24/04/2013 - - Member States
House of Lords Report on UK Opt out:

Hot off the press

We would like to bring to the attention of legal practitioners across EU the House of Lords report on the exercise by the UK Government of the opt out, which was published 23 April 2013. This document has an ultimate importance to the operational work of the practitioners. Many thanks to our colleague Mr David Dickson from Crown Office for the brief note on the report:


Protocol 36 of the Treaty of Lisbon allows the Government to decide, by 31 May 2014, whether the UK should continue to be bound by approximately 130 police and criminal justice (PCJ) measures, which would all become subject to the jurisdiction of the Court of Justice of the European Union and the European Commission’s enforcement powers, or if it should exercise its right to opt-out of them all. Either scenario would then take effect from 1 December 2014. The Government has undertaken to organise a debate and a vote in each House before a decision is made


On 15 October 2012, the Home Secretary announced in the House of Commons that it was the Government’s intention to exercise the opt- out.  The House of Lords EU Select Committee issued a call for evidence on 1 November




The Committee’s report referred to the Lord Advocate and COPFS evidence on 26 occasions. In particular the committee appear to have found the Lord Advocate’s reference to recent case law where the courts had applied a principle of proportionality to be helpful, with no other witness appearing to refer to the UK case law on that point.  On the application of Article 8 in extradition proceedings, the committee particularly noted COPFS supplementary evidence that this article was “regularly taken into account”


The Committee recorded the Lord Advocate’s “real concerns” if the opt out was exercised in relation to the European Arrest Warrant.   There was positive reference to COPFS use of the European Judicial Network.


The Committee referred to the Lord Advocate’s evidence on the role of the European Court of Justice that the court limits itself to interpreting EU law and not its application within Member States domestic law.   The Committee concluded the European Court of Justice “has an important role to play…in safeguarding [the fundamental rights of EU citizens] and upholding the rule of law.


The Committee concludes that: 


“It would be theoretically possible for the UK to continue co-operating with other Member States through alternative arrangements, but we found that these would raise legal complications, and result in more cumbersome, expensive and less effective procedures, thus weakening the hand of the UK’s police and law enforcement authorities. The negotiation of any new arrangements would also be a time-consuming and uncertain process. The most effective way for the UK to cooperate with other Member States is to remain engaged in the existing EU measures in this area.”  The committee further concludes


“the Government have not made a convincing case for exercising the opt-out and that opting out would have significant adverse negative repercussions for the internal security of the UK and the administration of criminal justice in the UK, as well as reducing its influence over this area of EU policy.”


These conclusions and observations support the written and oral evidence advanced by the Lord Advocate before the Committee.


In relation to the operation of the European Arrest Warrant the committee finds: 


“The European Arrest Warrant is the single most important of the measures which are subject to the opt-out decision. In some cases, the operation of the EAW has resulted in serious injustices, but these arose from the consequences of extradition, including long periods of pre-trial detention in poor prison conditions, which could occur under any alternative system of extradition. Relying upon alternative extradition arrangements is highly unlikely to address the criticisms directed at the EAW and would inevitably render the extradition process more protracted and cumbersome, potentially undermining public safety. The best way to achieve improvements in the operation of the EAW is through negotiations with the other Member States, the use of existing provisions in national law, informal judicial cooperation, the development of EU jurisprudence and the immediate implementation of flanking EU measures such as the European Supervision Order”


This is a perceptive finding by the committee recognising as it does that the main concerns about the operation of the EAW such as lengthy pre-trial detention would exist under alternative arrangements such as the EU Convention on Extradition 1957 and that if the UK Government implemented the ESO, so called “Euro bail” having agreed to it at the political level, these concerns could be overcome.

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