Select Committee on Home Affairs Written Evidence

8.  Supplementary memorandum submitted by the Home Office

1.  The current state of progress in developing practical co-operation between member states in the JHA field, and future options in this area.

    1A.   What benefits have accrued so far from practical co-operation between law enforcement and judicial authorities? What are the lessons of practical co-operation for European policy and legislation, and how effective is Eurojust in spreading best practice?

  Practical cooperation has led to the successful investigation and prosecution of various cases.

  For example, Eurojust's significant contribution to an illegal immigration case involving Turkish organised crime groups smuggling large numbers of Turkish Kurds into the UK. Eurojust and Europol helped co-ordinate amongst other things a common arrest date with the UK, Belgium, France, Germany, Italy, The Netherlands. This resulted in 26 arrests across the UK and Belgium during the joint action.

  Another example is that of a case involving the trafficking in human beings. Lithuanian women and girls were trafficked to the UK and sold to Albanian organised crime groups for prostitution. Eurojust facilitated Mutual Legal Assistance requests, the initiation and coordination of investigations and prosecutions and the execution of an urgent European Arrest Warrant. The cases resulted in the start of an investigation in Lithuania against the organisers, a number of convictions in the UK including sentences of 18 and 21 years and the transfer for prosecution to Lithuania of a Lithuanian arrested in the UK.

  Eurojust's role is not specifically to promote best practice but many of its activities are beneficial in this respect. For example, Eurojust's programme of strategic meetings on serious organised crime enable information to be disseminated on practical problems as well as best practice in prosecuting specific forms of crime. In 2005, the programme included strategic meetings on terrorism, drug trafficking, human trafficking and immigration crime and money laundering. Eurojust also holds an annual strategic meeting on the operation of the European Arrest Warrant (EAW). This also supports Eurojust's responsibility under Article 17(7) of the EAW Framework Decision for collating information about cases in which Member States do not observe the time limits laid down for execution of an EAW. Eurojust has also established specialist teams to provide a centre of expertise in specific fields such as terrorism and plan its strategic meetings. The Government believes these activities have played a valuable part in promoting closer and more effective co-operation between practitioners across the EU.

  Practical co-operation is also undertaken through the European Judicial Network (EJN). The EJN contact points in each EU Member State play a fundamental and practical role in the area of judicial co-operation in criminal matters, with the purpose of facilitating judicial co-operation between Member States, particularly in order to combat forms of serious crime. The EJN is also tasked with providing the legal and practical information necessary for the local authorities within an EU Member State to prepare an effective request for judicial co-operation.

    1B.   In which arm does the UK government want to advance more practical co-operation measures? What benefits does the government see from practical co-operation over legislative solutions?

  The main areas in which the UK Government would support further practical cooperation are:

    —  in the development of Eurojust and the EJN;

    —  in immigration and border control, including through bilateral work and through Frontex;

    —  on matters of asylum between EU Member States with the aim of reducing asylum shopping;

    —  on criminal procedural rights; and

    —  on intellectual property rights.

  The Government sees practical cooperation as a means of tackling real cases, such the Eurojust examples given above.

  Practical co-operation between Member States has the effect of approximating practise. Proposed legislation can then draw on the experience of practical cooperation to ensure that Member States' needs are met.


  The Government would support the further development of Eurojust and the EJN as facilitators of judicial co-operation between Member States where necessary. Practical co-operation through Eurojust and the EJN is a fast, effective and easily arranged means of dealing with issues which may otherwise require time consuming and resource intensive negotiations. However there is a place for both legislative and practical approaches in dealing with judicial co-operation matters.


  The UK undertakes a great deal of practical co-operation measures in the field of immigration and border control, including through bilateral work with other Member States and through EU-wide mechanisms such as Frontex. Concrete operations in which expertise and support are exchanged are extremely effective ways of bringing about rapid and tangible improvements. For example:

    —  A bilateral study visit exchange between UK National Document Forgery Unit and Bulgarian Border Police led to a project to set up an equivalent unit in Bulgaria to strengthen their border control through increased capacity to detect forged documents.

    —  Acting as junior partner with the Danish on an EU Twinning Project with Turkey in order to develop their Asylum and Migration systems—included a sponsored study tour to the UK and Ireland to share experience on a wide raft of operational and policy areas, and training seminars on areas such as human resources/organisational issues and expulsion.

