The UK s 2014 Jurisdiction Decision in EU Police and Criminal Justice Proposals

Transcription

1 The UK s 2014 Jurisdiction Decision in EU Police and Criminal Justice Proposals Standard Note: SN/IA/6268 Last updated: 20 March 2012 Author: Section Vaughne Miller IADS In 2014 the UK Government must make a decision on whether to opt into the body of police and criminal justice measures in the former third pillar of the EU Treaties that remain unamended since the Treaty of Lisbon came into force in December There are estimated to be 133 such measures at the moment. If the Government decides to opt into the measures en bloc, it will thereby accept the enforcement powers of the European Commission and the jurisdiction of the Court of Justice with regard to them. If the Government decides not to opt into them, the measures will not apply to the UK. The EU Council will decide on transitional rules and there might be financial implications for the UK. The UK may later notify the Council that it wishes to opt back into such measures on an ad hoc basis, but doing so will not be automatic and will need the authorisation of the Commission or Council. If the UK opts back into a measure, it must accept the roles of the Commission and Court. This information is provided to Members of Parliament in support of their parliamentary duties and is not intended to address the specific circumstances of any particular individual. It should not be relied upon as being up to date; the law or policies may have changed since it was last updated; and it should not be relied upon as legal or professional advice or as a substitute for it. A suitably qualified professional should be consulted if specific advice or information is required. This information is provided subject to our general terms and conditions which are available online or may be provided on request in hard copy. Authors are available to discuss the content of this briefing with Members and their staff, but not with the general public.

2 Contents 1 The jurisdiction of the European Court of Justice in the Area of Freedom, Security and Justice 2 2 The 2014 UK decision 3 3 Concerns about the decision 3 4 Parliamentary scrutiny of the 2014 decision 6 5 The 133 measures (Open Europe and Statewatch analyses) 7 1 The jurisdiction of the European Court of Justice in the Area of Freedom, Security and Justice Under the present EU Treaties as amended by the Treaty of Lisbon (which came into force in December 2009), the European Court of Justice has normal jurisdiction in all former justice The treaty of Lisbon provides for a five-year transitional period after which the infringement powers of the European Commission and the jurisdiction of the European Court of Justice (ECJ) will apply to all unamended police and criminal justice instruments adopted under the pre-lisbon "third pillar" arrangements. The transitional period began on 1 December 2009 and will end on 30 November The UK has until 31 May 2014 to choose whether to accept the application of the Commission's infringement powers and jurisdiction of the ECJ over this body of instruments or to opt out of them entirely, in which case they will cease to apply to the UK on 1 December David Lidington, Written Ministerial Statement, 20 January 2011 and home affairs (JHA) areas now the Area of Freedom, Security and Justice (AFSJ) - except for a restriction on ruling on national police operations. Member States can no longer opt out of the Court s jurisdiction with regard to references from national courts in the areas of policing and criminal law, and any Member State court or tribunal can send questions to the Court on AFSJ matters. This also applies to the UK once it has decided to opt into legislation in policing and criminal justice. 1 The Lisbon Treaty change gave rise to the question of Court of Justice jurisdiction for measures in policing and criminal justice, where Member States had previously been able to opt out of the full jurisdiction of the Court. Under Article 10(4) of the Protocol on Transitional Provisions (Protocol 36 of the Treaty of Lisbon), the former Court of Justice jurisdiction over policing and criminal matters is retained for pre-existing measures in these areas for the first five years after the Treaty comes into force so until December These measures apply to the ten EU Member States, including the UK and Ireland, which did not make a declaration under former Article 35(2) of the Treaty on European Union (TEU) to accept the jurisdiction of the Court of Justice to give preliminary rulings (repealed under Lisbon). The Commission cannot use its powers under Article 258 of the Treaty on the Functioning of the European Union (TFEU) (infringement action) against Member States in these areas for five years after the entry into force of the Lisbon Treaty. During this five-year period the Court s normal jurisdiction applies once a pre-existing measure is amended (although identifying an amendment might not always be straightforward). 1 For information on the UK s opt-in arrangement, see Standard note 6087, UK Government opt-in decisions in the Area of Freedom, Security and Justice, 19 October

