REVIEW OF THE HAGUE PROGRAMME (11228/06,
11223/06, 11222/06)
Letter from the Chairman to Joan Ryan
MP, Parliamentary Under Secretary of State, Home Office
This package of Communications was considered
by Sub-Committee E at its meeting of 22 November 2006. We welcome
these Communications and consider that they make an important
contribution to the debate on the Hague Programme.
IMPLEMENTATION COMMUNICATION
Despite recent problems in decision-making in
the criminal justice field, the Commission appears to be pressing
on with the adoption of proposals envisaged under the Hague Programme.
It is worthy of note that of the measures mentioned in paragraphs
50-51 of the Implementation Communication only one has been agreed
in Council. The proposed Framework Decision on Procedural Rights
has been under discussion for over two years and may be abandoned
in favour of a Politial Resolution. Do the Government agree that
this leads to a significant waste of resources which might better
be applied to other matters? What steps will be taken to address
this issue?
More and more proposals on JHA matters appear
to lack the necessary statistical data to support their adoption
(e.g. Rome III, ne bis in idem, presumption of innocence).
It is therefore disappointing that the proposals to improve collection
and analysis of information (paragraph 43) had to be delayed and
that Member States are not providing the Commission with necessary
information (paragraph 52). In the context of the recent EU Strategy
on crime and criminal justice, the Government expressed a strong
commitment to the collection of crime-related statistics. We consider
this to be a critical element for the future success of the Hague
Programme and would welcome your assurances that the UK will fully
support the Commission in its efforts to achieve this goal.
The Commission identifies a sharp contrast between
what it calls the generally positive assessment of the adoption
timetable for 2005 and the much more mixed results of the monitoring
of national implementation of instruments adopted. We hope that
the Government would support any initiative to ensure that all
proposals agreed under the Third Pillar are implemented correctly
and on time. Is there a case that the UK should accept the jurisdiction
of the Court of Justice under Article 35 TEU to ensure that Framework
Decisions are given proper effect in the UK? In the medium term,
should not Member States consider providing for the Commission
to bring infringement proceedings in this field?
EVALUATION COMMUNICATION
You say that the extent to which the Commission
should be responsible for evaluating policies in every area is
something on which you need to reflect further. Given that Member
States are responsible for protecting national interests, do you
agree that the Commission's role in the evaluation process is
essential to ensure that the interests of the Union and of Union
citizens are protected? If the Commission is not to be responsible
for this process, who is?
The Communication provides that national parliaments
will be involved in the evaluation mechanisms (paragraph 13).
What sort of role is envisaged for this Parliament here?
The Commission expects the first policy review
to take place in 2007 (paragraph 38). What do the Government understand
to be the purpose of this review? What is the difference between
that review and the present exercise?
Under policy area "Establishing a genuine
European area of justice in criminal and civil matters" (page
61) one of the Commission's objectives is to "explore common
definitions and procedures for human trafficking and cross border
crimes". Do the Government support the agreement of common
definitions in this area? To what extent do the Government agree
with the other objectives in Policy sub-area 2 (criminal matters)
listed by the Commission?
THE WAY
FORWARD COMMUNICATION
You say that you need to consider the full implications
of the absence of the Constitutional Treaty before identifying
priorities under the Hague Programme. Have you begun work on this?
When are you likely to be in a position to let us know your views
on this matter?
In paragraph 22 of your Explanatory Memorandum,
you explain that you "do not support harmonisation of substantive
civil law as an end in itself". It is not clear to us what
is meant by this and we would be grateful for clarification.
We note your view that as regards the approximation
of criminal procedural law "serious consideration should
be given to non-legislative measures as a viable alternative to
the current programme". Does this mean that you no longer
support any of the relevant legislative measures contained in
the Hague Programme? What is the basis of your objections?
The Committee has decided to hold these Communications
under scrutiny.
23 November 2006
Letter from Joan Ryan MP to the Chairman
Thank you for your letter of 23 November 2006
regarding the above three documents. I am sorry not to have provided
an earlier reply. I shall try to answer in turn the questions
you raise under each of the communications.
COMMUNICATION ON
EVALUATION
On monitoring operational action, the Government
agrees that operations conducted by EU agencies need to be subjected
to transparent, objective and thorough evaluation. Frontex is
to be evaluated during the second half of 2007. The evaluation
will cover the first year and a half of the agency.