    —  Seconding a UK Immigration Officer to a Frontex coordinated operation in Malta to share nationality/identity interviewing techniques to aid the documentation procedure and increase return of illegal migrants.

  As the UK is not a member of Schengen, legislative solutions regarding border control are not normally open to us, nor do we regard legislation as necessarily the best way to raise standards in every case.

  Illegal immigration is an area where the UK particularly sees value in pursuing the practical co-operation agenda. The Global Approach to Migration agreed under the UK Presidency highlights a number of key areas where Member States, in co-operation with Frontex and Europol, can work together on an operational basis to combat illegal migration. The delivery of this agenda is a priority for the UK and we want to continue to enhance operational cooperation both within the between Member States and in our co-operation with third countries (Africa).

  The Government would like to see continued cooperation on matters of asylum between European states and considers that the avenue of practical co-operation is the most likely way for states to learn best practice from one another, to share information and to improve their asylum systems with the aim of reducing asylum shopping across the EU. The Commission Communication on practical cooperation on asylum (COM (2006)67 and Add 1) promotes a variety of measures to increase cooperation between European states.

  The Government is cautious over proposals for additional, legislative measures relating to asylum at this stage. A thorough evaluation of the first phase of CEAS legislation, alongside an assessment of the application of provisions in practice, should take place before a second phase of legislation is considered. Additional legislative measures (if they are required) should be based upon a gap analysis of the first phase review.

  The Government believes that the proper implementation and enforcement of the existing minimum standards asylum Directives, alongside increased practical co-operation between Member States on asylum issues, will increase convergence in practices and reduce secondary movement.

Criminal Procedural Rights

  We believe Europe already has enough legislation in this area in the form of the European Convention on Human Rights (ECHR) and the related jurisprudence. The real need is to enhance compliance with the ECHR across the EU, and that is what measures proposed in a draft Resolution presented by the UK and five other Member States are intended to do. The Resolution, proposed as an alternative to a Framework Decision on criminal procedural rights, sets out a range of practical measures based on recognised good practice Member States could take, mainly related to access to information, access to legal assistance and to interpreters.

Intellectual Property Rights

  The statement on combating Intellectual Property Rights piracy and counterfeiting issued at the G8 St Petersburg Summit in July endorsed the following: "To continue the anti-piracy and anti-counterfeiting activities, we consider it necessary to enhance cooperation in that area among the G8 and other countries, as well as competent international organisations,... We see enhanced cooperation (both national and internationally) as the key to substantially reducing the global trade in pirated and counterfeit products and to taking effective measures against trans-national networks supporting such trade."

    1C.   What should be the role of Europol, Interpol and Eurojust in facilitating practical cooperation?

  Interpol is, and should continue to be, a principal channel for the secure exchange on a 24/7 basis of information on criminals and criminality which can be used to support the member countries' own law enforcement operations. The Europol Director and the Secretary-General of Interpol have agreed a broad range of co-operation measures including information exchange subject to data protection and other safeguards.

  Europol has, and should continue to have, an important role to play as an intelligence agency in preventing and combating organised crime affecting the EU Member States. The Europol National Units also increasingly act as a channel of communication between the Member States on criminal matters, but without prejudice to sharing information with Interpol where this affects other member countries.

  Eurojust's value lies in supporting and coordinating national investigative and judicial authorities. Its role, as set out in the Eurojust Decision, is to promote and improve Member States' co-ordination of investigations and prosecutions of serious cross-border crime, in particular where it is organised and concerns two or more Member States; to improve co-operation between Member States, in particular facilitating mutual legal assistance and extradition requests; and to support Member States in making investigations and prosecutions more effective. Eurojust does not have powers to investigate and prosecute cases in its own right, although it can act pro-actively by requesting a Member State to undertake an investigation or prosecution. These powers can be exercised by Eurojust acting as a College collectively or by the National Members individually. The Eurojust College exercised these powers under Article 7 of the Eurojust Decision for the first time in 2005 when Spain was requested to investigate an alleged fraud because the UK could not establish jurisdiction to prosecute the case.

