Wednesday, November 10, 2010

Nope, we are not handing over power

Just in case you were wondering, dear reader, about that European Investigation Order that the Cleggeron Coalition decided to opt into, it does not involve handing over power to the EU. Of course not.

Lord Tebbit asked about it.
To ask Her Majesty's Government whether the decision to opt in to the European Investigation Order to which future amendments will be made by qualified majority voting rather than unanimity transfers any power from the United Kingdom to the European Union.
What a silly question. As I said above: of course not.
The UK's decision to opt in to the draft directive for a European Investigation Order (EIO) and thereby participate in negotiations which will be subject to qualified majority voting (QMV) does not constitute a transfer of power from the United Kingdom to the European Union. The treaty on the functioning of the European Union provides an appropriate legal base under Title V for the Union to legislate in this area. This is subject to protocol 21 to the treaty providing for the UK to decide to opt in to the proposal. In taking the decision to opt in to this measure a number of factors, including the benefits of participating in the more effective arrangements which the measure proposes and the prospect of achieving the right outcomes for the UK through negotiations, were considered.

Any new measure proposing amendments to the EIO after the current directive has been adopted would be subject to the UK's JHA opt-in and the UK could therefore choose whether or not it wished to participate in any future amended version. The UK will consider these decisions on a case by case basis.
I wonder if it is true. There seems to be a slight discrepancy between the last paragraph of Baroness Neville-Jones's reply and what she said last time.
I can further explain that, in line with Article three of Protocol 21 of the Treaty on the Functioning of the European Union concerning the position of the United Kingdom (and Ireland) in respect of the area of freedom, security and justice, the UK is able to opt in to a draft directive within the three month opt-in period, but that the Government cannot then subsequently reverse this decision (to opt in). This means that the UK will be bound by any text that is agreed after qualified majority voting (QMV) in the Council of Ministers.
I am not at all sure that the UK will have an option of not participating in any amended version in the future though, of course, an attempt to form a blocking minority in the QMV vote will always be a possibility. The reality of such a minority is far less of a possibility.

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