EUROPEAN UNION COMMITTEE

HOME AFFAIRS, HEALTH AND EDUCATION SUB- COMMITTEE

Future Justice and Home Affairs Programme (2015-2019) Oral and Written Evidence

Contents Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) ...... 3 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) ...... 45 Bar Council—Written evidence ...... 73 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) ...... 83 European Asylum Support Office—Written evidence ...... 121 European Commission (DG Home Affairs)—Oral evidence (QQ102-112) ...... 127 European Commission (DG Justice)—Oral evidence (QQ113-121) ...... 144 European Commission (DG Justice)—Supplementary written evidence ...... 157 European Commission, British Red Cross, Lincolnshire County Council—Oral evidence (QQ85-101) ...... 175 European Parliament (Juan Fernando López Aguilar MEP, Judith Sargentini MEP)—Oral evidence (QQ145-151) ...... 176 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) ...... 193 Europol—Written evidence ...... 227 Europol, Association of Chief Police Officers, and National Crime Agency—Oral evidence (QQ52-72) ...... 235 Fair Trials International—Written evidence ...... 236 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) ...... 238 Matthew Heenan—Written evidence ...... 268 Immigration Law Practitioners’ Association—Written evidence ...... 269 Sajjad Karim MEP and Timothy Kirkhope MEP—Oral evidence (QQ136-144) ...... 273 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) Mike Kennedy, Professor Estella Baker, Law Society of England and Wales—Oral evidence (QQ15-28) ...... 292 Timothy Kirkhope MEP and Sajjad Karim MEP—Oral evidence (QQ136-144) ...... 293 Professor Douwe Korff, London Metropolitan University, European Union Agency for Network and Information Security (ENISA) and Charlie McMurdie—Oral evidence (QQ73- 85) ...... 294 Law Society of England and Wales—Written evidence ...... 295 Law Society of England and Wales, Mike Kennedy, Professor Estella Baker—Oral evidence (QQ15-28) ...... 303 Law Society of England and Wales—Supplementary written evidence ...... 304 Law Society of Northern Ireland—Written evidence ...... 309 Law Society of Scotland—Written evidence ...... 312 Lincolnshire County Council, European Commission, British Red Cross—Oral evidence (QQ85-101) ...... 313 Claudio Matera, Asser Institute—Written evidence ...... 314 Charlie McMurdie, Professor Douwe Korff, London Metropolitan University and European Union Agency for Network and Information Security (ENISA)—Oral evidence (QQ73-85) ...... 321 Meijers Committee—Written evidence ...... 322 Morten Messerschmidt MEP—Oral evidence (QQ152-160) ...... 327 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) .... 346 Migration Policy Institute Europe—Written evidence ...... 386 Migration Policy Institute Europe, Migration Policy Centre—Oral evidence (QQ29-51) .... 395 National Crime Agency, Association of Chief Police Officers and Europol—Oral evidence (QQ52-72) ...... 396 Northern Ireland Executive—Written evidence ...... 397 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) ...... 398 Professor Steve Peers, Professor John Spencer, Professor Elspeth Guild—Oral evidence (QQ1-14) ...... 432 Scottish Government—Written evidence ...... 433 Professor John Spencer, Professor Elspeth Guild, Professor Steve Peers—Oral evidence (QQ1-14) ...... 435 UK Government—Written evidence ...... 436 UK Government—Oral evidence (QQ161-178) ...... 443 UK Government—Supplementary written evidence ...... 475 Professor Peter van Krieken, Dr Roderick Parkes and Dr Yves Pascouau—Oral evidence (QQ122-135) ...... 480 Professor Helen Xanthaki—Written evidence ...... 481

2 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72)

Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72)

Evidence Session No. 4 Heard in Public Questions 52 - 72

WEDNESDAY 18 DECEMBER 2013

Members present

Lord Hannay of Chiswick (Chairman) Lord Anderson of Swansea Baroness Benjamin Lord Blencathra Baroness Corston Lord Dykes Baroness Eccles of Moulton Viscount Eccles Lord Faulkner of Worcester Lord Judd Lord Morris of Handsworth Lord Rowlands Lord Sharkey Lord Tomlinson Lord Wasserman ______

Examination of Witnesses

Rob Wainwright, Europol Director, Keith Bristow, Head of the National Crime Agency, and Sir Hugh Orde, President of the Association of Chief Police Officers

Q52 The Chairman: Good morning to the panel, who are here today to help us in the inquiry that we are conducting at the moment, which is, as you know, about the future justice and home affairs programme for the European Union from 2015 to 2019, it thus being the successor to the various Tampere, Hague and Stockholm programmes. It is likely to be adopted by the Council towards the end of next year under the Italian presidency, and the debate on it is already beginning.

