Should MPs seek to engage with the EU institutions directly?

Who should represent the UK in the EU, MPs or the Government?

The Hansard Society's recent collection of essays included many good proposals on how to improve Westminster's scrutiny of EU business. We have already commented on who did not have anything to say on improving it  - here are some of the ideas of those who did:

Firstly, Gisela Stuart MP made a fundamental observation as to what scrutiny should seek to achieve. "If it’s about shaping decisions, then Parliament enters the stage far too late to make a difference" but "it’s not the role of national parliaments to second-guess their governments at EU level. I’d argue that Parliament’s role is to scrutinise its own government’s actions at EU level." In essence - who scrutinises the scrutinisers. While acknowledging that the UK Parliament can not change measures already agreed at an EU level she went on to suggest some innovations including a Europe Minister in the Cabinet, with his/her own question time to improve political accountability.

By contrast the Europe Minister David Lidington MP, although probably not opposed to being in the Cabinet, sees the role of MPs differently believing in "upstreaming the process, so that Parliament can influence Brussels at the very beginning of the decision-making process." This view of Parliament as an 'influencer' was shared by the chair of the EU Committee in the House of Lords Lord Boswell who explained that his "committee engages actively with bodies including the Commission, the European Parliament, national parliaments of other EU member states and the devolved assemblies of the United Kingdom" without addressing the concerns raised by Stuart.

This all raises interesting questions, picked up on by Open Europe's Christopher Howarth who argued "in cases where say a Lords’ committee gives its opinion to the Commission it is unclear whose opinion is being voiced – it is not Parliament’s as a whole, just a sub-section of parliamentary opinion". In essence if MPs seek to influence the EU directly, on whose behalf do they speak? How do they decide what to influence and to whom should they be accountable? Should the unelected Lords Committee be seeking to influence the EU perhaps to do things the UK Government does not approve of?
 
In other submissions, Chris Heaton-Harris MP and Robert Broadhurst's looked at the proposal for an EU red card to give national parliaments a veto over EU measures concluding that in practice it "would still leave Parliament unable to control the flow of EU legislation". Instead they proposed a new Act of Parliament that would require Ministers to receive a mandate before negotiating in the EU, giving Parliament the final say and a new UK EU relationship. They added a thoughtful look at how the current scrutiny committee mechanisms could be sharpened up.

Bill Cash MP, the Chair of the European Scrutiny Committee explained how Parliament's scrutiny process grew up and  "commented on ideas for incremental reform" while believing that "it is important to consider more radical options".

Dr Ariella Huff and Dr Julie Smith looked at other systems around Europe including the Dutch Parliament's devolved scrutiny system and the Danish mandating system before suggesting that Ministers attend the UK's scrutiny committee before and after Council meetings.

Lastly Open Europe's Christopher Howarth suggested a number of other innovations including giving MPs the power to summon MEPs to Westminster and conduct confirmation hearings of the UK's EU officials before concluding “Scrutiny without power is not scrutiny, it is ritual... The only real solution is to return powers to Westminster”.

Can the UK cherry pick EU crime and policing laws post-2014?

Yesterday 102 Conservative MPs wrote to the Telegraph backing our latest report on EU crime and policing, which argues that the UK should take advantage of a one-off opportunity in 2014 to opt out of around 130 laws covering this area.

Under a transitional arrangement, the UK has a unique opportunity to opt out of these laws, which include the European Arrest Warrant and DNA data sharing, but, if they are kept, this body of law will fall under the full jurisdiction of the European Court of Justice for the first time.

The MPs wrote,

We need practical co-operation to fight terrorism, drugs, human trafficking and other cross border crimes – not harmonisation of national criminal laws...We want the UK Supreme Court to have the last word on UK crime and policing, not the European Court of Justice.

...The recent study by Open Europe offers a pragmatic alternative. Britain should exercise its 'opt out' from 130 measures under the EU's crime and policing plan by 2014. The UK would retain the right to opt back in to any specific policies deemed vital on a case-by-case basis...

