British and Irish opt-outs from EU JHA law

Nowhere is the semi-detached nature of the house of the European Union more clearly to be seen than in the field of opt-outs, leaving some member states outside important policy areas. Few of these arrangements are more tangled than in the area of freedom, security and justice (FSJ).

We have also heard the leader of the UK Conservative party David Cameron put criminal justice on his list of policies to (re-)domesticate, even if few know either the current state of affairs or what exactly the proposed change would entail, when the Tory leader said:

The third area where we will negotiate for a return of powers is criminal justice.

We must be sure that the measures included in the Lisbon Treaty will not bring creeping control over our criminal justice system by EU judges.

We will want to prevent EU judges gaining steadily greater control over our criminal justice system by negotiating an arrangement which would protect it.

That will mean limiting the European Court of Justice’s jurisdiction over criminal law to its pre-Lisbon level, and ensuring that only British authorities can initiate criminal investigations in Britain.

Lisbon Treaty and Stockholm Programme


The Lisbon Treaty has entered into force, which has led to considerable change from 1 December 2009, with regard to criminal justice and police cooperation. It has also given cause to intense activity with regard to policy shaping.



After the Tampere and Hague programmes, it is the EU’s third new multi-annual FSJ programme, but it has been marked by the novel Lisbon Treaty. The European Council adopted, for the years 2010-2014, the Stockholm Programme (Conclusions of the European Council 10 to 11 December 2009; document EUCO 6/09; point 25; page 9):



The Stockholm Programme – An open and secure Europe serving and protecting the citizens (document 17024/09; version 2 December 2009).


Further, the European Council invited the Commission to present an Action Plan for implementing the Stockholm Programme, to be adopted at the latest in June 2010, and to submit a midterm review before June 2012.

In other words, the Action plan will be elaborated and adopted during the Spanish presidency of the Council of the European Union.

Naturally, we can expect legislative proposals to follow during the Belgian and Hungarian presidencies.


Opposite directions


Given the intense activity at EU level, heading towards deeper integration, and the existing British opt-outs and the promised reinforcement of the dividing wall, i.e. heading in the opposite direction, it would not be a bad idea to know what the situation is with regard to the United Kingdom and Ireland (and Denmark).



Statewatch analysis



Professor Steve Peers has produced an updated version of the Statewatch Analysis: EU Lisbon Treaty Analysis no. 4: British and Irish opt-outs from EU Justice and Home Affairs (JHA) law – Version 4: 3 November 2009 (25 pages including the annexes).

Peers recalls that the Lisbon Treaty changes to EU Justice and Home Affairs (JHA) law are more far-reaching than in any other areas of EU law.

Despite the clear writing, already the key points (a-h) presented on pages 1 and 2 prepare the reader for a complicated situation.

Anyway, the paper is a useful recapitulation of the development of EU JHA law for anyone interested, as well as dealing with specific British and Irish issues, which elevate an already complex area of EU law to the level of “rocket science”.

But it would be hard to find a more succinct interpreter than Peers of the quagmire the UK and Ireland have established for themselves and the unity of EU law in the JHA area.

Incidentally, I asked myself: Is there a saying “Reject the cake and eat it too”?




Ralf Grahn



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