MEMORANDUM BY THE HOME OFFICE
This memorandum is in response to the request
of 9 March from the Home Affairs Committee for information on
the current state of business in the field of justice and home
affairs.
JHA PRIORITIES IDENTIFIED
BY THE
PORTUGUESE PRESIDENCY
2. The Committee has asked for an assessment
of the progress made on the priorities identified by the Portuguese
Presidency, the Tampere "scoreboard" and for details
of any changes in the UK Government's priorities for the current
Presidency. The two relevant documents are the Portuguese work
programme (JAI1/5160/00)—deposited on 21 January—and
the scoreboard mandated by the Tampere European Council covering
the commitments arising from that Council, the Treaty of Amsterdam
and the Action Plan on Establishing an Area of Freedom, Security
and Justice agreed under the Austrian Presidency.
3. Taken together, the contents of these
documents represent a formal agenda of work which the Council
and the Commission are taking forward, in a number of cases in
accordance with a pre-determined time-table. This Memorandum provides
only an overview of the various initiatives under consideration.
Barbara Roche will be pleased to expand on areas of further interest
to the Committee at the oral evidence session on 4 April. Some
initiatives are new, such as the creation of a Police Chiefs Task
Force and a European Police College (both mandated by Tampere).
Progress is being made; for example some clear political guidelines
for the College and the Eurojust concept (another Tampere commitment)
were given by Ministers at their informal meeting in Lisbon. In
other areas (for instance the development of a common European
asylum policy) the responsibility for the initial work has been
given to the European Commission and we await their proposals,
which in some cases will need to be considered carefully in the
light of the special arrangements agreed in respect of the United
Kingdom in the Treaty of Amsterdam.
4. As yet the Government has not received
a full draft from the European Commission of the "scoreboard"
which they are required to produce at the request of the Tampere
Council. We understand that the Commission's present intention
is that this document should be agreed at the Justice and Home
Affairs Council on 27-28 March. That document will clearly be
most significant, in that it will represent the blueprint for
future EU co-operation in this area and the Government will wish
to consider its contents with particular care. The document will,
of course, be submitted for Parliamentary scrutiny in the normal
way.
5. The Government understands that the Committee
would appreciate an indication of whether the Government's priorities
for the Portuguese Presidency have been modified. The Government's
assessment of the Presidency work programme was given in the Explanatory
Memorandum on the document dated 1 February. That assessment has
not been amended and there has been no change in the Government's
priorities.
COMMON EUROPEAN
ASYLUM SYSTEM
6. EU Member States are facing an ambitious
programme of work in the asylum field. The Tampere conclusions
called for work on a replacement to the Dublin Convention and
common standards for a fair and efficient asylum procedure, common
minimum conditions of reception of asylum seekers and approximation
of rules on the recognition of refugees. The Commission was also
invited to prepare within the next year a study into a common
asylum system.
7. To date there has been progress on the
following elements:
Eurodac
a. Proposals for a Eurodac fingerprint system
have been under consideration since 1996. Negotiations were frozen
pending the entry into force of the Treaty of Amsterdam. A draft
regulation was introduced by the Commission in July 1999, to which
the UK opted in in October 1999. Negotiations are well advanced
but are currently blocked by Spanish opposition to an amendment
concerning territorial application.
Asylum procedures
b. In March 1999, the Commission produced
a discussion document on minimum standards for asylum procedures,
on which most Member States have commented. The UK observations,
issued in October 1999, were generally supportive of the Commission's
approach. The Commission has indicated that it intends to present
a proposal on asylum procedures in the near future.
European Refugee Fund
c. In January the Commission presented a
proposal for a European Refugee Fund, which includes an element
of burden sharing. Negotiations are still at an early stage. The
Government's initial position was set out in Barbara Roche's Explanatory
Memorandum of 28 February.
Dublin Convention
d. A working paper on the evaluation and
replacement of the Dublin Convention is on the agenda for discussion
at the JHA Council on 27 March. It is expected that this will
be followed by a questionnaire prepared by the Commission inviting
Member States to evaluate the operation of the Convention from
a domestic perspective.
