“The UK’s opt-in Protocol: implications of the Government’s approach”
NOTA BENE : the full report is accessible on the House of Lords website.
This report focuses on the Government’s approach to the opt-in Protocol, introduced by the Lisbon Treaty, by virtue of which the UK has a right not to participate in EU justice and home affairs (JHA) measures. At issue is whether the opt-in Protocol can be interpreted to mean that it is the content of an EU measure which determines the application of the Protocol, rather than a legal base under the JHA title of the Treaty on the Functioning of the EU (Title V).
We express no view on the desirability or otherwise of the opt-in mechanisms introduced by the Lisbon Treaty. The function of this report is to examine the way in which the Government has sought to interpret those mechanisms.
We examine the Government’s interpretation of the expression “pursuant to [Title V]” in the opt-in Protocol, and conclude that it has an accepted legal meaning, namely that a Title V legal base is required before the opt-in can be triggered. As a consequence, we recommend that the Government reconsider its broader interpretation.
We consider the Government’s approach to determining the legal base of an EU measure with JHA content. We conclude that the distinction it draws between whole, partial, and incidental JHA measures is misconceived. We again recommend it reconsider its approach.
We consider whether the Government’s overall approach to the opt-in Protocol gives rise to legal uncertainty. We draw a distinction between potential and actual legal uncertainty, concluding that the potential of the Government’s policy to create legal uncertainty is considerable. We further conclude that the Government’s approach risks breaching the EU legal duty of “sincere cooperation”.
We then look at how the opt-in Protocol has been interpreted by the EU institutions. The Government believes that the Commission has actively pursued a policy of “legal base shopping”, in order to undermine the UK’s opt-in rights. In one specific case it provides evidence that lends some support to this allegation, in respect of the former Commission. With this partial exception, however, we conclude that there is no persuasive evidence to suggest that the Commission has circumvented the UK’s opt-in rights.
We review the approach of the Court of Justice of the EU (CJEU) to determining the legal base of international agreements and, while recognising the Government’s concerns, conclude that there is no evidence to suggest that the CJEU has sought deliberately to undermine the safeguards in the opt-in Protocol. We conclude that it is highly unlikely that the CJEU will change its established approach to determining legal base, including for measures with JHA content. We recommend that the Government review its litigation strategy in the light of this conclusion.
Finally, we recommend that the Government consider the feasibility of an inter-institutional agreement on the scope of Title V.
SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS
The Government’s cooperation with the inquiry
- Four months elapsed from the launch of the inquiry before the Home and
Justice Secretaries submitted written evidence and confirmed their readiness
to attend to give oral evidence. Until December the cooperation from their
departments was such that we contemplated having to report without the
benefit of government evidence. Seven months was an excessive amount of
time to consider the judgment of the CJEU in the Philippines case. The
complexity of that judgment in no way justified the Government’s failure to
cooperate with a select committee inquiry. We urge future Governments to
ensure such practice does not reoccur. (Paragraph 21)
The Government’s application of the opt-in Protocol 2010–2014
- The Government’s annual opt-in reports demonstrate that the opt-in Protocol has provided the UK with a very effective safeguard against participating in legislation with a legal base in Title V, particularly internal EU legislation, when it does not consider it to be in the national interest to do so. (Paragraph 36)
- The inclusion of legislation in annual opt-in reports which does not have a Title V legal base is misleading. Members of Parliament, or the public, seeking to understand the extent of the UK’s opt-in rights on the basis of these reports, would be likely to conclude that they are far wider than, in reality, they are. We recommend that the Government include only legislation with a Title V legal base in future annual opt-in reports, or that it makes clear where it has asserted that the opt-in Protocol applies to legislation without such a legal base. (Paragraph 37)