3 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) We are trying to do something that is slightly innovative, which is to get involved in the formulation of policy in the European Union upstream—that is to say before it gets set in concrete in the form of a new programme, before the Commission comes forward with proposals for action, legislative or otherwise—and thus hopefully to influence that debate. It is something that the Select Committee, of which this is a sub-committee, is now trying to get to grips with. That is the reason why we are taking evidence now. Our report will be available probably around March and will, we hope, therefore influence both the British

Government’s attitude towards the justice and home affairs programme for 2015-19 and other Governments and other Parliaments. That is the background to this morning’s meeting. It is very good of you all to come, some from quite some distance, to give evidence in this session, which is being broadcast. The transcript is being taken and a copy of it will be sent to you to give you an opportunity to make corrections to it, although it will be published online as soon as it is available.

That is all I need to say by introduction. It would be very welcome to us if any of the three of you wish to make an opening statement, but equally it would be welcome if you do not wish to do so—it is your choice—and then we would move straight to questions.

Meanwhile, perhaps we could start and you could introduce yourselves and explain how you are affected by or would wish to influence the justice and home affairs programme 2015 to

2019 and, indeed, your views on the previous ones, which will be very welcome, too. I know that all of you in your different capacities have had a lot of experience of them.

Could I ask if you could just introduce yourselves briefly and then say whether you want to make an opening statement or not?

Sir Hugh Orde: Thank you, Chair. Good morning.

The Chairman: Sir Hugh, are you going to lead off?

4 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) Sir Hugh Orde: I am happy to, my Lord. First of all, thank you very much for the opportunity. My role as the president of the Association of Chief Police Officers is a national rather than an international one, although I do have the odd trip abroad when I am let out. I am delighted to be here with the two experts, from the national side through Keith and, of course, the international side through Rob. I have consulted and spoken to my senior chief officer colleagues on this issue. As a broad overview, they are broadly content with the proposals of the Stockholm programme looking forward. There are some real issues facing this country with policing becoming ever more national and international, That, of course, goes far wider than Europe, which we are focusing on today. I will close there, but I am more than happy to answer questions and add value where I can.

The Chairman: Thank you. Mr Bristow, can I begin by welcoming you? This is the first occasion, I think, in your new capacity as director of the NCA to be before this Committee.

I hope it will not be the last, because we rely very heavily when we look at all these complex matters on expertise of the sort that you and your organisation have. Perhaps you could just say a few words of introduction.

Keith Bristow: Certainly. Thank you very much for the opportunity to appear before you this morning. I am responsible for leading the National Crime Agency and our core role is to lead the UK’s fight to cut serious and organised crime. It is very much a partnership endeavour, although in extremis we have powers to direct a particular response within the

UK. Our responsibilities span across all those crime threats that one would expect would need a national and international response. Organised crime, economic crime, border policing, cyber, and child exploitation are some of the examples.

Our international work is hugely important. We have a significant overseas footprint, which we are investing further resources into. We have 40 stations abroad and 140 NCA officers based abroad supported by locally engaged staff. That is because the reality of serious and

5 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) organised crime is that organisational and jurisdictional borders are completely irrelevant.

That is even more true in an internet age than it ever has been, so these are important issues for us.

We work very closely with the multilateral institutions across the world, particularly

Europol and Interpol. We invest heavily in those relationships and work well alongside our partners, and also work in third countries. Some of the work we do, for instance, in West

Africa alongside other European partners I think is of particular importance. These are real issues for us and through our international co-operation, particularly within the EU, we have access to instruments that we absolutely need to fight crime in a modern context.

The Chairman: Thank you. Rob Wainwright is a frequent visitor to this Committee and always a valued one because you have given us much very clear and useful evidence in the past. Perhaps you could just say a word or two of introduction.

Rob Wainwright: Thank you, my Lord Chairman. It is a pleasure to be back again and I thank you for the invitation to give evidence. I have been the director of Europol for four or five years, so broadly over the same period in which the Stockholm programme has run. I have been responsible, therefore, for overseeing the implementation of part of that programme, and I will reflect on that experience today when I give my evidence.

Q53 The Chairman: Right, thank you. That leads us straight into the first question that I would like to put to you. By all means do not feel that all three of you have to answer all the questions if you do not feel you want to or if you feel one of the others has covered the ground adequately. What is your assessment of the priorities that were set out on policing, security and counterterrorism in the Stockholm programme? Were they the right priorities?

