Pre-Council Statement

Baroness May of Maidenhead Excerpts

Thursday 27th November 2014 Written Statements

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

The Justice and Home Affairs (JHA) Council is due to be held on 4 and 5 December in Brussels. The Lord Chancellor and Secretary of State for Justice, my right hon. Friend the Member for Epsom and Ewell (Chris Grayling), and I will attend on behalf of the United Kingdom. As the provisional agenda stands, the following items will be discussed.

Justice day on 4 December will begin with the Italian presidency seeking a partial general approach on chapter IX of the proposal for a general data protection regulation. This deals with personal data processing for statistical, scientific and medical research purposes as well as provisions dealing with freedom of expression, employment and social protection. The presidency is also looking to secure a partial general approach on the issue of public sector flexibility within the instrument. Although progress has been made in improving some aspects of the text, the Government are against the use of partial general approaches with regard to this dossier, given the amount of technical detail on which disagreement remains.

Separately, they will hold an orientation debate on the regulatory one-stop shop which is intended to clarify in which member state regulatory decision-making should take place where there is a cross-border element to the processing of personal data.

The presidency will also provide a state of play update on the proposal for a data protection directive, covering the processing of personal data in the investigation and detection of crime. At this stage, it is not looking to secure any agreement as there has been more limited progress than is the case on the proposed general data protection regulation.

There will be an orientation debate on the European Public Prosecutor’s Office (EPPO) proposal. The UK does not and will not participate in the EPPO. Debate will centre on the EPPO’s nomination and appointment procedures and how best to deliver independence within the “college” structure. While the UK plays an active role in the negotiations as a non-participating member state, to shape and protect our position, we do not anticipate a need to intervene on these internal matters.

The presidency will present a partial general approach in relation to the Commission’s proposal to reform Eurojust, covering Chapters I-III and V-IX—omitting the chapter on data protection—of the proposal with all references to the European Public Prosecutor’s Office (EPPO) removed. Given that Eurojust’s relationship with the EPPO is not covered in the revised text, it is impossible to take a definitive view on items such as governance arrangements. However, the presidency text provided is broadly positive from a UK perspective. One of our key concerns was to ensure that member states are not obliged to give additional powers to their national members. The presidency text is much improved in this regard.

The presidency will be aiming for a general approach on the directive on presumption of innocence. The UK has not opted in to this proposal though monitors negotiations.

This will be followed by a state of play debate on the directive on legal aid; again the UK has not opted in to this proposal. The Council also seeks an update on the state of play for the draft directive on the fight against fraud by means of criminal law following the European Parliament’s first reading position of April 2014; the Council continues to discuss the content of the directive ahead of trilogues.

Next, there will be a political agreement on the proposal for a revised regulation on insolvency proceedings. This represents the end of negotiations which began in January 2013 following a proposal from the Commission to modernise the existing regulation, particularly to expand its scope to ensure businesses in the EU are rescued where possible and jobs preserved. The Council is being asked to reach political agreement on the text with a view to adoption in 2015. The UK Government support this revision.

There will be orientation guidelines on the regulation on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the EU. This measure aims to abolish the process of “legalisation” of certain public documents. Legalisation is the formality to confirm the authenticity of an official signature or seal. The regulation also proposes establishing EU multilingual forms. The Government support the principle of reducing red tape and costs and welcome recent amendments to both parts of the proposal which have limited the list of documents in scope to core civil status documents, such as birth, death and marriage certificates. They also welcome ongoing discussions to replace the proposed multilingual forms with simple translations of the original national documents rather than creating translated standalone forms with their own evidential value.

The presidency hopes to obtain a general approach to amend the European small claims regulation. From a UK perspective the negotiations have been successful in achieving our main objectives, including returning to the current definition of what constitutes a cross-border case and ensuring that no arbitrary cap on court fees is imposed on member states. The Government would have preferred a higher threshold for a small claim than €4,000 but understand that a compromise had to be found between the different positions of the member states.

The presidency is to provide a state of play report on the negotiations of the proposals on matrimonial property and the property consequences of registered partnerships. This is likely to state that while most technical issues have been finalised agreement on the proposals has not yet proved possible because of political concerns from some member states regarding the status of same-sex relationships. As these proposals will be decided under the special legislative procedure for family measures, agreement must be obtained by unanimity. The UK has not opted in to either proposal.

Under AOB, there will be an update from the presidency on the outcome of proceedings of the EU-US justice and home affairs ministerial meeting which took place in Washington DC on 12-13 November 2014. Finally the Latvian delegation will give a presentation on their incoming presidency programme.

The interior session on 5 December will begin in mixed committee with Norway, Iceland, Liechtenstein and Switzerland—non-EU Schengen states. We expect the Council to focus on the implementation of October’s JHA Council conclusions on the response to migratory pressures, in particular those from the Mediterranean. The UK will press for full implementation of the conclusions, in particular supporting further action in key countries of origin and transit, offering further support for the new Frontex operation in the Mediterranean, and pressing for further efforts to ensure member states are meeting their responsibilities in the area of asylum and illegal migration.

The Commission will present the latest biannual report on the functioning of the Schengen area, and Council will be given the opportunity to discuss its content. Although the UK does not participate in the border and visa elements of the Schengen acquis, the Government maintain a strong interest given the effect of illegal migration transiting the Schengen area on UK borders. We will call for the EU to consider the role that Schengen visa liberalisation with non-EU member states can play in creating opportunities for immigration abuse, including the abuse of free movement rights by non-EU nationals.

Ministers will be invited to note a report highlighting the achievements of 15 years of Schengen evaluations under the Council’s management. Council conclusions will then be discussed, to allow the continuation of the relevant evaluation working group beyond 27 November. This will retain Schengen evaluation expertise within the Council structure and assist Ministers in effective delivery of the new Schengen evaluation mechanism. The UK supports this move.

The presidency currently plans a debate on Bulgarian and Romanian accession to Schengen, at the request of Romania and Bulgaria, who are seeking to finalise their accession to the border aspects of the Schengen acquis and then lower border controls with their EU neighbours. While the Italian presidency would like to see this issue resolved at Council, accession remains blocked by a minority of member states. The presidency may well withdraw it from the agenda—as it did in October. If the debate goes ahead, Bulgaria and Romania are likely to express their frustration. As this currently concerns only borders elements of Schengen, the UK does not have a vote.

Over lunch on the interior day there will be an update on passenger name records (PNR). The Council will consider how to proceed on PNR given the recent decision by the European Parliament to refer the EU Canada PNR agreement to the European Court of Justice. It is possible the LIBE Committee will use the referral to further delay progress on the draft PNR directive. The UK supports speedy adoption of the PNR directive, but we are clear that it should provide for intra-EEA PNR.

The Council will return to the issue of foreign fighters travelling to Syria and Iraq. Member states will be invited to discuss a number of issues based on a presidency paper, as called for at the June European Council. The Council will also be asked to adopt the guidelines which accompany the EU strategy for combating radicalisation and recruitment to terrorism, following the adoption of the updated strategy earlier this year. The UK supports the guidelines and has taken an active role in negotiations at working level, drawing on the UK’s experience of Prevent.

Under AOB, there will be an update from the presidency on the outcome of proceedings of the EU-US justice and home affairs ministerial meeting which took place in Washington DC on 12-13 November 2014. The Latvian delegation will give a presentation on their incoming presidency programme.