The Lord Chancellor and Secretary of State for Justice (Mr David Gauke)
The final Justice and Home Affairs Council of the Romanian EU presidency recently took place in Luxembourg. I attended on 6 June for justice day, and Sir Tim Barrow, Permanent Representative of the UK to the EU, and Chris Jones, Director of the Europe Directorate at the Home Office, attended on interior day on 7 June.
Justice day began with a discussion on the regulation on the assignment of claims, which has far-reaching implications for financial markets, including the ability of small businesses to access credit. It was agreed that work in this area will need to continue under the Finnish presidency.
The Council then discussed digitalisation of judicial co-operation, where the presidency considered the UK’s position that a thorough cost-benefit analysis was needed before proceeding, along with plenty of time for member states to implement this measure effectively. In general, however, member states supported a mandatory and de-centralised approach to digitalisation in the interests of speed and efficiency of justice systems.
Ministers then discussed the future direction of substantive criminal law co-operation. Member states were clear that implementation of existing criminal law measures should be prioritised before considering new legislation and a thorough analysis of the benefits of these measures would be needed before further harmonisation. Nonetheless, momentum began to form around the harmonisation of criminal law on environmental crime, identity theft, and manipulation of elections.
After a working lunch discussing the use of judicial training to foster mutual trust, there was a policy debate on mutual recognition in criminal matters. Discussions focused on facilitating the practical application of existing legal instruments, including by means of judicial training, rather than on new legislative proposals. The Commission stressed the importance of fundamental rights, and an independent judiciary to enable mutual recognition tools, like the European arrest warrant (EAW), to operate. The UK underlined our commitment to continued co-operation in this field and several members states supported the idea of common guidelines on this. Some advocated EU legislation on the transfer of criminal proceedings to close loopholes, particularly where suspected criminals cannot—for whatever reason—be surrendered under the EAW.
The Council then adopted mandates for negotiations with the United States, and in the Council of Europe (Budapest convention), on cross-border access to e-evidence. The Commission noted its intention to insist that the United States agree to an EU-wide approach which would apply to all member states without discrimination, including at the EU-US ministerial meeting in Bucharest later this month. Formal negotiations will not begin until finalisation of internal EU legislation on e-evidence. The UK has not opted into either the internal EU legislation on e-evidence, or the mandates for negotiations with the US, and in the Council of Europe, and will not be bound by those mandates.
Council adopted conclusions which encourage Eurojust and the networks established in the area of judicial co-operation in criminal matters to further develop the co-ordination and synergies between them. The UK supported these conclusions as we support the work of Eurojust, and agrees that better co-ordination between networks hosted by Eurojust would be helpful for criminal justice co-operation.
The Council also adopted conclusions on the retention of data for the purpose of fighting crime, which proposed further exploration of options for lawful regimes in member states. The UK believes the appropriate retention of telecommunications data for law enforcement purposes is an important element of an effective law enforcement system and supported these conclusions. The Commission provided an update on the planned preparatory steps to make the European Public Prosecutor’s Office (EPPO) operational by the end of 2020. The UK has not opted into EPPO.
The Council adopted an implementing decision confirming that the UK could connect to the Prüm automated system for exchanging DNA data between law enforcement authorities in EU member states.
Interior day began with a discussion on the future of EU law enforcement. Ministers agreed that further co-operation on approaches to law enforcement would make for more effective cross-border law enforcement. The Council supported effective implementation of existing legislation, especially interoperability of databases, and recognised the need to address the impacts of technological advancements on law enforcement, supporting Europol’s role in pooling expertise and providing technological and analytical support. The UK Permanent Representative to the EU intervened to support this work and welcome the intent to work together, co-ordinate methods and approaches and support the proposal for a Europol innovation hub. In this context, the UK intervention additionally highlighted UK work to tackle online harms through the UK White Paper.
Under AOB, the Council CT co-ordinator (Gilles de Kerchove) presented on the implications on law enforcement of the move to 5G. The CT co-ordinator focused on the need for the EU to influence 5G standards, to ensure a dialogue with service providers on this issue, and to consider EU legislation to avoid fragmentation of member state approaches. The Commissioner for the Security Union (Sir Julian King) noted the Commission’s intent to develop an EU risk assessment and toolbox of options to mitigate risks by the end of 2019.
The chair of the counter-terrorism group, a non-EU grouping of European states intelligence agencies, attended to update the JHA Council on the general terrorist threat and the challenges and opportunities from new tools and technologies. The CTG chair also updated on discussions on co-operation with Europol on strategic and technical issues, noting that operational intelligence work remained the sole responsibility of member states.
Over lunch and in the afternoon session, Ministers discussed migration, with a focus on issues of solidarity and redistribution of migrants. Member states remain split on the EU’s approach to these issues. The UK intervention focused on our extensive support upstream which ranges from tackling organised immigration crime and the use of strategic communications to building partnerships and capability with source and transit countries to jointly address the drivers of migration.
The Council agreed a partial general approach on the draft directive on common standards and procedures in member states for returning illegally staying third-country nationals, recast, with the exception of article 22 on the border procedure and the related recitals. The UK has not opted into this measure.
The Council also agreed partial general approaches on draft regulations establishing the integrated border management fund, establishing the asylum and migration fund, and establishing the internal security fund. These are subject to wider negotiations on the overall multi-annual financial framework. The UK will not participate in any of these funds.
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