We believe that European Union measures that impose justice and home affairs (JHA) obligations only apply to the UK if we choose to opt in to them. Since the entry into force of the Lisbon treaty, there have been a number of JHA proposals that repeal measures that we are currently bound by, and replace them with new ones. We have not opted in to all of the replacement proposals and there has been a question as to whether the measures that we currently do take part in (the “underlying measures”) would still bind us once the replacement has entered into force.
The policy we inherited from the previous Government was that the UK was not bound by an underlying measure when we did not opt in to a measure repealing and replacing that underlying measure. Following a review of this policy, the position of the Government is that:
the UK considers itself bound by an underlying measure when we do not opt in to a
new measure that repeals and replaces it; and
article 4a of the title V opt-in protocol (protocol 21 of the treaty on the functioning of the European Union) should be interpreted as applying not only to amending measures but also to repeal and replace measures.
Our position has been reinforced by the fact that the Commission has started to introduce express wording in repeal and replace measures which makes it clear that the underlying measures will continue to bind us if we do not opt in. It is highly likely that the Commission will in future routinely insert such language into new measures.
We acknowledge that this new policy carries a small risk of the UK being bound by arrangements which no longer operate in relation to the EU as a whole but continue to apply as between the UK and Denmark (and sometimes Ireland). This would happen when only the UK and Denmark (and sometimes Ireland) remain bound by an underlying measure following a “repeal and replace” proposal. However, we already accept this position in relation to amending measures as a consequence of article 4a of the title V opt-in protocol. Article 4a of the title V opt-in protocol provides that the UK remains bound by an underlying measure where a new measure amends it unless
“the non participation of the UK and Ireland in the amended version of an existing measure makes the application of that measure inoperable for other Member States of the Union...”
In such cases, the measure would cease to apply to the UK.
Our decision to accept that we continue to be bound by an underlying measure where it has been repealed and replaced has a direct read across to the interpretation of article 4a of the title V opt-in protocol. Our view is that a broad interpretation of article 4a is the correct one and that repeal and replace measures should be considered to be a type of amending measure for the purposes of article 4a. In practical terms, if we accept that the UK continues to be bound by the underlying measure where we do not participate in the new ‘repeal and replace’ measure, we believe that we must also accept that, in such cases, the UK would cease to be bound by the underlying measure where it was deemed to be ‘inoperable’.