Select Committee on Home Affairs Third Report

Conclusions and recommendations

Our approach in the inquiry

1.  What we have aimed to do is to look 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 then 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?" (Paragraph 6)

2.  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. If what is being contemplated is a change to the decision-making processes of the EU itself—such as abandoning the current requirement that decisions on policing, legal migration and judicial co-operation on criminal matters should be made on the basis of unanimity amongst Member States—it is all the more important that a proper case should be made out for the practical benefits to be brought by such changes. (Paragraph 7)

3.  Throughout this report, therefore, we have tried to set the current debates about policy and institutional change against the test of problem-based and evidence-based action. However, we recognise also the danger that if action is not taken in certain areas through the central EU institutions, groups of individual Member States may collaborate amongst themselves in ad hoc arrangements, which then become adopted formally by the EU, as is in process of happening with the Prüm Treaty. We recognise that future UK governments may have to weigh the disadvantages of engaging with initiatives they deem to be insufficiently evidence-based against those of being excluded from key negotiations on what may ultimately be adopted as EU policy. (Paragraph 8)

4.  A key question for our inquiry has been whether these alleged difficulties with the current arrangements are significantly affecting the ability of the UK and the EU to tackle crime and manage migration. A subsidiary question is whether failure to tackle these difficulties is driving, and will drive, some EU Member States to make their own arrangements for co-operation outside the formal structures of the Union. (Paragraph 50)

Policing co-operation across the EU

5.  We welcome the Government's assurance that it will give consideration to setting up some central mechanism for co-ordinating liaison between UK police and their counterparts in other EU states on crime other than serious organised crime. It is clear from the comments made to us by police representatives that the absence of such a mechanism causes difficulties. We are therefore surprised that prior to our evidence session on 9 January it appears that the Government was not aware of ACPO's and SOCA's concerns in this regard—which in turn suggests a failure of liaison between the Government and its senior police advisers. (Paragraph 77)

6.  We believe that the creation of Europol has been a positive development in facilitating police co-operation, particularly by building confidence and knowledge between Member States. We do not believe Europol has yet achieved its full potential. A significant aspect of this is a lack of full trust and co-operation between Member States. Although the UK is fully engaged with the work of the agency, its work appears to be hampered by the varying degrees of co-operation it receives from other Member States. It is disappointing that the Commission has not done more to address the evident reluctance of some Member States to supply their national Europol liaison officers with needed information. We recommend that the UK Government should take such steps as are open to it to encourage all Member States to co-operate fully with Europol. We recommend that the Commission should consider practical ways to promote Member States' confidence in Europol and encourage better data-sharing; and also that it should draw public attention to the failure of some individual Member States fully to co-operate with Europol. (Paragraph 99)

7.  The Commission's recent proposal further to extend the powers of Europol will require careful examination by the UK Government. In the light of the evidence we have received from UK police, it does not appear to us that there is a pressing need for a further extension of powers on top of the significant extension recently approved. (Paragraph 100)

8.  We are also concerned that the Commission's proposal contains no reference to scrutiny of Europol by national parliaments. In this respect it marks a step backwards from the proposals in the Constitutional Treaty. We recommend that 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. (Paragraph 101)

9.  We support the UK Government in its efforts to persuade the relevant EU institutions and other Member States that enabling UK police to access Article 96 data would be in the best interests both of the UK and the EU at large. 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. (Paragraph 109)

Addressing deficiencies in data exchange

10.  The EU Council Decision in 2005 on exchange of information about criminal records provides a good example of both the value of action and the limitations of decision-making at European level. On the positive side, the decision redressed a real deficiency in the practice of Member States, including the UK, and prompted them to set up more effective systems for exchanging information. We consider that this is a significant step forward and to be welcomed. (Paragraph 122)

11.  However, it has also become clear that the Council Decision itself was only a 'half-way house', which replicates some of the weaknesses of the original 1959 Convention, in particular the lack of specificity about the format and content of the information exchanged. We also note that some EU countries are being more vigorous than others in implementing the 2005 decision. This is therefore to be regarded as unfinished business. We recommend that the UK Government should pursue energetically in all relevant EU forums the objective of strengthening the 2005 decision by imposing requirements on Member States to supply full and usable information in a common format on convictions by other States' nationals. (Paragraph 123)

