The Association of Chief Police Officers - Parliament

Bar Council –Written evidencewhich we explore further in answer to relevant questions below. Some of the consequenceswere not necessarily inherent in the block-opt-out decision per se, but rather flow from thehigh profile that this decision has been given in recent months, and the manner in which ithas been politicised. The Bar Council’s Brussels Office has been well placed to monitor theupsurge in irritation, exasperation and bewildered incomprehension with which the UKGovernment’s recent pronouncements have been met by other Member States, and onoccasion, EU institutions; and to note also the effect on the UK’s negotiations in whollydifferent areas of legal policy.Question 2: What are the likely financial consequences of exercising the opt-out?13. The Bar Council believes that there are several different ways in which the opt-outcould have negative financial consequences for the UK, some out of all proportion to thepotential gains.14. In general terms, the potential loss of status and negotiating strength is likely to have aknock-on effect on UK – EU relations in other areas, some of which may be critical to theUK in economic terms. There is already some evidence for this in Brussels. Such risk isdifficult to quantify, but should not be ignored. We will return to this later.15. More specifically, there are two ways in which exercising the opt-out is likely to havedirect financial consequences for the UK. First, Article 10(4) para 3 of Protocol 36 makesspecific provision for the UK to be made liable for the consequential costs of its decision toother Member States:16. “The Council, acting by a qualified majority on a proposal from the Commission, mayalso adopt a decision determining that the United Kingdom shall bear the direct financialconsequences, if any, necessarily and unavoidably incurred as a result of the cessation of itsparticipation in those acts.”17. There is of course no precedent to assist in defining the scope of “direct financialconsequences”; nor “necessarily and unavoidably incurred” in this context. One can expectthat the Commission will apply these terms in a manner which is straightforward, butcertainly shows the UK no favours.18. On the contrary, there is likely to be at least argument and quite possibly litigation, asto the scope of those phrases. For some Member States, the UK’s exit from these measureswill require amendment to treaties and/or to domestic law (especially in monist states); andquite possibly amendment also to their Constitutions.19. The Council will (by Art 10 (4) para 2) “determine the necessary consequential andtransitional arrangements” of the opt-out – the UK is expressly excluded from participatingin that determination. So far as the Bar Council is aware, no draft provisions are yetavailable.20. Furthermore, any transitional provisions may have to take account of a request by theUK to opt back in to particular measures and this is likely to carry further costs. Is anamendment consequent on a request to opt back in, a “direct financial consequence…necessarily and unavoidably incurred” in the opt out?38