  Eurojust concluded a co-operation agreement with Europol in 2004 to facilitate exchanges of information and there are regular meetings between the organisations. A joint evaluation in 2005 made a number of recommendations to improve co-operation further between the bodies.

2.  The current state of progress in mutual recognition, including the development of minimum standards, across the EU, and whether further steps in this direction are desirable.

  The Government endorses the view expressed in the 2004 Hague Programme that the groundwork for judicial co-operation on the basis of mutual recognition is well advanced. The Programme placed a continued emphasis on mutual recognition as the cornerstone for judicial co-operation in the EU and indicated that the comprehensive programme of measures to implement the principle of mutual recognition of judicial decisions in criminal matters should be completed.

  The Government believes that practical co-operation between Member States in the fight against serious cross-border organised crime is essential and is often far more effective than harmonising legislation. Some limited approximation may be necessary in order to enhance the effectiveness of mutual recognition but any proposals should be founded upon a firm need, assessed on the basis of good evidence. The current Intellectual Property initiative is a good example of a JHA legislative proposal that in the Government's view is not evidence based and which distracts from the need to examine ways in which Member States can co-operate far more effectively at the operational level.

    2A.   In which areas is mutual recognition currently employed (for example recognition of judicial judgements in other member states)?

  The mutual recognition of judicial decisions currently operates under the European Arrest Warrant (EAW), which came into force in the UK on 1 January 2004 for extradition and surrender between Member States. In addition, Member States are in the process of implementing the 2003 Framework Decision on the execution of orders freezing property or evidence and the 2005 Framework Decision on financial penalties. The Council also adopted in October 2006 the Framework Decision on confiscation orders and is currently preparing the European Evidence Warrant (EEW) for adoption. Negotiations on the Framework Decisions on the taking account of convictions and the enforcement of custodial sentences are underway. The Commission has also issued a proposal for a Framework Decision on the mutual recognition of non-custodial pre-trial supervision orders.

    2B.   How has the principle, including minimum standards and protocols, worked in these areas? Is it an effective approach, including in terms of cost? What are the limitations of mutual recognition as a cornerstone of co-operation, for example in cases such as the European Arrest Warrant where there are controversies over dual criminality? What have been the successes, and how might these be built on?

  The EAW has worked very well since it came into operation in January 2004. In 2005, 43 persons were returned to the UK under the EAW regime and 77 persons were surrendered to other EAW states. The time taken to complete an extradition case from arrest to surrender has been substantially reduced under the EAW procedure which invariably impacts on costs as less resources are needed than under the earlier lengthier procedure. For example, in 2003 the average time taken to complete contested cases was 16 months; under the EAW procedure straightforward cases can be completed within three to four weeks.

  Mutual recognition provides a balanced approach to judicial co-operation. It provides for enhanced and faster co-operation whilst respecting individual rights and Member States' distinct and diverse legal systems. We have built on the success of the EAW by using the EAW model for subsequent mutual recognition instruments which are in the process of either being implemented in the Member States—freezing of evidence, mutual recognition of fines—or being adopted in the Council, such as the EEW. We would also hope that the experience gained from using the EAW will feed into future negotiations.We have recognised certain limitations to the application of the mutual recognition principle and appropriate safeguards have been incorporated into individual instruments addressing issues such as territoriality and double jeopardy. We have also included a general requirement to respect fundamental rights as enshrined in the European Convention on Human Rights.

  We do not accept that we should make judicial co-operation conditional in all circumstances on dual criminality. As a general principle, if people break our laws we should be able to co-operate within the EU to ensure that they do not evade justice.

    2C.   What is the UK government's position on mutual recognition as opposed to practical co-operation?

  In the Government's view these are complementary programmes, providing the operational and legal frameworks required to ensure that there is effective co-operation in the EU for tackling cross-border crime including terrorism and serious, organised crime.

3.  The current state of progress in and appetite for harmonising criminal justice systems across the EU, and whether further steps in this direction are desirable.

    3A.   How do proposals for harmonisation of criminal law across member states substantially differ from mutual recognition?