12.  We look forward to the results of the Home Secretary's review of information on criminality, and urge that this should address in particular the current deficiency whereby police are not notified when an individual convicted abroad is released from custody or re-enters this country. (Paragraph 124)

13.  We congratulate ACPO on drawing our attention, and thereby that of the wider public, to the highly unsatisfactory situation that had obtained in the UK prior to the 2005 decision, with information about overseas convictions being received by the Home Office and allowed to moulder on shelves rather than being made available to the police and the courts. We note the findings of the internal Home Office report, which reveal disfunctionality and poor performance within the Department; but we welcome the action that has been taken to tackle the deficiencies revealed in the report. (Paragraph 125)

14.  We fully support the Government's wish to sign up without delay to the pilot project on interoperability of criminal records data. It is very regrettable that the UK missed the opportunity to be one of the original pilot participants, and thus influence the project from the start. 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. (Paragraph 129)

15.  We believe that adopting the principle of availability has great potential to speed up and improve the quality of information shared between law enforcement agencies. Given the premium placed on good information-sharing by police practitioners, this will be an important development. However, there is a danger that if it is not implemented with sufficiently rigorous safeguards, in particular robust data-protection arrangements, the principle risks the dissemination of personal data of UK citizens without sufficient control over the subsequent use of that data. We recommend that the Government should insist that an appropriate impact assessment by an independent body be commissioned at EU level on the potential use of data under the principle before the principle is adopted (in whatever form that takes) and that the Opinion of the European Data Protection Supervisor be fully taken into account in so doing. We also recommend that appropriate monitoring arrangements are set up by the national information commissioners to pick up any abuse of the systems. We recommend that particular attention be paid to the admissibility of evidence obtained under the principle of availability, in particular if such evidence has been obtained by coercive measures. (Paragraph 137)

The Prüm Treaty

16.  The proposed transposition of the Prüm Treaty into the legal framework of the EU raises serious questions. In the case of Prüm, just as in the case of the pilot project on interoperability of criminal records (see paragraphs 126 to 129 above), the UK has missed out on an opportunity to influence a major European multi-country project from the start. Even more importantly, Prüm sets a worrying precedent whereby a small group of Member States may reach an agreement amongst 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. We deal with these issues of principle in section 4 of this report. We also note with alarm that if the draft Framework Decision implementing the principle of availability is superseded by the Prüm Treaty then the original design of an instrument introducing radical change to EU data-sharing will have been carried out outside the democratic processes of the EU. (Paragraph 144)

17.  Notwithstanding these concerns, we consider that the provisions within Prüm for more effective police co-operation are, in themselves, welcome. We support the UK Government's decision to sign up to those provisions, and welcome the fact that it has secured agreement to drop Article 18. (Paragraph 145)

Judicial co-operation: mutual recognition instruments and harmonisation

18.  Eurojust provides an excellent example of what can be done to build mutual trust between practitioners and through them Member States in one another's systems. This kind of contact and practical co-operation is absolutely critical in enhancing trust and co-operation. (Paragraph 157)

19.  We believe that there should be no objection to arresting and surrendering a UK national for an act that is a crime in another EU country in whose territory it was committed. We agree with the Government that the abolition of dual criminality for a defined and agreed set of offences is acceptable. Nonetheless, there is continuing anxiety in some quarters about the abolition of dual criminality in respect of the 32 offences; it remains to be seen whether particular cases throw up anomalies or perceived injustices which might undermine public support for the EAW. A number of the categories on the list, such as racketeering or xenophobia, cause us concern. We recommend that both the UK Government and the Commission should monitor the application of the EAW to see whether problems are emerging. It may be that in the light of several years' experience, some fine-tuning of the EAW system and the list of 32 offences may be desirable. (Under present arrangements, of course, any modifications will themselves require the unanimous approval of Member States. If there were to be a move to first-pillar decision-making on JHA issues, as the Commission wishes, changes to the list of offences would be made under qualified majority voting, which raises the possibility that they might be imposed on individual Member States against their wishes.) (Paragraph 178)

