Report Influence

  • Open Europe’s proposals won the backing of over 100 Conservative MPs who called on the Government to exercise the UK’s block opt-out from EU police and criminal justice law in February 2012.
  • Open Europe recommended that this crucial decision could not be put off until 2014 as initially suggested by the UK Government, as it would not be politically or practically tenable. Open Europe recommended a thorough and open debate start sooner rather than later.
  • In July 2013, the UK Government announced it would take the opt-out.
National level 81%
EU level 8%
Don't know 11%

Should decisions on police and criminal justice laws be taken at the national level or the EU level?

A huge majority of Britons (81%) said they want to see decisions on crime and policing taken at the national level when polled in 2012. Open Europe argued that the UK should negotiate to return to bilateral or intergovernmental cooperation with other EU member states in this area - a proposal that became UK government policy in 2013.Source: YouGov for Open Europe.

29 January 2012

What is the JHA ‘block opt-out’ and why is it so important?

The UK Government must decide during this Parliament whether to repatriate 130 EU crime and policing laws (through the JHA block opt out), or whether to transfer full control over these laws to EU judges for the first time. It is a clear choice between more or less EU control over the British justice system – a choice between repatriation or more Europe.

Owing to a constitutional quirk in the Lisbon Treaty, the UK has the option of using a ‘block opt-out’ to repatriate EU crime and policing laws adopted before the Lisbon Treaty came into force. If the UK does not opt out, it must accept the European Court of Justice’s (ECJ) full powers of jurisdiction over these laws from December 2014. This would, for example, give EU judges the final say over the mechanisms for extraditing British citizens to other member states, on the basis of a case brought against the UK by the European Commission.

The list of laws subject to the block opt-out includes major measures such as the European Arrest Warrant, those establishing the EU’s judicial and policing agencies Eurojust and Europol, and databases to share criminal records and DNA between member states. The UK’s right to opt out does not apply to EU legislation on asylum, immigration or civil law where the ECJ already has control. Ultimately, the decision over the 2014 block opt-out is a matter of balancing expediency against national control and democracy.

What are the arguments for opting out?

However, the risks of accepting the power of the EU institutions over these laws outweigh the downsides of using the block opt-out for several reasons:

  • The ECJ has a record of interpreting EU laws in a way in which national governments do not expect or agree with. Accepting ECJ jurisdiction is therefore a gamble that could backfire on the UK’s justice system.
  • There are various international agreements in place outside the EU’s legal framework, mostly Council of Europe conventions, including one on extradition, which the UK could continue to use should it cease to apply EU crime and policing law post-2014. Although they do not cover all areas, and are often more cumbersome than the EU measures, the fact that the UK has a fall-back option means there is no need to ‘rush in’.
  • Most importantly, if the UK uses the block opt-out, the rules would allow it to opt back in to individual EU laws that it felt were vital on a case-by-case basis after 2014. However, under EU law as it currently stands, the UK could not opt back out again and the ECJ would have full jurisdiction over the law concerned.

How should the UK cooperate with the EU in policing and criminal justice?

Open Europe recommends that the Government should invoke the 2014 block opt-out, which would allow it to consider the following options post-2014:

  • Remain outside the EU crime and policing laws it has opted out of.
  • Opt back in to selected EU laws of particular importance, which would need the approval of the EU institutions and mean accepting the
  • ECJ’s powers over the laws it opts back into. Or, seek to negotiate a new arrangement (a variant of Denmark’s position) whereby the UK could cooperate with other EU member states on crime and policing, but would do so outside the EU legal framework and therefore without the jurisdiction of the ECJ.

As much as the Government would like to put this crucial decision off until 2014, this is neither politically nor practically tenable. The Government has said it will give Parliament a vote on the 2014 block opt-out.

However, the body of law to which the 2014 block opt-out applies is reduced every time the UK opts in to a new EU law which either amends, repeals or replaces an existing pre-Lisbon measure. To date, the Government has chosen to opt in on every occasion it has had to take such a decision and has not required Parliament’s approval. This is therefore not a choice for the distant future, but an issue of urgent legal, political and democratic importance.

A thorough and open debate must now begin in order to inject greater democratic accountability into this crucial decision. However, opting out sooner rather than later would give the Government a greater chance of securing the best possible deal for the UK for the future.

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