14 Financial frameworks for the programme
on security and protection of freedoms
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(27421)
7766/06
(b)
(27542)
9586/1/06
REV 1
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(i) Draft Council Decision Prevention, Preparedness and Consequence Management of Terrorism and other Security related risks for the Period 2007-2013 General Programme on Security and Safeguarding Liberties
(ii) Draft Council Decision establishing the specific Programme Prevention of and Fight against Crime for the Period 2007-2013, General Programme "Security and Safeguarding Liberties"
(iii) Draft Council Decision establishing the specific Programme on criminal justice as part of the general programme on Fundamental Rights and Justice
(i) Draft Council Decision Prevention, Preparedness and Consequence Management of Terrorism and other security related risks for the period 2007-2013 General Programme on Security and Safeguarding Liberties
(ii) Draft Council Decision establishing the specific programme Prevention of and fight against Crime for the period 2007-2013, General Programme "Security and Safeguarding Liberties"
(iii) Draft Council Decision establishing for the period 2007-2013 the specific programme on criminal justice as part of the General Programme on Fundamental Rights and Justice
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| Legal base | (a)(i) and (b)(i) Article 308 EC; consultation; unanimity
(a)(ii) and (b)(ii) Articles 30, 31 and 34(2)(c) EU; consultation; unanimity
(a)(iii) and (b)(iii) Articles 31 and 34(2)(c) EU; consultation; unanimity
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| Department | Home Office
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| Basis of consideration | (b) EM of 19 June 2006
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| Previous Committee Report | (a) HC 34-xxix (2005-06), para 3 (17 May 2006) and see HC 34-iv (2005-06), para 12 (20 July 2005), HC 34-xiv (2005-06), para 21 (11 January 2006), and HC 34-iv (2005-06), para 13 (20 July 2005), HC 34-xv (2005-06), para 17 (18 January 2006)
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| Discussed in Council | Justice and Home Affairs Council 1 June 2006
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared
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Background
14.1 The Commission's proposals for a framework programme on "Security
and Safeguarding Liberties" were set out in a communication
which we considered on 20 July 2005 and 11 January 2006.[46]
The communication contained draft proposals for a Council Decision
on "Prevention, preparedness and consequence management of
terrorism" and a draft Council Decision for a programme on
"Prevention of and Fight against Crime". We also considered
on 20 July 2005 a Commission communication setting out proposals
for a framework programme on "Fundamental Rights and Justice".
14.2 On 17 May 2006 we considered the three draft
Council Decisions giving effect to these proposals and which would
authorise expenditure under the general EU budget. We noted that
the draft Council Decisions were being negotiated as a package
(document (a)). In relation to the draft Council Decision on prevention,
preparedness and consequence management of terrorism (document
(a)(i)) we drew attention to the reliance on Article 308 EC as
the legal base for the programme, which we considered to be unjustified
as far as the prevention of terrorism was concerned. We strongly
supported the statement by the Minister that competence for law
and order and internal security rested with the Member States
and did not lie with the Community, and we agreed with the Minister
that the then current draft did not recognise or safeguard this
fundamental position. We drew attention to the references in the
draft programme to risk and threat assessments, to promoting and
supporting "common operational measures" to improve
security and to the development of "common security standards",
considering it to be unacceptably ambiguous and vague and possibly
having the effect of conferring a competence on the Community
which we did not believe it should have. We asked the Minister
to report on the amendments which the Government was seeking to
preserve a position which it had described as fundamental.
14.3 We considered that the two draft Council Decisions
based on the EU Treaty (establishing a crime prevention programme
and a programme on criminal justice, respectively) did not raise
the same issue of principle, but we drew attention to the provision
in the measure relating to criminal justice which referred to
"promoting the necessary approximation of substantive criminal
law concerning serious crime or crime with cross border dimensions".
We agreed with those Member States (but not, apparently, the United
Kingdom) which considered that the reference should be cumulative,
so that EU involvement under the programme would not be justified
unless the crime were both serious and had a cross-border dimension.
In our view, such a reference would reflect the agreement by the
Council to the Hague Programme (in particular paragraph 3.3.2
of 16054/04), and we asked the Minister if the Government intended
to seek a corresponding amendment.
The revised draft Council Decisions
14.4 The revised draft Council Decisions (document
(b)) were again negotiated as a package and were the subject of
an agreed "general approach" at the Justice and Home
Affairs Council on 1-2 June, although this remains subject to
a number of scrutiny reservation by a number of delegations, including
the United Kingdom.
