Can the UK opt-out of mandatory EU refugee quotas?

 

Steve Peers

In two days’ time (Wednesday May 13^th), the EU Commission is due to present a communication on a new EU immigration and asylum agenda. I’ll look at this agenda in detail later, but one key issue calls for comment already: will the UK have an opt-out from mandatory refugee quotas?

Part of the Commission paper has been leaked, and it’s clear that at least on the issue of resettlement of refugees, the current draft of the paper is more ambitious than the conclusions of EU leaders, agreed a couple of weeks ago (see my comments on their conclusions here). In particular, the Commission plans to propose mandatory rules on ‘relocation’ of asylum-seekers and ‘resettlement’ of refugees. In EU jargon, ‘relocation’ refers to those already in the EU, while ‘resettlement’ applies to those currently in non-EU countries. The first group do not necessarily have valid asylum claims, while the latter group usually have their status as refugees positively assessed before they are admitted to the territory.

According to press stories in the Guardian and the Times (the latter is paywalled) there may be a conflict with the UK as regards refugee quotas, because of a doubt that the UK can opt out of these proposals. Let’s look at this from the legal and political point of view in turn.

Legal analysis

The draft Commission plan refers to the ‘legal base’ of the relocation proposals as being Article 78(3) of the Treaty on the Functioning of the European Union (TFEU), which provides that:

3. In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.

Article 78(3) is part of the Justice and Home Affairs (JHA) provisions of the Treaty. All of these provisions are found in Title V of Part Three of the TFEU. But the UK has an opt-out from these JHA provisions. In particular, Article 1 of Protocol 21 of the Treaties provides that (my emphasis):

Subject to Article 3, the United Kingdom and Ireland shall not take part in the adoption by the Council of proposed measures pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union.

Article 1 refers to Article 3 of the Protocol, which is the power for the UK and Ireland to opt in to proposals on a case-by-case basis if they want to. For the avoidance of doubt, Article 2 of the Protocol reiterates that (my emphasis):

In consequence of Article 1 and subject to Articles 3, 4 and 6, none of the provisions of Title V of Part Three of the Treaty on the Functioning of the European Union, no measure adopted pursuant to that Title, no provision of any international agreement concluded by the Union pursuant to that Title, and no decision of the Court of Justice interpreting any such provision or measure shall be binding upon or applicable in the United Kingdom or Ireland; and no such provision, measure or decision shall in any way affect the competences, rights and obligations of those States; and no such provision, measure or decision shall in any way affect the Community or Union acquis nor form part of Union law as they apply to the United Kingdom or Ireland.

Article 2 refers to Articles 4 and 6: these rules give the UK power to opt into a JHA measure after it’s adopted (Article 4) and make clear that ifthe UK opts in to a JHA act, all the rules in the Treaty (ie the CJEU’s jurisdiction) apply (Article 6).

It’s beyond doubt that the opt-out Protocol applies to all JHA measures. This is confirmed because a specific clause (Article 9) does, by way of exception, state that one JHA rule (on anti-terrorist sanctions) applies to Ireland without any opt-out. There’s a similar sort of exception in a parallel Protocol which sets out JHA opt-outs for Denmark. So by a contrario reasoning, the UK can opt out of any JHA measures. If there were any exception for Article 78(3), it would obviously appear in the Protocol.

So it seems clear enough that the UK does not have to opt in to any refugee law measure, as long as it falls within a JHA legal base. The Commission paper does not contemplate the dubious strategy of trying to propose a refugee law measure on a non-JHA legal base, in order to circumvent the UK’s opt-out.

However, there is a specific rule which applies where an EU proposal would amendexisting EU legislation which the UK is already bound by. In fact, the UK is not bound by most current EU asylum legislation, but it is bound by the Dublin Regulation, which determines which Member State is responsible for the application of an asylum-seeker who is on the territory (or in the territorial waters) of a Member State.  

There seems no reason to amend the Dublin Regulation as regards any resettlementproposal, since resettlement concerns recognised refugees currently in third countries, not asylum-seekers currently on the territory of the EU Member States. However, the relocationproposal probably would have to amend the Dublin Regulation, since it would necessarily alter the current rules on which Member State is responsible for an asylum application.

The special rule applying to the cases where a JHA proposal amends a JHA act which already binds the UK is set out in Article 4a of the Protocol:

1. The provisions of this Protocol apply for the United Kingdom and Ireland also to measures proposed or adopted pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union amending an existing measure by which they are bound.

So the UK opt-out continues to apply in such cases. However, there’s a catch: if the UK opts out of such proposals, it’s possible for it to be turfed out of its participation in the existing law, ie the law which the proposal seeks to amend. In this case that would mean that the UK would be turfed out of its participation in the Dublin Regulation, which results in a net allocation of asylum-seekers from the UK to other Member States.

Article 4a sets out the details of how this would work. First of all, the Council (by a qualified majority vote of participating Member States, ie without the UK’s vote), on a proposal from the Commission, decides that the revised law would be ‘inoperable’ for other Member States or the UK, if the UK doesn’t participate. That decision in effect gives the UK an ultimatum to opt in to the amending law within two months. If the UK doesn’t opt in within that period, then the original measure (ie, the current Dublin Regulation) automatically ceases to apply to the UK.  

This ‘ultimatum’ clause dates from the Treaty of Lisbon, and has never been used. It would obviously cause considerable political friction if it were, given that the UK is attached to continuing its participation in the Dublin rules.

The new proposals might alternatively (or additionally) take the form of amendments to the current EU temporary protection Directive, which the UK also participates in. The same considerations about using the ultimatum clause would apply, except that there would not be so much political sensitivity: that Directive has never been used in practice, and the current UK government would probably not be upset about being expelled from it (this Directive dates back to 2001; the UK opted in under the previous Labour government). However, the proposals might also take the form of amendments to the EU’s Asylum and Migration Fund, which the UK participates in and would be reluctant to be expelled from (the previous coalition government opted in to it).

