Select Committee on European Union Thirteenth Report

Memorandum by the Home Secretary



1.  This Memorandum sets out the Government's response to the report's conclusions in respect of this Special European Council.


  2.  The Government does not propose in this response to restate its general approach to this Special European Council, the first to be almost entirely devoted to Justice and Home Affairs matters. This was fully explained in the Home Office Memorandum of June 1999 and the three accompanying non-papers proposing initiatives on youth crime, mutual recognition of court decisions and improving access to justice. The Government's position was further amplified in the oral evidence given by officials on 9 June and by the Home Secretary on 12 July.

  3.  The Government welcomes the Committee's broad support for the position that the UK is taking with regard to the priorities to be addressed at the European Council. Tampere will need to achieve three concrete outcomes. First, at the general level, it will need to give Justice and Home Affairs co-operation within the European Union the higher profile and enhanced political momentum that these important issues deserve. Secondly, it will need to set guidelines and priorities for making a reality of the new European Union objective of establishing "an area of freedom, security and justice" (and this in terms of measures that are relevant to the day to day lives of European citizens).

  Thirdly, it will need to address some current issues of major importance. The Government accepts the strategic priorities for Tampere that were proposed by the German Chancellor and Finnish Prime Minister and conveyed to Heads of Government in their joint letter of 18 March. Prominent amongst these was the issue of EU strategy in the area of immigration and asylum and in particular how the European Union, as a whole, could best address future mass influxes of people from third countries. The Government fully supports the Select Committee's conclusion regarding the need to focus on identification of priorities and the establishment of realistic targets rather than the creation of new institutions or "grandiose policy objectives". In this respect we are pleased to note that the Committee shares the Government's analysis that a practical, "needs-based approach is that most likely to produce tangible benefits and command greater public support".

  4.  This Memorandum now considers in detail each of the specific areas referred to in the Committee's report:

(a)  Asylum and Immigration

  5.  The Government welcomes the Committee's support for an essentially pragmatic approach to the issue of burden-sharing, based on the consensus agreed during the German Presidency. The Government considers that the Kosovo crisis demonstrated the effectiveness of co-operation between Member States without the need for formal procedures, which might hinder rather than assist in a crisis situation if there is a lack of flexibility. The Government would support moves in this direction at Tampere.

  6.  The Government also supports the Committee's analysis in respect of asylum procedures and subsidiary protection. It is indeed essential that the minimum standards provided for in the Treaty are constructed in a positive sense, allowing minimum scope for abuse and providing satisfactory protection for genuine refugees.

  7.  As noted by the Committee, the work of the High Level Working Group (HLWG) on Asylum and Migration is reaching its conclusion, the group having fulfilled its remit to draw up action plans on a number of significant countries of origin. These action plans will be presented to the Special European Council for approval and agreement to the future work of the HLWG, or its successor. The UK shares UNHCR's view of the importance of a global approach to asylum and immigration issues. The HLWG has demonstrated the value of a multidisciplinary, cross-Pillar approach, encompassing foreign and development policy as well as migration policy. The Government considers it important that the work of the HLWG should continue. The action plans should now proceed to the implementation phase, with the HLWG, or its successor, considering detailed resourcing options and measures for implementation and monitoring their effect. This further work needs to ensure, as the Committee has noted, that the existing priorities for Community policies are not diverted.

  8.  The UK's proposed joint initiative with France on a strategic approach to tackling illegal immigration has been subsumed by the Presidency's proposals for the Tampere agenda. The Government is entirely content that this important aspect of migration policy be taken forward in this way.

(b)   The Fight against Cross Border Crime

  9.  The Government is glad to note that the Committee agrees that it is important for Europol to demonstrate its effectiveness in the areas covered by its existing mandate before consideration is given to extending its remit.

  10.  The Committee has also recognised the need for a consolidation of current initiatives relating to European training facilities for law enforcement officers. The creation of a European Police Staff College will draw many of these initiatives together and offer support in the fight against organised cross-border crime.

  11.  The Committee proposed the siting of such a college in the UK. We have made a bid for the college to be located here.

  12.  The Government is at one with the Committee in regarding the creation of a uniform criminal code, or full-scale harmonisation of criminal law, as impracticable and undesirable objectives. The Government accepts, however, that some further approximation of offences and penalties is called for by new Article 31(e) of the TEU. It considers that the approach should be selective and based on need, in particular in order to ensure that every Member State can prosecute key forms of cross-border criminality. This view is shared by a number of Member States, including the Finnish Presidency. For example, the Government supports the draft framework decision on measures to combat counterfeiting of the euro, which contains harmonisation measures. The Government also considers that some common minimum rules on the use of coercive powers may be needed to complement mutual recognition, and it notes that the Committee agrees with that view.

 (c)   The European Judicial Area and Mutual Recognition

  13.  The Government welcomes the Committee's support for its initiative on mutual recognition of judicial decisions in the criminal field. Recent indications from bilateral discussions, and at the informal meeting of Justice and Home Affairs Ministers in Turku in September, suggest substantial support for the mutual recognition concept. The Government will be looking to secure a reinforced mandate for the initiative at Tampere.

