Statement to Parliament: Justice and Home Affairs: post-council statement

Secretary of State for the Home Department (Theresa May):

The Justice and Home Affairs (JHA) Council was held on 9 and 10 October in Luxembourg. The Under-Secretary of State for Justice (Shailesh Vara), and I attended on behalf of the United Kingdom. The following items were discussed.

The Interior session began with a presentation by the Presidency on its paper on serious and organised international crime. The Presidency invited Ministers to endorse the role of the Committee on operational cooperation on internal security (COSI). Rob Wainwright, the Director of Europol, briefed Ministers on the latest Europol operation highlighting the real world relevance of COSI: Operation Archimedes – a recent operation involving over 25,000 law enforcement officers from across the EU and beyond.

I endorsed the achievements of the Policy Cycle and thanked Europol for their impressive work on Operation Archimedes. I stated that it is crucial to recognise Modern Slavery and the abuse of free movement as priority issues at European level. The EU must also focus on threats coming from outside its borders and tackle the issues at source – the European External Action Service would therefore have to play its part. I then thanked the Latvian government for their cooperation in a recent high profile murder investigation in the UK. In order to tackle the issue I called on Ministers to make efforts to improve the proactive sharing of criminal records as a matter of urgency.

The Presidency concluded that COSI’s Policy Cycle work on serious organised crime has indeed been successful. Operation Archimedes had shown that pan-European police cooperation is now not only possible, but that EU financial support and facilitation significantly enhances results.

Next, the Council discussed the issue of foreign fighters, based on a paper presented by the Presidency. Discussion focused on how to achieve progress on the Passenger Name Records Directive before the end of the year; and possible amendments to the Schengen Border Code. I welcomed the paper and the continued focus on foreign fighters and stressed the importance of acting quickly to tackle the threat.

Over lunch, the Council discussed the Presidency paper “Taking action to better manage migratory flows”. The Government supports the approach set out in the paper, which calls for the prompt withdrawal of the Mare Nostrum operation in the Mediterranean and for all Member States to comply fully with their obligations under the EU migration and asylum acquis. The paper was subsequently adopted as Council Conclusions. The discussion on the Task Force Mediterranean was largely assimilated into the discussion on the Presidency paper.

After lunch, the Commission provided a brief assessment of progress made under the Greek Action Plan on Asylum and Migration Management. Significant improvements have been made to the Greek asylum and migration systems, including: the establishment of a First Reception Service, the Asylum Service and Appeals Authority; the closure of inadequate detention facilities and an increase in available places in open reception centres. However, several areas of concern remain including inconsistent detention conditions, the lack of a national strategy on minors and issues of financial sustainability. The Presidency noted the update and this subject will possibly come back to Council in December for further consideration.

Under AOB the Presidency provided a brief update on the progress of negotiations on the UK’s JHA opt-out. The Presidency also provided an update of progress in the negotiations on the Data Protection Directive and the Visa Code; provided feedback on the High Level Conference on a renewed EU Internal Security Strategy; and described upcoming Presidency initiatives including a conference on the Rabat Process on 27 November in Rome, a Horn of Africa Conference and a Conference on Integration and Migration in Milan in December.

Finally, Hungary thanked successive Presidencies and the Commission for their assistance in the successful relocation of CEPOL to Budapest and invited Ministers to the opening of the new building on 16 of November.

On Justice Day, the Presidency proposed a partial general approach on Chapter IV of the Data Protection Regulation, which deals with the data protection obligations on organisations. This agreement was proposed on the understanding that it was without prejudice to any questions which cut across the whole of the proposal. Whilst the Minister for the Courts and Legal Aid (Shailesh Vara), speaking for the UK, welcomed the risk-based approach which the Council was pushing for in this Chapter, he expressed concerns about the inward investment implications of the requirement for controllers established outside the EU to designate a representative within the EU.

The UK reiterated its objections to the concept of partial general approaches and reserved the right to return to Chapter IV when considering the overall burden of the Regulation on business and its impact on the EU growth agenda. Other Member States expressed other areas of concern, and shared the UK’s view that nothing should be agreed on the proposal until everything was agreed, and that this should not form a mandate for trilogue negotiations with the European Parliament. The Presidency nonetheless concluded that the partial general approach was agreed, subject to the caveats previously expressed.

The Presidency then introduced its paper on the Court of Justice’s judgment of 14 May 2014 in relation to Google Spain and the ‘right to be forgotten’, which drew particular attention to the balance between the right to privacy and freedom of expression. The Commission noted that the implications of the Google judgment were still being worked through. The Commission believed the current text of the draft Regulation struck the right balance by adopting a generic approach including protecting freedom of expression. Nearly all Member States emphasised the need to balance the rights to privacy and freedom of expression and most argued that it should be left to Member States to do so at national level on a case-by-case basis.

The UK insisted that the Council, as a legislator, was not bound to follow the conclusions of the judgment in preparing the new Regulation. The Presidency concluded that the Regulation should only deal with the issue at a generic level, with Member States and national courts having the latitude to find the appropriate balance on a case-by-case basis.

The second session to take place on Justice Day was on the concept of a “single legal area” in relation to the European Public Prosecutor’s Office (EPPO) proposal. While some Member States welcomed the concept, there was no consensus and a number expressed concerns, indicating that more clarity was needed. The Presidency concluded that further work was needed on the concept. The UK does not participate in the EPPO but does take an active interest in developments.

Next, the Presidency stated its intention to seek a General Approach on the Directive on the Presumption of Innocence at the December JHA Council. The UK is not opted in to this proposal so its provisions will not apply to us. The Presidency sought views from Member States on how to approach some detailed issues in order to guide the next phase of work. It was agreed that the Directive should allow trial judges to have the same investigatory powers as was provided for prosecutors in respect of finding incriminating or exonerating evidence. It was also agreed that presumptions which reversed the usual burden of proof could be made in some limited circumstances, whilst noting that if there were doubt that should profit the defence. It should also be clear that any such reversal made must be rebuttable. The Presidency noted this agreement which would guide its work toward a general approach.

On the Simplification of Acceptance of Public Documents, there was a discussion on EU standard multilingual forms, the relationship with existing international agreements and the possibility of a feasibility study on developing an IT system for the purposes of exchanging public documents within the EU. A majority of Member States, including the UK, proposed simple translations that do not have independent evidentiary value rather than the development of multilingual forms. These would need to be attached to the original national documents and should not replace or be used as an alternative to national forms.

On the scope of the proposal, some Member States, again including the UK, favoured reducing the scope to civil status documents only, i.e. certificates of birth, marriage and death. In conclusion, the Presidency observed that Member States had differing positions, and warned against a possible block in Council. Discussion at expert level would need to continue on these issues. A discussion took place over lunch on the confiscation of criminal assets, particularly in the absence of a specific criminal conviction. Member States exchanged views on how to implement the new EU Directive on confiscation. The UK has not opted in to this Directive.

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