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Justice and Home Affairs Pre-Council Statement

Volume 519: debated on Wednesday 1 December 2010

The Justice and Home Affairs Council is due to be held on 2 and 3 December in Brussels. My right hon. Friend the Secretary of State for Justice and I intend to attend on behalf of the United Kingdom. As the provisional agenda stands, the following items will be discussed:

The Council, beginning in Mixed Committee with Norway, Iceland, Liechtenstein and Switzerland (non-EU Schengen States), will receive an update from the presidency on the state of play of the Schengen Information System II (SIS II) project.

Next there will be a discussion of the Commission report on the implementation of the Council conclusions on 29 measures for reinforcing the protection of the external borders and combating illegal immigration. The UK has not yet received a copy of the report; however, we expect that the Commission will use this item to inform member states of progress regarding these measures. The measures include: Frontex working arrangements; exchange of relevant information between FRONTEX, other EU agencies and member states; development of the European Surveillance System—EUROSUR; exchange of information on illegal immigration, trafficking in human beings and falsification of documents; and solidarity and the integrated management of external borders by member states.

After Mixed Committee the Council will receive an update from the presidency on the progress being made on asylum and legal and illegal migration and seek to ensure that the following four presidencies (Hungary, Poland, Cyprus and Denmark) remain on course to meet the Commission’s 2012 deadline for delivery of the Common European Asylum System (CEAS). The UK Government believe that the challenges that Europe faces on asylum and illegal immigration are better addressed by practical co-operation than by further legislation. We do not consider the adoption of a common EU asylum policy to be right for Britain. But we do believe there are many issues in the area of asylum and migration on which all EU member states have much to gain by working together. We will be active in promoting effective cooperation, and will consider participation in legislative proposals on their merits in consultation with our European partners and relevant EU institutions.

The Council will then receive updates from the Commission on the Mediterranean Office for Youth, the Greek national action plan on asylum and migration and a legal migration conference held on 26 November. The Mediterranean Office for Youth supports circular migration for educational purposes. The UK is not a participant in the Mediterranean Office for Youth, which is restricted to members of the Union for the Mediterranean. The UK considers the Greek national action plan on asylum and migration (the “Greek Action Plan”) to be key in increasing the ability of Greece to act as an efficient partner in countering illegal migration. Alongside other EU member states we have offered practical assistance to Greece, however we would like to see the establishment of an effective Commission-led process to ensure co-ordination and prioritisation; avoid duplication of member states’ actions; ensure the availability of clear, accessible funding streams to support the action plan; and the setting of clear timescales for action and milestones for progress. The presidency will also present their conclusions following the conference on legal migration.

Over lunch Interior Ministers will be asked to agree a regulation to create an agency for large-scale IT systems in the JHA field. This would be accompanied by a Council decision ensuring full UK participation in the agency, which was a Government priority as the agency will manage a number of existing systems in which we participate (Eurodac and the second generation of the Schengen Information System). While the Government are content with the text as drafted some member states have maintained reserves which will need to be resolved before the Council, in particular concerning the location of the agency. Also during lunch Ministers will discuss alternatives to detaining children for immigration purposes. The UK Government are committed to ending the detention of children in the UK and a review is currently underway to consider how this can be done in a way which protects the welfare of children and ensures that families leave when they have no right to be in the UK. This will be an opportunity to share experience and ideas with other member states who are also dealing with this difficult issue.

After lunch, the Commission will present their draft action plan on combating heavy arms trafficking. Should this plan be endorsed during this Council, the EU will have an integrated approach to combating arms trafficking, and more particularly heavy fire arms.

Next the presidency will present for agreement Council conclusions on itinerant gangs which seek to define the problem of itinerant crime groups and agree an administrative approach to tackle the problem, including increased cross-border co-operation. The Council will also be asked to agree draft Council conclusions on preventing and combating identity related crimes and on identity management.

The Council will be asked to agree negotiating mandates which will authorise the start of negotiations between the EU and the United States, Canada, and Australia for the transfer and use of passenger name records (PNR) to prevent and combat terrorism and other forms of serious cross-border crime. Clear PNR agreements between the EU and Australia, Canada and the US will play a vital role in removing legal uncertainty for air carriers flying to those third countries. It will also help ensure that, where appropriate, PNR data can be shared quickly and securely with all necessary data protection safeguards in place. The Government are content with the proposed negotiating mandates but has yet to take a decision on whether or not to opt in. The Government strongly believe that early publication of an EU PNR Directive covering intra-EU as well as external flights is vital to the safety and security of EU citizens.

