Parliamentary Committees and Public Enquiries
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Report on the UK's opt-in Protocol published

The House of Lords EU Committee has recently published a report urging the Government to abandon its unilateral approach to EU Justice and Home Affairs Measures.

The report considers the precedent that is being set by the UK Government seeking unilaterally to decide whether or not it is bound by particular EU legal measures.

The Committee has also reviewed a series of rulings of by the Court, in each of which the Government’s approach has been rejected. The Committee concludes that the Government’s policy “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”.

Comments from the Chairman, Baroness Quin:

“We launched this inquiry following a letter from the Home Secretary and Secretary of State for Justice in June 2014. It set out the Government’s strategy in relation to Protocol (No.21) of the Lisbon Treaty – the UK’s ability to opt out of certain EU legislation in relation to justice and home affairs measures. We wanted to understand the Government’s position and its implications.

“What we have discovered has astonished us. 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.

“The Government’s broad interpretation of the treaty provisions governing the UK’s opt-in would give the EU itself wide powers to increase its competence in other areas - a consequence this Government certainly does not want.

“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.”

Other recommendations:

The report also recommends 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.
  • the Government reconsider its interpretation of “pursuant to”. None of the written or oral evidence received in the course of this inquiry supported, or referred to others supporting, the Government’s interpretation of “pursuant to”.  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.
  • Government departments inform Parliament sooner when a Title V legal base is added by agreement of the Council.
  • the European Commission 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.
  • 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.
  • the Government give careful consideration to the feasibility of an inter-institutional agreement on the scope of Title V. 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.
  • the Government seek the agreement of the EU institutions that in cases where the Council adds a Title V legal base to a proposal in the course of negotiations, that the three-month period should run from the date the Council agrees to add the Title V legal base. The opt-in Protocol would otherwise be rendered either partly or entirely ineffective.

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