Firstly I would like to send my apologies that a pre-Council letter was not sent ahead of the Council on this occasion. This is a rare occurrence owing to a combination of late finalisation of the agenda for Council, and conference recess.
The Justice and Home Affairs (JHA) Council took place on 8 and 9 October in Luxembourg. My Right Honourable Friend, the Secretary of State for Justice (Michael Gove), Lord Ahmad of Wimbledon and I attended on behalf of the United Kingdom. The following items were discussed.
The Interior session on 8 October began in Mixed Committee with Norway, Iceland, Liechtenstein and Switzerland (non-EU Schengen States) where the Presidency provided an overview of their paper on the future management of the EU external border. The subsequent discussion saw calls for enhanced collective responsibility for the external borders, including some support for the Commission’s calls for a fully-fledged EU border and coast guard and an extended mandate for Frontex, although the Presidency was clear that Member States must retain primary responsibility for controlling their own border. The Commission also drew attention to the role of EU Smart Borders and the Schengen Information System in balancing border management and security, and the need for further consideration on whether more was needed to ensure the proper functioning of the Schengen acquis. The October European council will return to this subject.
There was also an update on the relocation mechanisms agreed at the 14 and 22 September Extraordinary JHA Councils, and the implementation of the ‘hot spots’ screening centres in Italy and Greece, with calls for all Member States to provide Frontex and the European Asylum Support Office (EASO) with additional personnel and resources. There had been some progress, with implementation underway in Italy and starting in the Greek islands imminently, but it was clear more work was required, including on the return of those not requiring protection. Concerns were also raised regarding the likely effectiveness of intra-EU relocation and further secondary movement. Discussions on an agreed list of safe countries of origin and a permanent crisis mechanism for relocation (amending the Dublin Regulation) would continue at official level.
The UK was clear that the current situation required a new international approach – strict enforcement of rules was required for those who abuse Member States’ asylum and migration systems but we should be generous to those who needed our help. Economic migrants needed to be returned swiftly, including from hotspots, so that the right messages were received by those intending to set out for Europe. The UK would continue to support EASO and Frontex and will offer additional assistance, building on the offer already made this summer. I also made it clear that the UK would be willing to use its expertise in helping Greece set up the necessary systems and structures.
Returns were the subject of a separate debate, with the Commission introducing an EU Action Plan on Returns, Council Conclusions on the future of EU returns policy and a Returns Handbook, and stating that by the end of October there would be ten joint EU return flights to African and Western Balkan countries. An EU Returns office will be established within Frontex to coordinate all returns action and better use will be made of existing tools such as SIS and EURODAC databases. The main challenge remained countries of origin not accepting their nationals back, despite recognised international obligations for them to do so, leading for calls for greater use of conditionality in broader relations with key third countries.
The UK reiterated the importance of returning those not requiring international protection, in order that help could be focused on those in greatest need, which meant that effective returns of those not requiring international protection in Europe was vital. Identifying safe countries of origin was welcome, but the EU needed to go further.
I, also suggested that considering claims from certain countries as inadmissible except in exceptional circumstances could be the next step in tackling abuse, and that the use of detention was also necessary. The UK argued that it was important to consider seeking leverage with third countries to secure cooperation, that detention was often necessary and that the EU should take forward discussions on multi-purpose centres and safe zones outside of Europe to which economic migrants could be returned. I expressed the Government’s support for improved returns mechanisms, in particular at the EU external border and noted that the UK will carefully consider all current and future proposals.
The Presidency sought a steer from Ministers on its proposals to unlock discussion on the “visa package” – a recast of the Union Code on Visas (“the visa code”) and proposed touring visa. The Commission and Member States had been deeply divided on the proposals. There is no impact for the UK as we are not involved in either of these measures because they build on those parts of the Schengen acquis in which we do not participate. Ministers endorsed the Presidency’s proposals for continuing discussions at official level.
The lunchtime discussion was on migration and development. Following a briefing by Luxembourg’s Development Minister, interventions veered to familiar ground on hotspots and relocation. The UK supports the hotspot proposals and continues to push for their rapid implementation, but we continue to oppose relocation.
The Europol Director (Rob Wainwright) updated Ministers on the recent Blue Amber operation, a series of joint operational action weeks coordinated through an operations room at Europol. The Presidency concluded that the Committee on Internal Security (COSI) would continue to prioritise Serious Organised Crime under the EMPACT priorities.
During a discussion on the fight against terrorism, the council adopted conclusions calling for an improved firearms intelligence picture and robust standards on firearms deactivation. The UK supports the Council’s position and has urged Member States to prioritise the actions set out in the Council Conclusions. The Commission is undertaking a study into further proportionate measures that can ensure greater passenger security. The UK called for the sharing of best practice in relation to rail security.