You can read a summary of the report here, but its the last point the MPs raise in their letter that we'd like to elaborate on here: the UK's ability to 'opt back in' to individual laws it has opted out of using the block opt-out.

Fast forward to 2014 and after a UK opt-out. These 130 EU laws would no longer apply in Britain (if the UK opts out in 2014 it must opt out of all 130 laws covered by this arrangement) but the UK might wish to rejoin one or two of these laws because they are deemed vital to the UK's interests. Today in the FT for example, senior police offers have warned against losing the European Arrest Warrant.

Should the UK wish to 'opt back in' to an individual law, perhaps a reformed European Arrest Warrant, this would require the approval of the EU institutions. In her recent letter to the European Scrutiny Committee Home Secretary Theresa May noted that,

In respect of measures forming part of the Schengen acquis, this would be governed by the Schengen Protocol. The UK would need to make an application under Article 4 of that Protocol and the Council would decide on the request "with the unanimity of its members" and the representative of the UK. For non‐Schengen measures, Article 4 of the Title V Protocol would apply, which is the process for opting in to a measure post adoption and allows for conditions to be set by the Commission.

Now, you can see why this might present a potential problem with the approach of opting out and selectively opting back in. The UK could, in theory, be refused ‘re‐entry’ once it has opted out en bloc or individual opt-ins could become entangled in negotiations over other, unrelated areas of policy and get caught up in EU horse trading.

For example, James Brokenshire, Minister for Crime and Security, has stated, “We believe that the Commission would attach conditions, for instance they might only allow us to join groups of related measures, some of which we might like and others we might not.”

However, there are several reasons to believe that the Minister's concern is exaggerated:

First, the EU Treaty protocol that governs the block opt-out is quite clear that:

...the Union institutions and the United Kingdom shall seek to re-establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence.

It is very difficult to see how opting back into laws would adversely affect "practical operability". As Professor Steve Peers, a leading expert on the legal aspects of the opt-out, notes:

While the UK would need the formal approval of the Commission or, in a few cases, the Council to opt back in to the prior measures, in practice this will not likely be a problem. The UK and Ireland have in practice opted in to a number of Justice and Home Affairs measures without any difficulty obtaining approval from the Commission. For its part, the Council has been reluctant to approve UK participation in Schengen measures relating to border controls, unless the UK takes part in Schengen fully, but it has approved the UK’s participation in the criminal law and policing aspects of Schengen.

So, legally and practically, there seems to be little reason to believe the UK would be prevented from opting back in. What about the politics?

As Professor Peers notes, for the vast majority of the laws in the list (the 106 non-Schengen measures) the Commission's approval is needed - here at least political horse trading should not be a factor. If it is, there are likely to be far bigger problems to worry about.

For the rest (the 24 Schengen measures), unanimity of the Council of Ministers is required and political factors could come into play but, again, the UK would be able to point to the Treaty protocol and take the legal high ground. It would also be rather strange to see the UK prevented from taking part in further EU integration - after all opting back in would involve accepting the full powers of the ECJ. This was the concern that gave rise to the opt-out in the first place.

However, given that EU negotiations are very much about the art of horse-trading, it could well be that the bloc opt-out gets lumped together with a whole range of other issues. Given the turmoil in which the EU, and the eurozone in particular, finds itself at the moment, come 2014, who knows what new challenges the UK-EU relationship could face. It's conceivable therefore that other member states could use the opt-out to get some concessions from the UK, but that's very speculative. And in any case, that's a strong argument for exercising the opt-out and beginning the process now, in order to avoid unpredictable horse-trading down the line.

Making a decision sooner rather than later would provide a chance to thoroughly evaluate which laws the UK might truly want to keep. Using the opt-out could also provide the UK with an opportunity to push for reform of laws such as the European Arrest Warrant before deciding to opt back in to them.