20.  The implementation of the EAW demonstrates that sufficient political will can drive agreement in the field of mutual recognition, even against institutional challenges. The EAW was passed and implemented despite the alleged problems with reaching agreement in the third pillar. However, given the special circumstances of its inception, in the aftermath of 9/11—and at a time when unanimity was required from only 15 Member States rather than the present 27—we conclude that the EAW is not typical of a third pillar measure and that it is likely to be much more difficult to reach agreement on other mutual recognition instruments. (Paragraph 190)

21.  The European Evidence Warrant provides an interesting comparison to the EAW. Without the same degree of political pressure under which the EAW was passed, this important measure has fallen foul of difficulties in getting agreement under unanimity. (Paragraph 191)

22.  The difficulties in passing mutual recognition instruments may not reflect a failure of the core principle of mutual recognition. It may simply be that the current procedures do not allow progress to be made if there is little desire amongst Member States to make progress, or if there are significant failings in the proposals. It should not be assumed that these hurdles to agreement are necessarily a bad thing, or that removing them would produce better and more satisfactory outcomes. (Paragraph 192)

23.  We agree with the UK Government, and a wide number of practitioners, that there is no case for a full-scale harmonisation of European criminal justice or legal systems. There would be very significant difficulties, if not impossibilities, in trying to marry nearly 30 different systems. We have seen no evidence that the Commission, or Member States, desire "full scale" harmonisation. (Paragraph 200)

24.  We think it logical that for mutual recognition in the field of judicial co-operation to be effective, and for Member States to trust each other, some degree of common standards in tightly limited areas may be desirable. Nonetheless, we caution that even in the case of proposals for common standards no proposal should be considered without powerful evidence of the scale and nature of the problem to be tackled, and the gains to be delivered by any such proposal. (Paragraph 207)

EU procedural rights

25.  On the basis of evidence we have received, particularly from Fair Trials Abroad, there are reasonable grounds for concern about the absence of procedural safeguards for UK citizens in some other EU Member States. However, it is difficult to quantify the problem, or to know whether the injustices that result from a lack of binding common procedures are sufficient to justify radical change. We note that the level of procedural rights provided for defendants in the UK is high and that any EU-wide binding agreement must also offer high standards. (Paragraph 228)

26.  There is a real risk that setting common standards in EU criminal procedures might set up an alternative rights regime in Europe, operating in parallel with the ECHR, and opening the prospect of conflicting litigation at the European Court of Justice and the European Court of Human Rights. We support the UK Government's view that the starting point, which would benefit both UK citizens in other Member States and the citizens of those States, should be to use existing mechanisms to ensure that the rights enshrined in the ECHR are uniformly observed across the EU. Detailed and independent monitoring of the extent of rights abuses in Member States is a precondition for taking remedial action against offending States. We recommend that the UK Government puts proposals before the Council of Ministers for a system of such monitoring to be established, with central EU funding, and for it to consider the best means by which sanctions could be brought against Member States which fail to comply with the ECHR in procedural matters. This should be done in full liaison with the relevant organs of the Council of Europe, which has responsibility for overseeing the working of the ECHR. (Paragraph 229)

27.  With regard to the choice which currently confronts the Council of Ministers, between a watered down draft Framework Decision and a non-binding Resolution, we do not feel that either in its current form is an attractive proposition. Some of the contents of the Resolution are worthwhile, but we would wish to see it strengthened by inclusion of tape recording of police interviews as a right. Unfortunately, a non-binding Resolution, of its nature, cannot be used as a lever to produce improvements in the rights situation in the States most likely to cause problems. (Paragraph 230)