The Council agreed to step up the voluntary removal of terrorist propaganda through the Europol Internet Referral Unit (IRU). The UK welcomed the results achieved by the IRU so far and supported the upscaling of the programme, calling on more Member States to second national experts to the unit. The Council agreed to enhance counter narrative work with the Syria strategic communication advisory team (SSCAT)’s support. The Government welcomes the SSCAT 2016 project as a tool to support member states to improve their capacity to deliver strategic communications campaigns to counter the influence of violent extremists.
The Presidency updated Minsters on the implementation of the renewed Internal Security Strategy 2015-2020. The Presidency had set the following priority areas for implementation under their tenure 1) Fight Against Terrorism 2) Tackling Illegal Migration 3) Completion of the Europol Regulation 4) Completion of the EU PNR Directive. The following Presidency trios were encouraged to continue with a six monthly implementation plan, but also to establish an 18 month joint implementation strategy to retain continuity over the medium term.
The Presidency updated on progress on the Europol and Passenger Name Records (PNR) Trilogue negotiations. Both the Presidency and the Commission urged Member States to continue lobbying their national Members of Parliaments to ensure they fully understand the value of PNR. I reiterated the need for intra EU data to be included for any directive to be effective.
Justice Day started with a ministerial breakfast meeting on the implications of the Taricco judgment in relation to the draft Directive for the protection of the Union’s financial interests. There was broad agreement to retain the Title V legal base and the UK, supported by other Member States continued to oppose the inclusion of VAT fraud in the Directive protecting our red line.
The Presidency reiterated its aim to complete negotiations on both the General Data Protection Regulation and the accompanying law-enforcement focused Directive by the end of the year. With a General Approach on the Regulation secured in June, the Presidency presented a compromise text on the Directive and sought approval from Ministers to enter trilogue negotiations with the European Parliament as soon as possible. The Commission welcomed the text, noting the delicate balance that had been achieved between operational effectiveness and privacy for data subjects, and the need to create a level playing field across the EU, for all forms of data processing.
The UK welcomed the changes made during expert discussions and urged the Presidency to defend the Council position during trilogue, particularly the ability of law enforcement agencies to withhold information where appropriate for operational reasons, and to transfer data to third countries. Most other Member States agreed and considered the draft to be a good balance between the rights of data subjects and needs of law enforcement agencies. The General Approach was agreed.
The Commission updated Ministers on the recent decision by the Court of Justice of the European Union (CJEU) to strike down the EU-US “Safe Harbour” agreement, which established a framework for the transfer of data from the EU to the US. In its view, the ruling was a clear statement on the importance of data protection as a fundamental right, and validated the Commission’s to review the Safe Harbour agreement. The Commission acknowledged however, that the invalidation of Safe Harbour would require data controllers to rely on other legal grounds for the transfer of data to the US, such as contractual clauses, binding corporate rules, or consent. The Commission assured Member States it wanted to see uniform application of the ruling, and expected that national data protection authorities would provide consolidated advice to business through the Article 29 Working Party.
The Commission reiterated the need to work with the US on a revision of the Safe Harbour agreement. It noted that negotiations on a revised framework had been ongoing for almost two years. The Commission felt that the ruling would ensure greater clarity about the safeguards that a revised agreement would need to provide.
The Presidency sought Council agreement to certain articles of the proposed Regulation establishing a European Public Prosecutors Office (EPPO). The Council expressed provisional agreement. The UK does not participate in the EPPO. We noted our non-participation and registered our strong interest in ensuring that the scope of any EPPO does not go beyond the Treaties.
During lunch, the Presidency presented a progress report on the work of the EU Accession to the European Convention of Human Rights and a summary of the problems with the draft Accession Agreement identified by the CJEU in its Opinion of December 2014. There was some support for the Presidency’s proposal that the EU reaffirm its commitment to the accession process. The UK, along with the Council Legal Service, highlighted the profound challenge presented by the Court’s opinion. The discussion concluded with the Commission recognising the difficulties faced, but agreeing to provide technical papers to assist the Council in identifying solutions to the issues raised by the CJEU.
Ministers discussed the migration situation, and the particular challenges it raises for judicial cooperation and tackling xenophobia. This included the role Eurojust might play in supporting Member States in tackling these issues.
Additionally, there was a general discussion in response to the immigration crisis and best practice in cooperation between Governments and internet service providers to tackle hate speech online.
Under AOB, the Commission reminded Member States that the Victims’ Rights Directive would be coming into force on 16 November 2015. The UK is committed to transposing the Victims’ Rights Directive by the deadline.