  Mutual recognition is founded upon trust and confidence in other Member States' criminal justice systems in acknowledgment of the diversity of systems across the EU. It envisages the application of judicial decisions of one Member State having the force of law in other Member States where the domestic provisions may be significantly different in character. Harmonisation, conversely, envisages a gradual process of homogenisation so that all Member States will over time have broadly similar criminal law and criminal justice systems. Mutual recognition currently focuses on serious cross-border cases while harmonisation would in principle affect wholly domestic cases and would require changes to the UK's constitutional law and legal arrangements. Mutual recognition provides a more flexible approach by allowing Member States to respect and accept the differences in legal systems. Judicial decisions can be recognised without the need for wholesale changes to Member States' domestic legal systems.

  The Government accepts that it may be necessary to establish some minimum standards in limited specific areas of the criminal law in order to enhance the effectiveness of mutual recognition, but these should not be regarded as a precondition for effective mutual recognition. Certainly, wholesale harmonisation of the criminal law more generally would be an unwarranted disruption to Member States' criminal justice systems. It would also be a major distraction from the practical work required to provide an area of security, freedom, and justice for EU citizens and would inevitably entail breaches of the principles of proportionality and subsidiarity.

    3B.   What are the implications for the UK in harmonising criminal law and systems?

  In theory, harmonisation could enhance and improve co-operation within a harmonised area, because every State would be applying the same law. However, harmonisation would almost certainly require major changes to our domestic arrangements, in view of the fundamental differences that currently exist between common law systems on the one hand, and civil law systems on the other. The UK has always been a strong proponent of mutual recognition and continues to support mutual recognition as an alternative to harmonisation.

  There are some areas in which harmonisation of offences would cause the UK some concern. The draft proposal for a Framework Decision on combating racism and xenophobia, for example, highlighted some significant differences between our approach and that adopted by many other Member States. Regarding penalties, the risk is that draft legislation will move on from the current preference for minimum maximum penalties to provision which deals more directly with sentencing and impinges on the proper exercise of judicial discretion.

  The Government has ensured that the Hague Programme acknowledges diversity and the need to respect the principles of proportionality and subsidiarity and we have negotiated hard on individual instruments for language that allows the UK to contribute positively to the fight against organised crime and terrorism at EU level without compromising the integrity of our system. Of relevance here is the UK's support for the Council in the case currently before the European Court of Justice concerning a Framework Decision on maritime pollution, in which the Commission is seeking to unacceptably extend Community competence in criminal law.

    3C.   Would particular areas benefit from harmonisation on issues such as migration, serious crime cases and terrorism, rather than practical co-operation or mutual recognition?

  The Government does not believe that there should be wholesale harmonisation of law and procedures at EU level and that any harmonisation must be justifiable under Articles 29 and 31 of the Treaty on European Union. The Government has however accepted that some minimum levels of approximation of criminal law are desirable and appropriate, in line with paragraph 48 of the Tampere Conclusions and section 3 of the Hague Programme, in order to provide a common EU approach to tackling certain types of serious crime. This has resulted in the adoption of a series of Framework Decisions requiring Member States to create common minimum offences and penalties to combat terrorism, drug trafficking, cybercrime, trafficking in human beings, corruption in the private sector, counterfeiting and fraud, sexual exploitation of children and money laundering.

4.  The process of decision-making on JHA issues at EU level: in particular, the extent to which current difficulties in reaching agreement derive from "third pillar" voting procedure and might be remedied by implementation of the passerelle clauses in previous treaties.

    4A.   What implications might use of the passerelle have for the UK's legal and judicial systems? What alternative action might improve decision-making? How can transparency and accountability at European level best be extended?

  The Commission Communication on the mid-term review of the Hague Programme has been useful for supporting discussion about whether the current institutional and decision-making arrangements can be improved upon.

  The JHA Council has achieved results of real substance and shown that unanimity need be no bar to fast and decisive action. The European Arrest Warrant was agreed quickly, and agencies such as Eurojust are delivering concrete results.

  The UK has stated on other occasions that concerns which featured in the debate on the draft Constitutional Treaty—such as the consequences of extension of external competence and the need for safeguards such as the emergency brake—remain as valid now as they were then.

  The EU should be focusing on implementation, maximising the effectiveness of agreed legislation, and delivering on practical instruments, such as the second generation Schengen Information System, the Visa lnformation System and the decision on exchange of information from criminal records.

