HOUSE OF LORDS European Union Committee 13th Report of Session 2012–13 EU police and criminal justice measures: The UK’s 2014 opt-out decision HL Paper 159 HOUSE OF LORDS European Union Committee 13th Report of Session 2012–13 EU police and criminal justice measures: The UK’s 2014 opt-out decision Ordered to be printed 16 April 2013 and published 23 April 2013 Published by the Authority of the House of Lords London : The Stationery Office Limited £17.50 HL Paper 159 The European Union Committee The Committee considers EU documents in advance of decisions being taken on them in Brussels, in order to influence the Government’s position and to hold them to account. The Government are required to deposit EU documents in Parliament, and to produce within two weeks an Explanatory Memorandum setting out the implications for the UK. The Committee examines these documents, and ‘holds under scrutiny’ any about which it has concerns, entering into correspondence with the relevant Minister until satisfied. Letters must be answered within two weeks. Under the ‘scrutiny reserve resolution’, the Government may not agree in the EU Council of Ministers to any proposal still held under scrutiny; reasons must be given for any breach. The Committee also conducts inquiries and makes reports. The Government are required to respond in writing to a report’s recommendations within two months of publication. If the report is for debate, then there is a debate in the House of Lords, which a Minister attends and responds to. The Committee has six Sub-Committees, which are: Economic and Financial Affairs (Sub-Committee A) Internal Market, Infrastructure and Employment (Sub-Committee B) External Affairs (Sub-Committee C) Agriculture, Fisheries, Environment and Energy (Sub-Committee D) Justice, Institutions and Consumer Protection (Sub-Committee E) Home Affairs, Health and Education (Sub-Committee F) Our Membership The Members of the European Union Committee are: Lord Boswell of Aynho (Chairman) Lord Hannay of Chiswick The Earl of Sandwich Lord Bowness Lord Harrison Baroness Scott of Needham Market Lord Cameron of Dillington Lord Maclennan of Rogart Lord Teverson Lord Carter of Coles Lord Marlesford Lord Tomlinson Lord Dear Baroness O’Cathain Lord Trimble Baroness Eccles of Moulton Lord Richard Baroness Young of Hornsey Lord Foulkes of Cumnock This inquiry was conducted jointly by two Sub-Committees–Sub-Committee on Justice, Institutions and Consumer Protection: Lord Anderson of Swansea Lord Bowness (Chairman) Baroness Corston Lord Dykes Viscount Eccles Lord Elystan-Morgan Lord Hodgson of Astley Abbotts Baroness Liddell of Coatdyke Baroness O’Loan Lord Rowlands The Earl of Sandwich Lord Stoneham of Droxford Sub-Committee on Home Affairs, Education and Health: Lord Avebury Lord Judd Lord Richard Lord Blencathra Lord Lingfield Lord Sharkey Viscount Bridgeman Lord Mackenzie of Framwellgate The Earl of Stair Lord Hannay of Chiswick (Chairman) Baroness Prashar Lord Tomlinson Information about the Committee For information freely available on the web, our homepage is http://www.parliament.uk/hleu Sub-Committee Staff The current staff of Sub-Committee F are Michael Torrance (Clerk), Paul Dowling (Policy Analyst) and Alice Ryder (Committee Assistant). The current staff of Sub-Committee E are Michael Thomas (Legal Adviser), Arnold Ridout (Deputy Legal Adviser), Tim Mitchell (Assistant Legal Adviser), Elisa Rubio (Clerk) and Amanda McGrath (Committee Assistant). Contacts for the European Union Committee Contact details for individual Sub-Committees are given on the website. General correspondence should be addressed to the Clerk of the European Union Committee, Committee Office, House of Lords, London, SW1A 0PW. General enquiries 020 7219 5791. The Committee’s email address is [email protected] CONTENTS Paragraph Page Summary 8 Chapter 1: Introduction 1 11 The opt-out decision 1 11 Box 1: Text of Articles 10(1) to (4), Protocol (No 36) on transitional provisions 12 The Government’s statement to Parliament on 15 October 2012 4 12 The Committee’s inquiry 5 13 Chapter 2: Background 11 15 Box 2: Evolution of EU Justice and Home Affairs/Police and Criminal Justice cooperation 15 Early European cooperation 12 16 The Schengen Area 13 16 Treaty of Maastricht 14 16 Treaty of Amsterdam 15 17 Treaty of Lisbon 18 18 Opt-ins 20 18 Schengen opt-outs 21 18 Court of Justice of the European Union jurisdiction and Commission enforcement powers 22 19 Post-Lisbon police and criminal justice measures 23 19 The origins of Protocol 36 24 19 A decision for the UK alone 30 21 Chapter 3: The Government’s consultation of Parliament and stakeholders regarding the opt-out decision 33 22 Statements regarding the possible exercise of the opt-out 33 22 The Government’s analysis of the EU police and criminal justice measures 41 23 Consultation of Parliament 43 24 Consultation of the Devolved Administrations 46 25 Consultation of stakeholders 52 26 Review of the Balance of Competences between the UK and the