It should also be noted that there might be a legal argument about the use of Article 78(3), because the European Parliament (EP) would likely prefer another asylum ‘legal base’ to apply which would give it its usual power over EU legislation. But using a different asylum legal base would not alter the rules relating to the UK’s opt-out.

Political context

First and foremost, it has to be pointed out that the Commission’s proposals may not be accepted. Indeed, given the many previous failed attempts to agree EU rules on relocation and resettlement, and the obvious lack of willingness of EU leaders to commit themselves on these issues even in light of the recent migrant death toll, such proposals might well be dead on arrival. It’s clear from the wording of the Treaty that there has to be a qualified majority of Member States in the Council to approve such proposals, although the EP is only consulted.

Similarly, the UK could not be given an ultimatum as regards its participation in existing EU law unless the Commission proposes a Council decision to this end, and the Council agrees by qualified majority (without a UK vote). The EP has no role in that case. It’s far from certain that this would happen, even if the Council were enthusiastic about these Commission proposals.

In light of this, in combination with the election of a majority Conservative government committed to holding a referendum on the UK’s membership of the EU, is it really wise for the Commission to make these proposals and suggest that they might bind the UK despite its opt-out? Admittedly it’s not realistic to expect the Commission to avoid making any proposal which might cause the least offence to the UK for the many months up until the referendum date. But if it wants the UK to remain in the EU – as the Commission President says it does – it has to avoid making proposals which are liable to cause the mostoffence. That particularly applies to proposals relating to immigration, which is by far the most sensitive issue for the UK’s relations with the EU.

After all, if the UK leaves the EU, there would anyway be no prospect of relocating asylum-seekers here in any event. While it’s understandable that the Commission wants bold solutions to the EU’s migrant crisis, there are times when discretion is the better part of valour.

 

Barnard & Peers: chapter 26

Photo: bbc.co.uk

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Denmark and EU Justice and Home Affairs Law: Details of the planned referendum

 

 

Steve Peers

Danish participation in cross-border criminal law measures is symbolised by 'The Bridge', the 'Nordic Noir' series about cross-border cooperation in criminal matters between Denmark and Sweden. But due to the changes in EU law in this field, that cooperation might soon be jeopardised. As a result, in the near future, Denmark will in principle be voting on whether to replace the current nearly complete opt-out on EU Justice and Home Affairs (JHA) law with a partial, selective opt-out. I have previously blogged on the implications of this plan in general terms, but it’s now clear exactly what this vote will be about.

First of all, a short recap of the overall framework (for more detail, see that previous blog post). Back in 1992, Denmark obtained an opt-out from the single currency, defence and aspects of JHA law (it’s widely believed that it also obtained an opt-out from EU citizenship, but this is a ‘Euromyth’). These opt-outs were formalised in the form of a Protocol attached to the EU Treaties as part of the Treaty of Amsterdam. The JHA opt-out was then amended by the Treaty of Lisbon.

At present, Denmark participates in: the EU policing and criminal law measures adopted before the entry into force of the Treaty of Lisbon; measures relating to the Schengen border control system (as  matter of international law, not EU law); the EU rules on visa lists (as a matter of EU law); and the EU’s Dublin rules on allocation of asylum applications, ‘Brussels’ rules on civil jurisdiction and legislation on service of documents (in the form of treaties with the EU). In contrast, Denmark does not – and cannot– participate in other EU rules on immigration and asylum law or cross-border civil law, or policing and criminal law rules adopted since the entry into force of the Treaty of Lisbon.

The Protocol on Denmark’s legal position either allows it to repeal its JHA opt-out entirely, or selectively. If it chooses to repeal the opt-out selectively, it would then be able to opt in to JHA measures on a case-by-case basis, like the UK and Ireland, although (unlike those states) it would remain fully bound by the Schengen rules. Indeed, those rules will then apply as a matter of EU law in Denmark, not as a matter of international law.

In practice, while Danish governments have promised for a while to hold a referendum on the JHA opt-out, the concrete plans to hold one in the near future were triggered in light of the planned EU legislation to replace the current rules establishing Europol, the EU police agency, with new legislation (on that proposal, see here).  This led to an agreement between the government parties and several opposition parties (excluding the far-right Danish Peoples’ Party) known as the ‘Agreement on Denmark in Europol’ (for the text, see here). This agreement states that the referendum will take place after the next general election (which must be held by September 2015), and no later than 31 March 2016. The ‘main reason’ for the referendum is to allow Denmark to opt in to the new Europol rules, but the parties also agreed to study whether Denmark should opt in to other EU civil, criminal and policing laws which currently don’t apply. However, the parties agreed that Denmark should not opt in to any EU immigration or asylum law (besides Schengen, which already applies).

This analysis has now been completed (see the text in Danish here), and the parties have agreed that Denmark would apply to opt in to 22 EU laws if the referendum is successful. Conversely, they have agreed not to opt in to 10 other EU laws.

As regards civil cooperation, the parties have agreed to opt in to large majority of EU measures, as regards: insolvency; payment orders; small claims; the European enforcement order; mediation; the Rome Regulation (on conflicts of law concerning contract); the Rome II Regulation (on conflicts of law concerning non-contractual liability); external relations; protection orders; inheritance; maintenance proceedings; parental responsibility; and account preservation orders. It should be noted that changes to the insolvency proceedings regulation are about to be formally adopted, and changes to the small claims rules will likely be agreed later this year; presumably the agreement also entails opt-ins to the existing legislation as amended.

In contrast, the parties agreed not to opt in to legislation on legal aid in cross-border proceedings, or to the Rome III Regulation on conflicts of law in divorce cases. Nor have they agreed yet on whether to opt in to the pending proposals relating to jurisdiction and choice of law over marital property, and the property of civil partnerships, in the event of relationship breakdown. In general, the recent agreement states that decisions to opt in to measures which have not yet been adopted depend on a future consensus of the relevant parties, or endorsement in a general election.

