Lords slams UK’s ‘splendid isolation’ on EU justice opt-out

The House of Lords, in session. [House of Lords]

The House of Lords has called on the British government to abandon its “legally unsustainable” interpretation of EU justice and home affairs law, and drop its unnecessarily confrontational strategy.

The report, published Tuesday (24 March) by the EU Justice, Institutions and Consumer Protection Sub-Committee of the House of Lords, said the government’s approach raised serious questions about the UK’s commitment to the “uniform application of EU law” which the report calls “the defining trait of the European Union”.

Protocol 21 of the Lisbon Treaty gives the UK the right to opt in or out of measures relating to justice and home affairs. Such measures come under what is called a Title V legal base. The government maintains it should be the content of a particular measure, rather than its legal foundation, which decided whether or not the UK opt-out is applicable. 

Speaking to the committee in January, Home Secretary Theresa May accused the EU of deliberately trying to circumvent the UK opt-in by putting forward legislation under separate legal bases.

But the Lords found no evidence of such behavior.

The UK has challenged five rulings under Protocol 21 at the European Court of Justice since the singing of the Lisbon treaty and lost them all. One member of the committee said the government was acting “in splendid isolation” when it came it interpreting the treaty.

Chairman of the EU Justice Sub-Committee, Baroness Quin said “From the outset we struggled to find any witnesses who supported the Government’s position.”

“The weight of the evidence left us in no doubt of three things: that the Government’s interpretation of the opt-in Protocol was legally unsustainable; that its litigation strategy ignored the case law of the Court; and that its stance could run counter to the UK’s own interests as well as undermine its good standing among other Member States.”

“Our principal recommendation is that the incoming Government should abandon what amounts to an unjustified policy of unilateralism that has brought no tangible benefit to the UK,” she concluded.

Unlikely interpretation

The issue focused on the legal interpretation of the phrase “pursuant to”.

The government claimed the wording of the treaty meant the UK opt-out to be applicable to any legislation which impacts JHA rulings, regardless of the legislation’s legal base.

The report questioned this interpretation. None of the legal experts who gave evidence to the committee supported the government.

Gavin Barrett, Professor of European Constitutional and Economic Law at University College Dublin, thought it a “singularly unlikely interpretation”.

If such an interpretation were applied to the 99 other instances of ‘pursuant to’ in EU treaties, protocols and declarations “they [UK government] might regret,” according to Professor Steve Peers of the University of Essex, who added the phrase had an obvious legal meaning.

In response, a Home Office spokesperson said: “The UK will defend our right to opt in or out of EU justice and home affairs measures. It is an important right which ensures we participate only in those justice and home affairs laws that are in the national interest. We will consider the report and respond in due course.” 

The Lisbon Treaty granted the UK op-outs to legislation in the area of justice and home affairs. 

The House of Lords triggered an inquiry over concerns the UK was attempting to unilaterally decide which measures fell under the title of JHA, and thus where the UK opt-our applied. 

By examining case law, and interviewing legal witnesses as well as the Home Secretary and Justice Secretary the inquiry concluded the government had over stepped in its attempt to limit the application of EU law. 

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