CHAPTER 5: LEGAL CERTAINTY AND LOYAL COOPERATION |
THE GOVERNMENT'S VIEW
85. In its written evidence the Government said
it was important that other Member States, the EU Institutions
and third countries should be clear on whether or not the UK (and
Ireland and Denmark) were taking part in particular provisions
of international agreements and relevant EU measures which might
be required to implement them.
86. In relation to mixed agreements, a recital
was usually included in such agreements, which indicated to the
third country in question that the UK, Ireland and Denmark have
a special position in EU law in relation to JHA provisions of
this agreement. The recital made it clear that the UK, Ireland
and Denmark were each bound as individual Member States where
not participating in provisions as part of the EU.
87. In addition, when a Decision containing a
negotiating mandate or to sign or conclude an agreement, which
the Government considered triggers the opt-in, was adopted without
a JHA legal base, the Government made it clear whether or not
the UK had opted in and was bound by the measure.
88. If the Government had opted in, it would
send a letter to the Council to this effect, to put its opt-in
"beyond doubt", and would also seek the addition of
recitals in the text of the Decisions to sign and conclude the
agreement, setting out the position of the UK. In some cases,
the UK was not able to secure the addition of recitals to the
text and so resorted to laying a unilateral statement, attached
to the minutes of the relevant Council meeting, setting out the
position of the UK. The UK's position in the Council was an EU
matter. In mixed agreements, the UK would either be bound as a
Member State or as part of the EU.
89. In its letter of 3 June 2014, the Government
explained that, because of the difficulties inherent in identifying
JHA content, there might be occasions where the Government failed
to recognise JHA content in a proposal at the outset. In such
circumstances, where the Government was successful in adding a
Title V legal base, it committed to going through the opt-in process
90. In evidence the Home Secretary said that
the Government's interpretation of the opt-in Protocol had not,
in practice, led to legal uncertainty:
"I do not think we are aware of any case
in practice where this has been a real problem. We always seek
to ensure that our position in relation to the relevant international
agreement is clear, and that can be by agreeing recitals, as you
or by laying unilateral statements setting
out our position. That would happen whether or not a Title V legal
base was cited. We are very aware, as you say, of the importance
of ensuring that our position is clear, but we would always take
steps to make that position clear and to provide that legal certainty
as far as we can. As I say, we are not aware of any case where
there has been a particular problem in relation to this."
THE COMMISSION'S VIEW
91. The Commission, in contrast, concluded that
the Government's interpretation of the opt-in Protocol would create
"It would create considerable uncertainty
as to when and whether Protocol No 21 applies. Such uncertainty
is particularly problematic in the context of international agreements,
as it would mean that third countries might be unable to assess,
when they conclude an agreement with the European Union, to what
extent the Union assumes liability with respect to the United
Kingdom. This will ultimately affect the correct implementation
of the pacta sunt servanda principle, a cornerstone of
THE VIEWS OF THE EXPERT WITNESSES
92. All witnesses agreed that the potential for
legal uncertainty was great, not only for the third country, but
also for the Danish and Irish positions, and for individuals seeking
to enforce their rights under international agreement once entered
into force. Prof Peers said that one of the purposes of the Protocol,
and the formal processes for opting in and out of it, was to create
legal certainty on what applied to the UK, Ireland and Denmark.
This was reflected by the Council's practice of using recitals
to clarify the positions of these States, as explained in the
Government's evidence. He also thought that legal certainty was
just as important for third states and individuals:
"They [Member States] ought to know exactly
who they are signing up to. That is perfectly reasonable. It is
very important for individuals, too. If you are a Swiss person
who moves to the UK, it is important that you know what exactly
is happening with your social security contributions and whether
they count when you go back to Switzerland. The same is true of
a British citizen moving to Switzerland. It is important for them
to be able to know what is happening, and important for the people
who run the social security system in terms of national administrations.
Those are complex enough without adding some great degree of uncertainty
over whether they apply to the UK, Ireland or Denmark. It is important
to people advising them such as lawyers or other types of advisers."
93. Prof Cremona agreed that the unilateral declaration
by one Member State that it did not regard itself as bound by
a particular provision of an agreement, without any basis for
this in the concluding decision, created "an unacceptable
level of uncertainty for third countries".
94. Prof Barrett distinguished between actual
and potential uncertainty. He was unaware of whether actual legal
uncertainty had been caused, because the Government's policy was
not taken seriously and so had attracted little attention; but
he thought that the potential uncertainty which the policy could
cause in practice was "enormous". The Government "seemed
to be asserting the right on the part of any Member State to regard
individual provisions of measures to be inapplicable to them".
If that were so, it had "implications for the rule of law
in the European Union, and also for legal certainty and uniformity
in the EU legal order".
95. He explained the more practical consequences
with reference to previous correspondence between the Committee
and the Government:
"That situation was perfectly summarised
in the letter in December 2011 from Lord Roper to the Home Secretary,
in which he hypothesisesI quote him because it is as well
put as I have seen it put: 'The Government would assert that it
does not participate unless it opts in, so it will do nothing
and will presumably not vote in the Council. The Commission and
the other members of the Council will consider that the UK is
participating in negotiations and will be bound by the result.