So, while there is a very small chance that UK applications to opt back in to individual laws might become a hostage to politics, the UK would have a very strong legal argument in its favour. In the end, if the other member states don't want the UK to participate, then that probably signals that this has turned into something rather bigger than simply the level of EU police cooperation.

This could be interesting

Do you remember all that talk about how national parliaments would be strenghtened under the Lisbon Treaty (something which the pro-Lisbon camp continuously banged on about, presenting it as a 'fact', when in reality it's anything but)?

We've looked at what post-Lisbon life is like for national parliaments many times before (and it ain't that pretty), but it now appears that national parliaments' "new powers" to challenge proposals from the Commission are being tested for the first time.

The Lisbon Treaty says that, in the event that a third of national parliaments - that's 9 - get together to oppose their governments on a piece of legislation, on the specific grounds of 'subsidiarity', and within an 8-week window, then the legislation would have to be reviewed, following which, it would be open to the institution which originated the proposal to choose whether to maintain, amend or withdraw the proposal.

Hardly practical. But the Swedish Parliament (the Riksdag) is determined to give it a try. The Treasury Committee of the Riksdag has raised objections against the Commission's proposed amendments to the Deposit Guarantee Schemes Directive. Under the amended Directive, deposit guarantee schemes must offer depositors up to €50,000, if their bank collapses. The schemes are to be 75 percent pre-funded from bank contributions, with the remainder coming from other sources. However, the Riksdag's Treasury Committee is opposed to a provision in the Commission's proposal which could see Sweden (or any other member state) being forced to lend money to other member states' funds, if these funds face a shortfall in cash.

The Riksdag, going against the Swedish government, said that such mandatory lending could lead to some member states under-funding their deposit schemes, knowing that someone else would be lender of last resort. It also argued that the provision represents a violation of the EU's subsidiarity principle. The Riksdag will now seek to spread the word amongst other parliaments in a bid to get the Commission to reconsider the proposal.

One tiny problem: many national parliaments around Europe are on recess at the moment - including the UK's. To muster the support of an additional eight will be a difficult task indeed.

This is one to watch.

Left waiting

It seems that the lack of scrutiny for Parliament since the Lisbon Treaty came into effect is not restricted to the SWIFT agreement.

Documents from the European Scrutiny Committee point that three additional measures have been limited to only four weeks scrutiny time because of the failure of Ministers to deposit the relevant documents with the Committee.

Two different agreements on the sharing of passenger-name records (with the US and Australia), and an extradition agreement between the EU and Iceland and Norway have both seen their scrutiny time cut short in January.

The Committee points out that this "contravenes the undertaking in Baroness Ashton's statement on JHA opt-ins that the Government will place an Explanatory Memorandum before Parliament 'as swiftly as possible and no later than ten working days after the publication of the proposal.'"

Maybe the relevant department took a holiday on 17 December, when the Memorandum was due to be deposited, but that doesn't explain why they failed to do so until 19 and 20 January respectively. While these measures are not as controversial as SWIFT, it would be nice to see the Government adhering on all these proposals to the assurances it made on Parliamentary scrutiny when it was ramming the Lisbon Treaty through.

This is important stuff, as it strikes at the very heart of national democracy and scrutiny in the wake of the Lisbon Treaty (which, on the whole, reduces the role of national parliaments in EU decision making).

A shame so few people are paying attention.

Ignorance is not bliss for Chris Bryant

The controversial EU-US anti-terrorism data-sharing deal, named the Swift agreement, came under further attack yesterday as an almighty row broke out in the Commons. Labour’s very own Michael Connarty accused the government of treating Parliament with "disdain and contempt" by choosing to bypass the standard eight-week period given to the European Scrutiny Committee to examine such agreements, with Treasury Minister Sarah McCarthy-Fry asked to justify the Government's decision.

