The 1st of December 2014 is indeed, as described by the European Commission, “the beginning of a new era for the whole field of Justice and Home Affairs”. It is important to recall that the Lisbon Treaty abolished the Maastricht Treaty pillar structure and the third pillar provisions on police and judicial cooperation in criminal matters were incorporated into the Treaty on the Functioning of the European Union. The so-called “third pillar” has now officially ended and as First Vice-President Frans Timmermans said “From December 1st, no more special status: all EU policies for police and criminal justice are “normal” EU policies.” In fact, Member States gave up part of their sovereignty over police and judicial cooperation in criminal matters, which since 2009 is no longer intergovernmental but subject to the Community method, consequently there is no veto power, and this is irreversible. The ordinary legislative procedure and qualified majority voting are the rule, and, accordingly, the secret trialogues and first reading deals have been extended to these matters, as well as the principles of Community law, created by the Court of Justice of the European Union (CJEU), such as supremacy of EU law, direct effect, indirect effect and state liability. From 1 December 2014 the new system is fully applicable. The CJEU has full jurisdiction to review and interpret measures on judicial cooperation in criminal matters and police cooperation.
The Protocol (No 36) on transitional provisions annexed to the Treaties covered the European Court of Justice’s jurisdiction and the European Commission competence over the so called ‘third pillar acts’ adopted before the entry into force of the Lisbon Treaty. In accordance to Article 10 of this Protocol, until 1 December 2014, these acts have been subject to the Court competences as provided for by Article 35 TEU, i.e jurisdiction to give preliminary rulings. The Commission had no powers to initiate infringement procedures against Member States in respect of any alleged failure to transpose or implement, in their national law, EU legislation in the field of police and judicial cooperation in criminal matters, within this period. However, the European Commission was already allowed to launch infringement procedures against member states as regards legislation adopted after the entry into force of the Lisbon Treaty likewise the CJEU had already full jurisdiction as regards legislation adopted before the Lisbon Treaty entry into force if such acts were amended during the transition period.
The CJEU has been the motor behind European integration and its function has been strengthened with the collapse of the pillar structure, which has enabled the Court to rule on almost all Treaty matters. It is important to recall that since the entry into force of the Amsterdam Treaty, and the insertion of Article 35 TEU (4), and despite its limited jurisdiction over criminal matters, the Court had handed down several judgments. Before the entry into force of the Lisbon Treaty the European Community had no powers, under the EC Treaty, to adopt criminal law measures nevertheless the CJEU gave to the European Community implied powers to harmonise criminal law matters. The CJEU held that the European Parliament and the Council had the power to adopt criminal law sanctions where it was necessary to facilitate the enforcement of EC law. The Court held in Pupino that Member States were required to interpret national law in conformity with community law in the area of police and judicial cooperation in criminal matters. This case is a clear example of a CJEU’s ruling expanding the reach and scope of European law with total disregard to national parliaments, which had not agreed to give such powers to the European Community. The European Court of Justice extended the powers of the European Community over the protection of the environment through criminal sanctions and applied the principle of conforming interpretation to framework decisions. The CJEU ruled in favour of further EU integration over these matters, overruling national governments, as it took away from them, for the first time, the exclusive right to draft criminal laws. Such judgments were the first indicators of the CJEU inclination towards a supranational competence over criminal matters.
By removing unanimity and by giving full jurisdiction to the Court of Justice over criminal matters, the EU has set its mind on harmonisation and further integration in this area. The European Commission had already showed its intention to put in place a EU Criminal Policy, and it has already taken several steps towards harmonisation of criminal law, which could affect the whole UK justice and criminal law system. In fact, we are moving towards a single criminal justice system across the EU that will be controlled by the CJEU. It remains to be seen how the court will adjudicate on its new area of competence. Yet one can say that the CJEU will use its new competence to further EU integration. The CJEU jurisprudence has been showing us that the Court most of the time rules in favour of the EU and further integration at expense of subsidiarity.