Did they lead to effective action being taken? Has the implementation of the Stockholm programme basically been effective? Do you think there were any gaps in that programme that ought to have been addressed and were not addressed in it, or, for that matter, gaps in

6 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) the implementation of it that are not being properly addressed? Perhaps Mr Wainwright would lead us off on that, since you have had a long experience of the Stockholm programme, as you say.

Rob Wainwright: Yes, thank you. I see the Stockholm programme working around three main aims: firstly, to strengthen instruments of co-ordination; secondly, to promote better levels of co-operation, including information exchange; and thirdly, to develop new legislative and operational capabilities to underpin those efforts. Now, across those three areas of the programme we have seen mixed success. In the area of co-ordination, it has been a notable success that we have established more or less in an effective way the new standing committee on operational co-operation—so-called COSI. This is a major step forward because it has given our community for the first time a single architecture to co-ordinate the strategy, policy and the implementation of operational actions on a consistent basis across the EU in the fight against organised crime. Yesterday I attended the latest meeting of COSI in Brussels and we reviewed the first two years of the so-called new EU policy cycle against organised crime that COSI oversees. There was a lot of understanding in the room that we have made a significant step forward in doing that, so we should not underestimate the success of the Stockholm programme in promoting for the first time effective and viable mechanisms to co-ordinate action in this area across what is now, of course, 28 Member

States.

I would say that operational co-operation and the information exchange have not been bad.

The development of the Prüm mechanism, for example, is a step forward. We have seen at

Europol over the lifetime of the Stockholm programme a doubling of the amount of information exchange that Member States transmit through our channel, but it is patchy across different areas. In the area of counterterrorism it is still relatively low and it is also

7 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) patchy between certain Member States. There is an uneven response still to the objectives of the Stockholm programme across the Member States.

Finally, in the new instruments where we have developed particular new mechanisms to tackle criminal proceeds, the trafficking of human beings and the establishment of the new

European cybercrime centre, again these have been successfully established but they have had a mixed effect in their ability to be transposed into national arrangements in particular.

I would summarise, therefore, by saying that the Stockholm programme has given us some progress in developing the architecture. The work to build the internal security architecture has mainly been done now, but the implementation of that has been patchy. That is the key to our understanding of what should come next. In particular, we should focus less now on design and more on implementation and therefore on the practical outcomes to the strategy that we have.

Q54 The Chairman: Could I just ask one thing? You mentioned gaps on counterterrorism. Does that reflect a continuing preference by a number of Member States, of whom Britain is no doubt one, for bilateral contacts on counterterrorism as opposed to passing through multilateral machinery such as Europol disposes of? Is that the main problem?

Rob Wainwright: Yes.

The Chairman: If that is the main problem, is it a problem or are they not right to think that some of their very well tried bilateral links are likely to be more effective and, of course, less risky?

Rob Wainwright: There are very important policy differences in the treaty between organised crime and terrorism, as you know, and national security is a reserved right. That, therefore, is reflected in what are very different arrangements for co-ordination within the

EU. I understand that, of course, but in practical terms the threat from terrorism is similar

8 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) to the threat from organised crime in terms of the response required and the level of co- ordination needed. Therefore, I think there is a gap in capability. There is certainly a gap in performance at the level of the EU in making sure that we have the most effective response to counterterrorism. It is a question of trying to bridge that gap between an understandable policy objective and a practical need.

The Chairman: Do either of the others of you wish to come in on this question of the

Stockholm programme and how effective it has been?

Keith Bristow: There are a couple of things I would like to add in support of what Rob has said. Much has been achieved, but I think there is a lot more that we can do. Encouraging full participation of Member States is hugely important. Developing clearer standards and expectations around information and intelligence sharing becomes key to what we are trying to do because our decision-making is led by the intelligence. There have also been some lessons learnt over the years. I would say that we have all underestimated the importance of cyber-enabled crime, as an example. We are learning as we go. Europol has done some very good work in establishing its centre1 and we have officers embedded within that centre, but there is a lot more that we can do. From my point of view, there are some lessons to be learnt about delivery and operational effect, and focusing on what we do next must be about delivering effect for the public.

Sir Hugh Orde: Very briefly, my Lord, bringing this down to a national level, ACRO, the criminal records office, which is the UK central authority, is growing from strength to strength. It builds on what Rob was saying in terms of greater use and awareness here of accessibility of criminal conviction data from across Europe. What we are seeing now, certainly in initiatives in London, for example, is a very clear reference to making sure those arrested here from other countries are checked properly through the systems that are now

1 European Cyber Crime Centre or EC3

9 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) up and running and available to us. Now the third pillar issue seems to be moving forward in a positive way, we see that as protected looking forward.

