The enactment of criminal law has traditionally been the domain of
sovereign legislatures. However, the Lisbon Treaty has given the EU
competence to legislate in this area, by abolishing the pillar structure
and moving third pillar matters (police and judicial cooperation in
criminal matters) to the Treaty on the Functioning of the European
Union. Hence, decision making on police and judicial cooperation in
criminal matters is no longer intergovernmental but it is subject to the
Community method. Consequently, the ordinary legislative procedure and
qualified majority voting are the rule, and, therefore, the secret
trialogues and first reading deals have been extended to police and
judicial cooperation on criminal matters as well as the principles of
Community law, created by the ECJ, such as supremacy, direct effect,
indirect effect and state liability. The ECJ does not have just the
power to give preliminary rulings on interpretation and validity of EU
laws, but it has full jurisdiction over acts adopted in the areas of
police cooperation and judicial cooperation for criminal matters,
likewise the European Commission has acquired powers to launch
infringement proceedings against Member States.

In accordance with the Protocol (No 21) on the Position of the United Kingdom and Ireland in Respect of the Area of Freedom, Security and Justice,
the UK has the right to choose whether to take part in EU’s legislation
in the field of police and judicial cooperation in criminal matters.
However, once it has decided to opt-in there is no right to opt-out even
if the outcome of the negotiations is not acceptable. Moreover, once
opting in, the UK would be subject to the Commission enforcement powers
and to the ECJ jurisdiction.

The Protocol (No 36) on transitional provisions annexed to the
Treaties covers the Court’s jurisdiction and Commission competence over
the so called third pillar acts, adopted before the entry into
force of the Lisbon Treaty. It is important to recall that under former
Article 35 TEU, the ECJ has jurisdiction to give preliminary rulings on
interpretation and validity of measures adopted under Title VI (police
and judicial cooperation in criminal matters) but only to the courts of a
Member State that has expressly accepted such jurisdiction, and the UK
has not accepted it. In accordance to Article 10 of this Protocol, the
limited Court jurisdiction over police and judicial cooperation in
criminal matters has been retained, for existing measures, for five
years after the Lisbon Treaty entry into force. Hence, until 1 December
2014 the ECJ only has jurisdiction to give preliminary rulings on
interpretation and validity of third pillar acts adopted before the
entry into force of the Lisbon Treaty as regards references from member
states’ courts that accepted such jurisdiction. Thus, the Court has no
jurisdiction over infringement procedures brought by the Commission
against Member States concerning these measures. This temporary rule
will expire on 1 December 2014, nevertheless it will cease to apply as
regards third pillar acts, which have been amended before that
date.
The Commission has no powers to initiate infringement procedures against
Member States concerning the implementation, in their national law, of
EU legislation in the field of police and judicial cooperation in
criminal matters, within this period. However, it is important to
clarify that the European Commission is allowed to launch infringement
procedures against member states as regards legislation adopted after
the Lisbon Treaty has entered into force likewise the ECJ has full
jurisdiction as regards legislation adopted before the Lisbon Treaty, if
such acts are amended during the five years transition period.

The UK is not subject to the ECJ jurisdiction as regards existing
measures on police and judicial cooperation for a five years period.
The above-mentioned Protocol granted to the UK the possibility to
opt-out of all EU police and criminal law measures, which had been
adopted prior to the entry into force of the Lisbon Treaty. But, the UK
will have to decide whether it accepts the Court’s jurisdiction on such
measures or opts out entirely from them. The UK has to notify the
Council, (at the latest 6 months before the expiring of the transitional
period) that it does not accept the Commission and ECJ’s powers over
existing EU measures, which have not been amended under the Lisbon
Treaty. In this case, all third pillar legislation, which has not been
amended, will cease to apply to the UK as from the date of expiry of the
transitional period.

It is important to note that it is the
Council that will decide on transitional arrangements. The Council,
acting by QMV, on a proposal from the Commission, may determine “the necessary consequential and transitional arrangements” but the UK is excluded from the adoption of such decision. Moreover, the Council acting by QMV “may
also adopt a decision determining that the United Kingdom shall bear
the direct financial consequences, if any, necessarily and unavoidably
incurred as a result of the cessation of its participation in those
acts.”