There will be no recital recording that the measure does not apply
to the UK. On the adoption of the measure, how would a citizen
decide what the law in the UK is?'"
96. Prof Barrett added that the same uncertainty
would apply to the Irish and Danish positions, because they would
have the right not to opt into JHA measures, and might have exercised
that right in relation to any given proposal: "One just would
not know." He
also thought the policy would create uncertainty for parliamentary
committees in knowing how far the opt-in Protocol applied
and knowing what to review.
97. We accept there is a distinction between
actual and potential legal uncertainty. But the potential of the
Government's policy to create real legal uncertainty is very considerable
indeed. The unilateralism of the Government's approach also raises
serious questions about the UK's acceptance of the uniform application
of EU law, the defining trait of the rule of law in the European
Union. We are concerned by this, and by the possible implications
for the UK's reputation as a negotiating partner among other Member
98. The Government's policy is creating actual
legal uncertainty for the purposes of parliamentary scrutiny,
as the two examples in the introduction to this report show. This
is particularly so when it decides a proposal contains JHA content
after the initial three-month opt-in period has passed. We confirm
our view that the enhanced opt-in procedures apply only to draft
legislation that is either proposed with a Title V legal base,
or to which a Title V legal base is added by the Council. We invite
the Government to agree.
99. We urge Government departments to inform
us sooner when a Title V legal base is added by agreement of the
Compliance with the duty of sincere
100. Article 4(3) of the Treaty on European Union
defines the EU legal principle of "sincere cooperation":
"Pursuant to the principle of sincere cooperation,
the Union and the Member States shall, in full mutual respect,
assist each other in carrying out tasks which flow from the Treaties.
"The Member States shall take any appropriate
measure, general or particular, to ensure fulfilment of the obligations
arising out of the Treaties or resulting from the acts of the
institutions of the Union.
"The Member States shall facilitate the
achievement of the Union's tasks and refrain from any measure
which could jeopardise the attainment of the Union's objectives."
101. Prof Chalmers drew our attention to the
case of Commission v Sweden,
in which the CJEU found that there were "duties of cooperation
that were legal dutiesthey are not just duties of what
is politically desirablein the negotiating process that
bind all member states".
These were "special duties of action and abstention that
bind all member states to ensure that there is a concerted strategy".
Once the mandate was there, states were under a duty to ensure
coherence, consistency of action and representation.
THE GOVERNMENT'S VIEW
102. The Government said the duty of sincere
cooperation did not oblige it to agree with other Member States
and the EU institutions on a policy that undermined the UK's opt-in
safeguards. The Home Secretary said:
"Obviously there is the duty of sincere
cooperation. That requires member states to work together to implement
the EU's lawful objectives and decisions, but it is not intended
to prevent a member state from exercising its lawful rights. We
would say that that is what we would be doing if we were effectively
saying that incidental JHA content was not binding on us unless
we opted into it."
103. The Justice Secretary agreed: "It would
be a nonsense if we were bound by treaty not to disagree with
the majority of member states or with the institutions. No, we
are absolutely certain that this does not impact on the duty of
THE VIEWS OF THE EXPERT WITNESSES
104. Prof Cremona said that the overall legal
reasoning underpinning the Government's opt-in policy appeared
to ignore the fundamental duty of sincere cooperation.
While interpretations of the opt-in Protocol differed, the EU
Treaties provided mechanisms to resolve such differences and the
Government's litigation reflected that. The assumption behind
the Government's letter of 3 June, on the other hand, seemed to
be that, if those strategies had failed, it could still insist
it was right and could refuse to accept that it was bound by a
measure by which, on its face, it was bound. This was contrary
to the principle of sincere cooperation.
105. Prof Chalmers agreed:
"Member States, are by virtue of Article
4(3) TFEU, under a duty to cooperate strongly with EU Institutions
in the negotiation and conclusion of a measure and in meeting
commitments under it. The Court has held that unilateral action
dissociating a State from a common agreed strategy which grants
a mandate to the EU Institutions to negotiate violates that duty
It will be evident that the United Kingdom Government would
be flirting with breaching that duty if it to'd and fro'd on whether
to support a common front depending on whether the measure was
perceived to have 'JHA content'. The political challenges are
simply that it is likely to undermine EU strategy and annoy non
EU States as it will be unclear what they are securing from the
Union if they enter into an agreement with it. This will make
negotiations harder for all parties."
106. The Government's policy puts it at risk
of breaching the duty of sincere cooperation, the importance of
which was made clear by the CJEU in Commission v Sweden.
We recommend the Government reconsider its opt-in policy in the
light of the evidence we received, and that case.
90 Q47 Back
Written evidence from the European Commission, para 10 (OIA0010) Back
Letter from Lord Roper, Chairman of the European Union Committee,
to the Rt Hon Theresa May MP, Home Secretary, Home Office, 14 December 2011 Back
Case C-246/07 Commission v Sweden Back
Case C-246/07 Back
Written evidence from Professor Chalmers, para 13 (OIA0001) Back