The government believes that the development
of Rapid Border Intervention Teams is a natural progression for
Frontex. The development of RABITs will be another tool available
to Frontex to deal with the ever changing situation at the European
Union's external borders. We see no reason to delay the creation
of RABITs until after Frontex has been evaluated.
With regards to the role of the Commission in
the evaluation process, we do agree that the Commission's role
here is important. However, it may, for example, simply not be
appropriate for the Commission to be responsible for evaluating
policies in every area; other options may exist. This would be
true where certain areas are already undergoing evaluation. For
example, we have urged the Commission to place reliance on the
peer evaluation exercise already commenced on the European Arrest
Warrant because any additional parallel evaluation as envisaged
in the Communication would amount to duplication of effort for
no real benefit. This same principle would apply to money laundering
evaluation and to the evaluation of Frontex planned for 2007.
The Government believes that an Evaluation Forum
would provide an ideal opportunity to develop, over time, an evaluation
centre of excellence in which progressive evaluation programme
design could be developed in accordance with changing needs. The
exact make-up and structure of the Forum is yet to be considered
in detail but the UK envisages one in which choices on the focus
of evaluations and the most appropriate mechanisms are made. We
also believe that the idea could be usefully extended to embrace
all policy areas.
The Commission's Communication does indeed envisage
a role for national parliaments in the evaluation of the second
stage evaluation reports, which would be based on the data provided
by Member States using the medium of the proposed "fact sheets".
As yet the Commission have not amplified on this aspect of the
proposed scheme, presumably pending the outcome of the current
consultation phase, and we can therefore offer no further explanation
for the time being.
The purpose of the Commission's first policy
review is to evaluate the implementation of particular instruments,
and to assess the impact of it in individual Member States and
cross border. It will also help to identify key policy areas where
action at the EU level is workable, practical and cost-effective,
and which would provide a sound evidence base for future policy
and programme formulation. We strongly support this process—however
the timetable could be seen to be overly ambitious given that
responses to the paper have only just been returned and the process
of reviewing has not yet been agreed. It is unlikely any reviewing
will start before the end of the year.
The present exercise is to establish whether
or nor Member States think a review would be beneficial and if
so, which policy areas should be reviewed first. The UK has made
use of this to suggest a prioritisation of certain areas, such
as cross-border serious crime and judicial co-operation founded
upon mutual recognition, rather than attempting to cover every
suggested instrument in depth.
Overall, the UK supports evaluation and we see
real benefit in a system that can help to inform discussion on
future policy-making in the area of freedom, security and justice.
If EU policies are to be effective in delivering their intended
outcomes and informing subsequent policies, there must be appropriate
means to evaluate them and to identify obstacles to their success.
But it is essential that it be flexible enough to be workable
and incremental so that realistic progress can be made. A tailored
approach, rather than a "one-size-fits-all" mechanism,
is vital—only then can we be sure that evaluation in this
field will achieve its aims. The Government believes that the
evaluation process should complement and not replace the reviews
which the Commission is obliged to undertake on each instrument.
Regarding policy sub-area 2 (criminal matters),
the UK does not think that the various references to "reduce
differences" is an appropriate conclusion at this stage.
We are not convinced of the need for, for example, common definitions,
penalties and trial procedures as there is no evidence that the
area of European justice is constrained by variations in definitions
of crimes and penalties. Furthermore, we would want firm evidence
that common definitions and procedures were actually needed for
Article 31 TEU purposes. One of the aims of an appropriate evaluation
of instruments in particular policy areas should be to make, as
part of the assessment of effectiveness, an assessment of the
problems, should there by any, created by differences in offences
and penalties etc. The UK is however a strong supporter of the
other objectives that will enhance mutual recognition and confidence
in other Member States legal systems.
IMPLEMENTATION COMMUNICATION
You question whether the time spent on discussing
the Framework Decision on Procedural Rights has been a waste of
resources. It is true that discussions have been going on for
a long time and that considerable time and effort has been spent
on trying to reach agreement. It would be wrong to give up too
easily on a measure that would add real value to existing arrangements.
But the Government has made clear its view that the ECHR already
provides the necessary safeguards in this area and given that
there appears to be little prospect of agreement on the sort of
legislative instrument envisaged by some we have urged other Member
States to give serious consideration to non-legislative alternatives.
On the collection of crime-related statistics
the Government has indeed expressed a strong commitment to this
activity and we shall continue to support the aim of the Commission
in this area.