Lord Rowlands: The measures to date, most of them anyway, have been based on mutual recognition. How effective has that been? Should that principle or process be carried into the new programme?

Rob Wainwright: If I may say so, that principle has been very effective in dealing with what are likely to be 28 political variations of the problem. The principle of mutual recognition is quite a good technique to ensure, therefore, that there is still a minimum level of co- operation within what is, as I said, a very mixed political environment. As Keith says, one of the hallmarks of that principle now is that it should be mutually recognised, universally recognised, that the face of crime is changing. It is becoming much more globalised. It is operating much more freely on the internet and across borders and that requires a much stronger international co-ordinated response. In a sense, even by the principles of mutual recognition, we should be arguing for a much more effective integrated response to organised crime within the EU. I think that the two go hand in hand.

Q55 Lord Sharkey: Could I take up Mr Wainwright’s comments on the implementation of instruments? What instruments are in place that would benefit from a review of their efficacy or actual implementation in the Member States?

Rob Wainwright: I will pick out three or four specific ones. Joint investigation teams, for example, have grown in both their popularity among investigators around the Union and their impact. After a very slow start in the first five years of their coming on to the statute book, they are now used much more often, but are still underused in my view. It is a terrific instrument that gives quick and easy access to establish an international investigative team.

Europol is at the heart of much of this work. We are currently supporting about 30 joint investigation teams each year on average, about 10 of which the United Kingdom is involved

10 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) in. Their scope and ambition could be expanded. We could move, for example, to targeting some of the mafia-type organisations, the semi-permanent organised crime groups that are particularly difficult to eradicate. A semi-permanent task force through the mechanism of a joint investigation team to establish a pool of common investigators, perhaps around Europol as a supporting mechanism, could be the next phase of the joint investigation teams. The funding of these teams also needs to be much better provided for within the next strategy.

The European arrest warrant is the second obvious area where I think we could iron out some wrinkles, and this has already been the subject of significant debate most recently in the European Parliament, where a new legislative proposal has been debated.

Information sharing is the third area that I would mention. I think there are still wide variances between Member States in the sharing of information. We could have a specific attempt to try to fix that.

Finally, I would mention the coherence of different instruments. There is a tendency to proliferate the number of co-operation instruments, including the number of EU agencies, for example. We need to make sure that when we do that we retain the principle of complementarity and efficiency, of course, and not duplicate tasks. The new programme could make sure, therefore, that there is clear blue water between the respective competencies of agencies and the instruments.

The Chairman: The European Parliament activity is Baroness Ludford’s own initiative report, is it? Is that what we are speaking about on the arrest warrant?

Rob Wainwright: It has been inspired most recently by Baroness Ludford, yes, but I detect a groundswell of interest in this matter and, of course, significant interest within the Member

States to try to reform some parts of that warrant.

The Chairman: You spoke quite tantalisingly about COSI becoming more effective. There were doubts about it, I think, when it was set up and there were certainly doubts expressed

11 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) by our Government whether it would be drawn into more legislative activity and not enough operational co-operation and so on. Could you just add a few words to what you have already said about COSI?

Rob Wainwright: Yes. Attending these meetings, I also recognise that COSI is sometimes afflicted by the same disease that often affects EU working groups in Brussels, which is a tendency to theorise and not identify practical outcomes. It has been established especially not as a law-making body but instead, as you say, to promote operational co-operation. The instrument of the new EU policy cycle in particular has given it a specific goal and a concrete objective, therefore, to transpose that political objective into reality. Over the first two years of the pilot cycle of this new EU policy cycle we have gone from a participation of about 90 experts in eight fields to now almost 300 experts, who come together regularly to make sure that we can design operational plans at a very practical level against the top 10 strategic threats that have been identified through that process. I am very pleased that

Europol is at the heart of that process, producing the underpinning strategic assessment that identifies those priorities and providing the mechanism by which the operational action can be co-ordinated thereafter.

Q56 Lord Anderson of Swansea: You have mentioned the variation in response of various member countries. How do we encourage the laggards? You have mentioned the joint teams. Is there a system, for example, of peer review? Is there a system of exchange of experts? How does one move from the continental theorising to the practical implementation of those who currently fall short?