EU 57 27 The UK’s future role in the EU 60 28 Chapter 4: The Court of Justice of the European Union, the relationship between UK and EU Law, and the Commission 62 29 Background 62 29 The Court of Justice of the European Union and the European Court of Human Rights 65 29 Other international courts with jurisdiction over the UK 68 30 Democratic accountability and the rule of law 69 30 The UK’s common law systems 72 31 A pan-European criminal law code? 77 33 “Judicial activism” and “unexpected judgments” 80 34 The judgments of the Court of Justice of the European Union 86 36 The drafting and application of the police and criminal justice measures 91 37 Concerns about caseload volume and delays 97 39 Post-Lisbon police and criminal justice opt-ins 101 40 Box 3: List of post-Lisbon police and criminal justice measures and the Government’s participation 40 European public prosecutor 106 43 The Commission’s enforcement powers and unimplemented police and criminal justice measures in the UK 111 44 Box 4: List of pre-Lisbon police and criminal justice measures that have not yet been implemented in full by the UK 45 Chapter 5: Alternative arrangments for cross-border cooperation 116 47 The need for cross-border police and criminal justice cooperation 116 47 Alternative arrangements for cross-border cooperation 119 47 Working under the old arrangements 126 49 Council of Europe Conventions 128 50 Table 1: Council of Europe Conventions, the equivalent EU measures, and their status 50 The role of the other Member States in facilitating alternative arrangements 132 52 The Frontex “model” 139 53 Box 5: The UK’s involvement in Frontex 54 The Danish Justice and Home Affairs opt-out 142 54 Box 6: The Danish Justice and Home Affairs opt-out: Protocol (No 22) on the position of Denmark 55 Chapter 6: The European Arrest Warrant 145 57 The benefits of the European Arrest Warrant 146 57 Criticisms of the European Arrest Warrant 149 58 Should the UK continue to participate in the European Arrest Warrant? 152 58 Reversion to the 1957 Council of Europe Convention on Extradition 153 59 Box 7: Differences between the Convention and the Framework Decision 60 The consequences for the UK of opting out of the European Arrest Warrant 157 61 Possible improvements to the operation of the European Arrest Warrant 162 62 Box 8: Sir Scott Baker’s Extradition Review: the European Arrest Warrant recommendations 62 The prospects of amending the Framework Decision 165 63 Proportionality 166 63 Human rights 171 65 Minimum procedural rights for defendants 173 65 European Supervision Order 176 66 Chapter 7: What would be the consequences of leaving Police and Criminal Justice Measures? 181 68 “Defunct” measures 182 68 Harmonisation measures 186 69 Mutual recognition measures 190 70 EU agencies and measures encouraging cross-border cooperation 193 71 Europol 193 71 Eurojust 196 72 European Police College (CEPOL) 199 73 Joint Investigation Teams (JITs) 201 73 Measures concerning the exchange of information 202 74 Schengen Information System II (SIS II) 202 74 Exchange of criminal records/European Criminal Records Information System (ECRIS) 203 74 The Prüm Decisions 206 75 Measures detrimental to the UK 207 75 Chapter 8: The procedure for rejoining particular police and criminal justice measures 209 76 The Procedure 209 76 Box 9: Text of transitional and financial provisions in Articles 10(4) and (5), Protocol (No 36) 76 Discussions with the other Member States 214 77 Rejoining particular police and criminal justice measures 217 78 How interconnected are the police and criminal justice measures? 224 79 Timing and transitional arrangements 229 80 If the opt-out is exercised which measures should the UK seek to rejoin? 236 82 The forthcoming proposals for Europol and Eurojust Regulations 242 84 The organisation of the vote in the House of Lords 247 85 Chapter 9: Should the Goverment exercise the opt-out? 249 86 The arguments for and against exercising the opt-out 250 86 The practical consequences of exercising the opt-out 253 87 Operational difficulties 253 87 Loss of influence 254 87 Financial consequences 257 88 The Irish dimension 261 89 Anglo-Irish cooperation on policing and criminal justice matters 262 89 The European Arrest Warrant 266 91 Should the opt-out be exercised? 271 92 Chapter 10: Summary of conclusions and recommendations 277 94 Appendix 1: List of members and declarations of interest 101 Appendix 2: List of witnesses 104 Appendix 3: Call for evidence 107 Appendix 4: EU police and criminal justice measures subject to the opt-out decision 109 Appendix 5: Summary of cases mentioned in evidence 131 Appendix 6: Statistics on the use of the EAW in the UK 141 Appendix 7: Publications concerning the opt-out decision 146 Appendix 8: Glossary 147 Evidence is published online at http://www.parliament.uk/hleuf and available for inspection at the Parliamentary Archives (020 7219 5314) References in footnotes to the Report are as follows: Q refers to a question in oral evidence.