European Movement UK

Britain's future is with Europe! Join the debate and put your opinion forward!

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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  1. The question of the EAW is a technical legal matter and is wrapped up with political aspirations. The legal aspect of the debate is probably best left to senior legal individuals such as Lord Justice Thomas, the UK’s senior extradition judge and therefore one of the foremost experts in the field of extradition legislation. Lord Justice Thomas stated publically that the EAW system is unworkable, (Sunday Times 04/11/12) due to the different standards of justice across the EU.

    The authors of this item as far as I can determine do not have anything approaching the legal expertise of Lord Justice Thomas in this field. One has some experience as a solicitor but has not practiced for a very considerable period, whilst the other is a career diplomat. It is reasonable therefore to assume that their expertise is in the political field and as such their view about the EAW is politically motivated.

    The phrase that “the operation of the EAW has resulted in serious injustices” is offered and then just skated over. In this context what it can mean is being tried in a country (perhaps for a matter which is not an offence in your own country) without being aware of the charge or trial until officers arrive to take you to the airport for delivery to the originating country for immediate imprisonment. Indeed the system is so flawed that Fair Trials International have campaigned on the subject. For those who want to read about some of these “serious injustices” look at the Edmond Arapi, Deborah Dark or Andrewe Symeou cases and then decide how comfortable you feel.

    We then have the claim that these powers are essential for crime fighting. Yet the Association of Chief Police Officers have stated that only 29 of the 135 measures covered in the opt out help UK law enforcement (Times 22/01/13) and to claim by implication otherwise is disingenuous at the least.

    Comments that the extension of the role of the Court of Justice of the European Union (CJEU) does not threaten the UK common law are interesting. The UK, Malta, Cyprus and the Republic of Ireland alone operate a system which describe what is forbidden by statue or common law, the remainder of the EU operate a system whereby the law assumes everything is unlawful unless specifically permitted. It is to be expected that the CJEU will support this latter stance if for no other reason than it is the majority system in the EU. Thus the UK legal system over time will be fundamentally amended without any referenced to the UK people.

    The ultimate question of course is why is any of this necessary in a trading organisation ? We seem to manage legal matters (including the most serious terrorist type offences) with countries outside the EU, e.g. Australia etc. Surely the only reason for all this is that a single federal state needs a single legal system, and who ever asked for the US of E ?

  2. Britain needs to leave the EU altogether !!!
    This is just one of many EU laws , directives that Britain needs to be rid of .
    David Cameron trying to be diplomatically selective in withdrawing Britain from a number of EU laws , will have great difficulty . Given a referendum , it doesn’t matter what he achieves , the British people are likely to vote to leave the EU .
    With the failure of the Euro and the deep indebtedness of many member states , How long can the EU last ? !!!

  3. Only addressing Iwantout’s comments on the Court of Justice as a threat to the common law – that is very far from being the case. The Court acts more like our Supreme Court in many ways, setting precedent and creating judge-made law rather than displaying the lack of judicial creativity found in civil law systems, and one could make a strong argument that the Court displays many common-law characteristics. Admittedly the Court can reverse its position if it decides it was wrong, as it did in Keck – and thank goodness for that.

  4. Estelle,

    You may be right regarding the ECJ, but if I may, I will pass on the views of two senior Europeans who have seen the workings of the Court up close.

    First, Roman Herzog (ex German President and constitutional judge) “the ECJ deliberately and systematically ignores fundamental principles of the Western interpretation of law, that its decisions are based on sloppy argumentation, that it ignores the will of the legislator, or even turns it into its opposite, and invents legal principles serving as grounds for later judgements.”

    Secondly, Marc Bossuyt, (President of Belgian Constitutional Court) “they fabricate rulings in important cases with severe financial consequences for governments without understanding the national rules because they are composed out of foreign judges.”

    It seems to me they may well know what they are talking about, are likely to be particularly careful in the words they use, and are fairly damming in the above views.

  5. As the Decision of an OPT-OUT on these matters are in 2014, and if the Coalition Government do not take advantage of Opting OUT of these measures, I doubt either Political Party will get anywhere near being voted into a British Government that takes place in 2015.

    I see the anti spam word is “ENJOY”, so I hope you enjoy reading my tiny “thought provoking” contribution.

  6. Anne

    I too share your opinion , that neither the Conservatives or Lib/Dems are likely to win the 2015 general election .
    I have recently written my views to my former MP James Gray of North Wiltshire .
    Mr Gray is a Eurosceptic and a very hard working constituency MP , he enjoys a very safe seat and would almost certainly survive a Conservative defeat .
    Today I received a long reply to my letter , stating all the good things the Conservatives are doing in Britain to rectify the debt created by the last Labour government and to put Britain on the road to recovery .
    With regard to repatriating or opting out of EU laws , I believe it will be difficult to do and if achieved may make little impression on the British general public .
    I think everyone is agreed that the UKIP party if ever elected as government would only be good for taking Britain out of the EU . The Conservative party is torn between Banks and the City Corporations , the EU and the people of Britain .
    I believe that promising an IN/OUT referendum in 2017 is not likely to achieve enough
    public support to win the 2015 general election . What is it to be , another Labour government , or perhaps a Conservative UKIP coalition ?
    If Conservatives want to remain in power , they need to hold a referendum before 2015 .

    With regard to policing borders , Ireland only has a border with the north and Britain is an Island . We do not have the connecting borders that continental EU countries have .
    Membership of the EU is a hinderance to Britain controlling who enters our shores and who doesn’t .
    The EAW , which allows people to be arrested in other countries without a specific charge and extradited to another country without question or proper Extradition court process is very wrong and Britain should not be a party to it .
    Britain is wrong to allow British Common Law to be replaced by European and EU law .

  7. Under Protocol 36 to the EU Treaties our Government must decide whether the UK should continue to be bound by 130 EU Police and Criminal Justice (PCI) measures which In 2014 David, our Government has to decide whether to “opt out” of or not. That decision has to be made at the very latest by 31st May 2014. If they remain in, that decision is allegedly permanent, which of course I am sure you are aware definitely undermines our long standing Common Law Constitution.

    It would be permanent, and how could our Police come under foreigners when their sworn allegiance is to the British Crown? For that matter, how could a British Prime Minister allow that permanent transfer when his own allegiance also is to the British Crown? IT MEANS THE LOSS OF NATIONAL CONTROL OVER AREAS OF POLICE AND CRIMINAL JUSTICE POLICY, AS LONG AS WE REMAIN IN THE EUROPEAN UNION. Will our Judges also come under the Criminal Justice measure too?

    Please put these points to your former MP see what he has to say. Ask him if we could ever bring Charges of Treason before any of British Judges, or if the Judges agree to these proposals or they decide to opt out in order to keep their true Oaths of Allegiance to the British Crown?

    If our Government do not “opt out” will they have gone against they Oaths of Allegiance?

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