United Kingdom opt-outs from EU legislation


The United Kingdom was a member state of the European Union and of its predecessor the European Communities from 1973 until 2020. Since the foundation of the European Communities, it has been an important neighbour, and was a leading member state until its withdrawal from the EU on 31 January 2020 as a result of Brexit, ending 47 years of membership.

In general, the law of the European Union is valid in all of the European Union member states. However, occasionally member states negotiate certain opt-outs from legislation or treaties of the European Union, meaning they do not have to participate in certain policy areas. The United Kingdom had four opt-outs in place before leaving the Union– the most of any EU member state, making it the least integrated member state.

Opt-outs in place when the UK withdrew from the EU


Schengen Agreement

The Schengen Agreement abolished border controls between member states. The United Kingdom and Ireland received opt-outs from implementing the Schengen acquis when the Treaty of Amsterdam of 1997 incorporated it into the EU treaties, as they were the only EU member states which had not signed the agreement. However, the protocol on the Schengen acquis specified that they could request to opt into participating in Schengen measures on a case-by-case basis if they wished, subject to unanimous approval of the other participating states. The opt-out has been criticised in the United Kingdom for hampering the United Kingdom's capabilities in stopping transnational crime through the inability to access the Schengen Information System.[1] Although the United Kingdom was not part of the Schengen passport-free area,[2] it still used the Schengen Information System, a governmental database used by European countries to store and disseminate information on individuals and property. This allowed the UK to exchange information with countries that are a part of the Schengen agreement, often for the sake of liaising over law enforcement.[3]

The UK formally requested to participate in certain provisions of the Schengen acquis – Title III relating to Police Security and Judicial Cooperation – in 1999, and this was approved by the Council of the European Union on 29 May 2000.[4] The United Kingdom's formal participation in the previously approved areas of cooperation was put into effect by a 2004 Council decision that came into effect on 1 January 2005.[5]

Economic and Monetary Union

All member states, other than the United Kingdom and Denmark, have either adopted the euro or are legally bound to do so. The Maastricht Treaty of 1992 included protocols on the UK[6] and Denmark giving them opt-outs with the right to decide if and when they would join the euro.

The Labour government of Tony Blair argued that the UK should join the euro, contingent on approval in a referendum, if five economic tests were met.[7] However, the assessment of those tests in June 2003 concluded that not all were met. The policy of the 2010s coalition government, elected in 2010, was against introducing the euro prior to the 2015 general election.

Charter of Fundamental Rights of the European Union

Although not a full opt-out, both the United Kingdom and Poland secured a protocol which clarified how the Charter of Fundamental Rights of the European Union, a part of the Treaty of Lisbon, would interact with national law in their countries limiting the extent that European courts would be able to rule on issues related to the Charter if they are brought to courts in Poland or the UK.[8]

The UK was worried that the Charter might be used to alter British labour law, especially as relates to allowing more strikes.[9] The European Scrutiny Committee of the British House of Commons, including members of both the Labour Party and the Conservative Party, has however cast doubts on the provision's text, asserting that the clarification might not be worded strongly and clearly enough to achieve the government's aims.[10][11][12]

After the Civic Platform won the 2007 parliamentary election in Poland, it announced that it would not opt-out from the Charter, leaving the UK as the only state not to adopt it.[13]

Area of freedom, security and justice

The United Kingdom had a flexible opt-out from legislation adopted in the area of freedom, security and justice, which includes all matters previously part of the pre-Amsterdam Justice and Home Affairs (JHA) pillar.[14] This allows them to opt-in or out of legislation and legislative initiatives on a case-by-case basis, which they usually do, except on matters related to Schengen.[15] The opt-out from the JHA policy area was originally obtained by both states in a protocol to the Treaty of Amsterdam of 1997, and was retained with the Treaty of Lisbon.[16]

Under Protocol 36 of the Lisbon Treaty, the UK had the option to opt out of all the police and criminal justice legislation adopted prior to the treaty's entry into force which had not been subsequently amended. The decision to opt out had to be made at least six months prior to the aforementioned measures coming under the jurisdiction of the European Court of Justice on 1 December 2014.[17][18]

The UK informed the European Council of their decision to exercise their opt-out in July 2013,[19] and as such the impacted legislation ceased to apply to the UK as of 1 December 2014. While the protocol only permitted the UK to either opt-out from all the legislation or none of it, they subsequently opted back into some measures.[20][21][22]

Former opt-outs


The Major ministry secured the United Kingdom an opt-out from the protocol on the Social Chapter of the Maastricht Treaty before it was signed in 1992.[23] The Blair ministry abolished this opt-out after coming to power in the 1997 general election as part of the text of the Treaty of Amsterdam.[24][25]

Former proposals

Following the announcement by the government of the United Kingdom that it would hold a referendum on withdrawing from the European Union, an agreement was reached between it and the EU on renegotiated membership terms should the state vote to remain a member. In addition to a number of amendments to EU Regulations which would apply to all states, a legal guarantee would be granted to the UK that would explicitly exempt it from the treaty-stated symbolic goal of creating an "ever closer union" by deepening integration.[26] This guarantee was included in a Decision by the European Council, with the promise that it would be incorporated into the treaties during their next revision.[27] However, following the referendum, in which the UK voted to leave the EU, per the terms of the Decision the provisions lapsed.