As for policing and criminal law, the parties agree to opt in to all measures concerning substantive criminal law and most measures concerning EU agencies and mutual recognition. In particular, they agree to opt into seven Directives, regarding: the European Investigation Order; protection orders; trafficking in persons; sexual abuse of children; cyber-crime; market abuse; and counterfeiting the euro. Conversely, they rule out opting in to the legislation on crime victims’ rights, the three Directives on suspects’ rights (concerning interpretation and translation, access to a lawyer and the right to information) and the rules on confiscation of criminal assets. They also rule out opting in to the legislation on EU funding in JHA matters.

They have partly agreed on future measures in this field, agreeing to opt in to the Regulations now under discussion on Europol and Eurojust (the EU prosecutors’ agency) and the Directive on passenger name records, but to opt out of the legislation establishing the European Public Prosecutor. The Commission has also proposed legislation on the European Police College, fraud against EU funds and drug trafficking, along with three more suspects’ rights measures (concerning childrens’ rights, the presumption of innocence and legal aid). Decisions on those measures will again depend upon on a future consensus of the relevant parties, or endorsement in a general election.

The parties’ clarification of their intentions provides useful certainty for the Danish public when it has the opportunity to vote on these issues. In general, in criminal matters Denmark would be participating in the EU measures assisting the prosecution, without any counterbalance by means of recent legislation regarding the rights of victims or suspects. Similarly it would still be participating in the Schengen rules on external border controls and the abolition of internal border checks, without any of the accompanying harmonisation of immigration and asylum law that applies to other Schengen States which are EU members. On the whole, Denmark would also be participating in more JHA legislation than the UK and Ireland – not just as regards full participation in Schengen (as is already the case), but also as regards the EU legislation on inheritance, account preservation, investigation orders, market abuse, currency counterfeiting and Eurojust, all of which one or both of the UK and Ireland have opted out of. On the other hand, the UK and Ireland have opted in to the EU legislation on crime victims’ rights, some of the legislation on suspects’ rights and the first phase of EU asylum law. Given that Ireland participates in the single currency, a Danish 'yes' to selective participation in JHA law would cement the UK's position as the chief non-participant in EU laws which bind most other Member States.

 

Barnard & Peers: chapter 26

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Bringing the Panopticon Home: the UK joins the Schengen Information System

 

Steve Peers

Over two hundred years ago, British philosopher Jeremy Bentham devised the concept of the ‘Panopticon’: a prison designed so that a jailer could in principle watch any prisoner at any time. His theory was that the mere possibility of constant surveillance would induce good behaviour in prison inmates. In recent years, his idea for a panopticon has become a form of shorthand for describing developments of mass surveillance and social control.

The EU’s forays in this area began with the creation of the Schengen Information System (SIS) in the 1990s. The SIS is a well-known EU-wide database containing enormous amounts of information used by policing, immigration and criminal law authorities.  

Until now, the UK has not had any access to the SIS. But this week, the EU Council finally approved the UK’s participation in the System, thereby linking the EU’s most iconic database with the intellectual home of the panopticon theory. What are the specific consequences and broader context of this decision?

Background

The main purpose of the Schengen system is to abolish internal border checks between EU Member States, as well as some associated non-EU States.  At the moment, the full Schengen rules apply to all EU Member States except the UK, Ireland, Cyprus, Romania, Bulgaria and Croatia. Those rules also apply to four associates: Norway, Iceland, Switzerland and Liechtenstein.

All of the Member States are obliged ultimately to become part of the Schengen system, except for the UK and Ireland. Those two Member States negotiated an exemption in the form of a special Protocol at the time when the Schengen rules (which originated in the Schengen Convention, ie a treaty drawn up outside the EU legal order) were integrated into the EU legal system, as part of the Treaty of Amsterdam (in force 1999).

The UK and Ireland are not entirely excluded from the Schengen system. In fact, they negotiated the option to apply to join only some of the Schengen rules if they wished. Their application has to be approved by the Council, acting unanimously. The UK and Ireland essentially chose to opt in to the Schengen rules concerning policing and criminal law, including the SIS, but not the rules concerning the abolition of internal border controls and the harmonisation of rules on external borders and short-term visas.

The UK’s application to this end was approved in 2000 (see Decision here), and Ireland’s was approved in 2002 (see Decision here). But in order to apply each Decision in practice, a separate subsequent Council decision was necessary, because the Schengen system cannot be extended before extensive checks to see whether the new participant is capable of applying the rules in practice.  On that basis, most of the Schengen rules which apply to the UK have applied from the start of 2005 (see Decision, after later amendments, here). The exception is the rules on the SIS, which the UK was not then ready to apply. After spending considerable sums trying to link to the SIS, the UK gave up trying to do so, on the basis that the EU was anyway planning to replace the SIS with a second-generation system (SIS II). There’s a lot of further background detail in the House of Lords report on the UK’s intention to join the SIS (see here), on which I was a special advisor. (Note that Ireland does not apply any of the Schengen rules in practice yet).

It took ages for the EU to get SIS II up and running, and it finally accomplished this task by April 2013 (see Decision here). The UK had planned to join SIS II shortly after it became operational, but this was complicated by the process of opting out of EU criminal law and policing measures adopted before the entry into force of the Treaty of Lisbon, and simultaneously opting back in to some of them again, on December 1^st 2014 (see discussion of that process here). This included an opt back in to the SIS rules.

Once that particular piece of political theatre concluded its final act, the EU and the UK returned to the business of sorting out the UK’s opt in to SIS II in practice. This week’s decisioncompleted that process, giving the UK access to SIS II data starting from March 1^st. The UK can actually use that data, and enter its own data into the SIS, from April 13^th.

Consequences

What exactly does participation in the SIS entail? The details of the system are set out in the 2007 Decisionwhich regulates the use of SIS II for policing and criminal law purposes. There are also separate Regulations governing the use of SIS II for immigration purposes and giving access to SIS II data for authorities which register vehicles. The former Regulation provides for the storage of ‘alerts’ on non-EU citizens who should in principle be denied a visa or banned from entry into the EU, while the latter Regulation aims to ensure that vehicles stolen from one Member State are not registered in another one. The UK participates in the latter Regulation, but not the former, since it could only have access to Schengen immigration alerts if it fully participated in the Schengen rules on the abolition of internal border controls. On current plans, this will happen when hell freezes over.

