«JUSTICE, INSTITUITIONS AND CONSUMER PROTECTION SUB-COMMITTEE HOME AFFAIRS, HEALTH AND EDUCATION SUB- COMMITTEE UK’s 2014 Opt-Out Decision ...»
EUROPEAN UNION COMMITTEE
JUSTICE, INSTITUITIONS AND CONSUMER
HOME AFFAIRS, HEALTH AND EDUCATION SUB-
UK’s 2014 Opt-Out Decision (‘Protocol 36’)
Oral and Written Evidence Contents David Anderson QC, Independent Reviewer of Terrorism Legislation—Written evidence.... 1 Association of Chief Police Officers—Written evidence
Association of Chief Police Officers, William Hughes, Aled Williams and Mike Kennedy— Oral evidence (QQ 229-248)
Association of Chief Police Officers in Scotland—Written evidence
Bar Council of England and Wales—Written evidence
Bar Council of England and Wales, Faculty of Advocates, Law Society of England and Wales and Law Society of Scotland—Oral evidence (QQ 46-61)
Bar Council of England and Wales, Council of Bars and Law Societies of Europe—Oral evidence (QQ148-162)
Dr Gavin Barrett—Oral evidence (QQ 249-263)
Centre for European Reform, Fair Trials International and JUSTICE—Oral evidence (QQ 110-131)
Council of Bars and Law Societies of Europe, Bar Council of England and Wales—Oral evidence (QQ 148-162)
Court of Justice of the European Union—Written evidence
Crown Office and Procurator Fiscal Service—Written evidence
Crown Office and Procurator Fiscal Service and Frank Mulholland QC, Lord Advocate — Oral Evidence (QQ 264-273)
Eurojust—Oral Evidence (QQ 179-191)
European Commission—Oral evidence (QQ 192-208)
European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE)—Oral evidence (QQ 163-171)
European Parliament Committee on Legal Affairs (JURI)—Oral evidence (QQ 172-178)... 198 Europol – Written evidence
Europol—Oral Evidence (QQ 132-147)
Europol—Supplementary written evidence
Faculty of Advocates —Written evidence
Faculty of Advocates, Bar Council of England and Wales, Law Society of England and Wales and Law Society of Scotland—Oral evidence (QQ 46-61)
Fair Trials International—Written evidence
Fair Trials International, Centre for European Reform and JUSTICE—Oral evidence (QQ 110-131)
Dr Alicia Hinarejos, University of Cambridge; Professor John Spencer, University of Cambridge; and Professor Steve Peers, University of Essex—Oral evidence (QQ 32-45).. 272 Martin Howe QC—Written evidence
Martin Howe QC—Oral evidence (QQ 1-31)
William Hughes, former Director General, Serious Organised Crime Agency—Written evidence
William Hughes, Association of Chief Police Officers, Aled Williams and Mike Kennedy— Oral evidence (QQ 229-248)
JUSTICE —Written evidence
JUSTICE, Centre for European Reform and Fair Trials International—Oral evidence (QQ 110-131)
Justice Across Borders—Written evidence
Justice Across Borders—Oral Evidence (QQ 62-84)
Mike Kennedy, former President of Eurojust and former Chief Operating Officer at the Crown Prosecution Service—Written evidence
Mike Kennedy, Association of Chief Police Officers, William Hughes and Aled Williams— Oral evidence (QQ 229-248)
Timothy Kirkhope MEP and Anthea McIntyre MEP—Written evidence
Lynda Lacy—Written evidence
Law Society of England and Wales—Written evidence
Law Society of England and Wales, Bar Council of England and Wales, Faculty of Advocates, and Law Society of Scotland—Oral evidence (QQ 46-61)
Law Society of Scotland—Written evidence
Law Society of Scotland, Bar Council of England and Wales, Faculty of Advocates and Law Society of England and Wales —Oral evidence (QQ 46-61)
Liberal Democrat UK MEP Group—Written evidence
Anthea McIntyre MEP and Timothy Kirkhope MEP—Written evidence
Frank Mulholland QC, Lord Advocate and Crown Office and Procurator Fiscal Service— Oral evidence (QQ 264-273)
Frank Mulholland QC, Lord Advocate—Supplementary written evidence
Northern Ireland Executive—Written evidence
Dr Maria O’Neill, University of Abertay Dundee—Written evidence
Open Europe—Oral evidence (QQ 85-109)
Professor Steve Peers, University of Essex; Professor John Spencer, University of Cambridge;
and Dr Alicia Hinarejos, University of Cambridge—Oral evidence (QQ 32-45)
Professor Steve Peers—Written evidence
