Justice and Home Affairs Post-Council Statement

Thursday 2nd February 2012 Written Statements

[The Secretary of State for the Home Department (Mrs Theresa May)]

Attending on behalf of the United Kingdom were my right hon. Friend the Secretary of State for Justice, the Scottish Minister for Community Safety and Legal Affairs Roseanna Cunningham MSP and myself. The following issues were discussed at the Council:

The first plenary session focused on solidarity in immigration and asylum, considering the need for Council conclusions on a common framework for solidarity; the trigger for solidarity measures; whether the agencies should have a strengthened role; whether there should be intra-EU relocation of refugees; and whether a framework should include Schengen and third-country co-operation. The UN Refugee Agency (UNHCR) said that the starting point for all should be to meet existing obligations, alongside burden-sharing. Within the EU joint asylum processing and voluntary relocation would be welcome, while there was a need for external action to strengthen resettlement and develop regional protection pilots. There was also a need to ensure that improved management of migration at the borders was sensitive to the needs of refugees and asylum seekers.

The Commission said that assistance could be provided within the framework of the Common European Asylum System (CEAS) but solidarity was also about keeping one’s own house in order. Commissioner Malmström supported a soft-law framework plus the early warning system, but any mechanism should be on the request of the member state with consideration by the European Asylum Support Office (EASO) and the Commission. She noted that the EU agencies could only work within their competence and co-ordination could only be done by the Commission. She also urged support for the voluntary relocation scheme and noted there was a link between Schengen and solidarity, against which evaluation of the former needed to be strengthened. The chair of the European Parliament (EP) Civil Liberties Committee emphasised the need to keep international protection distinguished from migration. They had consistently made the case for internal relocation and wanted the European Parliament to be informed at the earliest stage of early warning systems.

Many member states intervened to emphasise that solidarity depended on trust and should not detract from responsibility, which included investing in appropriate systems to manage changes in migration flows. The UK agreed that the need to have a functioning domestic system was the basic building block, without which real solidarity was impossible. The UK also expressed caution over EASO’s role being further developed at this stage and would not support an extension of relocation beyond the Malta pilot project, at least before it was evaluated. The UK said that relocation simply moved the problem around Europe rather than addressing the underlying problems. The UK also welcomed the presence of Turkey at the Council, with whom it supported strengthened co-operation. The majority of member states’ interventions supported the creation of a framework for solidarity in the form of Council conclusions and supported the inclusion of co-operation with third countries and consideration of Schengen within the proposed framework.

The presidency concluded that solidarity was dependent on trust and that a framework would be useful as a supplement to an early warning system. There was support for including components related to Schengen and co-operation with third countries and there was a place for strengthening the agencies. They noted there was not support for relocation. They committed to preparing draft conclusions in March which they hoped would unlock negotiations on the Dublin regulation. The task would then be to turn them into results by June. They noted it was closely linked to better political management of Schengen which would go to the March JHA Council.

In the light of the review of the family reunification directive, over lunch Ministers discussed the challenges facing them with respect to family reunification.

The next plenary session focused on the financing of passenger name records (PNR) under the proposed directive on the collection and sharing of PNR between member states. The presidency noted that, while the starting point for the implementation of EU policies was that member states took the cost of implementation, the EU could sometimes meet set-up costs. The Commission said they were willing to co-finance set-up costs in this case but could not finance running costs or all set-up costs. They had allocated €50 million (£41.76 million) for 2012 and fully intended to finance it in the future, via the new Internal Security Fund, currently under negotiation. The UK reiterated the importance of an EU PNR system for fighting terrorism and organised crime. Given its benefits the UK hoped the finance issue would be resolved and offered its own experience to assist others in helping to reduce their costs.

The majority of member states intervened to support funding from the EU financial instruments, with most supporting an explicit reference in the text of the new Internal Security Fund instrument. The European Parliament said that the issue for it was not cost, but noted that cost could affect them. The European Parliament believed that excluding EU internal flights from the scope of the directive would be cheaper. The presidency concluded there was general agreement to use the Internal Security Fund for funding for PNR, but member states needed reassurance that substantial financial support would be available. Discussions on the directive and Internal Security Fund will continue at expert level.

The Justice day commenced with a discussion on the Brussels I regulation, where the presidency invited delegations to discuss the proposed rules of jurisdiction in cases involving defendants in non-EU member states. The UK did not see any evidence of practical problems with the current arrangements, whereby national rules applied to such cases. Most other member states thought there was no need to extend the rules of jurisdiction in Brussels I to such cases. The presidency concluded that further work should be taken forward on basis of maintenance of the status quo.

This was followed by a discussion on criminal sanctions in the context of the current proposal for a directive on insider dealing and market manipulation. Ministers were asked to consider whether a provision for minimum levels of maximum penalties should be included in the proposed directive, and whether there should, as a rule, be provision for minimum-maximum levels of sanctions in future criminal law directives. The Commission stated that there must be respect for subsidiarity and proportionality and that there was no need for such a rule in the directive. The UK supported the Commission’s approach and felt that the first priority was for some criminal provision to be in place so that it was clear that the conduct would be treated as a serious offence. The UK also stressed the importance of enforcement and that having the options of both a criminal and civil approach would aid prosecutors, bearing in mind that criminal offences were harder to prove. The presidency concluded that the majority of states considered that having no specific minimum-maximum sanctions would be the right approach and that the question of sanctions in future instruments should be considered on a case by case basis.

During the ministerial lunch there was a discussion on the transfer of sentenced persons and social rehabilitation. Member states reviewed implementation so far of the framework decision on transfer of sentenced persons. Most states are in the process of implementation. There was widespread agreement that additional legislative measures to facilitate implementation were unnecessary, but that practical measures to activate the process must be addressed. The UK supports the framework decision so that foreign national offenders are able to serve their sentences in their own country to facilitate their eventual reintegration into the community in which they will live.