The SIS II Decision provides for sharing ‘alerts’ on five main categories of persons or things: persons wanted for arrest for surrender or extradition purposes (mainly linked to the European Arrest Warrant); missing persons; persons sought to assist with a judicial procedure; persons and objects who should be subject to discreet checks or specific checks (ie police surveillance); and objects for seizure or use as evidence in criminal proceedings. There are also rules on the exchange of supplementary information between law enforcement authorities after a ‘hit’. For instance, if the UK authorities find that a European Arrest Warrant has been issued for a specific person, they could ask for further details from the authority which issued it.

On the other hand, the SIS does not, as is sometimes thought, provide for a basis for sharing criminal records or various other categories of criminal law data, although the EU has set up some other databases or information exchange systems dealing with such other types of data. (On criminal records in particular, see my earlier blog post here). The main point of setting up the second-generation system was to extend the SIS to new Member States (although in the end a new system wasn’t actually necessary for that purpose), and to provide for new functionalities such as storing fingerprints, which will likely be put into effect in the near future.

In practice, the UK’s participation in SIS II is likely to result in the Crown Prosecution Service receiving more European Arrest Warrants (EAWs) to process, and in more efficient processing of EAWs which the UK has issued to other Member States. It will also be easier, for instance, to check on whether a car or passport stolen in the UK has ended up on the continent, or vice versa.

Broader context

As noted already, while the UK is only now joining the SIS, the System has been around for many years, and has proved to be the precursor of many EU measures in this field. Indeed, as EU surveillance measures go, the SIS turned out to be a ‘gateway drug’: the friendly puff that led inexorably to the crack den of the data retention Directive.

Of course, interferences with the right to privacy can be justified on the basis of the public interest in enforcement of criminal law and ensuring public safety – if the interference is proportionate and in accordance with the law. Compared to (for instance) the data retention Directive and the planned passenger name records system, the SIS is highly targeted, focussing only on those individuals involved in the criminal law process, or police surveillance, or banned from entry from the EU’s territory. The legitimacy of the system therefore depends upon the accuracy and legality of the personal data placed in to it, and the connected data protection rules. On this point, the EU and national data protection supervisors have reported that many data subjects do not even know about the data held on them in SIS II, and they have produced a guide to help them with accessing their data in the system.

There’s an inevitable tension between the EU’s goal to set the world’s highest data protection standards, on the one hand, while also developing multiple huge databases, information exchange systems and surveillance laws, on the other.  It’s as if the brains of the utilitarian Jeremy Bentham and the libertarian John Stuart Mill were both battling for control of the same body – forcing it to draw up plans for the Panopticon at the same time as it was storming the Bastille. If this tension manifested itself in fiction, it would probably take the form of a comedy about a vegetarian butcher, or a virgin porn star. But the need to ensure that measures to protect our security do not remove all our liberty is not a laughing matter.

 

*This blog post is linked to ongoing research on the upcoming 4^th edition of EU Justice and Home Affairs Law (forthcoming, OUP).

 

Image credit: nytimes.com

Barnard & Peers: chapter 25

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What just happened? The House of Commons ‘vote’ on the European Arrest Warrant

Steve Peers

Last night, the UK House of Commons voted in favour of the UK opting back in to 35 EU policing and criminal law measures, including the European Arrest Warrant (EAW). Or rather, it didn’t: it voted in favour of the UK opting back to 11 such measures, notincluding the EAW. Amid scenes of parliamentary confusion and chaos, it wasn’t quite clear what was going on. This blog post explains exactly what the vote was about.

Background

I wrote a detailed analysis for Statewatch of the UK’s opt back in to EU policing and criminal law measures earlier this year, and I will write an update for this blog in the start of December once all of the final steps in the process are in place. But for now, here is a brief recap, to put last night’s vote in context.

The Treaty of Lisbon sets out a five-year transitional period for EU policing and criminal law measures adopted before that Treaty’s entry into force (1 December 2009). At the end of that period, those measures become subject to the full jurisdiction of the Court of Justice of the European Union, including both references from national courts and the Commission’s power to sue Member States for non-application, or incorrect application, of such measures. The majority of Member States (but not including the UK) had already opted in to the former jurisdiction, but the latter jurisdiction is entirely new.

From the same date, the UK can decide to opt out of all the pre-Lisbon policing and criminal law measures (except for those which have been amended since that Treaty entered into force, which the UK could decide to opt in to or out of individually as each of the amended versions was adopted).  If it exercises this block opt-out, the UK can then choose to opt back in to some of these pre-Lisbon measures individually. The decision on its application will be taken by the Commission or the Council, depending on the type of measure (the Council decides where the measure is linked to the ‘Schengen’ treaty on border controls; the Commission decides on all other matters, including the EAW).

The UK has indeed exercised the block opt-out, and has applied to opt back in to 35 measures, as described above. Last night’s vote was the crucial point at which the House of Commons got to vote on the government’s intentions (the House of Lords will vote shortly). The formal decisions on the opt-in will now be taken by the Commission and Council, probably on December 1.

While EU law sets out the overall procedure relating to the opt-out and opt-in, it doesn’t govern the details of parliamentary scrutiny of the government’s decisions within the UK. That’s a matter for  UK law only. So what exactly happened in the House of Commons last night?

The House of Commons vote

The UK government had long promised that Parliament would get to vote on the decision to opt back in to all of the 35 measures. In the event, the Home Secretary declared that last night’s vote, was in effect politically binding as regards all of these measures. But according to a ruling of the Speaker of the House of Commons, the vote was only legally binding as regards 11 of them.

What did the vote concern exactly? It was on a resolution to approve delegated legislation, ie an individual measure which the UK executive can adopt because a previous Act of Parliament gives it powers to adopt that measure, subject to parliamentary scrutiny. Last night’s vote was the key point in that parliamentary scrutiny, as far as the House of Commons was concerned.