The UK has not been subject to the CJEU jurisdiction as regards existing measures on police and judicial cooperation for a five years period. Protocol 36 attached to the Treaty granted the UK the possibility of opting out of all EU police and criminal law measures, which had been adopted prior to the entry into force of the Lisbon Treaty and then opting back into the ones that it wishes to continue to apply. The transitional period began on 1 December 2009 and ended on 30 November 2014.
It is important to recall that the former third pillar acts, which have been amended or replaced by new legislative measures, adopted after the entry into force of the Lisbon Treaty as well as new EU police and criminal law measures, proposed after the entry into force of the Lisbon Treaty, were not included in the block opt-out. In fact, the UK has already opted in to several proposals replacing third pillar acts adopted before the Lisbon Treaty as well as to new criminal law measures put forward after the entry into force of the Lisbon Treaty. According to Theresa May “Since the Lisbon treaty came into effect, the UK has signed up to 90 new justice and home affairs measures, accepting the jurisdiction of the ECJ over them.” Consequently, the ECJ had already jurisdiction over these acts namely the victims of crime directive, the directive on trafficking in human beings, the European Investigation Order, Directive on combating the sexual abuse and sexual exploitation of children, the directive on attacks against information systems, and the regulation establishing the European Police College.
In July 2013 the UK has decided to exercise its ‘block opt out’ hence all the EU laws in the field of police and judicial cooperation in criminal matters, adopted before the Lisbon Treaty, which have not been amended since that Treaty came into force, has ceased to apply to the UK on 1 December 2014. However, it is important to note, that under Article 10 (5) of Protocol 36 the UK the UK may, at any time, after, its opt-out, notify the Council of its wish to participate in acts which have ceased to apply to it. In order to avoid a legal and operation gap, the Government has informally indicated its intention to opt back into several measures at the same time it notified the Council of the opt-out.
On 10 November the House of Commons voted on the draft Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014. The Government has promised a vote on whether to join the European Arrest Warrant however a vote was held on only 11 measures, excluding the EAW. The European Scrutiny, as well as the Home Affairs and Justice Committees called for the Government to give a genuine say and vote on the measures the UK should seek to rejoin. In fact, the ESC has also called upon the Government “to table a separate motion for each of the 35 measures it proposes to rejoin.” Nevertheless, the motion tabled by the Government had no relevance to the most contentious of the 35 measures namely the European Arrest Warrant and the UK participation in Europol and Eurojust. Bill Cash, and other 37 MPs, voted against the draft Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014, which was approved by 464. The House of Commons endorsed therefore the Government’s proposal to opt back into 35 EU police and criminal justice measures, including the EAW. As Bill Cash pointed out “We are conceding sovereignty over a significant area of criminal law to European institutions. The key role of interpretation will pass from the UK Supreme Court to the European Court of Justice.”
Following the Parliament vote, on 20 November, the Government formally notified to the Council and the European Commission of its intention to opt-back-in 35 measures, 29 non-Schengen measures and 6 Schengen measures. Under the treaties the UK’s formal notification of the acts in which it wishes to participate can only happen after the acts have ceased to apply as a result of the initial block opt out, which has taken effect on 1 December 2014. Thus on 1 December only 100 EU’s laws in the field of police and judicial cooperation in criminal matters have ceased to apply to the UK.
On 27 November the Council adopted a transitional decision maintaining the application of the 35 measures for 7 days as the Commission and Council decisions about the UK’s re-opt in 35 measures, which include chapters of the Schengen Convention on police and judicial cooperation in criminal matters and the Schengen Information System, the European Arrest Warrant, Europol and Eurojust, have only be taken and published on 1 December.
The negotiations between the UK, the European Commission and the Council began in March 2014. The Schengen Protocol governs the re-participation of the UK in Schengen matters, which is subject to the approval of the Council that decides on the request by the UK to participate in such acts by unanimity. The Commission has the responsibility to examine the requests to rejoin non-Schengen measures and it is allowed to impose conditions on the UK’s re-participation. The re-participation of the UK in those matters is subject to the approval of the Council, which will decide by QMV. The UK is not allowed to participate in the vote.