  Use of the passerelle could have the following consequences, although they are not automatic: the use of qualified majority voting (QMV); co-decision with the European Parliament; the application of external Community competence; extended jurisdiction of the European Court of Justice; and possibility of infraction proceedings where the Commission was not satisfied with the implementation of a specific measure in a Member State.

  Use of the passerelle would not in itself have direct implications for the UK's legal and judicial systems. But the potential implications of, for example, QMV in the area of criminal law, is one of the reasons the UK has flagged the issue of safeguards, in particular the emergency brake in the draft Constitutional Treaty.

  Decision making could be made more effective by ensuring that new proposals are properly evaluated before being published, in order to ensure there is a need for the proposal and it is clear what problem it will remedy. The UK welcomed the Commission Communication on evaluation for this reason.

    4B.   How significant is the recent trend towards internal agreements between groups of member states outside the framework of the EU, for instance the Schengen countries, or the Prum convention? To what extent is this due to unanimity or difficulties in decision making? What are the implications for the UK and for EU fragmentation?

  Bi-lateral and multi-lateral agreements between EU Member States outside EU structures are not new (for example the Schengen agreements date back to 1985) so it is not clear that there is a recent trend towards such arrangements. The Government is open to consideration of ways to improve decision making but there is no evidence to suggest that mechanisms that have been in place for many years are suddenly causing Member States to seek alternative ways of co-operating.

  Seeking co-operation arrangements outside EU structures can be due to range of reasons, including geography and the identification of a shared threat or goal that affects particular countries but not the majority of Member States. For example the establishment of juxtaposed immigration controls between the UK, France and Belgium was a response to a particular border control issue affecting these three countries and the outcome has been very positive for the UK.

  The Prüm Treaty is an example of a group of Member States seeking to improve their ability to co-operate even further. There is no indication that Prüm or other bi-lateral or multi-lateral agreements represent a move to EU fragmentation. Indeed the stated intention of the Prüm signatories is to offer it up as the basis for an EU measure once it has been implemented and tested by the signatories.

  The Government believes that the ability to continue to reach agreement on practical co-operation measures outside EU structures provides necessary and valuable flexibility to supplement EU measures. It does not mean that EU structures are being bypassed or that the EU is fragmenting.

    4C(i)   What are the current developments in the area of common border controls and visa arrangements?

  The development of common border controls in the Schengen area principally is through the Schengen Border Code (SBC), a new version of which came into force on 16 October. The accompanying border guards handbook is available on the CIRCA (Communication on Information Resource Centre Administration) website. The SBC brings together the existing principles implemented by Schengen states regarding land, air and maritime borders into a single legal act. There is discussion at EU working group level of a Community Visa Code which seeks to bring together the existing principles implemented by Schengen states regarding common visa policy. There are also discussions on a common Schengen visa information system (VIS) and the Schengen common visa list. As a non-Schengen state these measures also do not apply to the UK. However, we take a close interest as we believe a strong Schengen border is in our interests as is a strong UK border in the interests of the EU as a whole.

    4C(ii)   What implications does the proposed new policy on illegal migration have for the UK and our role in the EU?

  Following on from the Global Approach to Migration produced in December 2005, the "Communication from the Commission on Policy priorities in the fight against illegal immigration of third-country nationals", which is not yet common policy, sets on a comprehensive approach taken in the fight against illegal immigration. It was necessary to stock take ongoing measures, in the light of the difficult humanitarian situations with the EU's backing not lest that in The Canaries, Malta and Lampedusa as a result of illegal immigration. The Communication outlines priorities for future work which may include legislation on illegal working to reduce pull factors. The UK recognises that there must be a concerted efforts from all Member States in fighting illegal immigration and supports the Commission's approach in this area particularly towards more effective use of funding through FRONTEX and greater use of technology at borders. We will continue to actively participate in the development of many of the various dossiers under this wide heading.

    4C(iii)   Will the proposed changes to the short-stay visa arrangements in relation to the eastern neighbours of the EU open up new channels for illegal migration further westward in the EU?

  The Schengen states are currently in negotiations with a number of Eastern European countries on EU visa facilitation agreements. The countries concerned include: Ukraine, Russia, Moldova, with short-stay visa facilitation agreements being discussed for the former Yugoslav Republic of Macedonia, the Republic of Albania, the Republic of Montenegro, the Republic of Serbia and Bosnia and Herzegovina.