The Act of Parliament which gave the government those powers was the European Communities Act, which is the main Act governing the status of EU law in the UK’s national legal order. In particular, section 2(2) of this Act gives the government power to adopt delegated legislation to implement EU obligations, subject to certain limits. That section is very frequently used in practice.

However, it’s never been used before to adopt delegated legislation to implement EU obligations regarding pre-Lisbon policing and criminal law. That’s because it couldn’t be, before December 1 2014. This is due to a limitation in the Act itself. Because policing and criminal law issues were ‘intergovernmental’ (ie essentially decided upon by governments, not the EU institutions) before the Treaty of Lisbon entered into force, they took a different form, and had a different legal status, than ordinary EU law. To take account of this, the European Communities Act never applied to them until now (when the transitional period ends).  

The exclusion of these measures from the Act is implicit in the definition of EU law in section 1(2) of the Act. In particular, that definition excludes Title VI of the original Treaty on European Union (the Maastricht Treaty) and Art. 1 of both the Treaty of Amsterdam and the Treaty of Nice from its scope. Incidentally, the Act still continues to exclude EU foreign policy measures from its scope.

So what does the delegated act which MPs were voting on do? It takes the form of (UK) Regulations, and is further explained in an explanatory memorandum. It makes changes to UK law which the government deemed were still necessary to ensure that 11 of the 35 Acts which the UK is opting back in to are fully and correctly applied in our domestic law.

Six of those measures concern the UK’s mutual recognition of criminal law decisions adopted by other Member States (and vice versa), as regards: confiscation of assets obtained by crime; freezing of such assets provisionally during an investigation and trial; financial penalties (fines) imposed by courts as a result of a criminal conviction; the transfer of foreign prisoners serving a custodial sentence; general rules on in absentia trials as regards mutual recognition; and the European Supervision order, which permits foreigners to be freed pending trial, provided that their home State agrees to supervise them until they face trial in the country concerned.

Three more measures concern police cooperation. Two of them concern ECRIS, a system for the exchange of criminal records between Member States. The third concerns the so-called ‘Swedish initiative’, which governs requests for other forms of information in individual cases between  national police forces.

The final two measures concern joint investigation teams (groups of police officers from multiple Member States, as well as Europol, the EU police intelligence agency) examining cross-border crimes, and data protection rules applying to cross-border exchange of police information (this is distinct from the EU’s data protection Directive).

The political context

As noted above, the Commons vote applied to all 35 measures in a political sense only, not in a legal sense. Legally speaking, the government did not need parliamentary scrutiny of the opt in to the remaining measures, since there was no need to change UK law in order to apply them. However, the UK had promised such scrutiny nonetheless, leading to the confusion and disappointment of many MPs.

It was clearly right in principle to promise full parliamentary scrutiny of the opt in decision, given the public concern and interest in the issue. So it was wrong not to give full effect to that promise, which could have been implemented (for instance) by holding a vote also on a resolution explicitly concerning the opt in to all 35 measures.

The government may have decided not to do this because it wanted to avoid critics of the EAW trying to amend the resolution to force a vote on the EAW separately. But if there is enough concern in Parliament about the opt in to this particular measure (or any others on the list), then MPs should get the chance to vote on it individually.

One of the consistent problems with EU law in the UK (and to some extent in other Member States as well) is its perceived lack of democratic legitimacy. Often that’s the fault of the EU itself, due to a lack of transparency for instance. But in this case, since only UK law governs the process of parliamentary scrutiny relating to the opt in, it’s entirely the fault of the UK government. The likely result of the decision to limit the scope of parliamentary scrutiny will be to damage the legitimacy of the EU further – and to increase, not reduce, the number of Conservative MPs who are very critical of the EU.

Barnard & Peers: chapter 25

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Letter to the Daily Telegraph: The need for the UK to opt in to the EAW

Steve Peers

The following is the text of a letter published in today's Daily Telegraph, and the subject of a  front page story in that paper (see also the web version), as well as the Guardian and BBC News websites. The vote in Parliament is scheduled for Monday 10th November. 

If you are a UK practitioner, academic, politician or NGO or and would like to add your name to this list of signatories, please tweet me at @StevePeers or e-mail me at speers@essex.ac.uk.  

For more details of the argument for opting back in, see the previous post on this blog. 

Dear Sir,

Parliament will soon face a crucial vote on the Government’s proposal to opt into certain EU measures. A key concern is the European Arrest Warrant (EAW).
 



Without the EAW other EU members may be unable speedily to extradite suspects like Hussain Osman or Jeremy Forrest to Britain - both in jail after use of the EAW. Unsurprisingly, the Association of Chief Police Officers believes we cannot afford to lose it.

Britain also risks becoming a safe haven for fugitives from justice – a handful of them British citizens, but the vast majority foreign nationals wanted for crimes elsewhere in Europe.

At home, recent statutory changes should help prevent extradition to long pre-trial detention overseas, and curb EAW use for trivial offences. Overseas, Britain can only lead reform of Europe’s criminal justice co-operation by being part of the system.


There is no credible alternative to the EAW. Other EU members will be reluctant to adopt new laws if we reject a system that works. Resort to international law on extradition would be slow and ineffective.

A vote to opt in will be a vote for security and for fair and effective criminal justice. 