During the negotiations it became clear that the other member states, namely Spain, as well as the European Commission wanted the UK to opt back into more measures than the ones intended by the Government. The negotiations have not been as easier as the government expected with the Commission (non-Schengen measures) and the Council (Schengen measures). In order to be allowed to re-join the measures it wanted, the Government had to agree to opt back in some measures and commit to reconsider to join others. In fact, it is important to mention that according to Article 10 (5) “the Union institutions and the United Kingdom shall 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.” Thus, as the European Commission First Vice-President recalled, “the Commission’s objective has always remained to ensure the widest possible participation of all Member States in this body of Union policy.” In fact, he then stressed “This is why the Commission has made every effort, in close cooperation with the Council, to ensure that the United Kingdom will be able to continue participating in a number of key policy instruments.” The Commission particularly welcomed UK’s decision to rejoin the European Arrest Warrant.
After technically analyzing the list of acts that the Government sought to re-rejoin, the Commission, as well as the other member states, have concluded that in order to ensure the practical operability and the coherence of the package of acts subject to opt-back-in the UK should also opt in back to decisions relating to Europol as well as the Council Decision on the European Judicial Network. Moreover, during the negotiations in the Council on the non-Schengen measures, it was agreed that the opt-back-in list should also include the Schengen Information System II. The UK agreed to add all these measures to the opt-back-in list.
Moreover, the Commission called upon the UK to re-join the Prüm Decisions relating to cross-border cooperation in combating terrorism and cross-border crime and the Council framework Decision on probation. Some member states, particularly Spain, stressed the relevance of some of the acts that the UK has decided to opt in back to the Schengen acquis, consequently the European Commission as well as the Council have tried to find a solution aiming at the UK’s future participation on the Prüm Decisions and on the Probation Framework Decision. Theresa May said to the House of Commons “In September, two of those member states lifted their reserves and I am pleased to be able to inform the House that on Friday Spain, the one remaining member state blocking the deal, formally lifted its reservation in Brussels.” In fact, as The Financial Times pointed out, it seems that Spain has only agreed to lift its reservation after the UK’s commitment on the Prum Decisions.
The Government committed to reconsider the merits of re-joining the Prüm Decisions and the Framework Decision on probation. Last October, the UK presented a declaration to the minutes of the General Affairs Council meeting on its intentions regarding the Prum Decisions and the Probation Framework Decision and then such commitment was recorded in the minutes of the Council. The Government has agreed to undertake a full business and implementation case to assess the practical benefits of re-joining the Prüm Decisions in close consultation with all other Member States, Europol and Eurojust and to publish the results of that assessment in the UK Parliament by 30 September 2015. Moreover, the Government agreed that “if the business and implementation case shows practical benefits for the United Kingdom rejoining the Prüm Decisions, and following a vote in the UK Parliament, by 31st December 2015, make a decision as to whether the United Kingdom should apply to participate in the Prüm Decisions”. The government said that, in that case, it “will draft any domestic implementing legislation which would be required to give effect to the Prüm Decisions and include it in the Command Paper that is laid before the UK Parliament.”
The UK has also agreed, as reported by the financial times, to provide “ limited access to the UK’s DNA database” and “to handle up to 3,000 tests on its DNA database from other EU police forces next year, and will run samples from up to 10,000 unsolved crimes in the UK against databases in other EU countries.” The Government agreed to run “a pilot Prüm-style test of 10,000 unsolved UK crime samples (DNA) with the Member States which are applying Prüm and publishing the results of this as part of the business and implementation case.” It is important to recall that the Prum decisions created a network of databases where member states acquire automated access to each other’s national databases. It created a “hit/no hit” system to allow Member States to access data from other Member States’ national DNA analysis files and automatic dactyloscopic identification systems. The exchange of information related to personal data such as DNA records and fingerprints is based on the ‘principle of availability’. Consequently, if Britain decides to rejoin it would be required to ensure the availability of reference data from its national DNA analysis files to the law enforcement authorities of the other EU Member States. The EU legislation entails lower accuracy and standards for DNA checks than in the UK. Under the terms of the Council decision any DNA profile must have six loci, which is what permits genetic profiles to be shared whereas in the UK at least 10 loci must match. Hence, there are concerns that innocent people might be wrongly identified as a match, being then linked to a crime committed in another member state and having their details passed on to foreign police authorities. It should be borne in mind that the UK DNA database includes profiles from all convicted offenders, including those who have been charged with minor crimes and of people who have never even been charged with a crime, while in the majority of the EU’s Member States they are kept just for serious crimes.
