The Justice and Home Affairs Council was held on 5-6 October 2006 in Luxembourg. Baroness Scotland attended the Council with the Home Secretary and Baroness Ashton, Parliamentary Under-Secretary of State at the Department of Constitutional Affairs. I thought it would be useful to outline what was discussed and decided at the Council meeting.

The Finnish presidency opened the Council with the A points list which was approved. This included community strategic guidelines on cohesion and a framework decision on the mutual recognition of confiscation orders.

The presidency confirmed that a deal had been reached with the United States on an interim passenger name records agreement. Negotiations on a new permanent agreement will start shortly.

On the Hague Programme it was agreed that more co-operation was needed on immigration between member states, and between the EU and third countries. Countering terrorism and organised crime needed closer member state cooperation with Europol, Sitcen and between member state agencies. The UK emphasised that new legislation should be proposed only when it met a real need. It was important to focus on delivery of existing instruments and action plans. There was some emphasis on the challenges faced by some member states from illegal migration.

The presidency reported back on the discussion held at Tampere on the use of the passerelle in Article 42 TEU, noting that a significant number of member states had expressed concerns about the possibility of such use. The presidency is still reflecting on what its next steps should be, but we consider the current debate to be over and that we should instead focus on practical measures.

The presidency noted that they were still working to a European Council mandate to improve decision making in JHA, but the JHA Council was split on the use of the passerelle in Article 42 TEU. The Commission urged the presidency to reach agreement on the passerelle by the December European Council.

There had been a discussion about the future development of mutual recognition at the Tampere Informal Council in light of which the presidency planned to present draft Council Conclusions to the December JHA Council.

The Home Secretary thanked the presidency, member states and the Commission for the help and solidarity received in August, saying that the EU had done much good work to establish a political and legislative framework to deliver real benefits to citizens and that migration and counter terrorism were key priorities.

An in-depth discussion was held on the draft Framework Decision on the transfer of prisoners. No agreement was reached on the issues of prisoner consent or the treatment of third country nationals. The UK argued against watering down the text through the inclusion of broad grounds for refusal, such as a proposal that refusal should be possible where the aim of social rehabilitation would not be met. It was proposed however that concerns about meeting the social rehabilitation aim could be addressed through a definition of residence since it was arguable that social rehabilitation was dependent on the links to a member state that would have been created by five years, previous residence there. It was argued that this could also be used to determine whether or not there was an obligation on the executing state to take back the prisoner notwithstanding his or her nationality. The UK agrees that a solution might rest with this approach, although the presidency concluded that work would continue on the basis of a regime that did not include an obligation to accept third country nationals. Work will continue at expert level with a view to concluding negotiations in December.

The new member states were deeply disappointed by the delay to the SIS II timetable. There was some strong support for the Portuguese proposals to integrate the new member states into SIS I+. A number of member states underlined that an effective Task Force was critical to the SIS II implementation timetable; some stressed that work to explore the Portuguese proposal should not detract from continued focus on implementation of SIS II or result in further delays. The presidency achieved agreement to the Council Conclusions.

There was debate on the draft Framework Decision on taking account of convictions in new criminal proceedings. However it remained clear that the detail of Article 3 needed further work, in particular in relation to the exceptions to the obligation to assimilate foreign convictions into national systems. The presidency hopes to finalise the text at the December JHA Council.

The presidency called for political agreement to a compromise proposal on civil protection, which limited Community financing of transport and equipment to third country assistance and included the possibility of reimbursement to the Community budget. There was some agreement around the table, however the UK rejected the compromise because it blurred the clear member state responsibility for civil protection. The UK commented that the Commission's role in helping cooperation between member states was welcome, as was improving interoperability of member state assets, however we could not agree the Instrument with the contentious articles. The Government insisted that while all member states agreed that solidarity was critical and helped each other in practice, the proposed measures were not the way to strengthen our systems. The presidency agreed to send the item back to Coreper for further discussion.

The presidency outlined the progress made in the proposal to establish a European Union Fundamental Rights Agency and, unexpectedly, pressed for political agreement. As a result, several member states stated their positions and concerns with the proposal. The UK made it clear that the agency should be focused solely on Community law and with no third pillar remit. The presidency confirmed that discussions on the proposal would continue at Coreper level.

In considering the management of future negotiations on the draft directive proposing criminal penalties to enforce intellectual property rights, member states were split as to whether there was a need for further legislation at this time and whether it was appropriate to continue discussions on the directive pending the ECJ judgment on maritime pollution, which should address the scope for Community action in relation to criminal matters. There was agreement that the scope of any instrument should however be limited to those intellectual property rights harmonised at Community level. The presidency concluded that work would continue on that basis at expert level both on the need for legislation and on the substance of the proposed directive, but without prejudice to a final decision on the legal base.

The draft council conclusions on reinforcing the southern external maritime borders were agreed without discussion.

There was discussion about visa waiver reciprocity and the Commission highlighted their successes with South African countries. The US was not abiding by an undertaking made during the Austrian presidency and there was some call for taking the first punitive steps, however other member states called for a more measured response.

There was no substantive discussion on visa facilitation and readmission agreements with Moldova. The presidency invited the Commission to draw up mandates.

Finally the European conference on active participation of ethnic minority youth in society was highlighted with requests for opinions on what more could be done to fight radicalisation, how politicians could learn from the young and how integration could be further promoted. This item will feature on future Council agendas.