House of Lords - European Union

Select Committee on European Union Fifth Report

After Heiligendamm: doors ajar at Stratford-upon-Avon

1. The ministers of the interior of the six largest Member States of the EU—the G6—meet every six months to discuss matters of mutual interest. Their meeting in March 2006 under German chairmanship was the subject of our report Behind Closed Doors: the meeting of the G6 Interior Ministers at Heiligendamm.[1] In that report we criticised the lack of transparency at that meeting. We were also unhappy that six Member States were taking decisions in the field of justice and home affairs which could not fail to have a major impact on the other nineteen[2] Member States.

2. The Government responded to this report in a letter of 18 October 2006 from Joan Ryan MP, the Parliamentary Under-Secretary of State at the Home Office, to the Chairman of the Sub-Committee which carried out the inquiry. We set that letter out in Appendix 2 to this report.

3. A week after that letter was written the next meeting of the G6 took place. It was again the turn of the United Kingdom to chair the meeting,[3] and the Home Secretary, the Rt Hon Dr John Reid MP, invited his colleagues from Germany, France, Italy, Spain and Poland to Stratford-upon-Avon on 25 and 26 October. The main subjects discussed were, predictably, combating terrorism, organised crime and immigration—topics of critical and current interest to ministers of all EU Member States, and indeed of many other States.

4. In this report we consider the Government response to our earlier report, and developments at the subsequent meeting, under three headings: transparency, the position of the other Member States, and some of the substantive topics discussed.

Transparency and accountability

5. After the Heiligendamm meeting the Home Office did not issue a press notice, nor divulge any other information. No ministerial statement was made by the then Home Secretary to Parliament. We gleaned information from other sources, in particular from a statement issued after the meeting by the German Ministry of the Interior; but for information from the Home Office we had to await a letter from Dr John Reid to the Chairman of 6 June 2006, and oral evidence given to us by Joan Ryan MP on 28 June 2006, over three months after the meeting.[4]

6. During that evidence session Ms Ryan assured us that there was no attempt to prevent anyone knowing the conclusions of the G6 meetings, and that publication of the conclusions by the host nation was evidence of this (QQ 92-93). She repeated this in her response. In evidence she said that the Home Office would publish the conclusions of the October meeting (Q 88), and in her response she expanded on this, saying that they would "also publish the conclusions from all future G6 meetings".

7. The undertaking to publish the conclusions of the Stratford-upon-Avon meeting was repeated in the House of Lords on 26 October 2006, the last day of that meeting. In reply to a starred question from Lord Russell-Johnston, Baroness Scotland of Asthall, the Minister of State at the Home Office, stated: "The conclusions of the meeting will be published on the Home Office website and placed in the Library of the House". She added that the G6 meetings were "an opportunity for those six Member States to discuss from time to time openly and transparently matters of mutual interest and concern".[5]

8. Home Office officials sent us a copy of the conclusions the following day, for which we are grateful (see Appendix 3). On 8 November Ms Ryan wrote to the Chairman to inform him that they had been published on the Home Office website and could be accessed at an address she gave.[6] She was no doubt not aware that the version on the website omits the heading "Promoting integration", the first paragraph of that important section, and the first two lines of the following paragraph. The remainder of that section, as published, is therefore incomprehensible. A further consequence of this omission is that the numbering of the following sections is wrong. Library staff told us that the full conclusions had not been placed in the Library by the Home Office before Prorogation on 8 November; only subsequently were they made available to the Library.

9. Publication of the incomplete conclusions of the Stratford-upon-Avon meeting by the Home Office on their website was not therefore a real improvement on their earlier failure to publish any of the conclusions of the Heiligendamm meeting. Publication of the full text which we were sent was the least we had a right to expect. In our previous report we recommended that G6 meetings should be the subject of a written ministerial statement to Parliament.[7] We do not regard the informal publication of the conclusions of the meeting, even if complete, as an adequate substitute for such a statement.