Temporary protection
e. The Commission published a proposal on
temporary protection in August 1998, but it has made little progress.
There have been no further negotiations under the current Presidency,
but the Commission has indicated that it intends to revive work
on this issue soon.
8. There have been no formal negotiations
to date on the remaining key elements, namely minimum standards
on the reception of asylum seekers and qualification as a refugee.
The latter issue is key from the Government's perspective because
it will include discussion of a common interpretation of the 1951
Convention relating to the Status of Refugees. We have been concerned
for some time that the Convention is not able to deal effectively
with contemporary circumstances, including large-scale movements
of asylum seekers. These issues have been brought into sharp focus
recently by the asylum applications which followed the hijack
incident at Stansted airport. We will be raising these concerns
with other Member States and with UNHCR.
UK APPLICATION TO
PARTICIPATE IN
CERTAIN ASPECTS
OF THE
SCHENGEN ACQUIS
9. The UK's application to participate in
parts of the Schengen acquis was submitted to the Council in May
1999. The UK is seeking to participate, under Article 4 of the
Schengen Protocol, in the Schengen provisions concerned with police,
drugs and judicial co-operation, including the Schengen Information
System. A draft Council Decision approving the UK's application
is under consideration. All aspects of the Decision have been
agreed except for the question of territorial application. This
is currently the subject of separate bilateral talks with Spain
over Gibraltar. We hope that these can be concluded shortly, so
that the Schengen application can be finalised as soon as possible
thereafter.
MUTUAL RECOGNITION
OF JUDICIAL
DECISIONS
10. The Tampere summit concluded that mutual
recognition should become the cornerstone of judicial co-operation
in the EU. That the Tampere summit endorsed mutual recognition
so strongly resulted from a successful initiative by the UK. The
purpose of mutual recognition, a concept instituted by the UK,
is to strengthen judicial co-operation without establishing a
wholesale unification or harmonisation of criminal law. Tampere
agreed that:
— a programme of measures should be
adopted by December 2000 (that is, the programme should be adopted
by then, not necessarily the measures);
— the programme should cover recognition
of pre-trial orders, abolition of extradition in relation to sentences
and its replacement with simple surrender, introduction of fast-track
extradition for other categories of fugitives, recognition of
post-conviction judgements (eg sentences) and making evidence
lawfully gathered in one Member State admissible as evidence in
another;
— common minimum standards for procedural
law should be adopted where necessary to facilitate mutual recognition.
11. Discussion on implementing the mandate
from Tampere is under way in the Article 36 Committee. The UK
has been arguing that the programme should:
— give priority to recognition of pre-trial
orders especially orders for securing evidence and assets quickly
before they disappear. The Multi Disciplinary Group has this month
begun examining options for mutual recognition of asset restraint
orders;
— recognise that mutual recognition
is about acknowledging diversity and accepting judicial decisions
taken under different rules;
— address the need for some common
minimum standards, to provide safeguards for the citizen and make
mutual recognition work;
— approach the work by looking at full
mutual recognition, and only qualify this where necessary to make
it workable and acceptable.
DRAFT CONVENTION
ON MUTUAL
ASSISTANCE IN
CRIMINAL MATTERS
12. On 13 March 2000 the Presidency issued
a new consolidated text (6836/00 COPEN 18) of the draft mutual
assistance Convention between the Member States of the European
Union. The new draft text contains changes to almost all the articles,
although in many cases these are of a minor nature intended only
to clarify the text. The significant changes were fully explained
and the minor changes fully enumerated in the Explanatory Memorandum
dated 15 March. The Explanatory Memorandum is due for consideration
by the Parliamentary Scrutiny Committees on 22 March. If the Committees
clear the document the Government intends to give agreement to
its contents at the Justice and Home Affairs Council on 27 March.
Barbara Roche will update the Committee on the results of the
JHA Council when she gives evidence on 4 April.