Next the EU CT co-ordinator will present a discussion paper to Council on an EU CT strategy which covers transport security, terrorist travel, cyber threats, the external dimension of CT and fighting discrimination and social marginalisation of Muslims.

The UK welcomes the paper as a useful starting point for further policy discussions. The EU CT co-ordinator will also provide an update on progress against the EU action plan on combating terrorism to date.

The presidency will seek agreement on a paper on a system for sharing information on terrorist threat levels in the member states. The UK supports improvements to the information sharing mechanisms on terrorist threat levels at the EU level while maintaining that changes to threat levels remain a member state competence.

The Council will also be asked to reach agreement on a paper recommending proposals to strengthen aviation security following the incident at East Midlands airport. This paper will go jointly to the Transport and JHA Councils on 02 December for agreement. The UK welcomes this report and will press for early, effective and co-ordinated action.

Commissioner Malmström will present her EU Internal Security Communication, which looks to translate the Council’s EU internal security strategy into action points and will seek initial views from member states. The text was published on 23 November. The Government are therefore considering the detail of what is proposed and will set out their initial views at the Council.

On the justice day, the Council will be asked to agree the text of the EU directive on human trafficking. In June, the Government made a decision not to opt in to the directive, but to review its position after adoption, at which point the UK could apply to opt in retrospectively. The directive is in its final stages of negotiation; there is a qualified majority in the Council and should the European Parliament also agree the text in December adoption will follow.

The presidency will then seek a general approach on the draft directive on combating sexual exploitation and abuse of children and child pornography. This draft directive aims to update existing EU legislation in the area of combating child sexual exploitation and pornography in line with technological developments such as the use of webcams to bully children into sexual posing (a pornographic performance). The Government are seeking scrutiny clearance to enable the UK to support the presidency in reaching a general approach.

There will be a state of play report on the European Investigation Order (EIO), which is a draft directive aimed at streamlining the system of mutual legal assistance between participating EU member states. The presidency will report progress on negotiations but is not expected to seek agreement on any issues at this time. The Government will take the opportunity to press for further detailed work on the grounds for refusing assistance.

The presidency will also seek a general approach on the right to information in criminal proceedings. This is the second measure in the roadmap to strengthen procedural rights in criminal proceedings. It aims to set common minimum standards and improve the rights of suspects and accused persons by ensuring that they receive information about their rights. The presidency has taken on board the Government’s concerns in relation to article 7 of the draft directive. The Government are seeking scrutiny clearance to enable it to agree to the general approach.

The presidency will then seek agreement among participating member states on the regulation implementing enhanced cooperation in the field of law applicable to divorce—Rome III. The European Parliament will adopt its opinion by the end of the year. The UK is not participating in this measure.

The presidency held a seminar on 14 October to discuss issues around resolving child abduction disputes by mediation. At the end of the seminar the presidency produced conclusions aimed at encouraging EU law makers and member states to consider promoting mediation in such cases. The presidency is seeking agreement to these conclusions at the Council.

There will be a discussion on the Commission’s communication on “A comprehensive approach on personal data protection in the European Union”. The Communication is intended to serve as a basis for further discussions between the Commission, other European institutions and interested parties with a view to developing a new data protection legislative framework. It is anticipated that the Commission will publish a legislative proposal in mid-2011.

The presidency will seek agreement to the adoption of a negotiating mandate for an EU-US Agreement on data protection. The agreement would clarify data protection safeguards for the transatlantic exchange of personal data for law enforcement purposes.

Ministers will then be provided an information point on the outcomes of and proposed follow up to the EU-Russia Permanent Partnership Council (PPC) (freedom, security and justice) (18-19 November), and the Western Balkans Ministerial Forum (23-24 November). The PPC agreed steps forward on visa liberalisation (the top priority for Russia). They agreed to work on a list of common steps towards negotiations on an EU-Russia visa waiver agreement. This does not directly affect the UK as we are not part of the Schengen visa arrangements. The UK did not attend the Western Balkans Ministerial Forum. Ministers will be updated at the JHA Council.

Ministers will then be presented with a report on the activities of the e-justice working party during the Belgian presidency. The main focus of this work so far has been the development of a European e-justice portal which is a website (launched at the July Informal JUA. Council) that acts as a point of access to a range of information on justice matters across the EU.

Over lunch, there will be a discussion about the forthcoming directive, access to a lawyer. This is the third measure on the roadmap to strengthening criminal procedural rights, which is likely to be published in June 2011. The Commission is still in the early stages of drafting the proposal. It is considering provisions on the right to waiver legal advice, consequences of violations, the competence and quality of lawyers and provisions for European arrest warrant proceedings.