Britain’s opt-out on EU police and crime laws raises eyebrows

Theresa May, Britain's new prime minister, and second female head of government.

The UK's intended opt-out from EU cooperation on police and criminal matters will be the “elephant in the room” at the two-day meeting of EU justice and home affairs ministers beginning today (25 October), diplomats told EURACTIV.

The meeting in Luxembourg will examine a proposal to set up an EU Civil Protection Mechanism in response to the growing number of displaced persons and asylum-seekers from Syria and the Western Balkans (see meeting's agenda).

But according to diplomats, the "elephant in the room" will be the UK's intention to opt-out from EU justice and crime cooperation laws.

Ministers will ask UK Home Secretary Theresa May to explain Britain's decision to repatriate powers from Brussels from the ever more integrated field of justice and home affairs (JHA).

May gave a speech in Parliament on 15 October announcing that the government intended to opt out from EU police and criminal justice measures, and then re-apply for those which it considers appropriate.

According to sources, the UK has problems with the European arrest warrant, the Schengen Information System, the participation to some EU agencies such as Europol, Eurojust and a few others.

The opt-out would make it more difficult for British police to conduct international investigations and convict criminals abroad. The Centre for European Reform, a British think tank, warned the decision would have "major implications" for Britain's security.

"If Britain uses this 'block opt-out', it will lose access to a raft of cross-border agreements and databases designed to help EU countries maintain security," Hugo Brady, senior research fellow at the CER, said in a recent policy paper.

The UK does not participate fully in EU justice cooperation and its participation is subject to certain conditions (see background). But May told MPs that under the terms of the Lisbon treaty, the UK government is required to decide whether it remains bound by EU police and criminal justice measures adopted prior to the entry into force of the Lisbon treaty.

She said the UK government is required under the treaty to reach a final decision by 31 May 2014, with that decision taking effect on 1 December 2015. In total, there are more than 130 measures within the scope of the decision to be considered at this stage, the minister explained.

Transition period

Article 10 of Protocol 36 of the Lisbon treaty foresees a five-year transition period in which EU jurisdiction over those measures does not apply. That ends on 1 December 2014 and the United Kingdom has the right six months before that change to decide if it wants to stay or pull out. The measure was negotiated back in 2007 by the then-Prime Minister Tony Blair.

May said another option was to pull out and re-participate in some specific EU police laws, claiming that some were “useful”, other “less so”, and some “entirely defunct”.

“So I can announce today that the government’s current thinking is that we will opt out of all pre-Lisbon police and criminal justice measures and then negotiate with the commission and other member states to opt back into those individual measures which it is in our national interest to rejoin,” the British minister said.

A Cypriot EU presidency source said Britain's intention of opting out of certain areas of JHA had not been officially communicated.

The field of justice and home affairs (JHA) is probably the policy area where the Treaty of Lisbon has had most impact.

The treaty abolished the 'pillar structure' of EU legislation. Matters which were previously dealt with under the third pillar, such as judicial cooperation in criminal matters and police cooperation, are now treated under the same kind of rules as those of the single market.

Consequently, EU and national measures in these areas will be subject to the judicial review of the Court of Justice.

At the same time, many JHA areas moved from the consultation procedure with unanimity in the Council and only consultation of the European Parliament (EP) to the ordinary legislative procedure with qualified majority voting (QMV) in the Council and full co-legislative powers of the EP (formerly co-decision procedure).

Denmark, the United Kingdom and Ireland do not participate fully in the implementation of certain measures relating to the fields of JHA or that their participation is subject to certain conditions [more].


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