3 2 The 2014 UK decision After the five-year transitional period the infringement powers of the European Commission and the jurisdiction of the Court of Justice will apply to all unamended police and criminal justice instruments adopted under the pre-lisbon third pillar arrangements. The transitional period began on 1 December 2009 and will end on 30 November The UK has until 31 May 2014 to choose whether to accept the application of the Commission's infringement powers and jurisdiction of the Court over these laws or to opt out of them entirely, in which case they will cease to apply to the UK on 1 December If in 2014 the UK decides not to accept the normal jurisdiction of the Court, all former criminal justice legislation in the former third pillar which has not been amended since Lisbon The European Arrest Warrant Under Protocol 36 the Framework Decision on the European Arrest Warrant will continue to came into force will no longer apply to the UK. apply after December 2014, but it will be subject to the enforcement powers of the Commission The Council will decide on transitional rules, and the jurisdiction of the Court of Justice. If it is e.g. the validity of UK-issued EU arrest warrants amended before then and the UK adopts it in its and any financial consequences the UK will have to meet. 2 The UK can ask the Council amended form under Article 9 of Protocol 36, it will automatically become a directive subject to the powers of the Commission and the later to opt back into any of these measures jurisdiction of the Court. If the UK gives notice (under Protocol Article 9(5)), but will then have that it does not accept these powers and the to accept the Commission s enforcement extension of the Court s jurisdiction, the EAW powers and the Court s jurisdiction. A decision framework decision and all the other to opt back into a measure must be approved unamended JHA measures will no longer apply to the UK. by the Council or Commission, which must seek the widest possible measure of participation of the UK in the AFSJ, while respecting its coherence. 3 Concerns about the decision A number of concerns were raised about the justice and home affairs moves when the then Reform Treaty was being negotiated. In its 3 rd Report, Session , the European Scrutiny Committee (ESC) was concerned that the UK might lose out by not being able to retain its (then) current position in JHA areas if it decided not to opt in to the unamended instruments. During the evidence session with the Foreign Secretary, James Clappison was particularly worried about the UK possibly losing the existing benefits of the European Arrest Warrant (it would not be realistic to have a measure for which European Court jurisdiction was applicable for most Member States but not for all), and about the possibility of the UK having to pay penalties for the financial inconvenience UK non-participation would cause. 3 The Foreign Secretary thought most of the measures in question would be transposed within the five-year period, allowing the UK to use its Lisbon opt-in arrangement on a case-by-case basis The only Treaty indication of the mechanism for decisions on the financial consequences is that the UK will have a vote (there is no Treaty indication that it would not). Although this means in theory that the UK could, with enough support, veto a decision on costs, it is highly unlikely that the UK Government would win much support among other Member States. For instance, in the unlikely event that the UK were to cease to participate in Eurojust (the EU s agency responsible for coordinating investigations into serious crime), it would be reasonable to expect the UK to bear the costs of bringing UK staff home from Eurojust, and settling their contracts. European Scrutiny Committee, 3 rd Report , Ev 49 ESC 3 rd Report 07-08, Ev 30 3

4 The Justice Select Committee published a report on Justice Issues in Europe (7 th Report, ), in which it considered the role of the Court of Justice in the transposed JHA matters and the implications of this for UK courts: 31.First, UK courts are responsible for interpreting EU law and cannot resort to the Court except for basic advice. This has had limited impact in the field of justice to date as the Court had no jurisdiction in this area previously. As such there have been few mechanisms for the enforcement of legislation which has operated on the basis of mutual trust. Yet, we also heard that standards, for example in terms of adherence to the principles of data protection or the safeguards afforded to suspects under the European arrest warrant, vary considerably (as we discuss further in chapter 3). For instance, if the UK courts were able to refer complex questions to the European Court of Justice regarding the operation of the European arrest warrant, they could receive greater clarification on issues around proportionality.[50] Mrs Nuala Mole, Director of the AIRE Centre[51], explained that decisions of the European Court which interpret European legislation are binding on all member states, including the UK and expressed her disappointment that the UK was not taking the opportunity to allow its expert lawyers, who tend to have greater experience than their equivalents in some other member states, to present clear cases to the Court.[52] The potential implications of this are discussed in chapter Secondly, the UK Government cannot be held to account for failure to implement EU legislation except by resort to the Court by other member states, which is a very rare occurrence.[53] While this limits judicial control over the UK (as it cannot be sued by the Commission) it potentially has considerable implications for UK citizens. For example, Victim Support has drawn our attention to the failure of the Government to implement, or fully transpose, a number of articles in the Framework decision on the standing of victims in criminal proceedings.[54] According to Professor Peers there have been some references to the Court of Justice on this framework decision, where it is the prosecution that has been trying to use it, in the interests of victims of crime, to toughen up national law from the prosecution's point of view.[55] 33.We were told that Government has also adopted a "wait and see" position on whether it will opt-in to the jurisdiction of the Court within the five-year timeframe, to take the opportunity to observe how the Stockholm programme influences the direction of EU measures and the repeal or replacement of existing measures.[56] One potential motivation for the Government in not favouring resort to legislation under the Stockholm programme is that it would open the measure to the jurisdiction of the Court of Justice. Therefore, if the UK subsequently opts-in to this jurisdiction, the Commission would be able to sue the Government if it has failed to implement effectively.[57] The House of Lords Committee concluded that the new rules on the Court's jurisdiction are clearer than the previous position; however, they may have issues for national sovereignty, particularly for the UK and its common law system.[58] 34.Some of the practical consequences of the Lisbon Treaty and the optin arrangements that the UK has negotiated remain matters of contention. On 7 February 2012 the Open Europe blog considered various scenarios for the UK decision in 2014, including the possible reactions of other Member States to UK cherry picking of measures they wanted to opt into. 4