Evidence from the Home Secretary

10. We hoped to hear oral evidence from the Home Secretary himself, explaining to us more fully the structure of the Stratford-upon-Avon meeting, amplifying its conclusions, and telling us more about what had been decided. We had every reason to believe that we would receive such evidence, because in his letter to the Chairman of 6 June 2006 the Home Secretary wrote: "I would be happy to brief your committee after the next G6 meeting, which I will be chairing and is provisionally booked for 26-27 October". In her oral evidence to us Ms Ryan said: "Can I just reiterate that the Home Secretary sends his apologies and is very keen to meet with the Committee when he has participated in a G6 meeting" (Q 80). And yet again, in the Government response, Ms Ryan confirmed: "The Home Secretary has already said that he is prepared to give evidence to your committee following the UK-hosted G6 in October."

11. On 30 October the Chairman wrote to the Home Secretary to take him up on his offer. Numerous attempts were made in the course of November and the first half of December to find a mutually convenient date, but to no avail. Finally the Home Secretary replied on 20 December 2006. He apologised for the delay in replying, and stated:

"I know that the Committee has asked that I appear in person to give oral evidence. However while I am not opposed to doing so in principle my diary commitments are already onerous. Given that the Conclusions from Stratford are comprehensive and freely available and that Ministers have already appeared before the Committee, I hope that you might be satisfied with the additional written evidence provided in this letter and the offer to answer in writing any further substantive questions you might have."

This correspondence is set out in Appendix 4.

12. We do not understand the reference to Ministers already having appeared before the Committee. Ms Ryan, and Baroness Ashton of Upholland who also gave oral evidence to us in June, were talking to us about the Heiligendamm meeting, and it was of course evidence about the Stratford-upon-Avon meeting that we wished to hear. We have considered whether we should continue to press the Home Secretary to give us oral evidence, but we have decided that oral evidence more than two months after the meeting—perhaps much more—would be of little value. We accept that the Home Secretary is a busy man and that his commitments are onerous, but it was perhaps unwise of him to give, and through his ministers to repeat, an undertaking to give us oral evidence about the meeting if he was not going to be able to satisfy that undertaking within a reasonable time.

The position of the smaller Member States

13. In the Government response Ms Ryan repeated a point she had made in oral evidence:

"The G6 is an informal grouping of countries and is in no way unique —Europe has many other such groups, the Visegrád group,[8] Benelux, the Baltic Sea taskforce and the Nordic Cooperation Group are all good examples. The G6 also has no formal decision making powers—conclusions are formed and agreement reached on action to be taken by all or some of the participants. However nothing agreed informally by the G6 is binding on other EU Member States."

14. We regard this as a simplistic view. The other groups to which Ms Ryan refers have one thing in common: close geographical links. The G6 countries also have one thing in common: their size. With three quarters of the population of the EU, nothing they say or do, no conclusions they reach, however informally, can fail to have an influence, perhaps decisive, on the other Member States. Ms Ryan points out that many Justice and Home Affairs matters require unanimity, so that "other Member States would have ample opportunity to resist any attempt by the G6 to impose their ideas". Formally this is of course true. Matters which require a qualified majority need at least 255 votes from 14 of the 27 Member States. The G6, which together have 170 votes in the Council, are therefore eight States and 85 votes short of achieving a qualified majority (although they have far more than the 91 votes needed for a blocking minority). But in practical EU politics it is naïve to suppose that prior agreement on an issue by the six largest Member States will fail to carry the day against all but the most concerted and determined opposition from a number of the smaller Member States.

15. The copy of the conclusions we were sent contains a footnote which does not appear in the text placed on the Home Office website, and which reads:

"Other EU Member States and the European Commission are fully informed about G6 discussions. If they result in EU level proposals these are negotiated by all Member States in the usual way".

At Stratford-upon-Avon the G6 considered a Franco-German paper on closer cooperation in the immigration and asylum fields, and agreed "to explore them further with a view to a common approach from the G6 to the December JHA and European Councils".[9] The Home Secretary told us that this approach took the form of "a G6 letter to the EU Commission and the Presidency", and he sent us a copy of that letter.

