House of Lords London European Union Committee SW1A 0PW www.parliament.uk/hleu On 1 November 2012 the House of Lords EU Committee’s Justice, Institutions and Consumer Protection Sub-Committee and the Home Affairs, Health and Education Sub-Committee launched a joint inquiry into the merits of the UK’s 2014 opt-out decision and its potential implications for the UK. This volume contains the correspondence which has passed between the Committee and the Home Secretary, the Rt Hon Theresa May MP, and the Lord Chancellor and Secretary of State for Justice, the Rt Hon Chris Grayling MP, during that inquiry. UK’S 2014 OPT-OUT DECISION (PROTCOL 36) CORRESPONDENCE WITH MINISTERS CONTENTS LETTER FROM THE UK GOVERNMENT TO THE CHAIRMAN, 21 DECEMBER 2011 ......................... 2 LETTER FROM THE UK GOVERNMENT TO THE CHAIRMAN, 18 SEPTEMBER 2012 ......................... 2 LETTER FROM THE CHAIRMAN TO THE UK GOVERNMENT, 2 OCTOBER 2012 ............................. 4 LETTER FROM THE UK GOVERNMENT TO THE CHAIRMAN, 15 OCTOBER 2012........................... 4 LETTER FROM THE CHAIRMAN TO THE UK GOVERNMENT, 1 NOVEMBER 2012 .......................... 5 LETTER FROM THE CHAIRMAN TO THE UK GOVERNMENT, 14 NOVEMBER 2012 ........................ 6 LETTER FROM THE CHAIRMAN TO THE UK GOVERNMENT, 29 NOVEMBER 2012 ........................ 7 LETTER FROM THE CHAIRMAN TO THE UK GOVERNMENT, 3 DECEMBER 2012 ............................ 7 LETTER FROM THE UK GOVERNMENT TO THE CHAIRMAN, 14 DECEMBER 2012 ......................... 7 LETTER FROM THE CHAIRMAN TO THE UK GOVERNMENT, 19 DECEMBER 2012 ...................... 10 LETTER FROM THE CHAIRMAN TO THE UK GOVERNMENT, 29 JANUARY 2013 ......................... 11 LETTER FROM THE UK GOVERNMENT TO THE CHAIRMAN, 1 FEBRUARY 2013 ......................... 11 LETTER FROM THE UK GOVERNMENT TO THE CHAIRMAN, 7 FEBRUARY 2013 ......................... 16 LETTER FROM THE CHAIRMAN TO THE UK GOVERNMENT, 8 FEBRUARY 2013 ......................... 16 LETTER FROM THE UK GOVERNMENT TO THE CHAIRMAN, 12 MARCH 2013 ............................. 17 1 LETTER FROM THE UK GOVERNMENT TO THE CHAIRMAN, 21 DECEMBER 2011 From the Rt Hon Theresa May MP, Home Secretary, Home Office to the Chairman Thank you for your letter dated 4 November 2011 requesting a definitive list of measures subject to notification by the United Kingdom pursuant to Article 10(4) of Protocol 36 of the Treaty of Lisbon. I am please to provide at annex A [not printed]1 the list of measures that the Government considers to be subject to this notification. The Transitional Protocol to the Lisbon Treaty allows the UK to “opt out” by 1 June 2014 of “acts of the Union in the field of police cooperation and judicial cooperation in criminal matters which have been adopted before the entry into force of Lisbon”. This means that all “acts” with a legal base in the former Title VI of the Treaty of the European Union (police and judicial cooperation in criminal matters) are caught by this transitional provision. This includes straightforward ‘Third Pillar’ measures as well as ‘Third Pillar’ measures classified as ‘Schengen building’. The list at annex A is split between old ‘Third Pillar’ measures and ‘Schengen’ measures due to the slightly different procedures that would apply to any application to rejoin measures should the decision be taken to reject European Court of Justice jurisdiction resulting in the UK opting out of all measures within the scope of the decision. In respect of measures forming part of the Schengen acquis, this would be governed by the Schengen Protocol. The UK would need to make an application under Article 4 of that Protocol and the Council would decide on the request “with the unanimity of its members” and the representative of the UK. For non-Schengen measures, Article 4 of the Title V Protocol would apply, which is the process for opting in to a measure post adoption and allows for conditions to be set by the Commission. Also included as part of the annex is a list of measures [not printed] which the UK has opted in to which repeal and eplace, or amend, measures which would otherwise have been within the scope of the notification. The lists are subject to change as measures are repealed and replaced or amended and we will keep you updated with any changes that are made. In particular we are aware that the Commission is planning proposals for next year involving revisions to Europol, Cepol (EU police college), Eurojust, the framework for cooperation on confiscation of assets and on criminal measures to tackle counterfeiting the Euro, all of which fall on the current