The Justice and Home Affairs (JHA) Council was held in Brussels on 26 and 27 February 2009. My right honourable friend the Home Secretary (Jacqui Smith) the Scottish Solicitor General (Frank Mulholland QC), and I attended on behalf of the United Kingdom. The following issues were discussed at the council:

During the mixed committee with Norway, Iceland, Switzerland and Lichtenstein, Ministers discussed progress in implementing the second generation of the Schengen information system (SISII) in light of the analysis which had identified problems in the central system. Both the Commission and the presidency recognised the importance of the SISII programme and the presidency reiterated that the repair phase would consist of two aspects, to be developed in parallel: an analysis and repair plan to resolve known bugs in the current SISII programme and a contingency plan. The presidency also stressed the need for agreement on a set of common criteria against which both of these aspects could be assessed in the first half of 2009. The council subsequently adopted council conclusions confirming the action required in relation to the central SISII project and a set of criteria against which the SISII-based scenario and an alternative scenario, based on a SISI platform, would be assessed.  They confirmed that a decision regarding the future of the project would be taken by June 2009 at the latest.

During the Interior Ministers’ meeting, the Commission outlined the plans for implementation of the visa information system (VIS), notifying member states that the final phase had been pushed back to December 2009.  The UK does not participate in the VIS.

The council was presented with the draft report on the outcome of the Swiss air borders evaluation which will be considered by experts in March.  Switzerland thanked the Commission and presidency for the help they had given in the months before the evaluation and indicated that it was happy with the conclusions of the draft report, taking note of its recommendations and undertaking to report regularly on progress. The presidency concluded by looking forward to 29 March when the Swiss were expected to join the Schengen area in full.

The Commission presented its proposal for a European asylum support office (EASO) to the council.  The Commission explained that the EASO’s aims would be to enhance practical co-operation; help member states under particular pressures; and ensure a common European asylum regime. It would not make case decisions and would be part-financed through changes to the European Refugee Fund. The Commission hoped that the proposal would receive political agreement by the summer and be implemented in 2010. The proposal was broadly welcomed by a number of member states.  The UK thanked the Commission for its proposal, noting that it went to the heart of what European co-operation was about: making a difference on the ground. It emphasised its support for practical co-operation on asylum in order to provide protection for those who needed it. The UK stated that systems should be streamlined, to deliver fair decisions quickly and tackle abuse. The UK also argued for more work with countries outside the EU in order to stop asylum being the weak point in immigration systems and to stop refugees having to travel to the EU to find safety.

The presidency presented the Commission’s report on implementation of the free movement directive.  The Commission said it hoped to adopt guidelines on application of the directive by the summer. It confirmed that the guidelines would cover abuses of free movement rights, including marriages of convenience and persistent criminality: moving to another member state carried responsibilities as well as rights. A number of member states highlighted their concerns about abuses of free movement. The UK welcomed the Commission's work on guidelines and asked that they should set out consequences when these responsibilities are not met.

The council briefly discussed the issue of combating illegal immigration in the Mediterranean. The discussion highlighted the role of Frontex (the European Border Agency), readmission agreements and the need for further development of the EU’s global approach to migration.  

The council also discussed progress in resettling Iraqi refugees following the council conclusions adopted in November 2008, which set an EU target of 10,000.  The Commission welcomed the fact that member states had notified their intention to resettle 5,100 refugees so far, improving the situation of refugees in Syria and Jordan. The Commission stated that additional funds (€20 million) would be made available to support member states' efforts.

During the working lunch, Interior Ministers discussed the appointment of the Europol director, but no agreement was reached. The presidency said that it wanted to reach agreement at the next JHA Council meeting in April.  The UK said that the recommendation of the Management Board, endorsing the UK candidate, should be followed.

The closure of the US detention facility at Guantanamo Bay was also discussed during lunch. Ministers agreed that there was a need to obtain more information and study all aspects of the issue. Following the previous discussion in the General Affairs and External Relations Council (GAERC), there was agreement that further discussion with the United States would be a good idea.

Under Any Other Business, SWIFT was discussed, concerning the controls and necessary safeguards on data protection and use under the terrorist financing tracking programme. Judge Jean-Louis Bruguière commented that the US Administration had set up a particularly robust programme to ensure the protection of personal data for counterterrorism purposes, though there was still room for improvement. The Commission would be making available a report on state of play on SWIFT. On the EU’s anti-drug policy, the presidency and Commission stressed the need for more and better supply indicators. A report would need to go to council in June on this subject.

Ministers reached a broad consensus on presidency conclusions to steer negotiations on the proposed framework decision on prevention and settlement of conflicts of jurisdiction in criminal proceedings, in particular focusing the instrument on preventing situations where the same person is subject to parallel proceedings in different member states, and establishing flexible mechanisms for communication. The UK supported these conclusions. The presidency hopes to be able to reach political agreement on this proposal at the June JHA Council.

A negotiating mandate was also agreed authorising the presidency to open discussions with Japan for an EU agreement on mutual legal assistance. The Commission noted that in future it would be necessary to decide how to prioritise target countries for these agreements.

The presidency updated member states on progress in e-justice and asked the Commission about the financing of e-justice projects, particularly video-conferencing. The Commission reminded member states that there was already money available to fund e-justice projects and undertook to present all the available funding opportunities at the next JHA Council.

Under any other business the presidency provided a state-of-play report on negotiations on an amending directive on ship-source pollution and on the introduction of penalties for infringements. It noted that the Transport and Tourism Committee of the European Parliament had proposed 19 amendments to the proposal. The presidency hoped that it would be possible to reach a first reading deal in April.

Sweden presented a paper on transparency in the EU, advocating the need to demonstrate a greater commitment to transparency, stronger protection of citizens’ individual rights and better understanding of citizens’ expectations. Germany updated member states on the appointment of a new director to the Tribunal for the International Law of the Sea, which dealt with civil disputes. The Romanian delegation drew attention to the conference of prosecutors general that they will be hosting in Bucharest from 23 to 25 March 2009.