  14.  The Government has noted with interest three proposals made by the Committee with regard to mutual recognition:

    —  the need for some form of inspection and evaluation in order to build confidence in Member States' judicial systems. The Government agrees, as it has previously indicated, that public confidence will be important, and it accepts that inspection or mutual evaluation could be one way of helping to bring that about;

    —  the need to define possible grounds for refusing to enforce a judicial decision given in another Member State. The Government agrees that it will be necessary to address this issue as mutual recognition is developed. A balance will be required between maximum streamlining of judicial co-operation and the need for a safeguard against decisions which fail to meet agreed rules or criteria; and

    —  the need for a judicial mechanism at EU level to ensure compliance with common minimum standards and safeguards. The Committee implies that this role should be played by the European Court of Justice. The Government will consider whether such a mechanism is required and how it might be provided. It is, however, the Government's view that the UK should not opt in to the European Court of Justice's preliminary reference jurisdiction in relation to Third Pillar instruments.

  15.  The Government like the Committee is interested in the idea of Eurobail. The Government's paper on mutual recognition has proposed a system of fast-track surrender where persons granted bail in another Member State fail to return to attend court proceedings. Common minimum rules on bail, or Eurobail, could form a corollary to such a scheme, which could have the added advantage of overcoming the greater difficulty EU citizens are thought to encounter in obtaining bail when exercising free movement in another Member State. The Government agrees that research or information-gathering on bail systems would be a useful first step.

  16.  The Committee supports in principle the concept of "Eurojust", a unit composed of national prosecutors or magistrates to prosecute cross-border criminal offences. The Government has not yet finalised its position on this idea, which, as the Committee acknowledges, raises some important issues of principle and practice.

 (d)   Crime Prevention and Youth Crime

  17.  The report refers (paragraph 42) rather briefly to the Government's proposals for an initiative on preventing and combating youth crime and mentions in particular the view of some Governments that this does not necessarily require action by Heads of State and Government and might perhaps be better dealt with at national level in line with the principle of subsidiarity. In developing its proposals the Government has from the outset been aware of the need to focus specifically on those areas of possible activity that can best be carried forward by co-operation at the European Union level and to avoid any suggestions of imposed harmonisation, whether in the area of criminal law or treatment programmes. The Government, along with Sweden and Denmark, has now prepared a series of proposals relating to crime prevention, and youth crime in particular. They include a number of initiatives, in particular; an EU crime prevention programme, a network of crime prevention contacts and the development of an EU strategy to prevent cross-border criminality. They received wide support at the informal meetings of JHA Ministers at Turku, and will be submitted to the European Council at Tampere.

 (e)   "Access to Justice"

  18.  The Government notes with disappointment the Committee's opinion that it had "not taken the opportunity to promote more substantial measures to tackle the practical obstacles citizens face in seeking justice in another jurisdiction." The Committee proposed that such measures might include minimum rules for obtaining legal aid and advice, and the establishment of common procedures for small claims which would provide quick and effective remedies.

  19.  The Government envisages a programme of work in phases of developing ambitiousness. The first phase would be to improve the information provided concerning how citizens, small businesses and others can make civil claims in other European Member States.

  20.  At the same time measures should be drawn up aimed at eliminating technical, administrative and legal obstacles to access to judicial bodies all over the Union. This could include measures to enable citizens in one Member State to pursue legal action in another, by more effective use of information technology. That idea may be thought by some of our European partners more radical than may at first appear. It is worth drawing a comparison with a standardised European consumer complaint form aimed at helping resolve small consumer disputes which, as the Committee has noted, has been adopted by the Commission. That form was originally conceived as a document which could form part of the pleadings in a case; however that step, which some may think not especially bold, did not receive the necessary support in the Council and the form was therefore downgraded to its present status. Given the resistance to that step, we suspect that our ideas will be seen as far-reaching by some Member States and we will be challenging them to show some determination to take sufficiently bold steps to eliminate the kinds of difficulties faced by European citizens when seeking to litigate in other European countries.

  21.  The second phase of a work programme would be to establish minimum standards in matters such as accessibility, simplicity, speed, flexibility and the minimising of costs, in civil proceedings having cross-border implications, particularly in relation to national schemes for resolving small and medium-sized claims. Minimum standards in the field of enforcement might allow us to make a reality of a European enforcement order. We would be looking to Member States to bring about such real improvements as are necessary to make civil justice a reality in cross-border cases. Such improvements would undoubtedly also benefit citizens involved in domestic litigation.

  22.  The Committee mentions the possibility of a common set of rules for small claims in cross-border cases. We suspect, however, that in the short and medium term, the most effective way of facilitating citizens' access to justice in small and medium sized cases would be to make "plugging in" to member states' existing legal systems easier. That has been the aim of the ideas we have put forward.

  23.  So far as legal aid is concerned, we would favour rules making clear that eligibility for legal aid should not be on a basis which discriminates unfairly against nationals or other Member States; equally, however, we would not favour nationals of other countries being placed in a specially favourable position, for example obtaining legal aid without having to pass financial or merit tests or without having to pay contributions.

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