list. These proposals will of course trigger separate opt-in decisions. We will continue to engage with the Council Secretariat to ensure that the list is comprehensive. I am committed to ensuring that Parliament is able to properly scrutinise the decision that flows from Article 10 (4) of Protocol 36 of the Treaty of Lisbon as part of our undertaking to hold a debate and vote in both Houses on this decision. I am grateful for the interest that your colleagues in the House of Lords have already shown and look forward to engaging with Parliament fully in this matter. LETTER FROM THE UK GOVERNMENT TO THE CHAIRMAN, 18 SEPTEMBER 2012 From the Rt Hon Theresa May MP to the Chairman I am writing, further to my letter of 21 December 2011, to provide you with an update on the 2014 decision. In my previous letter I provided you with a list of measures that the Government and Council Secretariat had agreed were within the scope of this decision. I also explained that the list is subject to change as measures are repealed and replaced or amended and set out a number of expected Commission proposals which would remove measures from the scope of the 2014 decision. At that time I expected that all such proposals would trigger an opt-in (non-Schengen) or opt-out decision (Schengen). However, I wish to make you aware that three measures on the 2014 list are Commission implementing decisions that implement Council Decisions relating to the Schengen Information System II (numbers 127, 130, and 133 on the list annexed to my previous letter) [not printed]. As such they can be replaced without the UK being required to take an opt-in or opt-out decision. 1 The list of measures is available on the Home Office website at: http://www.homeoffice.gov.uk/publications/about- us/corporate-publications/2014-decision/table-of-measures?view=Binary 2 Although these are “acts of the union” under the terms of article 10 of the Transitional Protocol and properly included on the list the UK does not participate in their adoption and therefore neither our Opt-in nor our Schengen Opt-out Protocol apply. As implementing acts they flesh out the bones of the main Council Decision which contain all the main obligations the UK has signed up to and therefore any decision on participation of these measures in 2014 must stand or fall together. Therefore, an asterix should be read against these measures in the 2014 list in that consideration of them must be taken with the overarching Council Decision they implement. In this regard, the Commission, on 21 June, published a Draft Commission implementing decision on adopting the SIRENE Manual and other implementing measures for the second generation Schengen Information System (SIS II), thereby removing it from the scope of the 2014 decision. Following initial technical discussions at official level with the Council Secretariat and European Commission I also wished to make you aware that the Government now considers that three measures initially within the scope of the 2014 decision have now ceased to be. These are: - Agreement between the European Union and Australia on the processing and transfer of European Union-sourced passenger name record data by air carriers to the Australian Customs Service (number 82) - Agreement between the European Union and the United States of America on the processing of Passenger Name Records data by air carriers to the United States Department of Homeland Security (number 74) - Council Framework Decision 2002/629/JHA on combating trafficking in human beings (number 42) In addition to the Draft Commission implementing decision outlined above there are a number of other dossiers currently under negotiation that may also affect the composition of the final list of measures within the scope of the 2014 decision. I would draw your attention to the following: - Initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Republic of Estonia, the Kingdom of Spain, the Republic of Austria the Republic of Slovenia and the Kingdom of Sweden for a Directive of the European Parliament and of the Council regarding the European Investigation Order in criminal matters (Government has opted in) - Proposal for a Directive of the European Parliament and of the Council on attacks against information systems, repealing Council Framework Decision 2005/222/JHA (Government has opted in) - Draft Directive of the European Parliament and of the Council on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (Government has opted in) - Proposal for a Directive of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data (Government did not opt