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EU police and criminal justice measures: The UK's 2014 opt-out decision.

April 25, 2013 2:03 PM
Originally published by East Midlands Liberal Democrats
EU police and criminal justice measures: The UK's 2014 opt-out decision.

by Lord Bowness, Chairman of the EU Justice, Institutions and Consumer Protection Sub-Committee

and Lord Hannay of Chiswick, Chairman of the EU Home Affairs, Education and Health Sub-Committee

Protocol 36 to the EU Treaties enables the UK Government to choose whether or not the UK should continue to be bound by around 130 police and criminal justice (PCJ) measures, enacted before the Lisbon Treaty came into force. It is a decision that must be made by 31 May 2014. If the Government opts out, that will take the UK out of all the measures, though the UK may then apply to opt back in to individual measures, subject to the views of the Commission and the other Member States. In a statement to Parliament on 15 October 2012, the Home Secretary said that the Government's "current thinking" is that the UK should exercise the opt-out but negotiate to opt back in to individual measures that it considers would be in the national interest to rejoin. The Government has undertaken to hold a debate and vote in each House before a decision is made.

Following an inquiry undertaken jointly by two of its Sub-Committees - on Justice, Institutions and Consumer Protection and on Home Affairs, Health and Education - the House of Lords EU Committee has published a comprehensive report on this matter. It concluded that the Government has not made a convincing case to opt-out of the PCJ measures and that to do so would have significant negative repercussions for the UK's internal security. The Committee have also been disappointed with the lack of engagement by the Government with the UK Parliament, the Devolved Administrations (the Scottish Government and the Northern Ireland Assembly) and key stakeholders. In its view the Government's stated good intentions to consult Parliament fully on this important issue have been repeatedly undermined by delays and the limited provision of information.

The Committee concluded that the European Arrest Warrant (EAW) is the single most important pre-Lisbon police and criminal justice measure and, if the Government decides to exercise the opt-out, then it should opt back in to the EAW immediately, so as to avoid any gap in its application. It recognises that, in some cases, the operation of the EAW has resulted in serious injustices, but considers that relying upon alternative extradition arrangements, such as the 1957 Council of Europe Convention on Extradition, is unlikely to address the criticisms directed at the EAW and would likely render the extradition process more protracted and cumbersome, potentially undermining public safety as a result. Furthermore, it would not necessarily be straightforward to revert to the pre-EAW position as the UK may have to rely upon other Member States enacting primary legislation to bring the Convention back into force, which they may not treat as a priority. In this respect the Committee noted that Ireland had repealed the necessary implementing legislation when the EAW entered into force. The Committee therefore believe that the best way for the UK to achieve improvements in the operation of the EAW is through continued participation in this measure and through the immediate implementation of other flanking EU measures such as the European Supervision Order and other procedural safeguard measures.

The Committee considers the opt-out decision to be one of great significance, with far-reaching implications not only for the UK but also for the other Member States and the EU as a whole. Cross-border cooperation on policing and criminal justice matters is an essential element in tackling security threats such as terrorism and international organised crime in the 21st century and the Government need to ensure that the UK police and law enforcement agencies continue to have the tools they need to tackle these increasing threats. The Committee is particularly concerned about the potential impact that the opt-out, including the loss of the EAW, could have on efforts by the UK and Ireland to effectively tackle cross-border crime and do not believe that possible alternatives to the EAW would be adequate. More generally, exercising the opt-out may also reduce the UK's influence over this area of EU policy, in which it has historically played a prominent role.

The Government and others have raised concerns about extension of the role of the Court of Justice of the European Union (CJEU) to cover the application of pre-Lisbon PCJ measures in the UK, including the possibility of "unexpected" judgments which may undermine the UK's common law systems but the Committee did not identify any significant, objective justification for avoiding the jurisdiction of the CJEU and noted that the Government appeared to share that view in respect of the number of post-Lisbon PCJ measures to which it had already opted in. On the contrary, the Committee believe that the CJEU has an important role to play, alongside Member States' domestic courts, in safeguarding the rights of citizens and upholding the rule of law.

While the Committee acknowledges that it would be theoretically possible for the UK to continue cooperating with other Member States through alternative arrangements to the EU measures covered by the opt-out, it found that these would raise legal complications, and result in more cumbersome, expensive and less effective procedures, thus weakening the hand of the UK's police and law enforcement authorities. The negotiation of any new arrangements would also be a time-consuming and uncertain process. The Committee therefore considers that the most effective way for the UK to cooperate with other Member States is to remain engaged in the existing EU measures in this area.

Until the Government provides the House with a list of measures that it may seek to rejoin, were the opt-out to be exercised, the Committee will be unable to form a firm view on the merits and adequacy of such a list. If the opt-out is exercised, the UK may seek to rejoin individual PCJ measures but this process would not necessarily be automatic or straightforward. Watertight transitional arrangements would have to be agreed, and there is a clear risk that gaps and legal uncertainties would arise.

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