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)
| 
