18. Memorandum submitted by Professor
Steve Peers, University of Essex
The following evidence addresses the issues
being examined by the committee, except for the issue of practical
1. Mutual recognition is currently applied
to most civil and commercial judgments and to a number of criminal
law matters, along with aspects of migration law (the movement
of long-term residents within the EU, the allocation of asylum-seekers'
applications, and entry bans in the Schengen Information System),
as well as to the internal market of course.
2. The application of mutual recognition
in the internal market, as well as increasingly asylum law, is
usually dependent upon some degree of harmonization, or at least
comparability as a ground for refusing mutual recognition. Mutual
recognition in the criminal law context or as regards civil and
commercial judgments is not.
3. In some areas, such as the common commercial
(trade) policy and the Schengen system for short-term entry and
movement, the EU instead applies uniform rules.
4. It is difficult to judge the effectiveness
and cost of mutual recognition measures, but certainly in the
case of the European Arrest Warrant the statistics indicate a
high and rising number of warrants issued and quickly executed.
5. There are limitations to mutual recognition
from the perspective of national constitutions and doubts about
the wisdom of trusting other Member States' systems, and of removing
the protection of the dual criminality principle. It seems time
to reassess fundamentally the EU decision's to remove the protection
of that principle, and whether the EU should be focusing instead
on harmonizing certain additional aspects of substantive national
criminal law and developing basic minimum standards for national
6. Basic standards for national criminal
procedures could be developed without altering the central elements
of the different national procedures, ie without requiring the
replacement of juries or the development of an inquisitorial procedure
in the UK. In particular, it is hard to see how criminal evidence
obtained in one Member State could be automatically admissible
in other Member States without some harmonization of the relevant
7. At present it appears that the application
of a unanimity requirement quite clearly significantly delays
the adoption of EU third pillar measures, and often prevents the
adoption of such measures altogether. The cost for the effectiveness
of EU decision-making has to be weighed against the benefit that
a veto requirement ensures the greater legitimacy of EU measures
from a national perspective.
8. The only action other than the passerelle
(or a Treaty amendment, obviously) that would improve the efficiency
of decision-making would be an informal agreement among Member
States to restrain the application of parliamentary scrutiny reserves,
which have delayed the adoption of third pillar measures in some
cases for over two years after agreement on legislation. An informal
time-limit of six months or one year could be agreed. If the goal
of national parliaments is to influence the content of EU measures,
then it is more important for them to exercise their powers during
the discussion of the legislation, since there is no evidence
that the delays following agreement on third pillar measures have
ever changed the substance of any measure. It might, of course,
be difficult for Member States to convince their national parliaments
that such a time-limit should be agreed; and the time limit could
not be legally enforced in the absence of a Treaty amendment.
9. The use of the passerelle would certainly
improve the effectiveness of decision-making at the cost of weakening
national legitimacy. The best way to achieve a balance between
both objectives would be to apply the so-called "emergency
brake" system to all sensitive matters, and to use the UK's
opt-out over policing and criminal law proposals that would apply
if the passerelle were used. This could be accompanied by enhanced
parliamentary powers; for example it could be provided that the
UK would have to opt out (or in) to proposed legislation at the
behest of either (or both) Houses of Parliament, rather than leaving
the decision to the Government.
10. Transparency and accountability at the
EU level could best be enhanced by improving the rules on access
to documents and public Council decision-making, by improving
the accountability of the Commission when it adopts implementing
measures, and by enhancing national parliamentary scrutiny.
11. Furthermore, the use of the "G6"
meetings of the interior ministers from the largest six Member
States as a means to develop JHA policy cannot be justified on
grounds of democracy, legitimacy or transparency. An example of
this is the recent development of an EU migration policy, where
a secret discussion paper for the recent secret informal meeting
of JHA ministers asks the ministers to adopt a policy, set out
in a secret letter from the Home Secretary to the Finnish Presidency,
and set out in a secret G6 meeting held in Stratford last year.
