Justice and Home Affairs Council

Thursday 17th March 2016 Written Statements

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

The Justice and Home Affairs (JHA) Council took place on 10 and 11 March in Brussels: 10 March was the Interior day, which I attended on behalf of the UK; 11 March was the Justice day, and my noble Friend Lord Faulks QC, Minister for Civil Justice, and the Minister for Immigration, my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire) attended. The following items were discussed.

The Interior day commenced with a discussion on migration. The presidency introduced this discussion with a review of the main principles agreed at the 7 March EU-Turkey summit, the support needed for Greece, and the support required by others affected by the eastern Mediterranean/western Balkans route. The agreement made at the EU-Turkey summit was broadly welcomed by member states. A number of member states challenged the decision to expedite the visa liberalisation process with Turkey. I noted that Turkey’s announcement on Monday committing to take back all new arrivals was a major development, and reiterated the need to work through the legal, policy and operational aspects of the arrangement to ensure it is implemented swiftly.

The Commission welcomed the agreement of the new EU humanitarian aid fund which was adopted at the 15 March General Affairs Council. The Council also heard progress on the increase to the internal security fund (ISF) and the emergency assistance elements of the asylum, migration and integration fund (AMIF). There was broad agreement from other member states that further support should be given to Greece and that efforts on relocation should be accelerated. The Government do not support relocation as it is the wrong response to the migratory pressures the EU faces. It undermines the important principle that asylum should be claimed in the first safe country and does not address the causes of illegal migration. On the subject of migratory routes, concern was voiced by many over the shifting of migratory routes, to the central Mediterranean route in particular.

The Commission undertook to produce a progress report on relocation and resettlement, and confirmed that the visa liberalisation benchmarks would have to be met by Turkey and that all laws would be respected in returning migrants. The presidency noted a readiness to examine the legality of returns to Turkey and to contribute further to EASO and Frontex. The presidency confirmed that resettlement activities would remain voluntary but suggested that all should participate, and noted consensus on the need to control secondary movements and make returns more effective.

The presidency updated Ministers on the proposed European Border and Coast Guard Agency. The presidency confirmed that they are on schedule to adopt a general approach in April, and hope to reach an agreement with the European Parliament by June. The Commission hopes that the agency will be operational by August. We are clear that the UK will not take part in the proposed agency, but we support action by Schengen states to strengthen the external border.

Discussion then turned to progress on negotiation of a revised firearms directive. There were five issues raised for discussion by the presidency: a minimum age for the acquisition of firearms; a requirement for medical testing before obtaining a license; exemptions for museums and collectors; online sales; and which types of weapons to ban. I indicated UK support for options on the minimum age, medical tests, and museums issues which give member states the greatest degree of national discretion. This was supported by a majority of member states. On online sales, most member states supported strict controls. However, the presidency acknowledged that some member states, including the UK, favoured processes that allowed for the verification of the buyer’s identity. The most contentious issue was the banning of semi-automatic weapons. I argued in favour of banning the most dangerous types of these weapons, and that experts needed to conclude work on what those weapons were swiftly. A majority of member states opposed prohibition on the basis that there were legitimate uses of semi-automatic weapons, but indicated they were open to considering additional controls. The presidency concluded that it would take work forward based on majority views.

The counter-terrorism co-ordinator updated member states on the implementation of the November 2015 Council conclusions on counter-terrorism. The co-ordinator said that progress had been made, but barriers remain, and welcomed the presidency’s intention to develop an information sharing action plan for discussion at the June JHA Council. The co-ordinator stressed the importance of improving the use of Schengen information system (SIS) II, allowing law enforcement access to relevant migration instruments, rapid implementation of the passenger name record (PNR) directive, development of national passenger information units, using Europol systems to full effect and providing increased resources to the Europol counter-terrorism centre.

I then presented a joint UK-France paper on data and information sharing in support of the presidency’s initiative. I supported the call to improve the use of SIS II and highlighted the absence of a requirement to record expulsion or removal decisions, the legislative gap preventing the UK from sharing and accessing such data with the Schengen area, and the limited use of fingerprint data in SIS II. I also pushed for progress on systemic, proactive sharing of criminal records data. The UK-France paper drew strong support from the Commission, the presidency, the co-ordinator and other member states. The presidency concluded that efforts would continue towards the June JHA Council and that the UK-France paper would form a key building block for its forthcoming action plan.