THIRD COUNTRY
NATIONALS
13. Article 63(3)(a) TEC calls for the adoption
of measures relating to conditions of entry and residence, and
standards on procedures for the issue by Member States of long
term visas and residence permits, including those for the purpose
of family reunion. Paragraph 21 of the Tampere Conclusions provides
that a person who has resided legally in a Member State for a
period of time to be determined and who holds a long-term residence
permit should be granted in that Member State a set of uniform
rights which are as near as possible to those enjoyed by EU citizens.
14. In January 2000 the Commission presented
to the Council a proposal for a Council Directive on the right
to family reunification, citing Article 63(3)(a) TEC as its legal
base. This is the only proposal so far presented under Article
63(3)(a) TEC. The Portuguese Presidency intends to complete a
first reading of the proposal, at working group level, during
its term of office. As a Title IV measure, the UK is entitled
to opt into the adoption of this measure should it choose to do
so. The Government is still considering its position.
ENLARGEMENT OF
THE EU
15. The enlargement of the European Union
has a number of implications for justice and home affairs co-operation,
both in terms of challenges and opportunities. The acquis in this
area is clearly not fixed and is continually developing (also
covering, for example, the requirements of the Treaty of Amsterdam
and the work programme arising from the Tampere European Council)
and inevitably involves a number of sensitive and, to a large
extent, not easily quantifiable assessments. Applicant states
must be able to demonstrate that they are able to meet fully the
JHA acquis both in legislative and practical terms, and that they
have a professional police service and genuinely independent prosecutors
and judiciary. Another area of particular importance is that of
data protection since it is a fundamental requirement of those
participating in, for example, the Europol arrangements that they
have fully effective legislation and procedural arrangements in
this field fully in place.
16. Enlargement will obviously have implications
for the applicant countries' maintenance of what will become the
Union's external border. In this context it is important to note
that Article 8 to the Protocol Integrating The Schengen Acquis
into the Framework of the European Union, annexed to the Treaty
of Amsterdam, stipulates that the Schengen acquis and further
measures within its scope must be accepted in full by all applicant
states. Such measures will require substantial preparation and,
in some cases, major investment. Such expenditure will arise as
a result, for instance, of the need to upgrade external border
controls and, in some cases, to re-configure airports to segregate
passengers. The European Union has made this area a priority for
pre-accession aid under its PHARE programme.
17. Maintenance of new external borders
is linked to the lifting of internal borders, and some Member
States have already expressed concerns about the possibility of
increased numbers of illegal migrants once internal frontiers
are removed. In some cases acceptance of the full Schengen visa
regime by applicant countries may present them with domestic political
problems, especially in cases where different neighbouring applicant
states accede to membership at different times.
18. Although it is possible at this stage
to identify likely areas of difficulty which might, for example,
give rise to requests for derogations or transitional periods
for meeting the requirements of membership, their full extent
will not become apparent until the negotiations on the JHA chapter
have begun. These will commence in May and will be assisted by
the information collected in the earlier screening exercise.
HOME OFFICE
CO -ORDINATION
AND CONSULTATION
19. Overall co-ordination of Home Office
interests in the JHA area, and oversight of the interests of HM
Customs and Excise and the Lord Chancellor's Department, is the
responsibility of the European Union and International Unit (EUIU)
of the Home Office. That Unit co-ordinates briefing for Ministers
at JHA Councils and for the Article 36 Committee of senior officials
and also provides advice to other Units on general EU policy questions.
It develops departmental positions with regard to questions such
as EU enlargement and Treaty amendment. For the Immigration and
Nationality Directorate (IND), the range of work on immigration
and asylum policy is co-ordinated by the European Directorate
of IND, which works closely with EUIU in preparation for JHA Councils.
Negotiation of particular instruments is the responsibility of
the individual policy units concerned. All these functions are
discharged in close consultation with the Foreign and Commonwealth
Office, the Cabinet Office and the UK Permanent Representation
in Brussels.
20. The extent and mode of consultation
on particular initiatives will vary. However, before adopting
a negotiating position the Home Office will have sought the views
of all the relevant Government departments involved and the relevant
practitioners. In some cases interested non-Governmental organisations
will also have been consulted. IND has recently established a
forum for discussion of policy issues, including EU business,
with non-Governmental organisations.
Home Office
March 2000
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