Select Committee on European Union Tenth Report


CHAPTER 11: Conclusions and Recommendations

Scrutiny

71.  We regret that the Government saw fit to withhold from scrutiny the drafts of the Hague Programme prior to its adoption by the European Council. It is unacceptable that Parliament was denied the opportunity to examine and comment on proposals of such importance until it was too late to influence their content (paragraph 4).

72.  We make our recommendations in this Report so that they can be taken into account in the negotiations and drafting of the Commission's five-year Action Plan (paragraph 4).

General principles

73.  We welcome the emphasis that the Hague Programme places on respect for the principles of subsidiarity and proportionality and for the legal traditions of Member States in developing legislation in Justice and Home Affairs. We expect the Government to be vigilant in ensuring full respect for these principles (paragraph 9).

Freedom and security

74.  Criticism of the Hague Programme for placing undue emphasis on security considerations at the expense of respect for fundamental right is justified. This emphasis on security may be explicable in the light of recent events, but it is important that measures to protect citizens' rights are not sidelined in the implementation of the Programme. We urge the Commission and Member States to give full weight to the need to protect fundamental rights when developing and implementing the five-year Action Plan for JHA (paragraph 11).

The Fundamental Rights Agency

75.  The establishment of a Fundamental Rights Agency could be beneficial for the respect and promotion of human rights by the EU institutions and by Member States when applying EU law. Careful consideration must be given, however, to the role and powers of the Fundamental Rights Agency, in order to avoid wasteful duplication of work between the EU and the Council of Europe (paragraph 15).

Asylum—minimum standards

76.  We fully share our witnesses' concerns regarding some of the standards adopted in the first stage of EU asylum measures. The Committee has repeatedly highlighted the danger of Member States reaching agreement on the basis of the lowest common denominator, which would not provide an adequate level of protection for asylum seekers and could jeopardise existing levels of protection in those Member States currently observing higher standards than those required by the EU (paragraph 18).

77.  A detailed evaluation of the implementation of these instruments is essential to ensure that it is consistent with international human rights and refugee law standards (paragraph 18).

78.  The concept of a Common European Asylum System, which has been a central objective of JHA policy since Tampere, remains valid to ensure consistent standards across the EU and to prevent "asylum shopping" (paragraph 19).

79.  Proper evaluation of the first stage of the CEAS is essential before embarking on consideration of second stage measures; the deadline of 2010 is probably too ambitious. Evaluation should be carried out by an independent body of experts, whose findings should be published. It is essential that any new EU standards on asylum should ensure a high level of protection in accordance with international human rights and refugee law (paragraph 20).

80.  Joint processing of asylum applications in the EU is not the right way forward. The key lies with improving the asylum process and decision-making in Member States. We welcome the UNHCR "Quality Initiative" and will monitor its progress during the UNITED KINGDOM Presidency of the EU (paragraph 21).

A European Asylum Office

81.  A European Asylum Office could assist practical co-operation between national asylum authorities, through the exchange of information and best practice. In our Report on extra-territorial asylum processing, we recommended the establishment of an independent documentation centre managed on an EU basis. The European Asylum Office could take on this role in co-operation with the UNHCR (paragraph 23).

82.  We see less value in the Office taking the role of an auditing/evaluating body. This could cause unnecessary duplication with the work of other structures specifically established to evaluate the implementation of EU measures in the JHA field. Still less should the Office develop a centralised decision-making role (paragraph 23).

Asylumextraterritorial processing

83.  We highlighted our concerns about extra-territorial asylum processing in our Report Handling EU Asylum Claims: New Approaches Examined. Studies on extra-territorial processing are a distraction from the central objective of improving asylum procedures in Member States (paragraph 24).

Migration

84.  Effective EU action to counter irregular migration is hard to achieve without common EU policies on legal migration and the admission of third country nationals for paid employment. We welcome the invitation by the European Council to the Commission to prepare a policy paper on legal migration, and urge Member States to examine the issue as a matter of priority (paragraph 28).

85.  We urge Member States to revisit the issue of the rights of legally resident third country nationals (paragraph 29).

Border security

86.  When negotiating measures involving controls on third country nationals, Member States should take full account of their implications for privacy and data protection and give public opinion, and national parliaments, enough time for meaningful scrutiny and debate of them (paragraph 30).

The European Border Agency

87.  We remain of the view, expressed in our Report on Proposals for a European Border Guard that the case for a centrally managed, multi-national European Border Guard has not been made (paragraph 34).

Police co-operation and the role of Europol

88.  It is important to improve co-ordination between Member States, and with international bodies such as Interpol, without necessarily creating yet more structures in the EU (paragraph 37).

89.  Europol has an important role to play but is still underused by Member States. Before attempting to redefine its role, it is essential to convince Member States of the need to co-operate with Europol fully (paragraph 37).

90.  Any proposals to enhance the exchange of information must be accompanied by high standards of data protection. There is a clear need for specific EU data protection standards for the Third Pillar (paragraph 37).

Criminal law - approximation and mutual recognition

91.  Approximation of the criminal laws of Member States is likely to have a significant impact on Member States' legal cultures and traditions and on national sovereignty. We are pleased to see that the Hague Programme views such approximation as being necessary only if it facilitates mutual recognition. However, the more progress that is made on developing the mutual recognition programme, the greater the need will be for some sort of minimum standard across the EU of procedures in the legal processes for which mutual recognition will be claimed (paragraph 40).