Your Committee raise the issue of the ECJ and
its jurisdiction under Article 35 TEU to monitor the implementation
of Framework Decisions. We are not currently aware of any divergence
in interpretation across the Union of third pillar measures. The
Government is satisfied that UK implementation is in line with
that of other Member States, and we monitor rulings of the ECJ
in relation to this closely. However, we are concerned that this
would result in a backlog of cases stayed whilst awaiting a ruling
from the ECJ, which currently takes nearly two years to hear a
case. We would want to be satisfied that the ECJ had the resources,
procedures and structures in place to handle any increase in caseload.
There is no provision under the current EU Treaty providing for
an infraction procedure under the 3rd pillar. This would have
been a consequence of the exercise of the passerelle provision
in Article 42 TEU, and of the merger of the pillars under the
Constitutional Treaty, and will have been considered by Member
States in these contexts.
THE WAY
FORWARD COMMUNICATION
With regard to the collation of Country of Origin
Information (COI), we had a number of concerns about the initial
proposals for implementing the Hague Programme recommendation
that Member States should jointly compile, assess and apply information
on countries of origin. As you may be aware, the Commission initially
envisaged the development of a comprehensive central database,
with all the factual information provided either in English or
other languages as necessary, to be used by all Member States
to the exclusion of other COI, in the expectation that this would
ensure that claims for asylum would be identically considered
in all Member States.
The COI compiled and disseminated to decision
makers and others involved in the asylum determination by the
Home Office COI Service is considered by other Member States to
be extremely valuable, and is often one of the first resources
to be consulted by researchers and decision-makers, particularly
those in the newer Member States. In part this is due to the presentation
of the material, in the form of COI Reports, which provide as
balanced a picture of the prevailing conditions as possible, with
direct links to the actual published sources. The COI Reports—which
are subject to independent external scrutiny—act as "intelligent
filters" to ensure that the most accurate, up to date and
relevant material is provided directly to users. This ensures
that all decision makers are directed to the same material, reducing
the likelihood of random selection of unsubstantiated or biased
material, which is inherent in a system whereby all COI material
is downloaded permanently onto a database, irrespective of its
merit or currency.
In response to Member State's concerns, in particular
strong evidence that other Member States would continue to populate
and maintain their own databases, the Commission subsequently
revised its proposals to establishing common guidelines for the
use of factual COI; finding a solution to translation needs; and
establishing as soon as possible a common portal, that is to say
an electronic solution by which all MS can access all the existing
Member State's databases. The UK of course does not maintain a
database, and currently makes little if any use of COI provided
by other Member States, in most cases because the COI collated
is not make publicly available, and therefore does not conform
to our high standards of transparency.
However, together with colleagues from Belgium,
Denmark, France, Germany, the Netherlands and Poland, the UK has
been active in developing guidelines which clearly set out the
minimum standards for the collection and use of COI, which it
is hoped will in due course be adopted to all Member States. We
are also working with other EU colleagues on a project which will
result in Member States that have a great deal of expertise in
claims from certain nationalities—for example Poland with
regard to claims made by Chechens—"sponsoring"
countries, and providing a service to COI researchers and decision
makers throughout the EU. We consider these to be very valuable
initiatives, and fully in keeping with the Hague recommendations.
We will continue to work closely with EU colleagues on the compilation
and assessment of COI, but we reserve our right to continue to
collate our own COI, as appropriate to our needs, and which is
relevant, reliable, current, objective but which is also obtained
solely from sources which are, or can be made available, to asylum
seekers and their representatives.
On harmonisation of substantive civil law, paragraph
22 of our Explanatory Memorandum was intended to convey that we
do not see harmonisation of law as something that should be done
for its own sake. That does not mean, however, that we are against
harmonisation where it serves a clear purpose, for example where
it is necessary to facilitate some important aim which we support,
such as mutual recognition.
With regard to the Data Protection Framework
Decision (DPFD), considerable progess has been made but it was
always likely to be a difficult dossier to negotiate due to its
complexity and the sensitivity of its subject matter. The Government
is committed to agreeing adequate data protection standards at
EU level and continues to support the swift conclusion of negotiations
on the DPFD.