On the 26 of September the European Commission put forward proposals on consequential and transitional arrangements and on financial consequences, which have given legal effect to the UK’s commitment on assessing the benefits of re-joining the Prüm Decisions. The Council has recently adopted these decisions by QM, but the UK did not participate in the vote.
The Decision determining certain consequential and transitional arrangements concerning the cessation of the participation of the United Kingdom of Great Britain and Northern Ireland in certain acts of the Union in the field of police cooperation and judicial cooperation in criminal matters adopted before the entry into force of the Treaty of Lisbon, which sets up the steps that the UK is required to follow in conducting its so called “business case” study on the Prum decisions, with a view to decide on possibly re-joining these decisions early 2016. It provides that “Within 10 days of the date of entry into force of this Decision at the latest the United Kingdom shall begin to undertake a full business and implementation case to assess the merits and practical benefits of the United Kingdom re-joining Decisions 2008/615/JHA and 2008/616/JHA and Framework Decision 2009/905/JHA and the necessary steps for it to do so.” It also states that the UK “shall do so in close consultation with operational partners in the United Kingdom, all other Member States, the Commission, Europol and Eurojust.” The proposal also provides that “By 30 September 2015 at the latest the United Kingdom shall publish the results of that business and implementation case” Then it says ” If the business and implementation case is positive, the United Kingdom shall decide by 31 December 2015, whether to notify the Council of its wish to participate in the Prüm Decisions in accordance with Article 10(5) of Protocol (No 36) on transitional provisions. The notification shall be made within four weeks from 31 December 2015.”
Under the Council decision determining certain direct financial consequences incurred as a result of the cessation of the participation of the United Kingdom of Great Britain and Northern Ireland in certain acts of the Union in the field of police cooperation and judicial cooperation in criminal matters adopted before the entry into force of the Treaty of Lisbon if the UK does not respect the deadlines for conducting the above-mentioned study or decides not to rejoin the Prüm Decisions by 31st December 2015, it would have to repaid approximately €1.5m funds received from the EU budget for the purpose of implementing such decisions, as the direct financial consequence incurred as a result of the cessation of its participation in these Decisions.
Then, as expected, on 1 December, the Council and the European Commission formally adopted their decisions concerning the UK’s notification of its intention to take part in some of the provisions of the Schengen acquis and in acts of the Union in the field of police cooperation and judicial cooperation in criminal matters adopted before the entry into force of the Treaty of Lisbon and which are not part of the Schengen acquis, respectively. The UK has rejoined 29 measures in the field of police cooperation and judicial cooperation in criminal matters adopted before the entry into force of the Treaty of Lisbon and which are not part of the Schengen acquis. It is important to note that these measures not only concern cross-border cooperation but also interfere with national cases and require changes to national legislation. In fact, when jurisdiction is given to the EU through an opt-in, it applies not just to cross-border crime but it brings all UK’s criminal law within the jurisdiction of the CJEU.