Rob Wainwright: Council has established a number of evaluation systems and mechanisms on the principle of peer evaluation, which is the gentlemanly way of doing these things.

There is no effective mechanism beyond that that can somehow give teeth to that review,

12 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) and I think Member States are reluctant perhaps to sign up to that. Clearly, that would be one way of doing it in the future.

Short of that, we have to rely on natural leaders in the community, including the United

Kingdom, who for 20 years have led this part of the community. Through the positive action of the National Crime Agency as it is now, for example, we can send a strong signal to other

Member States about raising their game and making sure that they take seriously their objectives of international co-operation.

Keith Bristow: Might I add something, please, Chair?

The Chairman: Yes, please.

Keith Bristow: I absolutely agree with what Rob has said, but my primary focus is cutting crime in the UK. It seems to me that we ought to hang on to and be very clear about the intelligence and operational basis for what we are doing, so we ought to describe, in the way that Rob has described, the nature of the threat: that it does not respect any sort of geographic boundary, the horrible impact of serious and organised crime, and the need, therefore, to have a response that is commensurate with the problem but that also enables us to work across borders and to share intelligence so that our officers can work alongside each other. I should emphasise that I do not think that we can deliver the sort of operational effect that we need unless we work outside our own jurisdiction alongside law enforcement elsewhere. We have to be passionate. We have to be inspirational and focused in that message because to some extent where we have trans-national organised crime we are only as strong as the weakest link in the operational response. We ought to be very clear about that and challenging.

Lord Anderson of Swansea: That means seconding officers to work alongside their counterparts?

13 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) Keith Bristow: The joint investigation team approach works well. I think we need to do more, but that approach works well and enables us to remove people from our country or to bring people back here to justice and to be able to share intelligence within a Europol environment, so increasingly we are investing less energy in liaison officer posts in single countries within Europe and investing that resource in a multilateral institution where officers are working alongside each other and constantly talking about the effect that we must deliver, which is about cutting crime.

The Chairman: Yes. I think you have said what the motto is of this Committee, which is that Britain’s internal security neither begins nor ends at the water’s edge. That is what you were saying very eloquently.

Q57 Lord Blencathra: Gentlemen, you have touched on some of the tactical improvements that you would like to see in the next few years, but what should the main strategic priorities be in the next JHA programme for policing, security and terrorism?

Sir Hugh Orde: As I said at the very beginning, I think they are almost as stated. We are certainly seeing increased emphasis on the trafficking of human beings, which has been very much led by the NCA. I guess if there is one thing that makes me nervous still it is whether we are doing enough about the cybercrime threat. I think the answer to that is clearly no.

Huge steps forward have been made already through Europol. I had the privilege of visiting

Estonia a little while ago. There are some very interesting examples even in eastern Europe of a determination to tackle this across borders.

The next stage of that, I guess, is how quickly in the new world with the new threats we can move information through a central hub to make sure that the right agency gets it at the right time. My sense is there is more work to do in that area. We tend to be by definition almost one step behind the curve, but where in the past the more formal, slower moving processes to gain information were quite acceptable, in stuff that moves around the world in

14 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) a nanosecond we have to be far more agile. The more we can get agreement on sharing that sort of intelligence and information more quickly, perhaps through a central hub rather than as described earlier through bilateral agreements, the more the power of law enforcement is enhanced substantially.

Drugs remain on the agenda, as indeed of course—and why should it not?—does terrorism.

A number of my colleagues have raised the issue again of getting ahead of that curve and looking at the Prevent strategies in the United Kingdom and what else is being done in the shared narrative around preventing radicalisation. Could some value be added through the

EU mechanisms to look at that sort of work rather than us doing it in isolation?

Q58 The Chairman: Yes. On cyber, the Commission has put a lot of effort, which we have supported, into establishing national CERTs in every Member State. How far advanced is that now, and is that contributing effectively to the kind of network that you are talking about requiring?

Rob Wainwright: Maybe I can answer that. We are quickly developing the necessary framework, but there is so much work to do here. The participation of the private sector in this network still lags behind. That is something that maybe we can address at a later question. There is an issue here about maintaining a technological edge in the fight, developing our operational capability to investigate crime better online, making sure that we have the right investment and that we develop a different kind of police capability in this area.