5 Fast forward to 2014 and after a UK opt-out. These 130 EU laws would no longer apply in Britain (if the UK opts out in 2014 it must opt out of all 130 laws covered by this arrangement) but the UK might wish to rejoin one or two of these laws because they are deemed vital to the UK's interests. Today in the FT for example, senior police offers have warned against losing the European Arrest Warrant. Should the UK wish to 'opt back in' to an individual law, perhaps a reformed European Arrest Warrant, this would require the approval of the EU institutions. In her recent letter to the European Scrutiny Committee Home Secretary Theresa May noted that, In respect of measures forming part of the Schengen acquis, this would be governed by the Schengen Protocol. The UK would need to make an application under Article 4 of that Protocol and the Council would decide on the request "with the unanimity of its members" and the representative of the UK. For non Schengen measures, Article 4 of the Title V Protocol would apply, which is the process for opting in to a measure post adoption and allows for conditions to be set by the Commission. Now, you can see why this might present a potential problem with the approach of opting out and selectively opting back in. The UK could, in theory, be refused re entry once it has opted out en bloc or individual opt-ins could become entangled in negotiations over other, unrelated areas of policy and get caught up in EU horse trading. For example, James Brokenshire, Minister for Crime and Security, has stated, We believe that the Commission would attach conditions, for instance they might only allow us to join groups of related measures, some of which we might like and others we might not. However, there are several reasons to believe that the Minister's concern is exaggerated: First, the EU Treaty protocol that governs the block opt-out is quite clear that:...the Union institutions and the United Kingdom shall seek to re-establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence. It is very difficult to see how opting back into laws would adversely affect "practical operability". As Professor Steve Peers, a leading expert on the legal aspects of the opt-out, notes: While the UK would need the formal approval of the Commission or, in a few cases, the Council to opt back in to the prior measures, in practice this will not likely be a problem. The UK and Ireland have in practice opted in to a number of Justice and Home Affairs measures without any difficulty obtaining approval from the Commission. For its part, the Council has been reluctant to approve UK participation in Schengen measures relating to border controls, unless the UK takes part 5