The Swift agreement allows the US authorities to access EU citizens’ bank transactions under the name of anti-terrorism. But whilst the Government claims the agreement will protect us from the threat of terrorist attacks we are left wondering, who is protecting us, the citizens, against attacks on our civil liberties?

The Lisbon Treaty was sold with the promise that it would strengthen national parliaments' ability to scrutinse EU legislation. This is a particular concern for matters concerning justice and home affairs where the UK can decide to 'opt in' to a proposal or not. Let us not forget, the negotiated 'opt in' was used by the Government to justify its decision to abandon the promised referendum on the Treaty.

PA report that Connarty, the Chairman of the European Scrutiny Committee, said he had been assured by ministers, including Prime Minister Gordon Brown, that opt-ins would be subject to proper scrutiny. Connarty said that the SWIFT agreement was the first test of the Lisbon Treaty assurance and this was a "very bad start to the new process.”

But it's getting even worse.

In a public lecture at the LSE yesterday evening we asked Chris Bryant, the UK's Europe Minister, to comment on the day's debate in the Commons. And yet, to our surprise (and his), he wasn't even aware that the Commons debate had happened, remarking:

"What on earth does this have to do with Sarah McCarthy-Fry, I don't think this is right". Then calling to an assistant, he asked "Did Sarah McCarthy-Fry answer a question today?". He continued "I'm really perplexed about it because if anyone would be answering EU [questions] it should be me...I don't know if I can say much more."

With the Government so quick to ignore due Parliamentry process and the Minister for Europe totally unaware of what's going on, it’s sure time to recognise that democracy has not been strengthened by the Lisbon Treaty.

Luckily enough we have the episode on the dictaphone, so click here for a listen. Chris does sound very confused...

The Lisbon Treaty and national parliaments: In practice

The true effect of Lisbon, the practice not the theory, is beginning to come to light and, as some of us warned, it is far from pretty.

The House of Commons' European Scrutiny Committee, the body charged with sifting through EU legislation and holding the Government to account, has published its annual report today and has some quite interesting things to say about the Lisbon Treaty's impact on Parliamentary scrutiny of EU proposals - a largely unexciting process but, if it can be effective, one that is key to maintaining a link between our national representatives and the Brussels legislative machine.

Lisbon Treaty advocates have always argued, which we have refuted here, that it would improve national parliaments' scrutiny of new legislation and even increase their powers to enforce subsidiarity - the principle that actions should only be taken at the EU level if they cannot be achieved at the local, regional or member state level.

However, as politicians, the public and the media are starting to realise, the Lisbon Treaty is desperately failing the Ronseal test.

The Committee notes that under the Lisbon Treaty's so-called yellow and orange card procedures, which in theory give member states' national parliaments the right to ask the Commission to withdraw a proposal on the grounds that it infringes subsidiarity, "the legislative decision on subsidiarity would continue to rest with the EU institutions." I.e. the Commission is still free to ignore the views of national parliaments (for more on this see here).

The Committee therefore concludes:

There is, in our view, less to the provisions on subsidiarity than meets the eye. In our experience it has been rare for the entirety of a proposal for legislation to be inconsistent with the principle of subsidiarity. We do not therefore expect frequent use to be made of the yellow and orange cards. Indeed it would be surprising if the mere existence of such provisions gave rise to a growth in the number of well-founded subsidiarity cases.

The point is that subsidiarity is a politically subjective concept and that for as long as the Commission makes the decisions they are only likely to go one way. The European Commission will always find a way to justify EU action if it wants to and, needless to say, it usually does.

These are the challenges facing the Conservatives in their pledge to introduce a Sovereignty Bill which could give the Government the teeth to actually say No when it believes the EU is over-interfering.

The Committee's report raises two more important points. The first is the Government's increased overriding of the Committee's scrutiny reserve. Among other things, the scrutiny reserve obliges ministers to provide the Committee with requested information before they sign up to EU proposals. Between July and December 2008 there were 23 overrides compared with 12 during the corresponding period in 2007. If scrutiny is to be effective, MPs must curb the Government's willingness to circumvent Parliament.