Secondly, we have to solve the public policy dilemma that oversees all of this. That is about reconciling the interests of the freedoms of the internet and the need to police the awful aspects of the internet and the extent to which organised crime abuses it. There is a world of difference between policing capability in the real world and the virtual world, and yet there seems, at least in the European Union—for example, in the European Parliament—

15 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) hardly any willingness to consider the extent to which we can close that gap. Of course, the freedoms of the internet that we all enjoy are almost a sacred cow, and as the internet has grown in functionality, it has given organised crime groups, and to a certain extent terrorists, more and more opportunities, so the gap has widened between police capability and the extent to which those groups can manipulate and abuse the internet. There has not been an effective public policy response so far that is proportionate and balanced to take care of that, because of this very sensitive debate about the extent to which the police should be allowed to police the internet. Of course, the reaction to the Snowden affair has made that even more sensitive, and it is a very bad time now even to be talking about this. I think the new strategy has to address this and we have to put the expectation on law makers and policymakers to solve this, because frankly the police world is finding it harder and harder to deal with this problem.

The Chairman: This presumably all relates to the negotiation of the new personal data regulations, which are being batted to and fro between Parliament and the Council? It is in that context that that is going to come to a head?

Rob Wainwright: That is part of it, but it is even more fundamental than that, my Lord

Chairman. It is also about the extent to which the principle of anonymity that we all enjoy online allows the criminal to hide his identity, certainly to hide his activities, and of course to operate from a different jurisdiction and make more money in the virtual world than he is capable of doing in the real world, and normally to get away scot free. Maybe Keith could come in here, because the NCA’s observation of the effects of that in the UK is that they are repeated across the EU.

Keith Bristow: My locus is less about policy and more about operations. There is an uncomfortable reality to cyber. Quite often when we talk about cybercrime we are talking about specific threats that exist because of the internet. Malware development and

16 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) deployment and network intrusion are specific threats, and a strategic response is needed that has to transcend organisational and geographic boundaries to tackle that, because this is a worldwide phenomenon. The uncomfortable reality is cyber-enabled crime and the digital footprint that serious and organised criminals and terrorists use all the time.

If we talk about the digital footprint, none of the investigations that we undertake are without a digital element because that is the way in which people live their lives now. They book their flights and their hotels, they communicate, they network in a way that is digital.

That presents us with huge challenges, because of course none of that respects any jurisdictional boundary at all. In cyber-enabled crime, the really big chunk in the middle is about old crime using new ways. Exploiting children and committing fraud are, very sadly, offences that have been around for generations. They are now committed online and there is a real challenge for us in law enforcement to join up not only at a national level but internationally because some of the capabilities that we need are high end. They are sophisticated. They are expensive. We do not need to replicate them and we need to respond in the way in which the threat is delivered, which is across organisational and geographical boundaries. There is a very real strategic challenge for us around cyber and our international working is key to that.

The other point I would raise is value for money, and I do not mean that in a nebulous managerial context. There is a simple choice that we all need to make, which is to deliver maximum effect on public safety with the assets that are placed at our disposal. One of the things that we need to be clear about is that where we are investing internationally that is having the effect that we all need to see back in our particular state, so a focus on delivery and the operational effect is hugely important for us in what comes next.

Q59 Lord Dykes: Presumably the huge dilemma is trying to avoid hoovering up data, which the public find obnoxious and difficult, but getting the necessary information, as you

17 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) were saying. You also referred earlier to patchiness and so on between various Member

States. Perhaps Mr Wainwright could answer first, but briefly, can you get the public themselves to give you more information from the internet voluntarily so that you get more information like that, or are they shy of doing that generally? People are in a rush and very busy. Can you get information sharing increased so spectacularly between the National

Crime Agency bodies in each different state that you get a lot more information that makes you less worried about the points you made, Mr Wainwright?

Rob Wainwright: We are experiencing, particularly in light of Snowden, a growing sense of awareness among the public about their rights of privacy online and, frankly, a growing reluctance to continue to give their public consent to policing to access their personal data at the same time in which there is an increased business requirement on the policing sector and on the national security agencies to access that data because more and more of the crime and terrorism is moving online. You see a widening gap and that is at the heart of the dilemma that we are talking about. It is becoming harder to convince the public to work in this way. I have said before that the private sector has a particular role to play here, but the most important role is held by the National Crime Agency and its equivalents around the

European Union. To the extent to which Europol can offer a hub-like capability at the centre of that network, of course, we are trying to do so, but the real work has to be done at this level. We can help to make sure that there is a quick information exchange across borders.

Could I just add one point on this very important question about the next strategic priorities? I also think that organised crime should be recognised as a more important priority than it has been hitherto compared with terrorism and migration, for example.