It is important to recall that the EU has competence, under Article 82 (1) (a) TFEU, to introduce measures laying down rules and procedures for ensuring recognition, in all member states, of all forms of judgments and judicial decisions, which prevents any judgment from the courts of another EU member state from being challenged in the UK courts. The European Investigation Order was adopted under this legal basis. The Government was successful in introducing important changes to the original proposal, which have improved its content. Yet such amendments were not enough to justify its decision to opt into the proposal. The Government has considered as essential the requirement for “full dual criminality” but it was unable to introduce it in the final draft. The UK authorities will be obliged to provide information about British citizens including bank accounts, as any judicial authority from any EU member state may ask the UK police to gather any criminal evidence. The EIO provides police and prosecution authorities from EU member states with the power to demand UK police forces to gather and share evidence with them within mandatory time limits. Consequently, police resources would be spend on such requests, which the UK would not be able to refuse. The Government, by deciding to opt into this EU measure, has accepted to change national practice and procedures, which amounts to a loss of sovereignty and will unreasonably burden the police. Moreover, as the UK is subject to the Commission enforcement powers and to the CJEU jurisdiction, it can be taken before the CJEU for failure to transpose or to implement, or failure to implement correctly or in due time the directive. Furthermore, the provisions of the Directive on the European investigation order in criminal matters are subject to the CJEU purposive interpretation, through the preliminary reference procedure, which might change the content, reach and impact of the EIO and the way it applies in the UK.
Member States have different legal traditions and different legal systems with different types and stages of proceedings but since the entry into force of the Lisbon Treaty the EU has competence to adopt measures concerning criminal proceedings. These so-called minimum rules apply not only to cases with cross border implications but also to purely domestic situations. The EU’s directives have an impact on the structure of criminal proceedings as defined by each member state’s national laws, particularly in the UK, as the Commission has so far disregarded the common law system. This raises concerns over limitation of the right to trial by jury and habeas corpus. Yet, there is no veto but an “emergency brake”.
It is important to note that the EAW offers no guarantee that all member states equally respect the basic rights of people facing extradition hence there is always the risk of UK citizens being prosecuted in another member state which offers less procedural rights than the UK. As Glyn Gaskarth said in a report for Civitas, EU Renegotiation: Fighting for a Flexible Union, the European Arrest Warrant could be a precursor to a European Justice System as “the differences exposed between the different justice systems in the EU countries create a demand for a harmonised EU justice system that imposes the same standards in developing eastern European nations as in the UK.” The EU measures may enhance the rights of suspects and accused persons. However, to foster mutual trust and to improve these rights, the EU just have one solution – harmonisation. The mutual recognition measures are not intended to enable the Member States’ diverse legal systems to continue to work cooperatively while maintaining their diversity, they are indented to coordinate and govern their legal systems.
The measures announced in the roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings which, in fact, most of them have already been adopted and entered into force, were the first step towards the harmonisation of criminal procedural law. The UK opted into the Directive on the right to interpretation and translation in the framework of criminal proceedings and Directive on the right to information in criminal proceedings, ceding jurisdiction in this area to the European Court of Justice.
The Member States are best placed to decide what should be criminalised. The power to determine criminal liability and to impose criminal penalties is a sovereign power, which should be kept. Yet, the EU has also competence to define certain criminal offences and set minimum sentences for those found guilty of them, which is likely to override UK criminal laws and sentencing policies. Under Article 83 TFEU, the European Parliament together with the Council, acting by QMV, thorough the ordinary legislative procedure, may adopt directives establishing “minimum rules” concerning the definition of “criminal offences and sanctions” in several areas of crime, which are very broad allowing, in this way, the EU to regulate offences without a cross border dimension. Furthermore, such list is not exhaustive as the Council, acting unanimously, after obtaining the consent of the European Parliament, “may adopt a decision identifying other areas of crime…” Such measures are likely to affect fundamental issues of sovereignty; it is therefore vital that the UK does not opt into any proposal based on this provision.
The Lisbon Treaty has confirmed and expanded the CJEU rulings as it allows the EU to adopt rules on criminal law regarding definitions of criminal offences and sanctions, if EU rules are not effectively enforced. The EU can, therefore, use criminal law to strengthen the enforcement of EU policies. Member States are required to ensure that breaches of EU law are sanctioned with effective, proportionate and dissuasive penalties, but they have been able to decide on the EU policies enforcement instruments, and to choose between criminal law and administrative law, however under future EU legislation this choice would no longer be possible. Progressively, national legislations would have to provide for the types and levels of sanctions that the EU considers necessary to enforce EU policies.
