Debate during the 2017 general election campaign has, predictably, centred on Brexit. The UK is scheduled to leave the EU by April 2019. However, until we leave, the UK remains a Member State of the EU and is therefore subject to the obligations of EU law and the acquis communautaire.

One of the fundamental principles of EU law is the requirement placed on EU Member States to implement Directives. Ordinarily, a Directive must be provided for in domestic law by a Member State by a specified date. It would appear that thanks, at least in part, to Theresa May’s decision to call a snap general election, the Directive on the European Investigation Order (“the Directive”) has not been implemented by the UK within the prescribed time period. In this blog, we explore what has (not) happened.

Directives

A Directive is a legal act of the EU that is “directed” at Member States. Directives are not directly applicable in domestic law, but require implementation through domestic legislation. Directives must be implemented within a set time period, usually two years.

The UK implements Directives in a variety of ways: including primary legislation (Acts of Parliament) and secondary legislation made under the European Communities Act 1972.

The European Investigation Order

The Directive 2014/41/EU on the European Investigation Order replaces the bulk of EU legislation governing the transfer of evidence between Member States. The Directive is based on the principle of mutual recognition for judicial decisions and is aimed at creating a more efficient process for Member States to obtain and transfer evidence between States for use in criminal proceedings.

The Directive provides for a Member State to “have one or several specific investigative measure(s) carried out in another Member State [(“the Executing State”)] to obtain evidence”.

Amongst other investigative measures, the Directive enables the Executing State to:

  • Temporarily transfer persons held in custody for further investigation;
  • Summon witnesses to court to provide evidence by video conference at a hearing;
  • Transfer evidence already in possession of the Executing State; and
  • Undertake certain covert investigations and intercept telecommunications.

Member States had until 22 May 2017 to implement the Directive into domestic law. As recently as 20 January 2017, Mr Ben Wallace (formerly MP for Wyre and Preston North) confirmed that “the Government is taking the necessary measures to comply with this Directive by 22 May 2017”. At the date of dissolution of Parliament, on 3 May 2017, no secondary legislation had been laid to introduce the Directive. Now that Parliament has been dissolved, and more generally because of purdah, the Government has not been able to lay the necessary legislative instrument to implement the Directive.

By 22 May 2017, each Member State who signed up to the Directive was meant to have provided the European Commission (“the Commission”) with a copy of the implementing domestic legislation. This domestic legislation would then be reviewed by the Commission to ensure that it provided for the Directive’s measures.

As the Government has failed to meet this deadline, the Commission would in theory be permitted to commence infringement proceedings against the Member State. Ultimately, this could lead to proceedings before the Court of Justice of the European Union. Indeed, the Commission has recently confirmed that it will “now analyse the state of the implementation and follow up with Member States in case they have not taken the necessary measures yet”.

Comment

Based on the commitments expressed by the former Government to implement the Directive, it is unlikely that the Government will renege on its intentions, and implementation will be delayed instead of abandoned.

What is does demonstrate, however, is the effect of the snap general election on Brexit. The UK government cannot forget its existing obligations under EU law. With the increasingly fraught negotiations between the UK and the EU, it will be interesting to see how the European Commission respond to the UK’s implantation failures.