What we have just been talking about illustrates the extent to which there are now greater interdependencies between fighting organised crime and other public policy objectives, whether that crime is on the internet or, to give another example, in the economy, where

18 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) we have seen organised crime in particular acting since the financial crisis in recent years in a way that is distorting the ability of Governments to respond to that crisis. It is also affecting the open marketplace, abusing the free market of the EU and increasing the number of frauds, such as the capital investment of organised crime groups into the legitimate business area. There is a lack of awareness about the need to fight crime in order to secure economic objectives. I could say the same about migration and the extent to which the Lampedusa tragedy in the Mediterranean, for example, in the end comes back to fighting the organised crime networks behind it. The first wave of the response was more about improving our search and rescue capability in the Mediterranean, but fundamentally there is a problem about the extent to which organised crime groups are becoming more powerful online, across borders, in the economy, and we need to get to grips with it in a more fundamental and horizontal way than we have done before.

Lord Judd: My question earlier was very well answered by Keith Bristow, the one my Lord came in on.

The Chairman: Okay. Viscount Eccles, please.

Q60 Viscount Eccles: How would you suggest that we deal with the fact that 28

Member States are all very well but there are a lot of other borders that can be crossed?

Your job, it seems to me, is never going to be confined to what is happening in 28 Member

States. It has to be wider than that. Lampedusa is immediately a very good example because it was not planned in a Member State, I do not think. The migration from Africa is planned somewhere else.

Rob Wainwright: Yes, it is a very good point and one that is, as you suggest, becoming ever more evident in the work that we do. To a certain extent, therefore, what we can do in the

EU will always be limited in the face of that problem. We have to make sure, none the less, that we can take advantage of the unique capabilities of the European Union as an integrated

19 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) political and economic region, at least to make sure that we have effective co-ordination within this region of the world, and then, of course, to operate an extensive external strategy with our partners. In the EU, good work has been during the Stockholm programme to develop a global migration policy and a global policy to fight child sexual abuse, placing emphasis on the western Balkans and north Africa and so on, and there has been some good transatlantic work as well. We are limited at the operational level, so to a certain extent

Europol relies on its good partnership with Interpol and with international co-operation agreements that we have now secured with about 30 non-EU partners. It is true that the effectiveness of our co-ordination and our response to the problem is very different inside the EU compared to how it is outside.

Lord Rowlands: Listening to you informing on these fundamental issues, one thing strikes me: this does not necessarily need European Union legislation to achieve these objectives.

Would you make legislation a low priority in the next Stockholm phase?

Keith Bristow: Certainly from an NCA perspective we would not advocate further legislation. Some of the building blocks to moving on our response together are about full engagement of Member States. This is about making the tools and techniques that we already have more effective, delivering real effect against criminals—criminals who are doing pretty awful things on occasions—and keeping our eye on the ball, which is about fighting crime. Much of what has been developed during recent years is yet to have full effect because of those particular challenges.

Some of the work that we can do together in third countries goes back to the earlier point that this is not just about what happens within the EU. The importance of working with source and transit countries is hugely important. Where we can target hard in the EU is in dealing with our particular challenges in working alongside each other. I do not think that

20 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) further legislation is required. It is commitment, energy and focus on cutting crime that is important.

Baroness Corston: Given what our witnesses have said about the exponential growth in the nature of cross-border crime, Mr Bristow referred earlier to joint investigation teams and suggested that perhaps that model should be developed. In what way would you like to see, if at all, the joint investigation team approach developed to deal with some of the issues you have been talking about?

Keith Bristow: My answer is quite straightforward. I would like to see us using it more. I would like to see more multilateral engagement in joint investigation teams, and I would like to see those teams absolutely aligned to the threats that we are collectively trying to tackle and to be very clear about the operational effect that we are seeking to deliver. This is about penetration and follow through, delivering effect and doing it more often because there are some very real opportunities for us when we work alongside our partners.

Baroness Corston: What are the roadblocks that are preventing that happening now?

Keith Bristow: I think some of it is about a genuine commitment to working in an intelligence-led way. Some of it is because it is different. It is innovative. It brings with it some challenges. There are some issues about funding on occasions that we need to work through, but mostly it is about culture and mindset. That is why, I am afraid, I keep coming back to this point: it is about recognition that our national security threats do not respect borders, and working together is absolutely key to taking on criminals. Those are the people we need to target, because whether their criminality manifests itself in tragic incidents with people who are being trafficked being killed or in drug trafficking that leads to drug-related death or, frankly, football match fixing, the criminals are at the bottom of it and it is the criminals who we should target and relentlessly disrupt.