12. The impact of the passerelle on the
UK's judicial system would depend on the measures adopted, and
our ability to opt out or use an emergency brake in relation to
such measures. If such possibilities exist, it seems highly unlikely
that the UK's judicial system will be altered significantly by
the use of the passerelle.
13. The development of the Schengen Convention
took place in order to avoid the objections of several countries,
particularly the UK, to the abolition of border checks between
Member States. There was also a limited (or at least a highly
contested) competence for the EC to deal with the subject-matter
of much of the Schengen Convention at the time.
14. On the other hand the development of
the Prüm Convention was likely due to the perceived limits
of decision-making within the EU context, since the subject-matter
of the Convention now falls squarely within EC/EU competence and
there are no outstanding reasons comparable to the dispute over
the abolition of internal border controls to explain why a number
of Member States would object in principle to the Convention.
Rather the Prüm Convention appeared to be an example of seizing
an opportunity to set policy in this area, rather than waiting
for a more diverse group of countries to agree a less ambitious
text after several additional years of negotiations. It should
of course be pointed out that negotiating the Convention avoided
any role for the Commission, European Parliament or Court of Justice.
Whether national parliaments had an enhanced or reduced role as
regards the Prüm Convention, compared to the adoption of
EU measures, depends upon the national constitution of each Member
15. The UK was ultimately able to "pick
and choose" from the Schengen arrangements to a degree, although
it is not being allowed to pick and choose from the immigration
provisions of Schengen (apart from the clauses on carrier sanctions
and smuggling of migrants). In the case of Prüm, it is not
entirely clear at present whether the Prüm States simply
expect all Member States to sign up to the text of the Convention,
or would be willing to amend it. If the former, then this is an
objectionable method of developing policy for the EU, as it infringes
the principle of equality of Member States as well as circumventing
the involvement of EU institutions (and thereby also circumventing
an impact assessment).
16. The main current developments regarding
visas and borders are:
(a) the development of the EU's borders agency,
Frontex, including a proposal which would set up joint rapid action
teams and regulate the status of border guards from one Member
State assisting those in other Member States, submitted in July
(b) the adoption of a standard Schengen borders
code, applicable from October 2006;
(c) the development of the Visa Information
System and the second-generation Schengen Information System (SIS
(d) the proposal for a standard code on Schengen
visas, submitted in July 2006. None of these measures have a direct
impact on the UK, since it does not participate within them. However,
the level of effective control at the external borders of the
rest of EU obviously has an indirect impact on the UK, since it
will impact upon the numbers of persons who are able in practice
to transit through other Member States with a view to reaching
the UK as their intended destination.
17. The impact of the proposed new policy
on illegal migration upon the UK would depend on the detailed
provisions of that policy and upon whether the UK opts in to some
or all of the relevant measures (if it is able to opt in). In
this context, it should not be forgotten that the Commission's
recent communication on illegal migration (COM (2006) 402, 19
July 2006) rightly emphasizes that policies on illegal migration
cannot be separated from those on asylum or legal migration. Unfortunately,
EU asylum measures set a low standard in this area (particularly
the Directive on asylum procedures) and it is not clear if they
are being fully implemented by Member States. EU policy on legal
migration is incomplete, as it does not address the crucial issue
of labour migration, and it sets a low standard regarding family
reunion in particular; in any event, the UK does not participate
in these policies. Any significant developments in EU policy on
illegal migration should be accompanied by further development
and improvement of the policies in those other areas.
18. Turning to the Commission's specific
proposals, it would be useful to examine the implementation and
the practical usefulness of the Directive on passenger data (which
the UK has opted in) before developing a system of passenger data
exchange further. In particular, how often have border control
authorities used this information to refuse entry to persons?
How many border control authorities have kept this information
for more than 24 hours after transmission? For how long are they
keeping such data, in what form, and for what purpose? How is
this data retained for longer periods being used in practice?