It is important to note that the EU has already adopted, and the Commission is planning to put forward further proposals, on the definition of criminal offences and sanctions to ensure EU policies, such as road transport, data protection, customs rules, environmental protection, fisheries policy and internal market policies, are effectively implemented and properly enforced. In these cases national legislation would have to provide for the types and levels of sanctions that Brussels considers necessary to enforce EU policies. It should be mentioned that the UK’s opt out does not cover substantive criminal law measures as the legal basis used might not be Article 83 (2) TFEU but the legal basis concerning the policy in question, which is out of the Protocol 21. Ultimately, it would be for the CJEU to decide on the appropriateness of a legal basis and whether it may trigger Protocol 21, and it will do so with the objective of the uniform application and effectiveness of EU law. Article 83 (3) provides for an emergency break on draft directives establishing minimum rules with regard to the definition of criminal offences and sanctions to ensure the implementation of a Union policy. But, an emergency break does not work as a veto and it might not prevent a measure to be adopted. Moreover, the emergency break does not apply to measures on a different legal basis.
It is important to recall that the European Court of Justice held, last May, the Directive on cross-border exchange of information on road safety related traffic offences was adopted on the wrong legal basis and decided to annul it. This ruling has overturned the UK opt out, consequently the Government is being forced to accept the European Commission proposal replacing the annulled directive. The Commission put forward the same proposal with the exception of the legal base, which is now Article 91(1)(c) TFEU (transport policy), and no longer provides for the non-application of the Directive to the UK. All Member States, with the exception of the UK, Ireland and Denmark, have agreed to the measure and have already started transposing the directive, consequently the legislative procedure has been speed up, and the Council has already reached a general approach, the UK abstained on it. The other Member States were not willing to change the new proposal. The Government was unable to achieve postponement of the Council decision on a general approach but it was able to secure a two-year period for transposition, until May 2017, as the other Member States had originally. The European Parliament and Council are likely to reach an early agreement. The Government decided to opt out from the original proposal because it was not in the UK interests to take part, as it puts disproportionate burdens on Member States enforcement, driver licensing and vehicle registration authorities. The new proposal, as the previous one, allows law enforcement agencies, from the other member states, to have access to data relating to British’s vehicles and drivers and it would entail undue burdens for the Driver and Vehicle Licensing Agency (DVLA) and UK police forces. But, without the opt out, there is not much the Government can do to prevent its application in the UK, due to the ordinary legislative procedure and QMV, the Government has no choice but to accept this EU measure against the national interest. This clearly shows that the European Scrutiny’s recommendation for a unilateral veto should be introduced as soon as possible.
Under Protocol (No 21) the UK has indeed the right to choose whether to take part in judicial and police cooperation in criminal matters. The Lisbon Treaty has introduced a provision whereby the UK can opt out from amendments to an existing measure to which it has already opted in. However, if the Council, acting on a proposal from the Commission, determines that the non participation of the UK in the amending version of an existing measure makes the application of that measure inoperable for other Member States or the Union, it may urge the UK to take part in the adoption and application of the proposal. The Council will make such determination acting by QMV without the UK participation. Moreover, the Council acting by QMV may determine that the UK shall bear the direct financial consequences incurred as a result of the cessation of its participation in the existing measure. This can act/ have acted as an incentive to the Government to opt in, which might be under pressure to participate. However any risk of losing a benefit of an existing measure, by choosing not to participate in its amendment, or any financial risk, to which the UK should not have been exposed in the first place, would be overcome by getting rid of an existing obligation. If the UK decides not to op into to a proposal amending an existing measure, this measure will not be bidding or applicable to it.
