Right of Access to a Lawyer in Criminal Proceedings and Right to Communicate upon Arrest (Opt-in Decision on Draft EU Directive)

Tuesday 11th October 2011 Written Statements

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

The Government have decided not to opt in at this stage to the directive on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest. The Government have taken this decision in accordance with the commitment in the coalition agreement, which states that we will approach legislation in the area of criminal justice on a case-by-case basis, with a view to maximising our country’s security, protecting Britain’s civil liberties and preserving the integrity of our criminal justice system.

The Government agree that a European directive in this area is a good idea in principle. We believe that it could benefit UK nationals who become subject to the criminal justice systems of other member states. Such a directive could also build greater trust and confidence among the competent authorities of all EU member states who may be expected to accept and act upon decisions or judgments made in other member states. However, a number of provisions in the proposal, as published by the European Commission, go substantially beyond the requirements of the European Convention on Human Rights (ECHR) and would have an adverse impact on our ability to investigate and prosecute offences effectively and fairly. Given the extent of our concerns on the detail of this directive, we cannot at this stage be confident that all of them will be addressed in the process of negotiations.



Given the importance we attach to the principles of this directive, we intend to work very closely with our European partners to develop a text which takes greater account of the practical realities of the investigation and prosecution of crime and reflects the flexibility which member states need in order to meet the requirements of the ECHR in a way which is consistent with the nature of their justice systems. In the event our concerns about the initial draft of the directive are satisfactorily dealt with during the negotiations, we will give serious thought to whether we should apply to opt in to it once it has been adopted, as our protocol to the treaty on the functioning of the European Union allows. We will consult Parliament about any decision to apply to opt in to the final text.