Select Committee on Home Affairs Third Report


Terrorism, crime and migration are trans-national challenges requiring trans-national responses. The Hague Programme, adopted in 2004, set out a way forward in respect of Justice and Home Affairs (JHA) at the EU level, but the failure of the Constitutional Treaty may mean that a reprioritisation is needed. We looked at developments in several fields, considering the extent to which the three possible approaches of practical co-operation, mutual recognition or harmonisation offer the best way forward.

We have looked at selected issues from the perspective of the actual challenges faced by EU countries, particularly those of cross-border crime and border control. We have attempted to assess the current and future effectiveness of EU action in meeting those challenges. Throughout our evidence sessions, we consistently asked our witnesses "How big is the problem? What's the evidence that action x, y or z is necessary?"

One consistent theme emerging from the responses has been that policy-makers often lack sufficient information about the practical problems which action at EU level ought to be aimed at tackling. In our view, policy initiatives at EU level should only be pursued if there is a solid evidence-base that they are likely to make a real practical difference to the effectiveness with which the common challenges facing EU Member States in the JHA field can be tackled.

Practical arrangements for bilateral co-operation between police forces can be very fruitful. We recommend that the Government should explore a central mechanism for co-ordinating liaison between UK police and their counterparts in other EU states on crime other than serious organised crime. The creation of Europol has been a positive development but it has been held back from reaching its full potential by a lack of trust and co-operation on the part of some Member States. We are not convinced there is a pressing need for a further extension of Europol's powers. The UK Government should not give its approval to any changes in the status of Europol unless provision is made for a scrutiny role for national parliaments in conjunction with the European Parliament.

We support the UK Government's case for access to data gathered under Article 96 of the Schengen agreement. It is not acceptable that crime-fighting should be hindered simply in an attempt to force the UK to take a different attitude towards participation in the Schengen border-control regime.

Recent improvements in the exchange of information between Member States about criminal records redress a real deficiency, but there is still a lack of specificity about the format and content of the information exchanged. We are particularly concerned about the fact that police are not notified when an individual convicted abroad is released from custody or re-enters this country.

We regret that the UK missed the opportunity to take part in a pilot project by some EU countries to make their criminal records systems interoperable. The fact that the UK has, in its own interests, opted out of certain EU initiatives (the single currency, the borders part of the Schengen Convention) makes it all the more important that it should be an effective player in all the other areas.

We considered more wide-ranging proposals to improve data-sharing between law enforcement agencies. The 'principal of availability', if adopted, would have far-reaching implications. We recommend that the UK Government should insist on an independent impact assessment of the potential use of data under the principle. However, it is possible that adoption of the principle will be superseded by the incorporation of the Treaty of Prüm into the framework of EU law.

This treaty is an agreement by a small group of EU Member States to facilitate data exchange in the JHA field. Its likely transposition into EU law sets a worrying precedent whereby a small group of Member States may reach an agreement among themselves which then is presented to the wider EU almost as a fait accompli. Thus it raises the danger of a two-track Europe developing. Nonetheless we welcome the provisions in Prüm for more effective police co-operation.

We praise Eurojust as an excellent example of what can be done to build mutual trust between practitioners and through them Member States in one another's judicial systems. The European Arrest Warrant is frequently cited as an effective mutual recognition instrument. Its implementation demonstrates that sufficient political will can drive agreement in the field of mutual recognition. We regard the abolition of dual criminality for a defined and agreed set of offences under the EAW as acceptable, but recommend that the working of the system should be monitored as some fine-tuning of the list of 32 offences may be desirable.

We agree with the UK Government, and a wide number of practioners, that there is no case for a full-scale harmonisation of European criminal justice or legal systems. However, for mutual recognition in the field of judicial co-operation to be effective, some degree of common standards in tightly limited areas may be desirable. Nonetheless, no proposal should be considered without powerful evidence of the scale of the problem to be tackled and the gains to be delivered by any such proposal. As we note in our overall conclusions, we do not believe the case has been been made out at present for a shift of decision-making in this area from the third to the first pillar.

There are grounds for concern about the absence of procedural safeguards for UK citizens in some other EU Member States. It is difficult to quantify the problem. There should be detailed independent monitoring of the extent of rights abuses in Member States. The level of rights for defendants in the UK is high, and any EU-wide binding agreement must also offer high standards. There is a real risk that setting common standards in EU criminal procedures might set up an alternative rights regime in Europe in parallel with the ECHR. We support the UK Government's view that the starting point should be to use existing mechanisms to ensure that the rights enshrined in the ECHR are uniformly observed across the EU. The choice currently before the Council of Ministers, between a watered-down draft Framework Decision and a non-binding Resolution is not an attractive one. We recommend that the UK Government reconsider its support for a Resolution and give renewed consideration to the proposals in the Framework Decision.

The relationship between legal and illegal migration is a complex one. The development of effective action on illegal migration remains the priority and the case for developing a common EU approach to legal migration is less clear. There is room for debate as to whether, in the future, it may be in the UK's interest to accept a stronger common EU approach to legal migration.

The European Borders Agency, Frontex, is a young organisation with untapped potential which needs proper resourcing if its efforts are not to be largely diverted into emergency operations. We support the Government's bid for the UK to become a full member of Frontex.

On balance the UK is right to remain outside the Schengen border-control regime. However, its selective participation in Schengen may continue to exclude it from important measures.

If proposals for a draft Data Protection Framework Decision were to be superseded by the data protection provisions in the Prüm Treaty, we would have concerns as to whether these were adequate. The Government should continue to support the principle of making provision for data protection in the EU third pillar through a Framework Decision. This should include provision for specific minimum standards ensuring adequate data protection for data exchange with third counties, as both the Passenger Name Record and SWIFT cases give cause for serious concern about the casual use of data about millions of EU citizens without adequate safeguards to protect privacy.

The Constitutional Treaty proposed making elements of criminal law subject to qualified majority voting in the Council of Ministers, and the Commission still supports this proposal. The evidence we have seen does not persuade us that, as things stand at present, there are sufficient benefits in terms of tackling crime, either here in the UK or across the EU, to justify such a major transfer of power away from Member States as would be entailed by a switch of criminal law from the third to the first pillar.

However, an equally strong risk to our effective sovereignty may be posed by a proliferation of informal decision-making structures such as those devised by the participants in the Prüm treaty. It is highly regrettable that the UK did not participate in the Prüm process from the start. Similar informal arrangements within small groups of Member States may produce de facto changes over which we have less influence than we would through the mechanisms of QMV. This is one reason why the UK should not absent itself again from such informal discussions.

The UK Government should make clear to its EU partners that at present the case for moving criminal law matters from the third pillar has not been made. There is room for debate as to whether, in the future, it may be in the UK's interests to accept such a change. Members of our Committee hold different views as to whether it might ever be acceptable to agree to this. It is indisputable that such a change would be of great significance. The UK Government should not agree to any such proposal without full and specific parliamentary consideration of the issue.

Finally, we review the extent to which it is possible for departmental select committees such as the Home Affairs Committee to conduct effective scrutiny of issues at EU level. We believe the House and its committees should take concrete steps to bridge the current divide in EU scrutiny between the policy-based work of DSCs and the document-focused work of the European Scrutiny Committee. We would welcome greater efforts to 'mainstream' EU scrutiny by engaging DSCs more fully in the process of examining key EU proposals. We recommend that the Home Office should consult us directly when major EU JHA developments are in their formative stage. We will aim to maintain a high level of informal dialogue with British MEPs on key issues.

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