16. The letter to the Presidency was from Dr Reid to Mr Kari Rajamäki, the Finnish Minister of the Interior. This is printed in Appendix 5. With that letter the Home Secretary enclosed a paper, also printed in Appendix 5, signed by all six G6 interior ministers and entitled "G6 Migration Paper addressed to the President of the JHA Council". If this was intended to form "a common approach from the G6 to the December JHA and European Councils", we doubt whether it succeeded in at least the first of these aims. The letter was sent on Thursday 30 November 2006. This was the date on which the Commission adopted two Communications on migration[10] which were discussed at the JHA Council on Monday 4 and Tuesday 5 December. At that Council meeting the G6 ministers had already reached the conclusions set out in their paper. The ministers of the other Member States, if they were aware of this paper at all, would not have had an opportunity to consider it in any detail.

17. The paper commits the G6 to action in three fields: illegal immigration, returns and external borders; relations with third countries and co-development; and cooperation on asylum. Most of the specific commitments would achieve little unless the other Member States were involved; many of them (e.g. increasing the powers of Frontex, cooperation between EU Consulates to combat visa fraud, concluding readmission agreements with third countries, using EU funding to manage migration, streamlining asylum procedures across the EU) would not be possible unless all the Member States agreed on them. One of them, the return and removal of illegal immigrants, is the subject of a draft Directive which the Government, rightly in our view, have decided that the United Kingdom should not opt into.[11]

18. We do not suggest that groups (whether large or small) of Member States (whether small or large) do not have the right to meet and reach agreed positions before matters are discussed in formal EU fora. On the contrary, we emphasised in our earlier report that informal meetings of such groups can be valuable in promoting dialogue and facilitating decision-making.[12] The G6 ministers are entitled to discuss migration and to develop common positions. But if they wish to make proposals which involve other Member States, and more particularly proposals which involve EU legislation, the appropriate forum is the Council. We believe that for the ministers of the G6 to inform their colleagues from the other Member States of these proposals only two working days before the JHA Council was both inept and discourteous.

19. Germany was represented at Stratford-upon-Avon by its interior minister, Dr Wolfgang Schäuble. In a speech to journalists in Berlin on 11 January 2007 he accepted that the G6 causes a degree of mistrust with those 21 partners which do not take part in the meetings, but thought that if too many issues were tackled in formal Council meetings, not all Member States would be satisfied with the degree of efficiency of the decision-making process. As an example of the benefits of informal structures he highlighted the 2005 Prüm Convention on cross-border cooperation against crime, terrorism and illegal immigration. The seven States party to it[13] had simply thought that EU procedures would take too long, and clinched their own deal; but now that the treaty was there, the Germany Presidency would see if it could be put into an EU legal framework.

20. In their response to the Heiligendamm report, the Government suggested that "if the Prüm treaty reaches the EU it will be opened up to the same negotiations and processes as all other proposals and a single Member State can prevent it from being enacted." However the German Presidency, and the other States already party to the Convention, have made clear that they have no intention of allowing amendments. At an informal meeting of interior ministers of all the Member States in Dresden on 15 January 2007 Dr Schäuble put forward an initiative to transpose the Prüm Treaty into the legal framework of the EU "by drafting EU legislation using the exact wording of the Prüm Treaty."[14] On 19 January the Council Secretariat published a draft of a Council Decision whose substantive provisions replicate word for word all those of the Prüm Convention other than those on air marshals and illegal migration. This Decision was considered by the Article 36 Committee[15] at a meeting on 25-26 January.

21. It was precisely this feature of the Prüm Convention that we criticised in the Heiligendamm report[16]: the fact that, though negotiated between a small number of Member States, it was subsequently to be imposed on all of them. The Government are now "seriously considering signing up to the Prüm Convention".[17] The Sub-Committee which carried out this inquiry will shortly be looking at the Convention more closely.

Data protection

22. Chapter 3 of the Heiligendamm report was devoted to data protection, and in particular to the decision of the G6 ministers that "rapid implementation of the availability principle[18] must not depend on the adoption of a framework decision on data protection in the third pillar [DPFD]". This in our view, and the view of the European Data Protection Supervisor who gave evidence to us, was contrary to the decision reached by all the Member states that the two Framework Decisions on the Principle of Availability and on Data Protection should be negotiated in tandem, and that the protection of the latter was an essential safeguard against abuses under the former.

23. According to Ms Ryan, all that the G6 ministers meant by this was that work on the principle of availability should not be delayed by negotiations on the DPFD; "nor by the same token would they want the DPFD to be delayed by work on the Principle of Availability."

