Government has not made a convincing case for opting-out of EU police and criminal justice measures, says Lords

23 April 2013

Following an Inquiry undertaken jointly by two of its Sub-Committees, the House of Lords EU Committee has decided that the Government has not made a convincing case to opt-out of about 130 EU police and criminal justice measures and that to do so would have significant negative repercussions for the UK’s internal security.

The Committee has also been disappointed with the lack of engagement by the Government with Parliament, the Devolved Administrations and key stakeholders. In their 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.

The Committee was also 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.

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

“The opt-out decision is 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 organised crime in the twenty-first century and we need to ensure that the UK police and law enforcement agencies continue to have the tools they need to increase these increasing threats. Exercising the opt-out may also reduce the UK’s influence over this area of EU policy.

“The Government and others have raised concerns about the role of the Court of Justice of the European Union (CJEU) over 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 in this respect and noted that the Government appeared to share that view in respect of the number of post-Lisbon PCJ measures to which it had opted in. On the contrary, we 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.” 

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

“While 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, we 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 most effective way for the UK to cooperate with other Member States is to remain engaged in the existing EU measures in this area.

“We recognise that, in some cases, the operation of the EAW has resulted in serious injustices, but we consider that relying upon alternative extradition arrangements is highly unlikely to address the criticisms directed at the EAW and would inevitably render the extradition process more protracted and cumbersome, potentially undermining public safety as a result. We 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 EU measures such as the European Supervision Order and the procedural safeguard measures.

“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.”

To read a copy of the report, and watch a YouTube video of Lord Hannay and Lord Bowness giving an overview of the report, please visit the inquiry's webpage.

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