The transitional period began on 1 December 2009 and will
end on 30 November 2014. The UK Government must take a decision on the
block opt-out by 1 June 2014, although it would only take effect as from
1 December 2014. The UK has therefore to choose whether to accept the
application of the Commission's infringement powers and jurisdiction of
the ECJ over these laws or to opt out of them entirely, in which case
they will cease to apply to it. Hence, all the EU laws in the field of
police and judicial cooperation in criminal matters, adopted before the
Lisbon Treaty, which has not been amended since that Treaty came into
force, would no longer apply to the UK as of 1 December 2014.

However, if the UK does not exercise its block opt out,
it will continue to be bound by such measures, and there is no other
possibility to opt out of them again, and then it would be subject to
the enforcement powers of the European Commission and to the ECJ
jurisdiction, which would have a significant impact on national
sovereignty. It is therefore essential that the Government decide to opt
out from all those measures as in this way they would no longer apply
to the UK.

It has been reported that David Cameron will announce next month
the Government decision as regards these measures in the field of police
and judicial cooperation in criminal matters. It is important to
mention that, in a recent interview, David Cameron indicated that the UK
would exercise the block opt-out.

It is important to note that the UK has been granted the possibility of opting out of all of these former third pillar  acts
and then opting back into the ones that it wishes to continue to apply.
The UK may, at any time, after December 2014, notify the Council of its
wish to opting back into those third pillar acts which have
ceased to apply to it. The Provisions of the Schengen Protocol or of the
Protocol on the position of the United Kingdom and Ireland in respect
of the area of Freedom, Security and Justice would apply which, in fact,
provide tougher conditions to the UK. The re-participation of the UK
in those matters is subject to the unanimous approval of the Council, if
the measure in question concerns the Schengen acquis, if not the
Commission would set the conditions and decide whether to approve the UK
request. However, in this case, the UK will have to accept the Court’s
full jurisdiction and the Commission enforcement powers, and it would no
longer be able to opt out of these measures again. Hence, the UK shall
not opt back into these laws, as such decision would be irreversible.
Nevertheless, David Cameron is planning to opt back into the
above-mentioned measures on a case-by-case basis. It would be a major
issue to the coalition government to decide which laws should the UK opt
back in, particularly the European Arrest warrant, as Nick Clegg wants
to keep it.

It is important to note that if the Government exercises the block opt out
but then decides to opt in to most of the EU legislation in the field
of police and judicial cooperation in criminal matters this would make
the block opt out almost irrelevant. It is important to recall that the Conservative party has pledged to negotiate a “mandate to negotiate the return of criminal justice powers from the EU to the UK.” However, the Coalition Government came along, and the pledge “to bring back key powers over legal rights” and “criminal justice” has been abandoned, as it was agreed to “approach forthcoming legislation in the area of criminal justice on a case by case basis.” In fact, the liberal democrats are wiling to opt into the majority of these measures.

The Protocol (No 21) on the Position of the United Kingdom and
Ireland in Respect of the Area of Freedom, Security and Justice also
applies to measures under Title IV of the TFEU, which amend an existing
measure by which the UK is bound. As above-mentioned, the UK may opt out
from proposals amending this legislation. It is important to note, 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. If the UK, after two months of
the Council determination, has decided not to participate in the
amended proposal, the existing measure will not be bidding or applicable
to it. 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.

It
is important to stress that once opted into a draft measure the UK
cannot revoke its decision if the final text is disadvantageous to it.
Moreover, since these measures are adopted through the ordinary
legislative procedure and by QMV in the Council, the UK would 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, if the UK decides not to op into
such proposals, the existing measures would no longer apply to the UK.
This could have been a good opportunity for the Government to get rid of
burdensome regulations. However, the Coalition Government has already
opted into a considerable number of legislation in this area.

It is important to stress that the block opt-out just applies to
EU’s laws in the field of police and judicial cooperation in criminal
matters adopted before the Lisbon Treaty entry into force and that have
not been amended since this Treaty has entered into force. The former
third pillar acts, which have been amended, repealed or replaced by new
legislative measures, adopted after the entry into force of the Lisbon
Treaty, are not included in the block opt-out. If the UK decides to opt
out from an act amending this legislation adopted before the Lisbon
Treaty, such measures would no longer apply to the UK as from the date
of expiry of the transitional period. In the other hand if the UK
decides to opt into an amending act during this five-year transition
period it would be subject to the ECJ jurisdiction.