To close the day, Germany and France presented a non-paper outlining a draft European initiative to prevent and combat organised domestic burglary. The proposed initiative will be debated in a future meeting of the Standing Committee on Internal Security (COSI).

Justice day began with the agreement of a general approach on the directive on minimum standards for terrorism offences. Member states declared broad support for the proposal during the discussion, but there was an appetite among many for greater ambition in some aspects. Several member states argued for the criminalisation of travelling for terrorist purposes to be extended to intra-EU and EU-inward travel, to fit with the recently adopted PNR directive which includes intra-EU travel. However other member states urged caution to ensure that criminal law was balanced with human rights and fundamental freedoms. The UK welcomed the new directive but noted that we will not be opting in as the UK’s domestic legislation already meets the standards set out in the directive. As the UK is already compliant with UN Security Council resolution 2178 and the additional protocol to the Council of Europe convention on combating terrorism, not opting in will not undermine our co-operation with other EU member states in combating terrorism. The presidency aims to adopt this measure in June.

The presidency then gave an update on the progress of two new proposals under the digital agenda covering harmonised consumer rights for digital content and distance sales of tangible goods, and noted that the proposal on digital content had been welcomed by member states. However, many member states had asked for more time before tackling the proposal on tangible goods in order to wait for the results of the Commission’s ongoing REFIT work on consumer protection. As such, the presidency will first take forward work on digital content, with the aim of the Council agreeing a position on the key parts of the package at the June Council. The Commission agreed with the presidency’s proposed approach, but stressed the importance of not losing sight of the proposal on tangible goods and confirmed that they anticipated the necessary data gathering exercise from the REFIT work being completed in the summer.

On the European Public Prosecutor’s Office (EPPO), the Council discussed the provisions of the draft EPPO regulation concerning expenditure. Most member states supported the position that the costs of investigative work should be met by member states, with a small number arguing for EPPO to meet the costs. A third group suggested that this cost could be subsidised by the EPPO in exceptional cases where it is prohibitively high. The UK intervened to emphasise that while the UK does not participate in this measure, we support the shared objective with the EU to tackle this type of crime and welcome the acknowledgement that the EPPO regulation would not impose obligations on Eurojust. Furthermore the UK underlined the need to avoid non- participating member states financing EPPO, which was supported by other non-participating member states. The presidency indicated the issue would be brought back for discussion at a technical level.

On the EU-US umbrella agreement, the Commission updated Ministers on two separate data exchange negotiations with the US. The law enforcement focused umbrella agreement and the exchange of data between commercial controllers under the proposed “Privacy Shield”. The umbrella agreement had been initialled, and with the signing of the Judicial Redress Act by President Obama at the end of February, the EU’s final requirement had been met. The Commission suggested that signatures to conclude the agreement could take place at the beginning of June. On the Privacy Shield agreement to replace the invalidated Safe Harbour decision, the Commission informed Ministers that the draft text had been published on 29 February and would now be considered by the group of EU data protection authorities —the Article 29 Working Party—before being submitted to member states for agreement.

Under any other business, the presidency reported back on the conference it hosted earlier in the week on jurisdiction in cyberspace. There were practical ideas to improve mutual legal assistance processes, a call for a clearer framework for relationships with the private sector distinguishing between different types of data, and discussions around the rule of law, proportionality and transparency in the context of loss of location. The presidency will prepare conclusions for the June Justice and Home Affairs Council, to be considered first at expert level.

The Commission then updated Ministers on the proposal for the EU to accede to the Istanbul convention, which has already been signed by 25 member states and ratified by 12.

The Commission also provided an update on the dialogue with IT companies to tackle hate speech online. Following a meeting in early March concerning the type of content to be taken down and time targets, the Commission will facilitate further discussion with a view to bringing proposals for a public commitment or a code of conduct to June JHA Council.

Over lunch, the presidency facilitated a discussion on enhancing the criminal justice response to radicalisation, following the conclusions of the Council and the member states agreed in November 2015. member states discussed the challenges in respect of managing the radicalisation threat in prisons in particular, including whether extremist prisoners should be segregated or dispersed, and considered the value of member states sharing best practice.

Ministers also held an exchange of views on two new proposals for enhanced co-operation on the regulations on matrimonial properties and the property consequences of registered partnerships, following the failure to agree these proposals at the last December JHA Council. The UK had not opted in to either proposal. In the discussion, the UK argued for the removal of references to the charter of fundamental rights from the operative clauses of the two proposals for reasons of best practice in legal drafting.

[HCWS632]