Yours,

from the Legal Profession

Rt Hon Lord Phillips of Worth Matravers KG

Lord Carlile of Berriew CBE QC

Rt Hon Sir Henry Brooke CMG

Rt Hon Sir David Edward KCMG QC FRSE

Rt Hon Sir Anthony Hooper

Rt Hon Sir Francis Jacobs KCMG QC
Rt Hon Sir David Latham

Rt Hon Sir Konrad Schiemann

Andrew Caplen, President of The Law Society of England & Wales

Alistair Morris, President of The Law Society of Scotland

Evanna Fruithof, Consultant to The Bar Council

Jonathan Cooper OBE, Doughty Street Chambers

Richard Clayton QC, 4-5 Gray’s Inn Square

Tom de la Mare QC, Blackstone Chambers

Helen Malcolm QC, Three Raymond Buildings

Professor Philippe Sands QC, Matrix Chambers

from Law Enforcement and Civil Society

Lord Blair of Boughton QPM

Lord Harris of Haringey

Baroness Ludford, former Member of the European Parliament

Rt Hon Lord Roper

Rt Hon Charles Clarke

Andrea Coomber, Director of JUSTICE

Charles Grant, Director of the Centre for European Reform

William F Hughes CBE QPM, former SOCA Director General

Michael Kennedy CBE, former President of Eurojust, former COO at CPS

Peter Neyroud CBE QPM, former Chief Constable

from the Legal Academy

Professor John Spencer QC, Cambridge University

Professor Estella Baker, De Montfort University

Professor Patrick J Birkinshaw, Hull University

Professor Paul Craig, Oxford University

Professor Brice Dickson, Queen’s University Belfast

Professor Piet Eeckhout, University College London

Professor Angus Johnston, Oxford University

Professor Valsamis Mitsilegas, Queen Mary University of London

Professor Steve Peers, University of Essex

Nicola Padfield, Cambridge University

Dr Cian Murphy, King’s College London

Dr Veronika Fikfak, Cambridge University

Dr Alicia Hinarejos, Cambridge University

Dr Rebecca Williams, Oxford University

Hugo Brady, London School of Economics

Further signatories:

Fergus Randolph QC, Brick Court Chambers
Paul Garlick QC
Roger Smith, former chair of Justice
Daniel Sternberg, barrister
Carl Gardner, blogger, Head of Legal
Klentiana Mahmutaj, barrister
Thomas Garner, Gherson Solicitors
Shoaib M Khan, human rights lawyer
Charlie Edwards, Royal United Services Institute for Defence and Security Studies
Camino Mortera, Centre for European Reform
Dr Marianne Wade, University of Birmingham
Theodora Christou, Queen Mary, University of London
Professor James Chalmers, Glasgow University
Dr Egle Dagilyte, Bucks New University
Professor Tamara Hervey, University of Sheffield
Professor Ed Cape, University of the West of England
John Flood, Visiting Professor, University of Westminster
Dr Paul James Caldwell, University of Sheffield
Professor Geoff Gilbert, University of Essex
Matilde Ventrella, University of Wolverhampton
Dr Richard Ball, University of the West of England
Professor Jo Shaw, University of Edinburgh 
Colm O'Cinneide, University College London 
Professor Geert van Calster, King's College London and barrister
Dr Sara Drake, Cardiff University
Josephine van Zeben, Oxford University
Alison Young, Oxford University
Dr Barbara Havelkova, Oxford University
Professor Sionaidh Douglas-Scott, Oxford University
Professor Julie Dickson, Oxford University 
Dr Maria Fletcher, University of Glasgow
Helena Wray, University of Middlesex
Professor Laurent Pech, University of Middlesex 
Dr Noreen O'Meara, University of Surrey
Dr Mario Mendez, Queen Mary University of London
Claude Moraes, Member of the European Parliament 

Barnard & Peers: chapter 25 

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The European Arrest Warrant: the case for the UK to stay in

Maria Fletcher, Senior Lecturer in Law, University of Glasgow, and Steve Peers, Professor of Law, University of Essex

The UK government is currently making its final decision on which EU laws on criminal law and policing adopted before December 2009 that it wishes to opt back in to, as from 1 December 2014. The most controversial decision it has to make is whether to opt back in to the European Arrest Warrant (EAW). In this blog post, we set out the case for opting back in to this law.

Background

As part of the Treaty of Lisbon, the Labour Government of the day secured a rather unique legal opt-out for the UK in relation to EU crime and policing matters, which takes effect on 1 December 2014 and which is known as the ‘Protocol 36 opt-out’. This was to be on top of the already secured position whereby the UK (and Ireland), by default, does not participate in the EU police and criminal justice (or asylum and immigration) agenda unless it chooses to opt in to individual measures on a case by case basis, either during the proposal stage or after their adoption.

The Protocol 36 opt-out, completely unprecedented in terms of scope and only available to the UK, entitles the UK to withdraw en masse from EU measures concerning police and criminal justice adopted prior to the Lisbon Treaty (1 December 2009 to be precise). In principle it is an all or nothing opt out in the sense that the UK must opt out of all of these pre-Lisbon measures, or none at all. But, in the event of its exercise, the UK also has the right, within limits, to opt back in to individual measures selectively.

The UK Government officially invoked the opt-out (of 130 measures) in July 2013 and simultaneously produced a list of 35 Pre-Lisbon measures it considered to be in the ‘national interest’ to rejoin. The Government then began negotiations with the European Commission and the Council to seek to rejoin that list of 35 measures – the terms of the Protocol requiring approval from one or other of those institutions depending on the precise nature of the measures. For measures linked to the EU’s ‘Schengen’ rules, such as the Schengen Information System database, the UK needs the consent of all Schengen States to opt back in. For other measures (the majority, including the EAW), the UK needs only the consent of the Commission.

According to the Protocol, the UK and the EU institutions must ‘seek to re-establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence.’ The UK is therefore likely to be able to insist on opting back in to its chosen measures unless it is opting back in to only part of a package of measures that are deemed to be inextricably linked  (the coherence requirement) or it would be impossible or very difficult in practice for technical reasons to opt back in to one measure but not another (the operability requirement).

At the domestic level, scrutiny procedures by Parliament have been thorough, if fraught, due to the Government’s lack of timely information. The relevant committees of both the House of Lords and the House of Commons have conducted inquiries and produced numerous reports on this matter and both Houses have been promised votes on the overall package of measures to rejoin following the conclusion of negotiations with the Commission and the Council and on the basis of Impact Assessments. But time is running out, especially if the Houses are to be given enough time to reflect upon this important matter.