It has been reported that there are over 130 third pillar acts to which the block opt out applies. Nevertheless, there are several laws, which have already been removed, and others likely to be removed from the block opt out,
as the UK has already decided to participate in EU legislative
proposals that amend the above-mentioned acts. In fact, it is important
to note that the UK has already opted in to several proposals replacing
the so-called third pillar acts. The European Investigation Order would
repeal and replace the Framework Decision on the European Evidence Warrant,
however the Government has decided to opt in, consequently it is not
included in the UK’s block opt out. The Government has also decided to
opt into the draft Directive on attacks against information systems and repealing Council Framework Decision 2005/222/JHA,
and will be bound by it. These proposals require the UK to change
existing criminal law. These are irreversible decisions, as the UK is
not allowed to opt out from EU policing and criminal justice laws that
it had previously decided to opt in. It is, therefore, difficult to
understand why should the Government decide to opt into measures subject
to QMV and to the ordinary legislative procedure, that then would not
be able to opt out, regardless the outcome of negotiations, and on top
of that, once such measures are adopted the UK is subject to the
Commission enforcement powers and to the ECJ jurisdiction.

There is a Declaration on Article 10 of the Protocol on transitional provisions which states “The
Conference invites the European Parliament, the Council and the
Commission, within their respective powers, to seek to adopt, in
appropriate cases and as far as possible within the five-year period
referred to in Article 10(3) of the Protocol on transitional provisions,
legal acts amending or replacing the acts referred to in Article 10(1)
of that Protocol.” Hence, it is very likely that most of these acts
would be replaced or amended before June 2014, as there is, usually, an
effort by all EU institutions to agree most legislative proposals
before each European Parliament election, and the next election will
take place in June 2014. Unsurprisingly, the European Commission, the
European Parliament as well as the Council, are keen to amend or replace
former third pillar acquis. Not all the third pillar measures
would be amended, replaced or repealed by the end of the transitional
period. Obviously, the proposals amending third pillar acts
presently being negotiated and the proposals that the Commission is
planning to put forward would be removed from the block opt out if the
UK decides to opt in. It remains to be seen whether the Government will
decide to opt into upcoming proposals replacing third pillar acts. It is
important to note that if the UK has already opt into these measures
the UK’s decision to exercise the block opt-out would have no
significant impact, as the UK would be bound by the amended measure.

It is important to recall that judicial cooperation in criminal
matters covers the approximation of laws and regulations of the Member
States concerning criminal proceedings and the definition of criminal
offences and sanctions. Since the entry into force of the Lisbon Treaty
the EU has competence to adopt measures concerning criminal proceedings,
subject to QMV and to the ordinary legislative procedure. It is
provided that the adoption of minimum rules, “shall take into account the differences between the legal traditions and systems of the Member States.”
However, the Commission puts forward proposals in complete disregard of
the different legal systems within the EU, particularly the UK common
law system. These so-called minimum rules apply to cases with cross
border implications but they also affect pure national cases. The EU has
also competence to define certain criminal offences and set minimum
sentences for those found guilty of them, overriding UK criminal laws
and sentencing policies. 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 areas such as
terrorism, illicit drug trafficking, organised crime, trafficking in
human beings and sexual exploitation of women and children, illicit arms
trafficking, money laundering, corruption, counterfeiting of means of
payment and computer crime. It is important to note that these areas of
crime are quite broad which would lead the EU to regulate offences
without a cross border dimension. These measures affect fundamental
issues of sovereignty, however the UK cannot veto such sensitive
proposals. There is an emergency brake but only 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.
Hence, if one member state considers that a draft directive would affect
fundamental aspects of its criminal justice system, it may request the
draft to be referred to the European Council and the ordinary
legislative procedure will be temporarily suspended. The European
Council would decide by consensus.

It has become crystal clear that Brussels is seeking to harmonise
criminal law. In fact, the European Commission has already taken several
steps towards this aim. This would affect the whole UK justice and
criminal law system.