The German Presidency, with broad support from
the rest of the JHA Council, is proposing to transpose parts of
the Prum Treaty into EU law. The Prum Treaty is not
expected to affect the DPFD but once the DPFD is agreed it will
cover all EU police and law enforcement measures, including those
derived from the Prum Treaty. It should also be noted that
as an individual instrument Prum does have its own data
protection articles that will protect any data until the DPFD
comes into force. The Prum Treaty deals with the availability
of certain data for police and law enforcement agencies. In this
way it can be seen as implementing the guiding principle behind
the Principle of Availability, in that relevant data should be
accessible to law enforcement authorities. We do not expect there
to be further discussion on the Framework Decision on the Principle
of Availability until after the issue of transposing parts of
the Prum Treaty into EU law has been resolved.
The UK remains committed to the Hague Programme
but also acknowledges that the circumstances surrounding its adoption
have now changed. Against the background of the "period of
reflection" over the Constitution Treaty, the Programme can
perhaps be seen to be overly ambitious. We believe that it would
be more beneficial to citizens to focus our efforts on delivering
practical results and EU measures that make a real difference,
rather than seeking unanimity on harmonisation measures.
I hope that I have answered the questions set
out in your letter, and that the Communications can be released
from scrutiny.
8 February 2007
Letter from the Chairman to Joan Ryan
MP
Thank you for your letter of 8 February which
was considered by Sub-Committee E at its meeting of 7 March 2007.
We are grateful to you for your detailed reply
which has been helpful in clarifying the Government's position
on a number of issues.
In your letter, you did not provide us with
your views on what should be the priorities under the Hague Programme,
although we note that you consider that efforts should be focussed
on delivering practical results and EU measures that make a real
difference. We look forward to hearing from you further on this
in due course.
We would be grateful to see a copy of any response
to the Communications prepared by the Government.
As you know, Sub-Committee F has also been examining
these Communications. Both Committees have now completed their
scrutiny and have decided to clear the documents from scrutiny.
8 March 2007
Letter from Joan Ryan MP to the Chairman
Thank you for your letter of 8 March replying
to mine of 8 February and asking for views on what the priorities
of the Hague Programme should be.
As I said in the debate in the House of Commons
on 30 November last year and as the Government has consistently
made clear in discussions with other Member States, our top priorities
are strengthening our borders, stopping organised criminals, improving
access to justice and preventing terrorist attacks. We do not
believe there is a need to engage in a wholesale renegotiation
of the Hague Programme. The majority of its principles remain
sound and with the action plan it sets out a comprehensive programme
of work. But we have made clear to EU partners the need to keep
under review what our priorities should be and how they should
be delivered, particularly in the action plan, both in the absence
of the Constitutional Treaty and in the light of difficulties
experienced in negotiating certain criminal law dossiers such
as the measure on procedural rights for defendants.
The Government believes we should press forward
with the mutual recognition programme, including in areas such
as criminal convictions and prisoner transfer, but we need to
find more fruitful ways than legislation to improve co-operation
in criminal procedural law. We should continue to develop an intelligence-led
approach to policing at EU level and to improve the way we exchange
information, including on criminal convictions, in a way that
protects individual rights. We have also pressed for even greater
weight to be placed on achieving JHA objectives through working
outside the EU in co-operation with foreign affairs colleagues.
In the field of civil and family justice the
Government would like to see a more strategic approach to the
development of policies with a proper evidence base for proposals.
This will mean we can give priority to measures that are likely
to deliver the greatest benefit to citizens.
Practical action to manage migration and the
security of our borders remain a priorty. On asylum it is important
that the first phase, which has been successful in managing secondary
movement of asylum seekers, is properly evaluated before we consider
the next steps. We have many examples of the importance of co-operation
on counter-terrorism but for practical operational reasons as
much as anything else we need to be clear that the EU's main role
in this area is to support the efforts of Member States, not to
try and direct or control counter-terrorist operational activity
itself.
27 March 2007
Letter from the Chairman to Joan Ryan
MP
Thank you for your letter of 27 March which
was considered by Sub-Committee E at its meeting of 18 April 2007.
It is helpful to know what the Government's
priorities under the Hague Programme are likely to be. We note
your support for the mutual recognition programme, although it
is disappointing that it has not been possible to make worthwhile
legislative progress in the area of criminal procedural law, and
we hope that over time attitudes on this may change.
You say that there is no need to engage in a
wholesale renegotiation of the Hague Programme. We would be grateful
if you would keep us updated as to any discussions on revising
the Hague Programme.
19 April 2007
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