It is important to stress that an opt out does not work as a veto but it allows the UK to decide whether to be bound by a particular measure. However, by deciding to opt into an EU draft proposal, and being subject to qualified majority voting and the ordinary legislative procedure, the Government might no longer be able to avoid being bound by that measure, even if it is against its will, and this is the main issue. The UK is required to decide whether it wants to take part in the adoption and application of a measure in the field of police and criminal justice within three months after that proposal has been presented. The government may try to influence the negotiations over these measures, and seek to amend draft proposals but there is no guarantee that this can be achieved. The UK might not be able to prevent disadvantageous amendments that the European Parliament or other member states might try to introduce to the proposal during the negotiations. On the other hand, the UK is not always able to form political alliances to stop damaging legislation, or to introduce changes, particularly if there is an earlier agreement and a compromise deal is reached between the Council and the European Parliament. Once it has decided to opt-in the Government cannot revoke its decision even if the outcome of the negotiations is not acceptable and the final text is disadvantageous to the UK. The Government has in some cases the so-called ‘emergency brake’ but just on draft directives establishing minimum rules on criminal proceedings and draft directives establishing minimum rules with regard to the definition of criminal offences and sanctions to ensure the implementation of a Union policy, whereby a member state that considers that a draft directive would affect fundamental aspects of its criminal justice system, may request the draft to be referred to the European Council and the ordinary legislative procedure will be temporarily suspended. In these cases the European Council would decide by consensus, but this does not mean that the UK has agreed to it.
Once a proposal is adopted, the UK is required, under the European Communities Act 1972, to transpose and implement the EU measure, in fact due to the primacy of European law over national law, it is not allowed to legislate against such measure. Hence, it loses protection every time it decides to opt in, as it transfers jurisdiction from the UK courts to the CJEU, jeopardising, in this way, vital aspects of UK’s criminal law and procedures. The European Court of Justice can override British courts. In fact, the European Court of Justice and UK Courts might strike down Acts of Parliament that are passed according to voters’ democratic wishes. It is important to recall that the CJEU by extending the Community law principle of “conforming interpretation” to Framework Decisions in Pupino has overridden the wishes of Westminster Parliament. The House of Lords held in Dabas and in Calderelli that Pupino was biding in UK courts consequently it was required to interpret the Extradition Act 2003 in the light of the European Arrest Warrant Framework Decision. It is important to mention that the House of Lords by applying the Pupino principle in Dabas overruled the 2003 Act requirement for an EAW to be accompanied by a separate certificate, which is not provided by the EAW Framework Decision. This therefore demonstrates that EU legislation jeopardises British citizens rights, as Lord Hope noted Parliament had inserted that requirement to be used as “protection against carelessly issued EAWs”. But, it is important to note, that the House of Lords disregarded the fact that the measures agreed under Title VI of the TEU were not given effect under Section 2 of the European Communities Act hence the CJEU’s decisions concerning measures adopted under this title did not bind the UK courts. Nevertheless, this has only been confirmed in May 2012 by the Supreme Court in Assange, which clearly demonstrates that the UK courts should be restrained from having opportunities of interpreting EU law and applying the CJEU’s rulings that override national rules. Nonetheless, since 1 December 2014 the legal position set in Assange no longer applies. The UK has opted in back to former third pillar measures, such as the EAW, and, consequently, is subject to the CJEU jurisdiction, and the European Commission enforcement powers.
The power to determine criminal liability and to impose criminal penalties is a sovereign power, which should be retained by the UK. EU’s proposals are put forward in complete disregard of the member states different legal systems, particularly the common law system. In fact, they are likely to undermine the UK common law traditions and values and its rule of law, particularly now that all these measures are justiciable in the CJEU. The CJEU has been deeply interfering with the UK legal system, overriding national rules as regards a wide range of EU policies and legislation, which will get worse now that the CJEU has full jurisdiction over measures in the field of police and judicial cooperation in criminal matters. The UK loses protection every time it decides to opt in, transferring jurisdiction from the UK courts to the CJEU, jeopardising, in this way, important aspects of UK criminal law and procedures. The Commission can bring infringement procedures against the UK for failure to transpose and/or implement correctly or in due time criminal law legislation. The CJEU has full jurisdiction to give preliminary rulings on interpretation and validity of measures on judicial cooperation in criminal matters and police cooperation as well as to review the legality of member states acts adopted in this area of law. This would adversely affect the UK national interest, as the CJEU’s interpretations are likely to change the content, reach and impact of measures and the way they apply in the UK. The UK Courts would be bound by the CJEU rulings and interpretations of Union law in this sensitive area. The European Court of Justice will have the last word on how legally binding EU police and criminal justice measures are interpreted and applied. The CJEU has the power to impose financial penalties on Member States, which fail to comply with a previous Court’s judgment. Hence, if the UK fails to comply with a Court’s judgment, meaning amending national legislation, it might face fines. The jurisdiction of the Court of Justice over criminal law will seek to uniformize member states legal systems, undermining the UK’s distinctive and well-established legal system.