  The negotiations are ongoing and no final decisions have yet been made. The objective of the agreements for the EU is to improve standards across the EU in terms of document security, cost and processing times.

  The UK does not take part in EU visa facilitation initiatives, which are confined to the Schengen states. We monitor progress of EU visa facilitation initiatives and consider the potential of visa facilitation measures with those countries in line with any agreements between them and Schengen states. For example, we have recently entered into discussions with Russia and Ukraine on possible visa facilitation, focussing on improvements to the visa issuing process rather than increased numbers of visas Issued. The UK's objectives from such agreements are to align our processes with Schengen States as far as possible.

    4C(iv)   What are the implications of enlargement for JHA issues, including the impact of labour migration and confidence in new member states' justice systems?

  Prior to EU expansion, in May 2004, the Government committed to monitoring the effects of EU enlargement on the UK's social welfare system and the labour market. The latest quarterly Accession Monitoring report, shows the numbers of workers from the new EU member states registering with the Home Office and applying for benefits.

  The broad picture continues to be that the level of labour market participation of A8 workers is following a stable seasonal trend and that Accession workers from A8 states are helping to fill the gaps in our labour market and support the provision of public services in communities across the United Kingdom.

  Enlargement of the EU has had the following impact on labour market restrictions for Bulgarian and Romanian nationals:

    —  Skilled Romanian and Bulgarian workers will continue to be able to come here to do jobs that cannot be filled by resident labour.

    —  Very highly-skilled A2 workers that qualify for the Highly Skilled Migrant Programme will also be admitted as now.

    —  Romanian and Bulgarian students studying in the UK will continue to be able to work part-time.

    —  Access for lower-skilled migrants will be limited by quota, and restricted to jobs in agriculture and food processing. The existing schemes in those areas will now move over to being for Romanians and Bulgarians only. Between them the schemes will amount to just under 20,000 jobs.

  For as long as these transitional restrictions are in place we will not be opening up any routes for low-skilled migration for countries from outside the EU. We are not convinced that such schemes are necessary, with the UK now part of a huge single labour market. And they are anyway now unlawful: EU law says that if we are placing restrictions on labour market access for EU member states we cannot take people from third countries to do jobs that EU nationals would have been willing and able to fill.

  The Commission Report of 26 September 2006 noted that the current Government in Romania has made good progress in key JHA areas although it recommended further efforts to tackle corruption, in terms of further investigations and subsequent judicial proceedings. The Commission report sets out that Romania has made "positive progress" in the fight against corruption and that there needs to be a clear political will to demonstrate the sustainability and irreversibility of this progress. We would agree with this assessment. Romania has made a concerted effort— in the last few months alone a number of high level officials have been indicted for corruption.

  The Commission Report notes that there needs to be more progress in Bulgaria and that increased political will is needed to continue to tackle all levels of corruption and to increase prosecutions of organised crime networks. Further progress is needed to ensure full independence of the judiciary and to tackle financial crime including money-laundering.

  The UK has consistently provided support to both countries on capacity building within the JHA field.

  The Commission has proposed post-accession monitoring mechanisms for both Romania and Bulgaria in a number of areas. In the JHA field these will take the form of monitoring by way of robust benchmarks, with the threat of a suspension of mutual recognition measures (including the European Arrest Warrant) if these benchmarks are not met. In practice, if this safeguard is activated, it would enable current Member States to refuse automatic recognition and enforcement of certain civil and criminal judgments and arrest warrants in either Bulgaria or Romania. The use of a monitoring mechanism— which was not made use of in earlier enlargements— sends a very strong message to both Governments on the need for continued reform.

5.  What is the current status of the UK protest in the ECJ about the Commission decision not to allow the UK to opt in to FRONTEX?

  The United Kingdom has been excluded from participating in Regulation (EC) 2007/2004 (the Frontex Regulation). It has challenged this exclusion in the European Court of Justice (C-77/05) on the basis that the UK should be able to opt-in to Schengen-building measures under Article 5 of our Schengen Protocol. As yet no hearing date has been set.

1 December 2006

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