24. As we explained in our previous report, the Finnish Presidency was committed to taking forward the principle of availability, but paying particular attention to the data protection issues before the principle of availability could be applied. Ms Ryan, and Baroness Ashton of Upholland, the Minister responsible for data protection, both told us that the Government would support the Finnish Presidency in taking forward negotiations on the DPFD.[19]

25. Negotiations on the DPFD have indeed been actively pursued. However most of the changes agreed have been in the direction of diminishing safeguards for individuals. We would deplore a situation whereby the DPFD could only be agreed at the same time as (or before) agreement was reached on the Principle of Availability by lowering the safeguards available to individuals.

26. We have no information on the state of play of negotiations over the Framework Decision on the Principle of Availability, nor does this proposal appear in the German Presidency programme. It seems that they are seeking to implement the principle through the Prüm Convention. We await a reply to the Chairman's letter to Ms Ryan of 22 November 2006.

27. The latest draft of the DPFD was published on 25 October 2006.[20] We are keeping this document under scrutiny. The Chairman wrote on 14 December 2006 to Baroness Ashton to say that the following provisions cause us particular concern:

the open-ended conditions which would permit the processing of data for purposes other than those for which the original processing took place, contrary to basic principles of purpose limitation;
the provision allowing as a general rule, though subject to conditions, the processing of special categories of data (race, ethnic origin etc), rather than prohibiting it with narrowly defined exceptions;
the lack of common standards and coordinated decisions on the adequacy of data protection provisions in third states, which would enable the authorities of those states to obtain information from the Member State with the lowest legal requirements for transfers;
the right of information being dependent on a request by the data subject.
- At the date of this report we await Baroness Ashton's reply.

28. The Home Secretary stated in his letter to the Chairman of 6 June 2006, and Ms Ryan repeated in the Government response of 18 October 2006, that "all Member States have domestic data protection regimes for law enforcement and judicial processing that comply, at a minimum, with the Council of Europe Convention on the processing of personal data." The latest draft of the DPFD was published the following week. It seems to us that some of the provisions to which we have referred would, if agreed, lower the safeguards for the processing of personal data to such an extent that they might not comply with the minimum standards of the Council of Europe Convention.

Conclusions and recommendations

29. We believe that there has been some improvement in the readiness of the Home Office to publicise the conclusions of G6 meetings, and we hope that they will do better in future. We look forward to seeing the conclusions of the next meeting to be held under Italian chairmanship. But we do not regard the publication of the conclusions of the meeting on a website, even if complete, as an adequate substitute for a written ministerial statement.

30. Where G6 ministers have agreed policies which they would like to see adopted, they should adhere to the rule which, according to the Conclusions, they already follow: they should inform other Member States and the Commission of their discussions fully and in good time for them to be carefully considered, before making formal proposals for negotiation by all Member States in the appropriate EU fora. We expect United Kingdom ministers to urge this on their G6 colleagues at future meetings.

31. We have expressed the hope that negotiations on the Data Protection Framework Decision will achieve an overarching third pillar instrument providing strong safeguards for the protection of personal data used for law enforcement purposes. We are concerned that recent negotiations have lessened that protection. We look forward to hearing from ministers what the Government propose to do to reverse this.

32. We make this Report to the House for information.

1 40th Report, Session 2005-06, HL Paper 221, referred to hereafter as the Heiligendamm report. Back

2 Now twenty-one, since the accession of Romania and Bulgaria. Back

3 The first meeting of the G5 (before Poland joined the Group) was held in France in October 2003. The first meeting in the United Kingdom was chaired by the Rt Hon David Blunkett MP in Sheffield in July 2004. Subsequent meetings were held in Italy (Florence), France (Evian) and Spain (Granada). The meeting of the G6 in Germany (Heiligendamm) was the first attended by Poland. The first meeting in 2007 will be under Italian chairmanship. Back

4 Heiligendamm report, Appendix 4, and oral evidence. Back

5 HL Deb 26 October 2006 cols 1285-1286. Back

6 http://press.homeoffice.gov.uk/press-releases/g6-meeting-conclusions?version=1 Back

7 Heiligendamm report, paragraph 13. Back