6 in Schengen fully, but it has approved the UK s participation in the criminal law and policing aspects of Schengen. So, legally and practically, there seems to be little reason to believe the UK would be prevented from opting back in. What about the politics? As Professor Peers notes, for the vast majority of the laws in the list (the 106 non-schengen measures) the Commission's approval is needed - here at least political horse trading should not be a factor. If it is, there are likely to be far bigger problems to worry about. For the rest (the 24 Schengen measures), unanimity of the Council of Ministers is required and political factors could come into play but, again, the UK would be able to point to the Treaty protocol and take the legal high ground. It would also be rather strange to see the UK prevented from taking part in further EU integration - after all opting back in would involve accepting the full powers of the ECJ. This was the concern that gave rise to the opt-out in the first place. However, given that EU negotiations are very much about the art of horsetrading, it could well be that the bloc opt-out gets lumped together with a whole range of other issues. Given the turmoil in which the EU, and the eurozone in particular, finds itself at the moment, come 2014, who knows what new challenges the UK-EU relationship could face. It's conceivable therefore that other member states could use the opt-out to get some concessions from the UK, but that's very speculative. And in any case, that's a strong argument for exercising the opt-out and beginning the process now, in order to avoid unpredictable horse-trading down the line. Making a decision sooner rather than later would provide a chance to thoroughly evaluate which laws the UK might truly want to keep. Using the optout could also provide the UK with an opportunity to push for reform of laws such as the European Arrest Warrant before deciding to opt back in to them. So, while there is a very small chance that UK applications to opt back in to individual laws might become a hostage to politics, the UK would have a very strong legal argument in its favour. In the end, if the other member states don't want the UK to participate, then that probably signals that this has turned into something rather bigger than simply the level of EU police cooperation. 4 Parliamentary scrutiny of the 2014 decision The Government has said there will be a vote in both Houses on the 2014 decision on some 133 measures. The European Scrutiny Committee (ESC) asked in April 2011 how decisive that vote would be in influencing the Government's decision, to which the Government replied that it seemed completely implausible that a Government could go ahead with a decision to opt in en masse to these if there had been an adverse vote in the House of Commons against them. I do not see how that is politically sustainable for any Government of any political colour. 5 In a Written Ministerial Statement on 20 January 2011 David Lidington announced enhanced scrutiny procedures for UK opt-in matters, and said of the 2014 decision: 5 David Lidington, Minutes of Evidence to European Scrutiny Committee, Opting into international agreements and enhanced Parliamentary scrutiny of opt-in decisions, 27 April

7 Parliament should have the right to give its view on a decision of such importance. The Government therefore commits to a vote in both Houses of Parliament before it makes a formal decision on whether it wishes to opt-out. The Government will conduct further consultations on the arrangements for this vote, in particular with the European Scrutiny Committees, and the Commons and Lords Home Affairs and Justice Select Committees and a further announcement will be made in due course. 5 The 133 measures (Open Europe and Statewatch analyses) The figure of 133 pre-lisbon measures that could become subject to the bloc UK opt-in or opt-out in 2014 has been mentioned in various sources. However, it is not yet possible to be exact about the number of acts the 2014 decision will involve. The Home Secretary, Theresa May, provided a list in a letter to the European Scrutiny Committee on 21 December 2011 of the measures about which the Government will have to decide by She prefaced this with the following explanation: I am pleased to provide at Annex A the list of measures that the Government considers to be subject to this notification. The Transitional Protocol to the Lisbon Treaty allows the UK to "opt out" by 1 June 2014 of "acts of the Union in the field of police cooperation and judicial cooperation in criminal matters which have been adopted before the entry into force of Lisbon". This means that all "acts" with a legal base in the former Title VI of the Treaty of the European Union (police and judicial cooperation in criminal matters) are caught by this transitional provision. This includes straightforward Third Pillar' measures as well as 'Third Pillar' measures classified as 'Schengen building'. The list at annex A is split between old 'Third Pillar' measures and 'Schengen' measures due to the slightly different procedures that would apply to any application to rejoin measures should the decision be taken to reject European Court of Justice jurisdiction resulting in the UK opting out of all measures within the scope of the decision. In respect of measures forming part of the Schengen acquis, this would be governed by the Schengen Protocol. The UK would need to make an application under Article 4 of that Protocol and the Council would decide on the request "with the unanimity of its members" and the representative of the UK. For non Schengen measures, Article 4 of the Title V Protocol would apply, which is the process for opting in to a measure post adoption and allows for conditions to be set by the Commission. Also included as part of the annex is a list of measures which the UK has opted in to which repeal and replace, or amend, measures which would otherwise have been within the scope of the notification. The lists are subject to change as measures are repealed and replaced or amended and we will keep you updated with any changes that are made. In particular I am aware that the Commission is planning proposals for next year involving revisions to Europol, Cepol (EU police college), Eurojust, the framework for cooperation on confiscation of assets and on criminal measures to tackle counterfeiting the Euro, all of which fall on the current list. Those proposals will of course trigger separate opt in decisions. We will continue to engage with the Council Secretariat to ensure that the list is comprehensive. I am committed to ensuring that Parliament is able to properly scrutinise the decision that flows from Article 10(4) of Protocol 36 of the Treaty of Lisbon as 7