Although the timetable relating to the Protocol 36 opt-out is entirely out of the hands of the current government, the plain reality is that the timing could not have been worse. With Ukip on the rise and ostensibly gaining ground amongst the traditional Tory vote and now just months away from a general election, the government and in particular, the Conservative party, is seemingly running scared on the topic of Europe.

And one criminal justice measure in particular seems to be fuelling particular panic.

The European Arrest Warrant

The EAW has operated in the UK for a decade, and has made it onto the list of 35 that the Government wishes to rejoin as of 1 December 2014. It is without doubt the most high-profile and controversial of the EU’s criminal justice measures. In essence it provides a simple and speedy procedure designed to surrender people between EU states for the purpose of conducting a criminal prosecution or executing a custodial sentence or spell in detention.  It works on the basis of mutual recognition, such that the authorities in the Member State in receipt of a warrant execute it (arrest and surrender the wanted individual) more or less automatically.

This way of cooperating amongst states – which is based on trusting the integrity of another state’s criminal justice system – was chosen, and indeed advocated, by the UK government of the time, precisely because it entailed the least intrusion by EU law into domestic systems. Rather, decisions or rulings by a criminal court in the UK must be accepted and enforced in any another Member State and vice versa.

It is widely recognised that the EAW has created a more efficient, simpler, quicker, cheaper, more reliable and less political system of extradition in Europe compared to its predecessor 1957 European Convention on Extradition (see the House of Lords committee analysis). Since 1 January 2004, when the EAW scheme came into force, the average time taken to extradite a suspect in cases with consent is just 17 days and in non-consensual cases it is has fallen from around a year to 48 days. The number of wanted persons surrendered to the UK in 2013 was 127, compared to 19 in 2004; and surrendered from the UK upon the request of all other EU Member States was 1126 in 2013 compared to 24 in 2004. Speaking on 9 July 2013 the Home Secretary said ‘[s]ince 2009 alone, the arrest warrant has been used to extradite from the UK 57 suspects for child sex offences, 86 for rape and 105 for murder. In the same period, 63 suspects for child sex offences, 27 for rape and 44 for murder were extradited back to Britain to face charges. A number of these suspects would probably have not been extradited back to Britain without the arrest warrant.

The success of the EAW might be illustrated by the extradition from Italy, in less than eight weeks, of Hussain Osman, who was wanted in connection with the attempted July 2005 London bombings; he was subsequently sentenced to a minimum term of imprisonment of 40 years. More recently, Jeremy Forrest, the teacher who was sentenced in June 2013 for absconding to France with one of his pupils, was extradited back to the UK less than three weeks after his arrest.

 

Notwithstanding these positives, the EAW is not beyond criticism and the most serious two concerns are considered here. It is worth noting however that other criticisms of the EAW appearing in the public debate are, frankly, contrived to fuel anti-EU sentiment and fear. For instance, outrage that the EAW can be used by foreign courts to extradite Britons and in unacceptably large numbers is misplaced on two counts. First, the EAW does indeed require all Member States to surrender nationals, but unlike some other Member States, the UK had never treated nationality as a bar to extradition anyway. The UK had also removed the obligation of the requested State to show a prima facie case in respect of extradition requests coming from Europe, far in advance of the EAW abolishing the same.

And second, the UK may be being required to surrender increasing numbers of individuals to face prosecution under the EAW, but the overwhelming majority (96%) of those are not British nationals – and presumably, on that basis alone, there would not be much appetite to keep them here!

 

Turning then to the two particularly serious criticisms of the EAW.  First, it has resulted in a number of British suspects being surrendered to countries where they then face excessive periods in prison before trial – bail being notoriously difficult to attain as a foreign suspect. Any such instance is unhappy and unacceptable and it certainly fuels the critics who push for the UK’s withdrawal. But alternative options to improve the situation do exist and we would submit that they are preferable to opting-out. For one, the EAW legal instrument could be amended to permit the requested state to postpone the execution of the warrant until the issuing state is ready to proceed with trial, and the UK could push for this. Along these lines, recent amendments to UK law (see further below) mean that a suspect will not be handed over on the basis of an EAW unless he or she has been charged by another Member State.

Another route is to implement an EU measure which specifically tackles this problem - the so called ‘European Supervision Order’. Adopted in 2009, the ESO enables a suspect or defendant who has been granted a pre-trial non custodial supervision order (bail) in another Member State to be supervised in their home MS until such time as their trial takes place. This instrument would allow foreign suspects to be transferred home while awaiting trial and equally, UK nationals to return home while they are on bail. For sensible reasons therefore, this measure is among the 35 instruments which the current government is seeking to opt-back in to.

Finally, a longer term way of addressing the EAW problem is to address its root causes – namely to force those Member States whose criminal justice systems are deficient in these respects to improve the way they treat suspects and defendants. The UK government appears willing to participate partly in this agenda to ensure minimum standards of procedural safeguards to those who find themselves caught up in the criminal justice system (including victims) across the whole EU. To be sure, agreement on these issues across Europe is not easy, but it is a measure of the level of commitment to ensuring fairness and justice that efforts are made to secure appropriate safeguards and standards of protection in addition to securing speedy and effective prosecutions.

In any event, anyone who objects to the EAW on the grounds that it sometimes results in miscarriages of justice should hardly be among those calling for repeal of the Human Rights Act and the UK’s withdrawal from the ECHR, given that one of the main aims of both these measures is precisely to avoid miscarriages of justice. But in fact, the critics of the EAW are often also critics of the ECHR.

The second serious criticism of the EAW is its excessive scope, which enables it to be used in some cases that are trivial, or stale, or both. This causes a headache for UK law enforcement authorities, who must expend significant resource following up all warrants, including those for minor offences. This instrument was designed with serious crimes and organized criminality in mind and the absence of a proportionality requirement undermines this – although in practice a permissible ‘human rights’ requirement, which has been enshrined in UK legislation implementing the EAW, does mitigate the disproportionate impact.  It also worries those who speak for the interests of suspects and defendants.