Secondly, the report suggests that the growing use of 'first reading deals', often negotiated in confidentiality between the Council, the European Parliament and the Commission, make it "well nigh impossible" for national parliaments to scrutinise any amendments made to an original Commission proposal in the process. With the Lisbon Treaty now in place this is only going to become more problematic as it has dramatically increased the number of policy areas to which co-decision between the Council and the EP applies.

Stay tuned for more of what they failed to tell you about the implications of the Lisbon Treaty in practice.

Who said giving the EP more powers was a good thing?

A new report from the cross-party House of Lord's EU Scrutiny Committee will make yet more uncomfortable reading for all those Yes campaigners who are still, against all the evidence, operating under the illusion (or lie more like) that the Lisbon Treaty will be good for national parliamentary democracy.

The report looks at the meaning and implications of the so-called 'co-decision' procedure, whereby EU ministers meeting in the European Council have a more or less equal say over decisions as the European Parliament. Those decisions which are not subject to co-decision are usually taken by the Council acting alone.

The Lisbon Treaty proposes to extend the use of the co-decision procedure to 40 more policy areas, so that just about all decisions made by the EU are decided jointly with the European Parliament (as oppposed to about 75% currently).

But the House of Lords report finds significant problems with exercising national parliamentary scrutiny of EU legislation under the co-decision procedure, which could be set to worsen if it is extended under Lisbon.

The report reads, "Should the Lisbon Treaty come into force, these difficulties will be magnified by the expansion of codecision into new areas: notably agriculture, fisheries and justice and home affairs."

The report finds that, under co-decision, more and more legislative proposals are reaching a first-reading agreement in the European Parliament and Council, or an early second-reading agreement (as opposed to going to proper second and third readings). This reduces the amount of time that the legislative process takes, but also consequently reduces the (already meagre) amount of time that national parliaments have to scrutinise proposals and give their feedback to government ministers, in order to inform national positions on amendments and negotiations.

Even pro-Lisbon ex-MEP Richard Corbett (who gave evidence to the Committee) admitted that first reading agreements "limit" the "advantage" national Parliaments have, saying second and third reading agreements make Parliamentary scrutiny potentially easier.

'Informal trilogue'

The report finds that, when first-reading agreements are reached, they are often the result of "informal trilogue" meetings which take place before the official readings, in order to negotiate an acceptable text. These trilogue meetings contain representatives from the Commission, the Council and the European Parliament. The French Deputy Permanent Representative to the EU who gave evidence to the committee said, "the real negotiation takes place in the trilogue" and the Lords committee says the use of these has increased to the point that they are now the primary form of negotiation between the European Parliament and the Council.

The problem is that, as the Lords report found: "informal trilogues, whilst helpful to expeditious agreement of legislation, make effective scrutiny of codecided legislation by national parliaments very difficult."

If national Parliaments receive a Commission proposal, they may be scrutinising it while it is already being negotiated and amended by the Council and the EP. Unless national Parliaments receive up-to-date information about how the proposal is changing, scrutiny becomes even more of a redundant exercise, as it fails to reflect what the final outcome of the negotations will look like.

In that respect, the report is critical of both the Government's track record in keeping Parliament in the loop about the development of EU proposals, and the speed of co-decision negotiations, which make updates difficult.

The Lords EU sub-Committee on environment and agriculture said that "the emerging consensus between the European Parliament and Council can be almost impossible to determine. Updates from the Government are usually too infrequent, and negotiations proceed too rapidly and opaquely for accurate tracking of the inter-institutional negotiations."

The same sub-Committee also found that DEFRA was "sluggish" in providing updates on the progress of inter-institutional negotiations, sometimes giving them only when prompted. Notification on the Common Position (the Council's position on the European Parliament's amendments to a proposal) reached on the Plant Protection Products (Pesticides) Regulation was not received until three months after the vote in the Council. This particular proposal was modified in co-decision and subsequently became more controversial in its implications for the UK.

