Commentary on Sections Restrictions relating to other decisions under TEU or TFEU Section 9: Approval required in connection with Title V of Part 3 of TFEU
95.Title V of Part 3 of TFEU contains provisions relating to the Area of Freedom, Security and Justice (‘AFSJ’) (which continues to be commonly referred to as Justice and Home Affairs (‘JHA’)). This part of the Treaty is subject to special arrangements governing the UK and Ireland’s participation in any measures, set out in the AFSJ Protocol. Using the provisions of the Protocol, the UK can decide whether to participate in any of the measures agreed under Title V, but otherwise the UK is not bound by any of the measures agreed under this section of the Treaty.
96.This section provides a series of additional conditions which need to be fulfilled before the UK could agree to participate in three specified decisions in the AFSJ area, considered to be ‘ratchet clauses’. If the Government decides against participating in these measures, then none of these conditions would apply. The three decisions are:
	A decision under Article 81(3) TFEU, which would permit a move from the special legislative procedure to the ordinary legislative procedure (co-decision) in respect of family law measures with cross-border implications. This would in effect mean a move from unanimity to qualified majority voting.
	A decision under Article 82(2)(d) TFEU, which would permit additions to the list of specific aspects of criminal procedure on which the EU can adopt minimum rules.
	A decision under Article 83(1) TFEU, which would permit additions to the list of areas of particularly serious crime with a cross-border dimension on which the EU can act to specify minimum rules on the definition of those offences or sanctions to apply.
97.Participation by the UK in any measure brought forward under these provisions would be subject to a two-stage Parliamentary approval process. This would require: (a) Parliamentary approval before the UK could participate in the negotiation of the measure in accordance with the AFSJ Protocol; and (b) an Act of Parliament before the UK could give final agreement to the measure. All three Treaty articles above are subject to unanimous agreement in the Council, and so if the UK agreed to opt-in from the outset (within the three month period provided for by the AFSJ Protocol), the UK would then have the ability to block the measure from entering into force. In such a case, where the UK blocks the adoption of a measure to which the Protocol applies, the other Member States can (after a reasonable period of time has passed) proceed to adopt the measure without the UK’s participation, but the act concerned would not then apply to the UK.
98.The first part of this two-stage process is provided for in subsection (3), which requires both Houses of Parliament to pass without amendment a motion tabled by a Minister, before the UK can opt into a proposal to use any of the three decisions above, or any subsequent decision (as explained in the paragraph above). In this case, a positive vote in Parliament to opt into one of these decisions or a subsequent proposal is not the same thing as giving final agreement to the adoption of the decision in the Council. Instead, this first step can be regarded as Parliamentary approval to allow the Government to enter into negotiations on a proposal at the EU level, where the precise nature and extent of the proposed use of the measure can be determined before Parliamentary approval of the adoption of the measure is sought.
99.The second part of the two-stage approval process is provided for in subsection (4), whereby once the negotiations referred to above are complete, the Government cannot give final agreement to adopt any of the three decisions set out above, or a subsequent proposal, unless the decision to do so is approved by an Act of Parliament.
100.Subsections (5) and (6) relate to Article 4 of the AFSJ Protocol. Article 4 of this Protocol allows the UK to seek to opt into an AFSJ measure at any point after the other EU Member States have adopted it and the final decision has entered into force (a ‘post-adoption opt-in’). The European Commission would then consider whether it is possible for the UK to take part in the measure in question, and if not, to specify the conditions which it would be necessary for the UK to meet, before the UK could then participate. Subject to the fulfilment of any such conditions, the UK can then opt in and participate in the measure concerned, but in doing so would accept the terms of the measure already agreed by the other Member States.
101.Subsections (5) and (6)(a) state that the Government may not subsequently opt into any of the three decisions set out in subsection (2), or any subsequent decision brought forward under these three Treaty articles, unless the decision to do so has been approved by an Act of Parliament. This prevents the UK from opting into a measure without passing an Act of Parliament, merely because the decision has already entered into force. The first part of the approval process, namely that both Houses of Parliament should pass a motion tabled by a Minister without amendment, would not be required in the case of a post-adoption opt-in, as the process of opting into the measure would be combined with the agreement to the measure in full.
102.Subsection (6)(b) also provides that the UK cannot seek a post-adoption opt-in in respect of any measure brought forward that relies upon an earlier use of the three Treaty articles listed in subsection (2), in which the UK has not participated to date, without an Act of Parliament. This provision is necessary because the UK could decide not to opt into a measure brought forward under any of the three Treaty articles in subsection (2), but then decide it wishes to opt into a proposed legislative act drawing on that earlier measure. By opting into the proposed legislative act, the UK would in effect opt into the earlier measure, and so the provisions of section 9 should apply in this scenario.
103.An example of this would be if the Council decided to use Article 83(1) TFEU to add female genital mutilation (FGM) to the list of areas of particularly serious crime with a cross-border dimension, and the European Commission then proposed a legislative act which concerned FGM. The Government could decide not to participate in the original decision to add FGM to the list of areas of crime, thereby not requiring the Parliamentary approval set out in this section. But the Government could then decide that it wished to participate in the subsequent legislative act – and as the proposal stems from the original decision to extend the list of areas of crime to include FGM, the provisions of this section would need to be fulfilled before the UK could participate in the negotiations on, and agree to, the measure.