The meaning to be given to “pursuant to” in Articles 1 and 2 of the opt-in Protocol
- None of the written or oral evidence we received in the course of this inquiry supported, or referred to others supporting, the Government’s interpretation of “pursuant to”. (Paragraph 58)
- We note in particular that Ireland, which would seem to stand to gain the most were the UK’s interpretation to be right, does not follow the UK’s practice of asserting the application of the opt-in Protocol in the absence of a Title V legal base. (Paragraph 59)
- We conclude that the phrase “pursuant to” has an accepted legal meaning, namely that a Title V legal base is required before the opt-in can be triggered. A link to a legal base is also necessary to define the source of the EU’s power to act, and this is consistent with the principle of conferral. We agree that the opt-in Protocol, as with any Protocol to the EU Treaties or Treaty Article, has to be viewed objectively, rather than subjectively. (Paragraph 60)
- The Government’s interpretation leads to anomalous consequences that further undermine its argument. It automatically renders the position of Ireland and Denmark legally uncertain—are they presumed not to participate in a measure if the UK has asserted that it has JHA content? It is striking that the very broad interpretation of “pursuant to”, on which the Government seeks a ruling from the CJEU, would give the EU wide powers to increase its competence in other fields. There is a potential irony to this to which the next Government should pay particular heed. (Paragraph 61)
- It follows that we are unpersuaded by the Government’s interpretation of “pursuant to”. We found the argument that “pursuant to” in the opt-in Protocol should be singled out for different interpretation from elsewhere in the Treaties equally unconvincing. (Paragraph 62)
- We recommend that the Government reconsider its interpretation of “pursuant to”. (Paragraph 63)
Determining the legal base of an EU measure with JHA content
- All the evidence we received contradicted the Government’s approach to determining the legal base of a measure with JHA content. We accept the weight of that evidence. (Paragraph 81)
- We conclude, therefore, that the Government’s distinction between whole, partial, and incidental JHA measures is misconceived. Its effect is to make a clearly established legal principle inordinately complex. A whole or partial measure should have a Title V legal base in any event, as a matter of EU law, because the JHA content is a predominant purpose. An incidental JHA measure would bind the UK, because the absence of a Title V legal base would prevent it from opting out of it. (Paragraph 82)
- The Government’s citing of the public’s claimed perception of the opt-in Protocol to support its analysis lacks legal credibility. (Paragraph 83)
- We recommend that the Government reconsider its current approach to determining the legal base of a measure with JHA content. (Paragraph 84)
Legal certainty and loyal cooperation in the negotiation of international agreements with JHA content
- We accept there is a distinction between actual and potential legal uncertainty. But the potential of the Government’s policy to create real legal uncertainty is very considerable indeed. The unilateralism of the Government’s approach also raises serious questions about the UK’s acceptance of the uniform application of EU law, the defining trait of the rule of law in the European Union. We are concerned by this, and by the possible implications for the UK’s reputation as a negotiating partner among other Member States (Paragraph 97)
- The Government’s policy is creating actual legal uncertainty for the purposes of parliamentary scrutiny, as the two examples in the introduction to this report show. This is particularly so when it decides a proposal contains JHA content after the initial three-month opt-in period has passed. We confirm our view that the enhanced opt-in procedures apply only to draft legislation that is either proposed with a Title V legal base, or to which a Title V legal base is added by the Council. We invite the Government to agree. (Paragraph 98)
- We urge Government departments to inform us sooner when a Title V legal base is added by agreement of the Council. (Paragraph 99)
- The Government’s policy puts it at risk of breaching the duty of sincere cooperation, the importance of which was made clear by the CJEU in Commission v Sweden. We recommend the Government reconsider its opt-in policy in the light of the evidence we received, and that case. (Paragraph 106)
Are the UK’s opt-in rights being undermined by the European Commission?