The report also cites the EU's Climate Change Package as a prominent example of how early agreements are being sought on important, and controversial proposals, in order to push legislation through.

The report concludes that the expansion of the scope of the co-decision procedure and the use of these informal trilogues makes national Parliamentary scrutiny increasingly difficult.

Since this is exactly what Lisbon proposes to do, things can only get worse.

Dubious double-booking

We've just stumbled across an interesting, and frankly rather worrying, snippet from a Commons debate last month on the handling of the EU budget.

It reveals that members of the European Scrutiny Committee - the handful of experts charged with filtering through the mountains of EU legislation on behalf of all MPs - have often been double-booked for European debates in the Commons. These debates happen only very occasionally - about three times a year - with only the very most important EU issues being discussed.

Michael Connarty, the Chairman of said Committee, told the House (Column 664):

"European debates are a bit like buses--we wait for one for ages, then three come along at the same time. For the first time, we are holding the debates on a Tuesday--they normally happen on a Wednesday to ensure that many members of the European Scrutiny Committee have to choose between its Committee meetings and the debates in the Chamber... I am pleased to be here, given that, as Chair of the European Scrutiny Committee, I would not normally get to debate the subject on a Wednesday."

Blimey. What possible justification can there be for holding a rare debate on the floor of the House on important EU issues and then making sure that the only EU experts in the whole place are not able to take part?

It's bad enough that less than 5% of the thousand or so pieces of EU legislation the Committee sees every year is actually subject to debate - especially given that EU legislation is responsible for 72% of the cost of regulations in the UK. It's also pretty bad that there are only 16 MPs who regularly track all this stuff. But now, we find out that on those rare occasions when there is a debate among MPs, the only EU experts in the place regularly cannot attend.

Oh and guess what - it is the Government that's in charge of the scheduling.

Hmm.

Looking back

Chris Huhne looks at why we need a re-think of some of the detail of the European Arrest Warrant in the Inde today. He notes that:

"When the legislation was considered, the Commons committee warned about the inclusion of racism and xenophobia in the list of offences where it was unnecessary to prove it was against the host and issuing country's law, precisely because of differences in interpretation from one EU country to another."

Unfortunately, it seems the often very sensible recommendations of the experts in the EU Scrutiny Committee are overlooked far too often. The repeated warnings about the weaknesses, among other things, of the UK's so-called 'safeguards' on the Lisbon Treaty spring to mind. I wonder if Chris Huhne and his colleagues will one day be lamenting the failure to heed that advice, too.

MPs slam Lisbon Treaty's provisions for parliaments

A new, but belated, report on the Lisbon Treaty's provisions for national parliaments from the cross-party EU Scrutiny Committee makes for very interesting reading.

Just to pull out some of the best bits, the committee concludes: "we doubt whether the Lisbon Treaty's new subsidiarity provisions about the role of national parliaments would make much practical difference to the influence presently enjoyed by the UK Parliament", and says, "we doubt the significance of the 'greater opportunities' for national parliaments to be involved in any meaningful manner in the workings of the EU."

The Committee notes that "if national parliaments trigger the yellow or orange card procedures, the decision on whether a proposal is compatible with subsidiarity will continue to rest with the EU institutions." It also notes that, "There may in future be proposals where it might be difficult to deny that collective action by the EU would be the most effective way to achieve a Treaty objective, but where a national parliament would strenuously object to the proposal because it infringes national sovereignty. If a proposal were objectionable on grounds of sovereignty alone, neither the yellow nor the orange card procedures would be available to national parliaments."