8 part of our undertaking to hold a debate and vote in both Houses on this decision. We look forward to engaging with Parliament fully in this matter. 6 In An unavoidable choice: More or less EU control over UK policing and criminal law, January 2012, Stephen Booth, Christopher Howarth and Vincenzo Scarpetta of Open Europe compiled a table of the measures that are likely to be relevant to the 2014 decision, based on an up-dated Government list. The authors preface the table in Annex 2: EU crime and policing laws falling under the 2014 bloc opt out as follows: The first three columns below are a reproduction of Annex A referred to in Home Secretary Theresa May s letter to the House of Commons Scrutiny Committee above. We have struck through those pre Lisbon measures that are no longer covered by the 2014 block opt out because they have been amended, repealed or replaced by new post Lisbon legislation. Further details are provided in the right hand columns. In the Notes column we highlight the amending proposals currently being negotiated and the Commission s planned proposals to amend laws where a UK decision to opt in would have the effect of removing laws from the list (it is impossible to fully predict the Commission s pans up to 2014 and there may be more proposals tabled that we are currently unaware of). In the Government s table, pre Lisbon laws amended by subsequent pre Lisbon laws are counted as separate pieces of legislation (e.g. Council Framework Decision 2000/383/JHA and Council Framework Decision 2001/888/JHA amending Framework Decision 2000/383/JHA are counted as two separate laws). 6 Ministerial correspondence, session , Commons European Scrutiny Committee, 21 December 2011 (link to annex with Government list of measures is broken) 8

9 9

10 10

11 11

12 12

13 13

14 14

15 15

16 16

17 17

18 18

19 In an analysis of the 2014 decision called The Mother of all Opt-outs? The UK s possible opt-out from prior third pillar measures in June 2014, January 2012, Professor Steve Peers 19

20 of Statewatch has also compiled a list of pre-lisbon measures that are likely to be subject to the 2014 decision, with commentary and the following explanation of the content of the list: A complete list of pre Lisbon third pillar measures appears in Annex II, which also indicates which measures have already been replaced or amended, which replacement measures have been agreed in principle, and which replacement measures are likely to be proposed. The latter information is based on the Commission s work programme for 2012 (and for earlier years, where proposals have been delayed) as well as the Commission s action plan on the implementation of the Stockholm programme. It is always possible that planned proposals will be cancelled or delayed, or not agreed if they are made, and conversely that the Commission or a group of Member States will make further proposals which have not been announced at time of writing. In particular, the Commission has not yet decided much of its agenda for 2013 or Furthermore, as indicated in detail in Annex II, some existing EU measures are due to lapse automatically (legislation establishing funding programmes will expire by the end of 2013) or will be repealed effective from the start of operations of the second generation Schengen Information System, which is currently scheduled for the first quarter of Annex II lists all Framework Decisions and Decisions, even though some of them were repealed or lapsed before the Treaty of Lisbon entered into force, or were annulled by the Court of Justice. However, it does not mention other pre Lisbon third pillar measures that are no longer in force. Overall, it can be seen from Annex II that about half of the third pillar Decisions originally adopted will likely have lapsed or been repealed (33 will still be in force, 26 will not be). However, but quantitatively speaking some of the most important measures would have been amended (Europol, Eurojust, European Police College and the Customs Information System); the most important Decisions still in force without amendment would be measures concerning the exchange of information. However, of these, the UK will possibly not yet be applying the Schengen Information System in 2014, and UK police only have limited access to the Visa Information System. The Prum Decision on police cooperation would, however, cease to apply. Similarly, about 18 of the 34 Framework Decisions will still be in force. Most of these concern mutual recognition (the European Arrest Warrant, transfer of prisoners, probation and pre trial measures, financial penalties), and some concern substantive criminal law (terrorism, non cash payments, organised crime, racism), plus there are measures concerning the exchange of policing information: the Swedish framework decision and the Framework Decision on joint investigation teams. As regards international treaties, the only relevant measures, the EU/USA treaties on extradition and mutual assistance, largely supplement (and are implemented by) bilateral treaties, so their abrogation as regards the UK would have little practical effect. As for Conventions between EU Member States, a block opt out would particularly impact on customs cooperation (the Naples II Convention) and corruption. Finally, none of the remaining Joint Actions are hugely significant, and the impact of not applying the remaining Schengen acquis would largely concern police cooperation and the double jeopardy rules. If the new version of the Schengen Information System is not yet operational, the UK could not have access to the old version as a result of the block opt out (again, the UK s access to the system is not currently operational). 20