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 judicial cooperation in criminal matters within
three months after that proposal has been presented. However, once it
has decided to opt-in there is no right to opt-out even if the outcome
of the negotiations is not acceptable. It has in some cases the
emergency brake. It is important to note that these measures are subject
to the ordinary legislative procedure and QMV in the Council,
consequently the UK might be forced to accept EU measures, which it was
against. Moreover, once opting in, UK is subjected to the Commission
enforcement powers and to the ECJ jurisdiction. Therefore, it can be
taken before the ECJ for failure to implement correctly or in due time
criminal law legislation. Hence, the UK loses protection every time it
decides to opt in, transferring jurisdiction from the UK courts to the
ECJ jurisdiction.

It is important to note that the block opt out not only
covers EU’s measures on cross-border cooperation, but also measures that
interfere with national cases and require changes to national
legislation. The UK 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 is considered necessary. It should be recalled that more than a
hundred Tory Mps, including Bill Cash, in a letter to The Telegraph, calling on the Prime Minister to invoke the block opt out, said "The
EU Commission's ambitions for a pan-European code of Euro Crimes
highlight how Europe should be about co-operation rather than control.
We need practical co-operation to fight terrorism, drugs, human
trafficking and other cross border crimes – not harmonisation of
national criminal laws.”
It is also important to stress that when jurisdiction is given to
the EU through an opt-in, it applies not just to cross-border crime but
also to all criminal law, and brings all UK's criminal law within the
jurisdiction of the ECJ. The UK parliament and UK courts will cease to
be the ultimate source of law.

The UK’s block opt out also does not apply to new EU
police and criminal law measures, proposed after the entry into force of
the Lisbon Treaty. It is important to note that the Coalition
Government has already decided to opt into several new EU’s legislation
in this policy area, such as the directive on the right to
interpretation and translation of criminal proceedings and the directive
on the right to information in criminal proceedings, ceding, in this
way, jurisdiction in these areas to the ECJ.

It is important to mention that the UK has already opted in to
several proposals replacing third pillar acts adopted before the Lisbon
Treaty as well as to criminal law measures put forward after the entry
into force of the Lisbon Treaty. Consequently, the ECJ still has
jurisdiction over acts adopted in the areas of police and judicial
cooperation in criminal matters transposed by the UK, even if the
Government decides to invoke the block opt out.

The
Court is fully competent to interpret and review the legality of acts
adopted in the areas of police and judicial cooperation in criminal
matters and the Commission has powers to launch infringement
proceedings. The ECJ is very likely to jeopardize Britain’s common law
traditions. In order to ensure the effective and uniform application of
EU law, national courts when faced with an issue concerning the
interpretation or validity of an act of Union law, may seek a
preliminary ruling from the ECJ. However, if it is a last instance
court, it is compelled to refer the matter before the ECJ. Obviously,
this has an impact on Member States’ sovereignty as the national courts
have lost a significant part of their independence to the ECJ. The
situation is set to get worse, as the ECJ has now jurisdiction over
measures in the field of police and judicial cooperation in criminal
matters. The judgments of the ECJ not only bind the national court to
which it is addressed but also all national courts facing the same
issue. The UK Courts would be bound by the ECJ rulings and
interpretations of Union law in this sensitive area. The ECJ has been
interfering in member states legal systems, overriding national rules,
and it is important to stress that it has been the motor behind greater
EU integration.

As Bill Cash noted, there has been a continuous process of
Europeanization on criminal law and criminal procedure. Consequently,
Brussels is substantially affecting the UK justice and criminal law
system. The power to determine criminal liability and to impose criminal
penalties is a sovereign power, which should be retained by the UK. It
is therefore essential that in 2014 the Government decide to opt out
from all third pillar measures, which have not been amended or repealed
after the Lisbon Treaty has entered into force. However, this would not
be enough, as in order the protect British national interest the
Government should stop opting into these measures and repatriate all the
powers which are not covered by the block opt out. This is a
policy area that must be decided by Parliament in Westminster not by
Brussels. The government can secure access to police and judicial
co-operation in criminal matters without having to be absorbed by the EU
and subject to the ECJ jurisdiction. The UK must retain control over
justice and home affairs. The Government must, therefore, renegotiate
all the EU Treaties and the UK relationship with the EU. The Government
must call for a referendum, and give the British people a say
on membership of the EU. In the meantime, it must insist on appropriate
legislation in line with the Supremacy of Parliament and apply where
necessary the formula-notwithstanding the European Communities Act 1972.