Treaty, legislation in the area of criminal justice and police cooperation was adopted through intergovernmental procedures: proposed by the Commission or one or more Member States and agreed by unanimity in the Council, so with each Member State having a right of veto. The European Parliament only had to be consulted. The CJEU had jurisdiction only where a Member State had given its consent to that jurisdiction (the UK did not give its consent), and JHA legislation in the form of Framework Decisions could not have direct effect.

23.  The competences of the EU institutions in the JHA field were substantially revised with the entry into force of the Lisbon Treaty. Member States agreed that, with some exceptions, legislation adopted pursuant to Title V would be agreed by the ordinary legislative procedure (the post-Lisbon term for co-decision). This means that the Council acts by qualified majority and the European Parliament has equal co-legislative powers, so that legislation cannot come into force without its consent. Legislation adopted under Title V now falls automatically within the jurisdiction of the CJEU and can have direct effect.

The opt-in Protocol

24.  The UK's loss of a right of veto has been replaced by an opt-in Protocol which, as already described, allows the UK not to participate in JHA legislation.

25.  The evidence we received has focused in large part on the exact terms in which the Protocol is drafted, in particular the meaning to be given to the expression "pursuant to". We therefore set out the relevant provisions below.

RECITALS: SETTLING UK AND IRISH QUESTIONS

26.  A recital to the Protocol explains that it is intended to "settle certain questions relating to the United Kingdom and Ireland".

ARTICLE 1: THE UK AND IRELAND DO NOT PARTICIPATE IN JHA LEGISLATION

27.  Article 1 of the Protocol provides that the UK:

    "shall not take part in the adoption by the Council of proposed measures pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union."

ARTICLE 2: THE SAFEGUARDS THAT FLOW FROM NON-PARTICIPATION

28.  As a consequence, Article 2 establishes that:

    "no measure adopted pursuant to that Title, no provision of any international agreement concluded by the Union pursuant to that Title, and no decision of the Court of Justice interpreting any such provision or measure shall be binding upon or applicable in the United Kingdom or Ireland; and no such provision, measure or decision shall in any way affect the competences, rights and obligations of those States; and no such provision, measure or decision shall in any way affect the Community or Union acquis nor form part of Union law as they apply to the United Kingdom or Ireland."

ARTICLES 3 AND 4: THE RIGHT TO OPT INTO JHA LEGISLATION PRE- AND POST-ADOPTION

29.  Article 3 and 4 provide for the UK or Ireland to notify the Council that it wishes to participate in the negotiations either "within three months after a proposal or initiative has been presented to the Council pursuant to Title V" (of the TFEU) or "any time after its adoption by the Council pursuant to Title V".

The position of Denmark

30.  Under Protocol (No.22) "On the Position of Denmark," Denmark has opted out of all Title V legislation without any mechanism for opting in. There is, though, a provision[16] in Denmark's Protocol allowing it to abandon the opt-out altogether, and a further provision[17] allowing it to adopt the opt-in safeguards enjoyed by the UK and Ireland. The second option is being put to the Danish people in a referendum planned for no later than March 2016.

The Government's application of the opt-in Protocol, 2011-2014

31.  The Government reports each year to Parliament on the application of the opt-in and Schengen Protocols. We set out below an overview for the years 2010-14, and highlight significant proposals (with Title V legal bases) to which the Government decided not to opt in. We add a caveat, however: the Government's figures include proposals which lack a Title V legal base, but where it has unilaterally asserted that the opt-in Protocol applies.

2011

32.  The Government reported[18] that it had taken 17 decisions on UK participation in EU JHA legislative proposals (two of these, however, were proposals without a Title V legal base). In total it had opted in to nine proposals under the JHA opt-in Protocol (including two which did not have a Title V legal base). The Government decided to not opt in to eight proposals. These included:

·  A draft Directive on the right of access to a lawyer in criminal proceedings.[19]

·  Draft Directives on the minimum standards on procedures in Member States for granting and withdrawing international protection,[20] and the laying down of minimum standards for the reception of asylum seekers.[21]

2012

33.  The Government reported[22] that it had taken 35 decisions on UK participation in EU JHA legislative proposals (nine of these, however, were proposals without a Title V legal base). In total it had opted in to 24 proposals under the JHA opt-in Protocol (including eight which did not have a Title V legal base). The Government decided not to opt in to eight proposals. These included:

·  Proposals for a Regulation on the Justice Funding Programme 2014-20[23] and a Regulation for an Internal Security Fund on police cooperation.[24] This was due to concerns over value for money.

·  A draft Directive on the freezing and confiscation of proceeds of crime in the European Union.[25] This was due to concerns that the proposal posed risks to the UK's domestic non-conviction based confiscation regime.

2013

34.  The Government reported[26] that it had taken 21 decisions on UK participation in EU JHA legislative proposals (six of these, however, were proposals without a Title V legal base).In total it had opted in to 13 proposals under the JHA opt-in Protocol (including five which did not have a Title V legal base). The Government decided not to opt in to eight proposals. These included:

·  A draft Directive on the protection of the Euro and other currencies against counterfeiting.[27] This was due to concerns that the proposal would have little impact, that the UK's enforcement was satisfactory, and that it would require new legislation on minimum penalties and jurisdiction over counterfeiting offences committed by UK nationals overseas.