Summary table


Policy opt-outs of the United Kingdom
Country # of
opt-ins
or
opt‑outs
Policy area
Schengen Area Economic and Monetary Union (EMU) Area of freedom, security and justice (AFSJ) Charter of Fundamental Rights Social Chapter
 United Kingdom 4 OI OO OI OO FO
Legend
  •  OI  opt-in – possibility to opt in on a case-by-case basis
  •  OO  – opt-out in place
  •  FO  – former opt-out that was subsequently abolished


See also


References


  1. Parliament of the United Kingdom (2 March 2007). "9th Report of 2006/07, HL Paper 49". Schengen Information System II (SIS II), House of Lords European Union Committee (Sub-Committee F). Archived from the original on 9 November 2007. Retrieved 24 October 2007.
  2. "Schengen Area". ec.europa.eu. European Commission. Retrieved 14 May 2016.
  3. "Schengen Information System". ec.europa.eu. European Commission. Retrieved 14 May 2016.
  4. Council Decision (2000/365/EC) of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (OJ L 131, 1 June 2000, p. 43)
  5. Council Decision (2004/926/EC) of 22 December 2004 on the putting into effect of parts of the Schengen acquis by the United Kingdom of Great Britain and Northern Ireland (OJ L 395, 31 December 2004, p. 70)
  6. Parliament of the United Kingdom (12 March 1998). "Volume: 587, Part: 120 (12 Mar 1998: Column 391, Baroness Williams of Crosby)". House of Lords Hansard. Retrieved 13 October 2007.
  7. Staff writer (11 December 2003). "Euro poll question revealed". BBC News. Retrieved 17 October 2007.
  8. European Parliament (10 October 2007). "MEP debate forthcoming crucial Lisbon summit and new Treaty of Lisbon". Press Service. Retrieved 13 October 2007.
  9. Williams, Liza (9 October 2007). "Should a referendum be held on EU treaty?". Liverpool Daily Post. Archived from the original on 20 October 2007. Retrieved 13 October 2007.
  10. Branigan, Tania (10 October 2007). "MPs point to flaws in Brown's 'red line' EU treaty safeguards". The Guardian. UK. Retrieved 13 October 2007.
  11. Wintour, Patrick (12 October 2007). "Opt-outs may cause problems, MPs warn Brown". The Guardian. UK. Retrieved 13 October 2007.
  12. European Scrutiny Committee (2 October 2007). "European Union Intergovernmental Conference". European Scrutiny – Thirty-Fifth Report. British House of Commons. Retrieved 14 October 2007.
  13. Staff writer (22 October 2007). "Poland's new government will adopt EU rights charter: official". EUbusiness. Archived from the original on 17 December 2007. Retrieved 22 October 2007.
  14. See Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security, and Justice (page 295 of the PDF)
  15. Charter, David & Elliott, Francis (13 October 2007). "Will the British ever be given a chance to vote on their future in Europe?". The Times. UK. Retrieved 13 October 2007.
  16. Miller, Vaughne (2011-10-19). "UK Government opt-in decisions in the Area ofFreedom, Security and Justice" (PDF). Government of the United Kingdom. Retrieved 2014-05-26.
  17. "List of Union acts adopted before the entry into force of the Lisbon Treaty in the field of police cooperation and judicial cooperation in criminal matters which cease to apply to the United Kingdom as from 1 December 2014 pursuant to Article 10(4), second sentence, of Protocol (No 36) on transitional provisions". Official Journal of the European Union. C (430): 17. 2014-12-01. Retrieved 2019-01-05.
  18. "List of Union acts adopted before the entry into force of the Lisbon Treaty in the field of police cooperation and judicial cooperation in criminal matters which have been amended by an act applicable to the United Kingdom adopted after the entry into force of the Lisbon Treaty and which therefore remain applicable to the United Kingdom as amended or replaced". Official Journal of the European Union. C (430): 23. 2014-12-01. Retrieved 2019-01-05.
  19. "Decision pursuant to Article 10(5) of Protocol 36 to The Treaty on the Functioning of the European Union" (PDF). Government of the United Kingdom. July 2014. Retrieved 2014-11-20.
  20. "2014/858/EU: Commission Decision of 1 December 2014 on the notification by the United Kingdom of Great Britain and Northern Ireland of its wish to participate in acts of the Union in the field of police cooperation and judicial cooperation in criminal matters adopted before the entry into force of the Treaty of Lisbon and which are not part of the Schengen acquis". Official Journal of the European Union. L (345): 6. 2014-12-01. Retrieved 2019-01-05.
  21. "2014/857/EU: Council Decision of 1 December 2014 concerning the notification of the United Kingdom of Great Britain and Northern Ireland of its wish to take part in some of the provisions of the Schengen acquis which are contained in acts of the Union in the field of police cooperation and judicial cooperation in criminal matters and amending Decisions 2000/365/EC and 2004/926/EC". Official Journal of the European Union. L (345): 1. 2014-12-01. Retrieved 2019-01-05.
  22. Miller, Vaughne (20 March 2012). "The UK's 2014 Jurisdiction Decision in EU Police and Criminal Justice Proposals" (PDF). European Parliament Information Office in the United Kingdom. Retrieved 2013-02-09.
  23. Dale, Reginald (6 May 1997). "THINKING AHEAD/Commentary : Is Blair Leading a Continental Drift?". New York Times. Retrieved 13 October 2007.
  24. Johnson, Ailish (2005). "Vol. 8 Memo Series (Page 6)" (PDF). Social Policy: State of the European Union. Archived from the original (PDF) on 27 February 2008. Retrieved 13 October 2007.
  25. "Agreement on Social Policy". Eurofound. Retrieved 2014-05-26.
  26. "Britain should stay in the European Union". Washington Post. 2016-02-22. Retrieved 2016-03-15.
  27. "European Council meeting (18 and 19 February 2016) – Conclusions". European Council. 2016-02-19. Retrieved 2016-03-15.