The report quotes Andrew Duff MEP, who told the Committee: "there is a danger that, in assessing the Treaty of Lisbon, national parliaments become obsessed by the early warning mechanism on subsidiarity. It was understood by those of us involved in its drafting and, then re-drafting that the mechanism, although a necessary addition to the system of governance of the Union, was not really intended to be used. It is, in Bagehot's terms, more a dignified part of the European constitutional settlement than an efficient one." Richard Corbett MEP also told the Committee: "in practice, I do not think that the 'yellow' and 'orange' card mechanisms will be extensively used."

It's just a shame this damning opinion on the sham that is the Lisbon Treaty's so-called new provisions for national parliaments wasn't released in time to have an impact on the UK ratification of the Treaty.

It never just rains...

The rows over Party funding and missing data CDs may blow over fairly soon if fortune starts to favour Gordon Brown – although this is by no means certain.

But along with Northern Rock, a more enduring problem with the potential to hole the long-term reputation of the Government below the water line is Europe. Parliamentary ratification – scheduled for early next year – would be a tortuous, drawn-out process. In this light, today’s report from the European Scrutiny Committee is yet more bad news for Brown. A few extracts below:

On the lack of opportunity for parliamentary oversight…

“We again recall that as recently as June of this year the European Council not only emphasised the “crucial importance of reinforcing communications with the European citizens … and involving them in permanent dialogue” but also stated that this would be “particularly important during the upcoming IGC and ratification processes”. Such statements now ring hollow, and we reiterate our earlier comment that the process could not have been better designed to marginalise the role of national parliaments and to curtail public debate, until it has become too late for such debate to have any effect on the agreements which have been reached.”

The ‘red line’ on tax was a distraction…

“In our view, control of tax and social security was never seriously threatened. The previous Treaty establishing a Constitution for Europe contained no proposals to move to QMV in relation to tax.”

On why the UK’s protocol on the Charter is not an ‘opt-out’ (as the Government originally claimed) and will not work…

“It is clear that the Government accepts that the Charter will be legally binding, and it has stated that the Protocol is not an opt-out. Since the Protocol is to operate subject to the UK’s obligations under the Treaties, it still seems doubtful to us that the Protocol has the effect that the courts of this country will not be bound by interpretations of measures of Union law given by the ECJ and based on the Charter. If the ECJ gives a ruling in a case arising outside the UK on a measure which also applies in the UK, the duty to interpret the measure in accordance with that ruling arises, not under the Charter, but under the UK’s other Treaty obligations. Nothing in the Protocol appears to excuse the UK from this obligation.

…In our view, the only way of ensuring that the Charter does not affect UK law in any way is to make clear, as we have already suggested, that the Protocol takes effect “notwithstanding the Treaties or Union law generally.” We note that this kind of provision has been made in the Protocol to the EC Treaty on the acquisition of property in Denmark (No. 16) and in the Protocol to the EU Treaty on Article 40.3.3 of the Irish Constitution (No. 17), but it has not been made in respect of the Charter.”

There is detailed explanation of the UK’s opt-in arrangement on Justice and Home Affairs, particularly the changes that weakened the UK’s protocol subsequent to the agreement on IGC mandate in June. The Committee question whether the UK can be genuinely free to choose whether or not it opts-in to a measure amending an existing JHA measure:

“the risk of losing the benefit of an existing measure, because of a choice not to participate in its amendment, by virtue of a decision in which the UK cannot take part, must put at least some pressure on the UK to opt in. We also note the new possibility for the Council to decide by QMV that the UK should bear the direct financial consequences necessarily and unavoidably incurred if the UK ceases to participate in a measure. This must import some measure of financial risk, not present before, into a decision not to opt in and we question whether it is in the UK’s interests to be exposed to such risk.

It concludes by highlighting the danger of “exposing the UK to new and unpredictable consequences and risk if it decides not to opt in to any transposed or amended measure. The ‘opt-in’ decision under these proposals will become one which may lead to serious consequences for the UK through the transfer of jurisdiction on important measures dealing with civil and criminal justice.”