·  A proposal for a new Europol Regulation.[28] The Government had concerns over the increased obligation to provide data and the risk of operational interference with national enforcement agencies.

·  A proposal for a new Eurojust Regulation.[29] The Government had concerns over extending the mandatory powers of Eurojust National Members and the interaction between Eurojust and the European Public Prosecutor's Office (EPPO).

·  A draft Regulation establishing the EPPO.[30] The decision not to participate in the EPPO was contained in the Coalition Agreement.

2014

35.  The Government reported[31] that it had taken 33 decisions on UK participation in EU JHA legislative proposals (19 of these, however, were proposals without a Title V legal base). In total the UK opted in to 21 proposals under the JHA opt-in Protocol (including 13 which did not have a Title V legal base). The Government decided not to opt in to 10 proposals. Key decisions included the decision not to opt in to three EU criminal procedural rights proposals:

·  A draft Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings.[32] The Government did not believe the case had been made for EU action in this area.

·  A draft Directive on procedural safeguards for children suspected or accused in criminal proceedings.[33] The Government did not believe the proposal would improve on the support and protection of young people in the UK under existing legislation.

·  A draft Directive on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant proceedings.[34] The Government considered that the rules on legal aid were most appropriately determined by Member States themselves rather than at EU level.

36.  The Government's annual opt-in reports demonstrate that the opt-in Protocol has provided the UK with a very effective safeguard against participating in legislation with a legal base in Title V, particularly internal EU legislation, when it does not consider it to be in the national interest to do so.

37.  The inclusion of legislation in annual opt-in reports which does not have a Title V legal base is misleading. Members of Parliament, or the public, seeking to understand the extent of the UK's opt-in rights on the basis of these reports, would be likely to conclude that they are far wider than, in reality, they are. We recommend that the Government include only legislation with a Title V legal base in future annual opt-in reports, or that it makes clear where it has asserted that the opt-in Protocol applies to legislation without such a legal base.


16   Article 7 of Protocol (No 22) Back

17   Article 8 of Protocol (No 22) Back

18   Ministry of Justice and Home Office, Report to Parliament on the Application of Protocols 19 and 21 to the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) ("the Treaties") in Relation to EU Justice and Home Affairs (JHA) matters (1 December 2010-30 November 2011), Cm 8265, January 2012: https://www.gov.uk/government/uploads/system/uploads/attachment_data/ file/238238/8265.pdf [accessed 11 February 2015] Back

19   Proposal for a Directive on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest, COM(2011) 326 Back

20   Proposal for a Directive on common procedures for granting and withdrawing international protection status (Recast), COM(2011) 319 Back

21   Proposal for a Directive laying down standards for the reception of asylum seekers (Recast), COM(2011) 320 Back

22   Ministry of Justice and Home Office, Third Annual Report to Parliament on the Application of Protocols 19 and 21 to the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) ("the Treaties") in Relation to EU Justice and Home Affairs (JHA) matters (1 December 2011-30 November 2012): Cm 8541, April 2013: https://www.gov.uk/government/uploads/system/uploads/ attachment_data/file/235967/8541.pdf [accessed 11 February 2015] Back

23   Proposal for a Regulation establishing for the period 2014 to 2020 the Justice Programme, COM(2011) 759 Back

24   Proposal for a Regulation establishing as part of the Internal Security Fund, the instrument for financial support for external borders and visa, COM(2011) 750 Back

25   Proposal for a Directive on the freezing and confiscation of proceeds of crime in the European Union, COM(2012) 85 Back

26   Ministry of Justice and Home Office, Fourth Annual Report to Parliament on the Application of Protocols 19 and 21 to the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) ("the Treaties") in Relation to EU Justice and Home Affairs (JHA) matters (1 December 2012-30 November 2013): Cm 8772, January 2014: https://www.gov.uk/government/uploads/system/uploads/ attachment_data/file/274625/fourth-annual-report-teu.pdf [accessed 11 February 2015] Back

27   Proposal for a Directive on the protection of the euro and other currencies against counterfeiting by criminal law, and replacing Council Framework Decision 2000/383/JHA, COM(2013) 42 Back

28   Proposal for a Regulation on the European Union Agency for Law Enforcement Cooperation and Training (Europol) and repealing Decisions 2009/371/JHA and 2005/681/JHA, COM(2013) 173 Back

29   Proposal for a Regulation on the European Union Agency for Criminal Justice Cooperation (Eurojust), COM(2013) 535 Back

30   Proposal for a Regulation on the establishment of the European Public Prosecutor's Office, COM(2013) 534 Back

31   Ministry of Justice and Home Office, Fifth Annual Report to Parliament on the Application of Protocols 19 and 21 to the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) ("the Treaties") in Relation to EU Justice and Home Affairs (JHA) matters (1 December 2013-30 November 2014): Cm 9006, February 2015: https://www.gov.uk/government/uploads/system/uploads/ attachment_data/file/401463/46831_Cm_9006_accessible.pdf [accessed 11 February 2015] Back

32   Proposal for a Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings, COM(2013) 821 Back

33   Proposal for a Directive on procedural safeguards for children suspected or accused in criminal proceedings, COM(2013) 822 Back

34   Proposal for a Directive on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant proceedings, COM(2013) 824 Back


 
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