92.  Such approximation is necessary not only to facilitate mutual trust and justify mutual recognition, but, more importantly, to protect the rights of the individuals affected. However, we would urge caution in the further development of harmonisation in sensitive areas such as the admissibility of evidence. Before any further expansion of harmonisation there needs to be a full examination of the implications of such a development for Member States. This is an area where the principle of subsidiarity will come into play and due observance of it will be necessary (paragraph 40).

The rights of the defendant

93.  We welcome the commitment towards the swift adoption of the Framework Decision on defence rights. but the need to reach agreement on its terms should not jeopardise the adoption of adequate standards of protection for suspects and defendants. Standards must not be lowered in order to obtain agreement (paragraph 42).

94.  The Government's non-committal attitude to a forthcoming legislative initiative on bail is regrettable. Any legislative proposals on bail should be treated as a matter of priority during the UNITED KINGDOM Presidency (paragraph 43).

Eurojust and the European Public Prosecutor

95.  We welcome the deletion of the reference to the potential establishment of a European Public Prosecutor from the final version of the Hague Programme. Eurojust has a pivotal role to play in enhancing judicial co-operation in criminal matters in the EU, and we welcome the commitment of Member States to revisit its role in order to achieve greater efficiency. In developing Eurojust's role in dealing with multilateral cases, care must be taken that the rights of the individual are not jeopardised for the sake of "prosecutorial efficiency" (paragraph 45).

Mutual trust and the judiciary

96.  We welcome the emphasis on bringing together prosecutors and judges from Member States in order to promote understanding of the different legal systems in the EU. Better understanding should lead to enhanced trust and consequently better implementation of mutual recognition measures (paragraph 47).

Evaluation

97.  It is very important that proper monitoring and evaluation procedures should be put in place. Evaluation must not be limited to the collection of statistical data, but must also be based on information coming from the practical experience of the individuals involved (such as suspects and defendants) and the legal profession. Assessment must be made by an independent body, reporting publicly (paragraph 51).

98.  There are a number of issues relating to evaluation that remain unresolved. They require careful, but urgent examination by Member States in order to establish a meaningful evaluation system (paragraph 52).

Judicial protection in the ECJ

99.  In view of the far-reaching effects that measures such as the European Arrest Warrant will in many cases have on the rights of individuals, it is essential that any disputes arising from the interpretation of these instruments are resolved as soon as possible. We welcome the commitment by the European Council to establish a mechanism to expedite proceedings in Luxembourg in JHA cases, and urge that priority be given to any relevant proposals tabled during the United Kingdom Presidency of the EU (paragraph 54).

Civil law - justification, competence and subsidiarity

100.  Any EU action in the civil law field under Article 65 of the EC Treaty must respect the conditions set out in that Article. There must be a clearly identifiable and substantial cross-border dimension. The legislation must also be necessary to enable the proper functioning of the internal market (paragraph 58).

101.  There are some issues where EU action in civil matters may be beneficial to EU citizens. But it is essential that the benefit that EU action may confer is fully substantiated before any proposals in civil matters are tabled. National parliaments can be expected to examine closely the subsidiarity implications of proposals aiming to harmonise civil law (paragraph 59).

102.  EU action in civil law is acceptable only if it adds value and is absolutely necessary to improve the everyday life of EU residents in situations having a cross-border dimension (paragraph 63).

Family law

103.  This is even more so in the sensitive area of family law, where action at the EU level may challenge deeply-founded legal and social principles in Member States. We are not convinced that action in family law matters is required to the extent proposed by the Hague Programme (paragraph 63).

104.  Supplying the individuals concerned with more and better information on their rights under the laws of Member States may be a more effective way of addressing cross-border issues than EU legislation. We believe that such avenues should be explored before embarking on the very ambitious legislative agenda on family law set out in the Hague Programme (paragraph 63).

Quality of legislation in the civil law field - a common frame for contract

105.  Improving the quality of EU legislation is always welcome but the development of a common frame of reference for contract raises a number of issues. We will return to these in our Report on European Contract law (paragraph 64).

Civil law - relationship with international instruments

106.  While recognising that Community participation in discussions in international fora may be necessary to ensure consistency and coherence between EC law and international instruments in civil law, we remain concerned about the external competence implications and the potential limitations that Community involvement may place on UNITED KINGDOM negotiations in such fora. The point has become more acute as the proportion of common law countries in the EU has decreased as a result of enlargement (paragraph 65).

External relations - migration and asylum

107.  Co-operation between the EU and third countries is essential in developing an effective policy on immigration and asylum. Ways of providing protection for asylum seekers and refugees in regions of origin should be explored, but they must be a part of a general strategy of conflict prevention and resolution in refugee producing areas with the aim of achieving security and stability. Care must also be taken to ensure that the rights of asylum seekers, in particular protection against refoulement, are fully protected (paragraph 68).

External relations - criminal law

108.  Concerted action is essential to address global problems, such as international crime and terrorism but this must not be at the expense of fundamental rights, including data protection. EU-US co-operation, but also global co-operation, is crucial. So is co-operation of Member States with global organisations like Interpol. We urge the Commission and the Secretary General/High Representative to give full weight to, and promote the protection of, fundamental rights when preparing the EU external action strategy for JHA (paragraph 70).

Recommendation for debate

109.  In view of the important issues raised by the Hague Programme, we recommend this Report to the House as a basis for a general debate on Justice and Home Affairs issues (paragraph 4).


 
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