It was therefore vital to protect British national interests that the Government had decided to opt out from all third pillar measures adopted before the Lisbon Treaty, which have not yet been amended or repealed, as they would no longer apply to the UK as of 1 December 2014. However, the Government has taken a huge risk opting back 35 measures, including the EAW, surrendering sovereignty to the CJEU. The Government should stop opting into these measures and repatriate all the powers, including measures not covered by the block opt out. This is a policy area that must be decided by the Westminster Parliament not by the EU. By deciding to opt in the Government gives in Parliament sovereign power to legislate over these matters, surrendering control over police and criminal justice to the EU institutions. The UK parliament and UK courts will cease to be the ultimate source of law. Under Section 2(4) and 3(1) of the European Communities Act 1972 the UK’s courts are required to override national legislation deemed incompatible with EU law, as well as to set aside national legislation in order to comply with the CJEU’s interpretations.
The benefits of participating in police and judicial cooperation in criminal matters must be set against the risks associated with the undemocratic EU decision making process, including QMV and the ordinary legislative procedure, whereby the UK might be forced to accept EU measures against its will. The ordinary legislative procedure, QMV, the European Commission powers and the CJEU jurisdiction are substantive reasons for not opting into any measure, regardless of any benefit it might have, which cannot justify the lost of sovereignty.
The UK should not participate in any of these matters and submit itself to the jurisdiction of the European Court of Justice as this would be irreversible, unless the UK, unilaterally, decides to repeal and disapply EU legislation notwithstanding the European Communities Act 1972. The Government should introduce therefore primary legislation, as recommended by the European Scrutiny Committee, to disapply EU legislation notwithstanding the ECA 1972. It is important to recall that on 29 November 2013 Bill Cash presented a Bill, which implemented the European Scrutiny Committee’s proposals – the United Kingdom Parliament (Sovereignty) Bill, reaffirming the supremacy of the sovereignty of Parliament. On 3 December 2014 Bill Cash presented – The United Kingdom Sovereignty and Jurisdiction over Borders Bill, which also provides for disapplication of EU law and introduces a unilateral veto, ensuring that all EU proposals that are adopted despite the Government opposition “shall not form part of the law applicable in any part of the United Kingdom”. Bill Cash’s Parliamentary Sovereignty Bill is a fundamental instrument to protect British national interests, it provides where necessary for the overriding of the European Communities Act. The facility to use Parliament’s sovereign power to amend or repeal EU legislation is essential to the UK’s national interest.
David Green has also stressed in his book, The Demise of the Free State Why British Democracy and The EU Don’t Mix that “Above all, we need to restore parliamentary sovereignty, which means we should restore the authority of the majority of the British people acting through Parliament.” In fact, he also recommended e should make explicit the primacy of Parliament by amending the 1972 European Communities Act and declaring our own Supreme Court to be a higher authority than any other court” consequently, “laws passed by Parliament would be superior to any EU laws.”
The UK must regain the right to legislate for and govern the British people through the authority of the Westminster Parliament. It can secure access to police and judicial co-operation in criminal matters without having to be absorbed by the EU and subject to the CJEU jurisdiction, as it does not need the EU to engage in international co-operation to tackle cross-border crime. The UK could sign up international agreements with other member states on different issues where it considers necessary.
