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Justice and Home Affairs (Post-Council Statement)

Volume 520: debated on Thursday 9 December 2010

The Justice and Home Affairs Council was held on 2 and 3 December in Brussels. My right hon. and learned Friend, the Secretary of State for Justice and I attended on behalf of the United Kingdom. The following issues were discussed at the Council:

The Council began with Mixed Committee with Norway, Iceland, Liechtenstein and Switzerland (non-EU Schengen States). The Commission provided an update on the progress of the second generation of the Schengen Information System (SIS II) focusing on agreeing the additional financial facility for member states to cover national implementation of the system.

The Commission then reported on the implementation of the Council conclusions on 29 measures for reinforcing the protection of the external borders and combating illegal immigration. Internal EU progress included the Frontex Rapid Border Intervention team (RABIT) at the Greece-Turkey border, the Asylum Support Office and the Frontex operational office in Piraeus. Externally, the EU had contributed to a regional protection programme in the Horn of Africa, concluded readmission agreements with Georgia and Pakistan, signed a mobility partnership with Georgia, and opened a migration dialogue with Libya. The Commission will report on the development of the European Surveillance System (EUROSUR) in spring 2011. The Commission highlighted the need by member states to adopt the new Frontex regulation; conclude further working arrangements between Frontex and third countries; develop EUROSUR and close ongoing readmission negotiations.

Under Mixed Committee AOB, Switzerland reported the results of last week’s referendum in which a majority of the population voted in favour of automatically deporting foreign national criminals.

Following Mixed Committee the main Council began with a debate on asylum and migration during which the presidency noted recent achievements from political agreement on the long-term residents’ directive to the first meeting of the Asylum Support Office and progress on the Greece action plan. The presidency welcomed the four incoming presidencies’ agreement to deliver the asylum package by 2012 and emphasised that all member states must meet their obligations under EU law. The Government welcomed the opportunity to discuss some of the most pressing challenges member states faced, and set out domestic plans to bring levels of non-EU migration down to sustainable levels. The Government were proud to share the EU’s strong tradition of protecting genuine refugees but noted there were clear weaknesses in the system. The Government stated that a focus on fast, efficient decision making; reluctance to see legislation as the solution; and emphasis on practical co-operation was needed. Delays in the negotiations so far demonstrated member states’ reluctance to compromise on proposals which would threaten their individual asylum systems. Instead, practical steps should be taken to provide quicker protection to those in need, and to support the safe return of those with no grounds to stay. The first meeting of the European Asylum Support Office was an important milestone. But the situation in Greece was the most pressing challenge and here the Government were pleased to see contributions to the national action plan were coming together; but a sustainable improvement would take years of commitment and substantial resources. More needed to be done. The EU had to take proactive action to stop new illegal immigration threats before they created this pressure. Commissioner Malmstrom updated Council on progress so far under the Greek action plan, set out next steps and urged Greece to take ownership of the plan.

The presidency updated Council on the results of its legal migration conference, which focused on the challenges of an older EU population, declining labour force, and weakening cultural identity in the face of immigration.

Over a private lunch Interior Ministers had an exchange of views on alternatives to the detention of children and agreed on the split-seat solution of the location of the IT Agency with infrastructure remaining in Strasbourg and its management in Tallinn.

After lunch the Council discussed air cargo security. Following the recent discovery of explosive devices in air cargo, a high-level group produced a report on strengthening air cargo security for both Council meetings on 2 December (Transport and Justice and Home Affairs). The presidency presented this report, which sets out ways to strengthen the security regime around air cargo coming into the EU. The Government broadly welcomed the report and the associated action plan. The presidency concluded orally that the Council had a “positive appreciation” of the report, and asked the Commission and member states to ensure a speedy implementation of the action plan. The Commission was asked to report back to the Council on progress made. A parallel discussion took place in the Transport Council.

The EU counter terrorism co-ordinator presented his regular assessment of progress against the EU’s CT action plan and noted in particular the importance of coherence between the internal and external dimension of CT. The Government broadly welcomed the report supporting the idea of a discussion of external CT in the JHA Council with the EU’s High Representative. However, the Government expressed concerns about plans to use article 75 of the treaty on the functioning of the EU as the legal base for an internal terrorist sanctions regime.

Next the Council agreed the three negotiating mandates to authorise the start of negotiations for agreements 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. The Government welcomed the mandates but argued that we should also be collecting data on intra-EU flights. This would give the EU the best chance of avoiding future terrorist incidents.

The Council agreed the action plan on combating heavy arms trafficking, which recommends an integrated approach to combating arms trafficking and more particularly heavy fire arms, and adopted the 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 also agreed Council conclusions on preventing and combating identity-related crimes and on identity management with amendments which had been sought by the UK. The conclusions set out instructions for having a robust structure of identity management to combat the threat posed by identity-related crime.

Commissioner Malmström presented the communication on the EU Internal Security Communication to Council. The communication looks to translate the Council’s EU internal security strategy into action points.

Next the presidency updated the Council 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 presidency stated that there was an agreement to work on a stage-by-stage basis, to ensure that all commitments for data protection were met, as well as the fight against drugs, extradition and aid. On the Western Balkans, the presidency felt that there was mixed progress, with some countries doing much better than others; generally the legislation was good, but implementation was taking longer than hoped.

Under AOB Commissioner Georgieva (Humanitarian Aid) presented the recent Commission communication on civil protection, which was broadly welcomed by member states.

On the justice day, the presidency informed the Council that agreement on the text of the EU directive on human trafficking had been reached with the European Parliament. Commissioner Malmström welcomed the historic agreement of the first criminal law instrument since Lisbon, although she regretted the failure to extend extra-territorial jurisdiction to habitual residents.

Next, the Council agreed a general approach on the draft directive on combating sexual exploitation and sexual 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. The Government supported the presidency and agreed with the general approach.

The presidency noted they had made good progress on the draft directive on the European investigation order but that a number of issues still needed to be considered.

The presidency also sought a general approach on the draft directive on the right to information in criminal proceedings. This is the second measure in the road map 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 Government maintained their parliamentary scrutiny reservation on this proposal but also welcomed the efforts made by the presidency to find a compromise to the text. The presidency concluded that there was support for a general approach.

The Council adopted a negotiating mandate authorising the Commission to begin negotiations with the United States on a proposed EU-US agreement on the protection of personal data when transferred for law enforcement purposes. The Government support the proposed agreement in principle, but were unable to vote in favour of the draft negotiating mandate because we consider that the UK rather than the EU should negotiate rules concerning data exchanges between the UK and the US under their bilateral arrangements.

There was a discussion about the Commission’s recently published Communication on “a comprehensive approach on personal data protection in the European Union”. The Commission argued that, while the principles of the data protection directive are still valid, a more comprehensive approach to data protection is needed to bring the legislation in line with technological developments. The Commission will be bringing forward new proposals in 2011.

Next, the presidency obtained agreement among participating member states of the regulation implementing enhanced co-operation in the field of law applicable to divorce—Rome III. The Government are not participating in this measure.

The presidency provided information about a seminar held on 14 October about resolving international child abduction disputes through mediation.

The Council then considered a state-of-play report from the presidency about the progress made during its term in the area of e-justice.

Under AOB, the Commission presented their citizenship report highlighting the importance of citizenship rights and the need to ensure they are better communicated.

Over lunch, there was a discussion about the forthcoming directive on access to a lawyer in criminal cases. This will be the third measure on the road map 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.