Jean-Claude Piris, former Legal Counsel of the European Council and of the EU Council— Written evidence
The Police Foundation—Written evidence
Police Service of Northern Ireland—Written evidence
Scottish Government—Written evidence
Professor John Spencer, University of Cambridge; Dr Alicia Hinarejos, University of Cambridge; and Professor Steve Peers, University of Essex—Oral evidence (QQ 32-45).. 511 Keir Starmer QC, Director of Public Prosecutions, Crown Prosecution Service—Oral evidence (QQ 209-228)
Keir Starmer QC, Director of Public Prosecutions, Crown Prosecution Service— Supplementary written evidence
UK Government—Written evidence
UK Government—Oral evidence (QQ 274-308)
United Kingdom Independence Party—Written evidence
United Kingdom Independence Party—Supplementary written evidence
Aled Williams, Association of Chief Police Officers, William Hughes and Mike Kennedy— Oral evidence (QQ 229-248)
David Anderson QC, Independent Reviewer of Terrorism Legislation—Written evidence
My interest in the opt-out decision
1. The principal statutory functions of the Independent Reviewer are to review the operation of UK anti-terrorism legislation and to produce three annual reports which are submitted to the Home Secretary (or in one case the Treasury) and laid before Parliament. I took over the role from Lord Carlile in 2011, and combine it with practice as a Q.C. from London Chambers. For some 25 years I have specialised in cases involving European Law. I have also taught EU law at King’s College London, where I remain a Visiting Professor, and sit as a Recorder of the Crown Court.
2. I cannot improve on the account of the legal background to the opt-out decision that is given by Hinarejos, Spencer and Peers in the CELS Working Paper of September 2012, with which the Committee will be familiar. Nor do I enter into the political debate as to the desirability or otherwise of repatriating powers from the EU. My concerns relating to this topic are with the legal and operational aspects of the fight against terrorism. I expect to comment in my Terrorism Acts report of summer 2013 on whether there is a risk that the exercise of the opt-out could impede the effectiveness of that fight.
3. Any such comments will be informed by the investigation and conclusions of this Committee. I do not seek to replicate or pre-empt in any way the Committee’s work. In order to inform myself more fully as to the issues, I have however discussed the possible implications of the opt-out for counter-terrorism with police, agencies and OSCT. I have also had helpful discussions in Brussels with the EU Counter-Terrorism Co-ordinator (Gilles de Kerkhove), a member of the cabinet of Commissioner Malmström, senior officials of the Commission and Council and MEPs from each of the major UK parties, and in The Hague with representatives of Eurojust and Europol.
4. Those discussions were confidential, and are unlikely in any event to have ranged beyond the scope of evidence that this Committee will itself receive at first hand from similar sources. Nonetheless, and in case it is of value to the Committee, I set out for what it may be worth some of the initial impressions that I have formed.
The UK’s leading role in EU counter-terrorism law and practice
5. I have been struck by the extent to which – contrary to the tendency of the UK media to depict the UK as a marginalised influence in European affairs – the UK is seen within the EU as a key player in the field of police and criminal justice, specifically (though not exclusively) where anti-terrorism is concerned.
6. For example:
David Anderson QC, Independent Reviewer of Terrorism Legislation—Written evidence (a) The mandatory requirements concerning jurisdiction and terrorist offences in 2002/475/JHA, as amended by 2008/919/JHA, have the effect of requiring all Member States to introduce laws equivalent to some of those established in the UK’s Terrorism Acts 2000 and 2006 (albeit that UK influence was in part diffused via the Council of Europe’s 2005 Convention on the Prevention of Terrorism).
