Select Committee on Home Affairs Written Evidence

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 cooperation.


  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 criminal procedures.

  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 law.


  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 State.

  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 2006;

    (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 II); and

    (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

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