What precise use are law enforcement authorities making of this
data in practice? Is there any additional data that border authorities
or law enforcement authorities believe that they need, or conversely
any existing data that has proven to be irrelevant in practice?
Are the relevant data protection rules being enforced in practice,
including as regards law enforcement use of the data?
19. The Commission suggests extending this
system to other carriers. Is this realistic and practical? Would
it significantly contribute to the exercise of border controls
or law enforcement objectives? Precisely how would the data be
used in the context of threat analysis and risk assessments? Is
it envisaged that there would be an EU-wide database or system
for bilateral information exchange within the EU for these purposes?
Surely the use of the data for such purposes would have to be
more stringent data protection rules?
20. As for an entry-exit system, the Commission's
own impact assessment on the creation of a Visa Information System
dismissed this idea as unrealistically difficult and expensive
back in December 2004. What has changed since? Is there any point
applying such a system to non-visa nationals, since a major reason
for waiving a visa requirement in such cases is that they do not
represent a risk of illegal migration? Is it very useful to have
precise information on persons who have overstayed on the territory,
without also having information on how to locate them? Is it necessary
to apply such an EU-wide system, rather than a national register,
to seasonal workers or the registration of other residents on
the territory (rather than just visitors to the territory)? Would
the money to set up an entry-exit system not have more impact
on migration control if it were spent on enhancing border checks
and checks within the territory?
21. Different considerations may apply to
the UK, due to its different geographical situation.
22. It seems unlikely that current changes
in visa policy on the EU's eastern borders will have much impact
on the UK. The lower visa application fees, and the negotiation
of visa facilitation agreements, will not remove the visa requirement
for the large majority of persons. The legislation on border traffic
will only liberalize movement for a relatively small number of
persons, subject to strict conditions. If anything, the policy
toward the EU's eastern neighbours has not been sufficiently liberalized,
in light of the EU's interest in fostering business, human and
political links with those neighbours. The maintenance of border
controls by the UK is bound to limit the impact of any liberalization
by Schengen States. In any case, it is unrealistic for the UK,
as a geographically distant non-Schengen State, to seek to have
much influence on these issues.
23. This question could be answered empirically
if there is any evidence to show that the abolition of the visa
requirement for Romania, Bulgaria and Slovakia (and at present
Croatia) by the Schengen States, while a visa requirement was
retained by the UK, can be linked to increased illegal entry and
stay by nationals of those eastern States in the UK. Common sense
would suggest that it would obviously be much easier for nationals
of those States to stay in the Schengen States illegally, rather
than in the UK.
24. The impact of the last enlargement on
JHA issues can be seen in the development of EU visa policy (fee
reduction and visa liberalization) towards the EU's eastern neighbours.
So far there seems to be no indication of any impact of enlargement
on EU labour migration policy, except of course for the labour
migration by the nationals of the new Member States, which may
have displaced workers from non-EU countries who would otherwise
have granted work permits by the old Member States under their
national law. As for confidence in new Member States' justice
systems, it can only be hoped that the monitoring system established
by the Commission will be sufficiently effective, and that robust
action will be taken if necessary.
25. It is important to ensure that if wide-ranging
rules on data sharing between national law enforcement and judicial
bodies are further developed within the EU, then robust rules
governing data protection in this sector are adopted. Due to the
difficulty in distinguishing between domestic and international
data processing, there seems no point in confining EU rules to
transfers between Member States only. The EU's proposed Framework
Decision on data protection should be adopted as a priority, but
without lowering the level of protection in the proposed rules
to an unacceptable level. This applies particularly to the right
of information, the further processing of data for different purposes,
and the control of data transfer to non-EU States.
26. It appears likely that the "principle
of availability" will be implemented by extending the Treaty
of Prum to all members of the EU. The data protection provisions
in this text are problematic because they do not set a sufficiently
high standard as regards further processing, transfers outside
of the EU, and the powers of national supervisory agencies.
17 January 2007