(b) The EU Action Plan on combating terrorism, first drafted during the UK presidency in the second half of 2005, is closely modelled on the UK’s own CONTEST strategy. An indicator of the high degree of UK influence may be seen from the fact that the four elements of the CONTEST strategy, which governs the entirety of UK counter-terrorism policy (Pursue, Prevent, Protect, Prepare)
were translated into four equivalent and only slightly less alliterative EU elements:
Pursue, Prevent, Protect and Respond.
(c) The UK was described to me by the Commission as “very active” in developing EU policies for counter-radicalisation both internally and in third countries; for aviation security; and for the risk and threat analysis. I was told that if the UK supports a Commission initiative, that initiative is immediately given credibility;
and that other large Member States have been won over in the EU setting to the UK approach, for example as regards the assessment of risk.
(d) It was explained to me at the Council that the UK has been exceptionally useful in managing the relationship between the USA and the EU. UK influence has been decisive in the negotiation of a number of specific measures, including the EU-US Agreements on Passenger Name Records and Terrorist Finance Tracking Provisions (TFTP). It has also enabled the EU more effectively to defend its citizens’ interests on domestic US issues such as the manner in which the National Defense Authorization Act is interpreted by the US Administration.
(e) Europol, up to 10% of whose cases concern counter-terrorism, has developed under UK leadership as an effective information hub.
7. This degree of influence of course did not happen by chance, but because of a desire on the part of the UK to encourage other Member States to take the threat of terrorism as seriously as it is taken here. While international terrorism retains a high public profile in countries affected by it in the recent past (e.g. UK, Spain, the Netherlands, Denmark), it is almost invisible as a public concern in some other countries, for example in Eastern Europe. Bilateral contacts continue, and are useful.
Equally, however, it is evident that EU mechanisms have been productive both as a method of spreading UK thinking and good practice in the field of counter-terrorism across the continent and beyond, and in defending the interests of the UK and other Member States in dealings with third countries.
Measures of practical utility
8. The police will no doubt identify to the Committee those measures into which they consider it necessary or desirable to opt back in; and the Committee will test their assertions.
9. My own confidential briefings have indicated that there are a number of measures relevant to counter-terrorism that are considered by SO15 to be essential tools.
These are not, of course, limited to terrorism-specific measures: provisions of a general nature relating to such matters as joint investigation teams, information exchange and the surrender of suspects all have potential application in terrorism cases. Some are Schengen-related, with the result that unanimous consent of the Member States will be required should the UK seek to rejoin them after an opt-out.
Possible consequences of exercising the opt-out
10. The opt-out granted to the United Kingdom by Article 10(4) of Protocol 36 is of course a Treaty right, as to whose exercise the United Kingdom enjoys an absolute discretion. Everyone I spoke to in Brussels was punctilious in acknowledging this.
Some were disappointed that a Member State which has played such a significant role in the development of police and criminal justice measures, especially in the counterterrorism context, should be minded to exercise an opt-out. This was generally put down to politics. I also detected concern as to the practicalities of negotiating alternative measures (particularly to the EAW, should that not feature on the opt-in list).
11. So far as the feasibility of opting to rejoin selected measures is concerned, the picture seems a little cloudy. Not in doubt is the obligation on the EU institutions under Article 10(5) to ensure the “widest possible measure of participation” of the United Kingdom. That is, however, subject to the practical operability of the various parts of the acquis not being seriously affected, and their coherence being respected. In an apparent reference to these provisos, Commissioner Malmström was recently quoted as saying that “on each of these opt-ins, there will have to be a negotiation” and that “of these 136 laws, many are very connected”. 1 The UK could be pressurised, in other words, to rejoin some measures it disagreed with in order to retain those it considered valuable. Furthermore, in the case of Schengen measures, it was suggested to me by those experienced in Brussels politics that the requirement of unanimous consent by the Member States may result in individual Member States seeking to impose conditions as the price for their consent.