28.  There is also a danger that if, as looks very possible, most other EU countries press ahead with an equivalent to a Framework Decision, but binding only on themselves, then as happened with the Prüm Treaty the UK will miss the chance to influence negotiations when they matter, and may have little option later but to sign up to an agreement that has already been negotiated. We therefore urge the Government to reconsider its current support for a Resolution and give renewed consideration to the proposals in the Framework Decision. (Paragraph 231)

Borders and migration

29.  We believe that the relationship between legal and illegal migration is a complex one which merits further debate. To the extent that there is an economic need for migration, legal migration will always be the preferred approach and the justification for tackling illegal migration. What is less clear is whether the EU has the capacity to take a common approach to legal migration, given the very different pressures and needs of individual Member States. At the same time, the EU has not yet shown the capacity to develop an effective common approach to illegal migration (although it is improving). Our view is that the development of effective action on illegal migration remains the priority and the case for developing an EU approach to legal migration is less clear. However, the UK needs to recognise that the decisions of other EU states on legal migration have direct implications for the level of legal migration to this country, given the right of movement within the EU. 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. Members of the Committee hold different views as to whether it might ever be acceptable to agree to this. (Paragraph 242)

30.  Frontex is a young organisation which has already carried out valuable work in securing the external borders of the EU. The agency has much untapped potential if it were to be properly resourced and staffed for the future. To this end the Government should encourage Member States to contribute the promised equipment and encourage the Commission to ensure sufficient funds to attract the right staff. We caution, however, that Frontex is not a panacea to problems of illegal migration, nor are emergency operations its raison d'être. Increased resourcing should not generate the expectation that Frontex can provide a much increased 'returns' service. (Paragraph 261)

31.  We support the Government's bid for the UK to become a full member of Frontex. The lack of a vote on the management board may not be a serious disadvantage, but the inability of Frontex to undertake operations on UK territory is a matter of serious concern. We therefore encourage the Government to take every step open to it to reverse this situation. (Paragraph 262)

32.  We agree with the Minister that different Member States sign up to measures in varying degrees and that this is part of the natural give-and-take at the EU. It could be argued that the UK position is qualitatively different because it has a wide variety of opt-in arrangements across the whole Schengen system. The UK may continue to be in the uncomfortable position of being excluded from important measures as a consequence of its selective participation. Nonetheless, the good reasons which led the UK to choose not to opt in to Schengen remain in force: in particular, the UK's unusual geographical position arising from its island status, long sea borders, and lack of land borders (other than with the Irish Republic, which has also chosen not to opt in to Schengen). We believe that on balance the UK is right to remain outside the Schengen border-control regime. We recommend that the UK Government should continue to explain to other EU countries why this is the case, while stressing the benefits of fuller co-operation on all other aspects of Schengen. The Government should also treat as its top priority the need to enforce immigration controls effectively within the UK; we made detailed recommendations as to how this can best be done in our report on Immigration Control published in 2006. (Paragraph 270)

Data protection

33.  We consider that in the area of data protection there is evidence of insufficient political appetite for protective measures as compared to law enforcement ones. We note the Minister's expression of continuing Government support for the Data Protection Framework Decision. However, if proposals for a Framework Decision were to be superseded by the data protection provisions in the Prüm Treaty, we would have serious concerns as to whether these were adequate. We note the lack of EU-wide consultation over the contents of the Prüm Treaty, arising from its origins as an agreement between a small group of Member States which did not include the UK. We recommend that the Government should continue to support the principle of making provision for data protection in the EU third pillar through a Framework Decision. (Paragraph 285)

34.  Both the Passenger Name Record and SWIFT cases give cause for serious concern. We consider that the casual use of data about millions of EU citizens, without adequate safeguards to protect privacy, is an issue of much greater significance than many of the other EU-related matters put to the UK Government and Parliament for consideration. We recommend that the Government and the European Commission should prioritise the question of provision of personal information to countries outside the EU as an issue of the greatest practical concern to its citizens. We repeat our earlier recommendation that the Government should seek urgent agreement on a comprehensive EU-wide data protection framework in the third pillar and ensure that specific minimum standards ensuring adequate data protection are agreed for data exchange with third countries. We also recommend that the Government should give due consideration to the proposal of the European Parliament rapporteur that the joint supervisory authority advise the Council to ensure an appropriate level of data transfer with third countries. (Paragraph 299)

