The Treaty of Lisbon enabled the Government to decide, by 31 May 2014, whether or not the UK should continue to be bound by the approximately 130 police and criminal justice (PCJ) measures, which were adopted by unanimity in the Council of Ministers before the Lisbon Treaty entered into force, or if it should exercise its right to opt out of them all. It had no right to opt out of only some of them.
In a statement to Parliament on 15 October 2012, the Home Secretary stated that “the Government are clear that we do not need to remain bound by all the pre-Lisbon measures” and that the Government’s current thinking was that the UK would opt-out of all the pre-Lisbon measures and negotiate to opt back in to individual measures that was in the national interest to rejoin. The Government also undertook to facilitate a debate and vote in each House before the final decision was made.
EU Committee’s reports
The Sub-Committees published a report on the UK opt-out on 23 April 2013. The Committee concluded that the Government has not made a convincing case to exercise the opt-out and that to do so would have significant repercussions for the UK's internal security.
In a further statement to Parliament on 9 July 2013, the Government provided more information about its approach to the opt-out decision. At the same time the Government published Command Paper 8671, which sets out a list of 35 measures that the UK would seek to rejoin if the opt-out were exercised and included explanatory memoranda covering those measures.
The Government also set out the arrangements for the debates and votes that would be held in both Houses on the opt-out. This would include two sets of votes: the first on the opt-out decision (which took place in the House of Commons on 15 July 2013 and is due to take place in the House of Lords on 23 July 2013); and the second to take place in due course on the final package of measures, following the conclusion of the Government’s negotiations with the Commission and the Council. These negotiations are approaching their conclusion, ahead of the deadline of 1 December 2014.
The Sub-Committees published a follow up report on 31 October 2013. This report endorsed the Government's decision to opt back in to the 35 measures, and recommended that the Government seek to rejoin a number of other measures.
Negotiations with the Commission
Since July 2013 the list of 35 measures which the Government seeks to opt back in to has been subject to detailed negotiation and revision. The final list of measures, published by the European Commission in November 2014, also comes to 35, though the list differs in some respects from the list published in 2013.
The Commission has also indicated to the Government that will only approve the Government's decision to opt back in if the Government has completed transposing all 35 measures into UK law. The majority are already transposed, including the European Arrest Warrant (which was adopted into UK law by the enactment of the Extradition Act 2003).
Ten measures still need to be transposed into UK law before the end of November, and the Government is achieving this by means of the draft Criminal Justice and Data Protection (Protocol No.36) Regulations 2014. These draft Regulations were approved by the House of Commons on Monday 10 November, and will be debated by the House of Lords on Monday 17 November.