THE DRAFT COUNCIL DECISION ON THE "PREVENTION,
PREPAREDNESS AND CONSEQUENCE MANAGEMENT OF TERRORISM AND OTHER
SECURITY RELATED RISKS FOR THE PERIOD 2007-2013"
14.5 The draft Council Decision on "Prevention,
preparedness and consequence management of terrorism" (document
(b)(i)) remains based on Article 308 EC, but a number of detailed
amendments have been made to limit the scope of the measure.
14.6 Some of these amendments have been made to the
recitals. The sixth such recital now refers to the Community contributing
to measures to prevent terrorism "within the scope of its
competence", whilst the eighth recital emphasises that "the
primary responsibility for protecting critical infrastructure
fall[s] on the Member States, owners, operators and users",
that the Member States will "provide leadership and coordination
in developing a nationally consistent approach to the protection
of infrastructure within their jurisdictions taking into account
Community competences" and that "the responsibility
for carrying out risk and threat assessments therefore lies primarily
with the Member States".
14.7 The subject matter (Article 1) and definitions
(Article 2) have remained substantially unchanged. The general
objectives (Article 3) have been amended by the addition of a
specific reference to crisis management, so that the programme
is now expressed to "contribute to ensuring protection in
areas such as the crisis management, environment, public health,
transport, research and technological development and economic
and social cohesion, in the field of terrorism".[47]
14.8 The specific objectives of the programme (Article
4) have been more extensively amended. As before, Article 4(1)
refers to the development of measures based on "comprehensive
threat and risk assessments" but this is now qualified by
a reference to this being "subject to the supervision by
the Member States and with due regard to existing Community competence
in that matter". Article 4(2) has been amended by the deletion
of the references to threat assessments and to identifying targets
in Article 4(2)(a). The reference to "common operational
measures" in Article 4(2)(b) has now been changed into a
reference to "shared operational measures". Article
4(2)(c) has been amended by deletion of the reference to "common
security standards" but the provision now refers to the protection
of people as well as to the protection of critical infrastructure.
14.9 The remaining provisions of the draft Council
Decision have remained substantially unchanged.
THE DRAFT COUNCIL DECISION ESTABLISHING THE SPECIFIC
PROGRAMME "PREVENTION OF AND FIGHT AGAINST CRIME" FOR
THE PERIOD 2007-2013
14.10 The draft Council Decision is in substantially
the same terms as the draft we considered on 17 May. It provides
for a programme with the three themes of crime prevention, law
enforcement, and support and protection for witnesses and victims.
THE DRAFT COUNCIL DECISION ESTABLISHING FOR THE PERIOD
2007-2013 THE SPECIFIC PROGRAMME ON CRIMINAL JUSTICE
14.11 This draft Decision is also in substantially
the same terms as the draft we considered on 17 May. The general
objectives of the programme (Article 2) have remained unchanged.
In relation to the specific objectives (Article 3) we drew attention
to the fact that Article 3(a) referred to promoting the approximation
of substantive criminal law "concerning serious crime or
crime with cross border dimension", which appeared to us
to be inconsistent with the conditions fixed under the Hague Programme
which referred to serious crime with a cross-border dimension.[48]
We noted that a number of Member States (but not, apparently,
the United Kingdom) had made the same point. The new version of
now refers to the approximation of substantive criminal law "concerning
serious crime, in particular with cross-border dimension".
14.12 The specific objectives maintain the reference
to enhancing the establishment of "minimum standards concerning
aspects procedural criminal law", which we noted the Government
had not thought to be necessary when we last considered the matter.
The specific objectives now contain a new reference to promoting
measures aiming at "effective re-socialisation of offenders,
in particular of juvenile offenders".
The Government's view
14.13 In his Explanatory Memorandum of 19 June 2006
the Minister of State at the Home Office (Mr Tony McNulty) explains
that the revised texts of the Council Decision represent the result
of extensive negotiations and that the Government is content with
them as they stand since, in the Minister's view, they represent
a "good compromise".
14.14 With regard to the Council Decision on prevention,
preparedness and consequence management in relation to terrorism,
the Minister recalls that the Government had previously explained
to us that it was seeking amendments to the texts to ensure that
they "reflected that competence for law and order and internal
security rests with Member States and not with the Community".
The Minister reports that "some progress" has been made
in this regard, and that amendments have been made to underline
the limited Community competence in relation to the prevention
of terrorism.