Institutional changes

35.  We are aware that EU Member States are currently discussing how to revise decision-making procedures in the wake of the failure of the proposed EU constitution to win support in a number of Member States. The Constitutional Treaty proposed significant changes to decision-making in JHA issues. The most controversial would have made elements of criminal law subject to qualified majority voting in the Council of Ministers. The implications of this for the UK would be significant. If elements of criminal law and procedure were to be brought under QMV then, at least in principle, the Government could be outvoted in the Council. In this case both the Government and Parliament would be required to pass legislation on issues of particular principle and sensitivity which neither the Government nor Parliament had desired. (Paragraph 341)

36.  At present a number of Directives which have been agreed under the first pillar have been implemented in UK law by secondary legislation. It would be even more unacceptable for EU measures on criminal justice to be introduced without primary legislation, as happens with some existing EU measures under QMV. We also note that any future changes to the list of 32 offences in relation to which both the European Arrest Warrant and the proposed European Evidence Warrant are applicable would be approved under QMV, and thus might be imposed on individual Member States which opposed the changes. (Paragraph 342)

37.  Throughout this report we have looked at a range of current initiatives at EU level. 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 individual Member States as would be entailed by a switch of criminal law from the third to the first pillar. It is true that the level of real risk to UK interests can be overstated. The UK has sufficient power and influence to ensure that it would rarely, if ever, be outvoted or required to accept something against its interests. But the constitutional principle cannot be lightly set aside. The examples of the European Arrest Warrant and the recent measure on transfer of prisoners suggest that it is by no means impossible for good decision-making to take place within third-pillar procedures. (Paragraph 343)

38.  Having said this, we believe that the UK Government must also recognise that 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. (Paragraph 344)

39.  We recommend that 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. (Paragraph 345)

Parliamentary scrutiny of EU business

40.  We regret the absence of opportunity for debate on the Modernisation Committee's report, and urge the Government's business managers to find time for a debate in the near future. (Paragraph 353)

41.  We consider it is desirable for the House and its committees to take concrete steps to bridge the current divide in EU scrutiny between the document-focused work of ESC and the policy-based work of DSCs (which too often ignores developments at European level). We note that the ESC itself has recently begun to extend its activities beyond its traditional (and of course very valuable) sifting role, by carrying out some thematically-based inquiries. We welcome this development. (Paragraph 354)

42.  We believe this should be complemented by greater efforts to 'mainstream' EU scrutiny by engaging DSCs more fully in the process of examining key EU proposals. We therefore invite the European Scrutiny Committee to consider making more frequent use of its existing power to request opinions from DSCs on significant issues. (Paragraph 355)

43.  We recommend that the Home Office should undertake to consult us directly when major EU developments in the JHA field are at a formative stage. We request the Home Office to supply us with a quarterly report on progress with JHA developments—with an emphasis on proposals on which the UK Government has not yet reached its final settled position. (Paragraph 356)

44.  On the specific issue of the future of Europol, we noted earlier in this report that the Commission's December 2006 proposal contains no mention of scrutiny of Europol by national parliaments. We repeat here our recommendation that 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. (Paragraph 357)

45.  We have taken such steps as are open to us as an individual committee to mainstream EU business within our programme. (Paragraph 358)

46.  We agree with these comments by our colleagues from the European Parliament. Our exchange with MEPs during the course of this inquiry was very valuable. Whilst it might not be necessary to institute formal joint scrutiny with MEPs, we will attempt to maintain a high level of informal dialogue with British MEPs on key issues, using the services of the UK National Parliament Office in Brussels. (Paragraph 368)

47.  We will do our best to increase the quality and quantity of our scrutiny of the European dimension to Home Office decision-making. In particular, we propose to discuss with colleagues on the ESC, Lords Sub-Committee F and the LIBE Committee how we can build on recent encouraging contacts so as to create mechanisms for regular contact and liaison. (Paragraph 369)

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