- A distinction should be drawn between a Commission policy of circumventing the UK’s opt-in rights, and one of choosing a legal base that the Commission believes best suits the EU’s interests. (Paragraph 126)
- Choosing a legal base for an EU proposal is complex. It is, as a consequence, often disputed between the institutions in the course of negotiations, with recourse to the CJEU as final arbiter. Nevertheless, as a point of principle, we agree with the Council’s legal service that geographical extent is a consequence of the legal base and not a criterion for choosing it. (Paragraph 127)
- The Government alleges that the Commission has actively pursued a policy of “legal base shopping”, in order to undermine its opt-in rights. In one specific case—the draft PIF Directive—it has provided evidence that lends some support to this allegation, in respect of the former Commission. (Paragraph 128)
- With this partial exception, the Government’s letter of 21 January provided no persuasive evidence of Commission circumvention of the UK’s opt-in rights. There is certainly no evidence to support any allegation that such circumvention is systemic. Moreover, we note that in in the specific case of the draft PIF Directive the Council accepted the Government’s view and agreed to change the legal base for one in Title V. This is an example of the institutional check on the Commission’s role as initiator working well. (Paragraph 129)
- We invite the new Commission to confirm that the legal base of any individual proposal should be determined by its subject matter and purpose, not its intended geographical scope; and that geographical scope is a consequence of the choice of legal base. (Paragraph 130)
- We recommend that the Government focus on addressing any concerns over the choice of legal base through the existing mechanisms in the legislative process, particularly within the Council. We note that, in addition to the PIF Directive, the UK succeeded in persuading the Council to add a Title V legal base to the EU Decision concluding the Partnership and Cooperation with the Philippines, and to the road traffic offence Directive. (Paragraph 131)
Is the case law of the ECJ undermining the scope of the opt-in Protocol?
- We conclude that the CJEU’s approach to determining legal base in the six cases relating to Title V does not differ from its established case law. (Paragraph 183)
- We agree with witnesses who have suggested that the CJEU’s approach to determining the legal base of international agreements means that the complexity of an agreement is not always reflected in the resulting choice: it renders somewhat invisible the ancillary or secondary objective, including ancillary or secondary JHA objectives. We understand why this would cause concern to the Government. (Paragraph 184)
- Nevertheless, this does not, in our view, amount to a deliberate undermining of the safeguards in the opt-in Protocol. We note that for internal EU measures on JHA policy, the opt-in Protocol is a very effective safeguard for the UK. (Paragraph 185)
- The Government’s view that these cases do not have an impact on its opt-in
policy lacks credibility. We conclude that they have far-reaching implications
for its policy. (Paragraph 186)
The Government’s litigation strategy
- All our expert witnesses agreed that there is now a significant body of case law which confirms that the CJEU’s established approach to determining legal base applies to measures with possible Title V content. They also all agreed that it was highly unlikely that the CJEU would change its approach. (Paragraph 201)
- We agree. The CJEU’s judgments have rejected the UK’s arguments on determining the legal base of a measure which it considers to contain JHA content. They have done so directly in the Conditional Access Services and Turkey cases, and by clear implication in the EEA, Swiss and Philippines cases. (Paragraph 202)
- The Government’s claim that the CJEU has failed to address its arguments on incidental JHA content is hard to reconcile with these views, to the extent that we conclude it is politically, rather than legally, driven. Its suggestion that there may be internal divisions within the CJEU in favour of the UK’s arguments is unsupported by any evidence. (Paragraph 203)
- We recommend that, in the future, the Government should challenge only those cases where it can make a plausible case that Title V is either the predominant or an equally important purpose, or where the Title V obligations in an agreement are such as to justify a separate legal basis. (Paragraph 204)
- We were surprised to read in a footnote to Advocate General Kokott’s Opinion in the Turkey case that, although the UK expressly objected to a strict interpretation of the opt-in Protocol, it did not put forward “any specific arguments to support its view”. If this is so, it would contradict the essence of the Government’s evidence to us. We ask the Government whether it can explain why the Advocate General should have made this comment. (Paragraph 205)
- We recommend that the Government give careful consideration to the feasibility of an inter-institutional agreement on the scope of Title V, as suggested by Prof Chalmers. If Denmark decides to alter its opt-in arrangements to those of the UK and Ireland, three Member States will have an interest in an inter-institutional agreement on the scope of Title V. (Paragraph 206)
- Beyond that, the only available recourse for the Government to ensure the opt-in Protocol is applied as it wishes, is to seek to renegotiate it. (Paragraph 207)
When should the three-month period provided for in the opt-in Protocol run when a Title V legal base is added by the Council?
- In cases where the Council adds a Title V legal base to a proposal in the
course of negotiations, we consider that the three-month period should run
from the date the Council agrees to add the Title V legal base. We agree with
the expert witnesses that the opt-in Protocol would otherwise be rendered
either partly or entirely ineffective. (Paragraph 214)
- We recommend that the Government seek the agreement of the EU institutions to this proposal. (Paragraph 215)