14.15 The Minister points out that the UK has secured
the deletion of the reference to threat assessments in Article
4(2)(a), that the reference to "common operational measures"
has been replaced with a reference to "shared operational
measures" and "common security standards" has been
changed to "security standards". The Minister adds that
the Government "negotiated hard" for the text to reflect
Member States' responsibility for protecting critical infrastructure,
and refers to the references in the recitals to the Community
acting within the scope of its competence, and to the primary
responsibility for protecting critical infrastructure as falling
on the Member States, owners, operators and users. The Minister
concedes that a reference to risk and threat assessment still
remains in Article 4(1) but states that "since this refers
to risk and threat assessments as part of the basis for the programmes'
activities not as the subject of those activities, the Government
can accept this inclusion given the amendments achieved so far".
14.16 On the general justification for the programme,
the Minister comments that the Government believes there are some
activities relating to the prevention of terrorism that could
be funded under the programme and where Community involvement
would be justified. The Minister cites as examples the development
of technologies for the detection of explosives and other dangerous
materials or for "automatic behavioural monitoring"
(such as integrating CCTV and computer technologies) in order
to prevent terrorist attacks on critical infrastructure.
14.17 With regard to the draft Council Decision establishing
a specific programme on criminal justice, the Minister notes that
the Government's views were sought on the proposition that the
specific objectives of this funding measure, insofar as they related
to the approximation of substantive criminal law, should be limited
to serious crime which had a cross-border effect. The Minister
comments as follows:
"The scope of this provision has been the cause
of much debate during negotiations principally because there is
an inconsistency between the relevant text of the Treaty of the
European Union (Article 31(1)(e)), which is not stated to be restricted
to cross-border crime only, and the relevant part of the Hague
Programme, in which the EU policy aims in this area are clearly
focused on cross-border crime. In order to bridge that gap the
Government could accept the Presidency proposal for a compromise
text to read: 'serious crime, in particular with a cross-border
dimension' in spirit of compromise. The Government is aware that
this language will not entirely exclude work on the approximation
of serious crime without a cross-border dimension but believes
that whilst it acknowledges the Treaty legal base for action it
will effectively prioritise work in relation to cross-border crime."
14.18 On the inclusion of a reference in the draft
Council Decision to criminal procedure, the Minister states that
the Government's view is that it is necessary to be realistic
and to consider programmes which can deliver practical benefits
to the citizen. The Minister states that the Government has made
it clear all along that its support for the draft Framework Decision
on procedural rights is conditional on the tests of necessity,
proportionality and subsidiarity being met. The Minister also
comments that "the most political test is the value added
for the citizen over and above the ECHR".
14.19 The Minister informs us that in relation to
all three draft Council Decisions, amendments have been made to
the funding provisions so that at least 65% of the expenditure
is to be in the form of grants, so as to take account of the preference
expressed by all Member States for grants rather than public procurement
contracts and that the Government is content with these amendments.
Conclusion
14.20 We are grateful to the Minister for his
detailed Explanatory Memorandum.
14.21 In relation to the draft Council Decision
for a programme on the prevention of terrorism and the management
of the consequences of terrorism, we think the Minister is right
to refer only to "some progress" having been made to
ensure that the programme reflects the fact that competence for
law and order and internal security rests with the Member States
and not with the Community. Despite the amendments which
have been made, we still consider that the programme permits Community
involvement to an undesirable degree in the prerogatives of the
Member States in relation to internal security and the maintenance
of law and order. It will require vigilance to ensure that the
programme is not used as a platform from which to extend Community
competence in this area.
14.22 In relation to the draft Council Decision
establishing a programme on criminal justice which could include
crime which has no cross-border element, we note the Minister's
comments, but we do not believe the issue is so much one of inconsistency
between Article 31(1)(e) EU and the Hague Programme as an unwillingness
by the Commission and some Member States to follow the political
direction established by the European Council in approving the
programme. This clearly restricted EU action on the harmonisation
of substantive criminal law to "serious crime with cross-border
dimensions". We note the Minister's expectation that the
revised wording will make cross-border crime a priority, but in
our view, there should have been no possibility of purely internal
crime being part of this programme.
14.23 Since the draft Council Decisions do not
effect any change in the law of Member States, but merely provide
the legal basis for funding of studies and other similar programmes,
we do not think we can usefully take the argument on these points
any further, and we now clear the documents.
46 See headnote. Back
47
The corresponding reference in the previous text was to "security
risks". Back
48
Paragraph 3.2.2 of the Hague Programme adopted by the European
Council states that "the approximation of substantive criminal
law serves the same purposes [facilitating the mutual recognition
of judgments] and concerns areas of particular serious crime with
cross border dimensions". Back
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