The Treaty of Lisbon gave the UK a right to opt out of the 130 police and criminal justice measures adopted before 2009—but only all or none. The Government has opted out of all of them, with effect from 1 December 2014.
The Government is also seeking to opt back into 35 of these measures, including the European Arrest Warrant, and the Eurojust and Europol Decisions. Between 1 December and 7 December, the Council will adopt a decision allowing the UK to opt back into six Schengen measures, and the Commission will adopt a decision in relation to the 29 other measures the Government is seeking to re-join.
On 3 November 2014, the Government laid before Parliament the draft Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014, claiming to transpose 11 of the 35 measures into UK legislation. This was in response to the advice of the European Commission, that the decisions allowing the UK to opt back in to the 35 measures could not be taken until all the measures had been transposed into UK domestic law. In the event, only 10 of the 11 measures covered in the draft Regulations fall within the scope of the UK’s application; the eleventh has been updated since 2009 and is in fact no longer subject to the UK opt-out.
Separately, Government ministers have given various undertakings that both Houses of Parliament would be given an opportunity to vote on the final list of measures that the Government applies to rejoin.
On 10 November 2014 the House of Commons was invited to approve the draft Regulations. The instrument was approved, but the debate focused in large part on whether a vote on the draft Regulations constituted a vote on all 35 measures (including in particular the European Arrest Warrant). The Speaker of the House of Commons ruled, on a point of order, that it did not.
The Government motion tabled in the House of Lords seeks to fulfil the Government’s undertakings by including specific reference to the 35 measures alongside approval of the draft Regulations:
Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014 Lord Bates to move that the draft Regulations laid before the House on 3 November be approved, and to move to resolve that this House thereby endorses the Government’s formal application to rejoin 35 European Union Justice and Home Affairs measures
The amendment tabled by the chairman of the EU Committee, Lord Boswell, expresses regret at the way the issue has been handled:
Lord Boswell of Aynho to move, as an amendment to the above motion, at end to insert ", but that this House, having regard to earlier undertakings by Ministers, regrets the inappropriate manner in which the Government have sought parliamentary approval for their application."
The EU Committee concerns
The EU Committee has scrutinised the Government’s approach to the block opt-out, and its decision to opt back in to certain measures, in detail over a period of more than two years. Throughout the process, the Committee has expressed concerns at the manner in which the Government has engaged with parliamentary scrutiny—concerns expressed in Monday’s amendment.
Lord Boswell has also written to the Leader of the House of Lords, Baroness Stowell of Beeston, explaining why he has felt it necessary to table an amendment to the Government’s motion.