This problem could be solved at EU level by amending the EAW legislation to include a proportionality requirement (which could be similar to the rules in the recently-adopted European Investigation Order). The European Parliament has also suggested that the EAW rules should incorporate such a rule (along with many other reforms). This issue could also be addressed by creating a workable system specifically for dealing with minor or so-called ‘disorganised’ criminality committed across borders.

Acknowledging that reform is needed, the Home Secretary has already acted upon her promise to pursue changes at the national level by amending the UK legislation implementing the EAW, the Extradition Act 2003, in order (among other things) to introduce rules on proportionality, to provide that a person will not be surrendered if he or she has not been charged, and to refuse to surrender persons if there are charges pending against them in the UK.

So, why then has the UK Government chosen to opt-back in to this measure? To put it simply, as a tool for law enforcement, the relevant UK authorities are convinced that it is, on balance, a good thing. The Association of Police Chief Officers has said that the EAW ‘gives us a stronger, more effective means of arresting dangerous criminals across borders and thus keeping our communities safe at home – it is not an instrument we can afford to lose.’ In fact the evidence amassed during the Protocol 36 parliamentary enquiries overwhelmingly supports retaining the EAW.

It is unlikely that the UK could continue to extradite suspects and criminals in the same way even if it opts-out of the EAW. Certainly it cannot be taken for granted that other Member States would be able to continue to send EAWs to the UK, or execute EAWs coming from the UK, as a matter of law – indeed their implementing legislation would preclude this if it refers only to the EU ‘mother’ legislation, and this would arguably be illegal as a matter of EU law. And any political will to change their arrangements might be stretched by the UK’s unilateral rejection of a previously unanimously agreed instrument, which, after all is supposed to be based on mutual trust.

In this event, extradition between the UK and other EU Member States would essentially fall back on traditional procedures agreed in 1957 under the auspices of the Council of Europe (a non-EU international organization that is most well known for the European Convention on Human Rights). Such procedures are discretion-based, follow a ‘request model’ and are subject to the ultimate control of the executive (making it a political rather than a legal matter). As compared to the EAW (as summarized above), these features combine to make it slow, costly and uncertain, potentially undermining public safety – an almost unthinkable backward step in the cross border pursuit of criminal justice.

It has sometimes been suggested that the UK could replace the EAW with an extradition deal with the entire EU, or with bilateral deals with individual Member States (see the suggestions on the Conservative Home website). While the EU has negotiated an extradition treaty with Norway and Iceland, this took years to negotiate and has not yet entered into force eight years after its signature. Furthermore, this treaty is nearly identical to the European Arrest Warrant. So this process is not efficient and would not free the UK from compliance with most of the EAW’s rules (which the critics of the EAW system dislike so much).

In any event, there is no time before the absolute deadline of 1 December for the UK to opt back in to the EAW to develop an alternative system. There is now little time even to draw up transitional rules which would govern the situation if the UK failed to opt back in on that date. In the absence of such transitional rules, there will be a doubtful legal basis for continuing to arrest, detain or surrender people who are sought by the UK in other Member States or vice versa as of that date.

More generally, having less stringent extradition laws in the UK than the rest of the EU would risk turning the UK into a sort of ‘Costa del Crime’, since criminals might be attracted to come here in light of the relative ease of not being extradited. Conversely, the rest of the EU would become a more attractive bolt-hole for anyone committing crimes in the UK, in particular those who flee to the state of their nationality and argue that they should no longer be extradited from that State (this was the common practice of continental Member States before the EAW was adopted).

It is certainly true that alarmist press coverage has fuelled a widely held belief that ‘Brussels’ is planning to impose on Europe a single, common uniform system of criminal justice. This quite simply is not the case in and furthermore, it cannot be the case under the existing legal framework – there is simply not the political appetite for this amongst the other 27 member state governments, who collectively and for the most part constitute ‘Brussels.’  Even the most potentially ‘intrusive’ EU criminal law measure – the creation of a European Public Prosecutor  - which is still at proposal stage, would only be able to investigate, prosecute and bring to justice those involved in offences against the Union’s own financial interests. The UK has opted out of this proposal, and any extension of its scope would be limited to ‘serious crime having a cross-border dimension’ and require the unanimous approval of all participating Member States and the European Parliament. 

Concluding remarks

The ‘in/out’ option that has emerged in domestic politics is crude and dangerous. The promise of a referendum along those lines by 2017 has seemingly set in train a period of frenzied, mis-leading and alarmist commentary. This intervention seeks to explain some of the basic legal facts and fiction around the UK’s position in relation to EU criminal law.

The Article 36 opt-out does not and cannot rid the UK of the entire EU criminal law agenda, even in the event that the UK Government chose not to exercise its right to seek to rejoin certain measures.  It cannot simply ‘walk away’ from EU criminal law. Any pre-Lisbon measures amended since 1 December 2009 and any new measures adopted since that date are not subject to the Protocol 36 opt-out. And the UK has already committed itself to many of these. This legal reality appears to have been misunderstood or ignored in much of the debate amongst those pushing for the exercise of the opt-out. The fact is that the Protocol 36 opt-out is less about repatriating powers from Brussels than about degrees of future participation in a system already in place. The UK is in a very privileged position in this sense and its ongoing willingness to engage in this agenda is to be welcomed in the interests of safety, security and justice for UK nationals, if nothing else.

The EAW is by no means perfect and reflection, review and reform should never be off the agenda. On balance we believe it to be a positive force and as such it is preferable to be ‘in’ it – with a chance to shape it – than ‘out’ of it. Much the same goes for the European Union itself.

Europe's leaders have recently reiterated their general commitment to accommodating different national positions on integration in the EU: ‘Our diversity is an asset, our unity brings strength. In our Union, different degrees of cooperation and integration exist.’ It would seem that there is a real future for even a typically skeptical United Kingdom in this very modern club of nations whose aims are to promote peace, the well-being of its peoples and its values of respect for human dignity, freedom, democracy, equality, respect for human rights and the rule of law.

Barnard & Peers: chapter 2, chapter 25

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