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Q61 Lord Anderson of Swansea: Tackling cybercrime requires specialist officers when our tradition has been one of generalists. To what extent are we able to train our officers?

Are we able to recruit perhaps from the private sector those with a specialism in that field both ourselves and generally? Are we able to meet expertise with expertise? Do we offer sufficiently attractive terms and conditions to attract people in from the private sector if necessary?

Keith Bristow: I would very firmly agree with you, except that I think we have learnt a lot over the last couple of years. There is a need for specialist officers who absolutely understand high-end cybercrime, but the key lesson that we have learnt over the last few years is that all investigators now require a level of digital competence. We need the ability to enforce the law within an internet environment just as much as we do on the streets and in private spaces. That is because people who choose a criminal lifestyle do not undertake their lifestyle, whether it is people trafficking or drug trafficking, without use of the internet.

That is just not the way people live their lives. We need high-end specialists with real capabilities to deal with specific cybercrime, but investigators need to be competent within an internet environment.

Lord Anderson of Swansea: These are not people recruited as PCs?

Keith Bristow: Hugh will have a view on this. Increasingly across the whole of law enforcement there is a recognition that we need digital investigators. As an agency, we have trained up over 2,000 of our officers to be competent in that particular discipline. There is a challenge with capabilities and the actual technical infrastructure that is required, some of which is very sensitive, some of which is very expensive. That plays to the importance of partnership that we need to have with the private sector. We need access to their capabilities and the ability to share information for a law enforcement purpose. We have, for instance, offered through NCA Specials some—opportunities for the private sector to give

22 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) us access to their capability. Subject to vetting and them being suitable people, I can swear them in as NCA officers on a voluntary basis. Where we need them for specific high-end investigations, we can access those capabilities. That leads to a different way of thinking about how we tackle crime, and the internet is as relevant as the street in law enforcement terms.

Sir Hugh Orde: It is a mixed economy, as Keith has well described, and certainly the use of specials within an organised crime environment was something that would have been beyond our thinking a little while ago, so it does show that the service is reacting. While the service is not recruiting large numbers at the moment, given the economic situation, we are seeing an upturn in front-line recruiting. The officers joining now are better qualified and certainly far more IT literate, dare I say, than I am. I still confess to an ordinary diary. These are people who are very much of the era where they think of IT as a starting point and are therefore far more susceptible to reacting well to some training. The new College of Policing has a role in making sure that it keeps up to speed with the new threats and trains appropriately, certainly in investigator training.

By way of reassurance, a little while ago I visited the Met’s e-crime unit. I met people who were without question highly qualified and highly competent, some with considerable experience who were studying at PhD level to further their own personal understanding of the issues. I think we can be confident that there is a lot of good will, but Keith hit the nail on the head when he said that it is not the old system of generalisation. We are moving into a far more specialist world with a mixed economy.

The Chairman: We have only reached the end of the third question so far and I have two more people asking to speak on this one. Could people reflect on whether their questions could be fitted into one of the other questions further down the list, because that would be a help?

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Q62 Lord Blencathra: This is just a quick one, Lord Chairman. Sir Hugh, it is good that new officers being recruited have internet skills, but they are still joining as PCs and will have to work their way up through the ranks. When will ACPO demand of the Home Secretary that the police service be allowed to recruit specialists who will go straight in as detective inspectors or even detective superintendents in some of these specialist fields?

Sir Hugh Orde: I think it is role rather than rank that is critical here. We have some extremely highly qualified people who do that work on our behalf who do not need to have a warrant to do it or hold the office. There is currently, as you will be aware, a debate—it is now progressing—that direct entry at superintendent level will be possible within the police service subject to the law moving forward: likewise, fast-track rapid acceleration.

All that having been said and without sounding defensive, the value of giving officers a grounding in front-line neighbourhood policing work gives them a clear understanding of what the victims are experiencing as they move up through the ranks to take on these more demanding jobs. But the skills that we need in the IT world do not necessarily require the warrant or the office of constable to carry out on our behalf.

Keith Bristow: We should not forget the key partnership that exists between the NCA and policing. We are not a police force. We are recruiting a director of cyber at the moment who will come in as the equivalent of a deputy chief constable as direct entry, possibly— there will be some colleagues from law enforcement—because we do not meet the breadth of challenges that a police force needs to meet. We work very hard at bringing the right people from wherever they may come into the right level in the organisation to provide capability to support the police and wider law enforcement.

Q63 Lord Tomlinson: We heard earlier from you, Sir Hugh, about the question of added value. We have heard, particularly from Mr Wainwright, about the whole question of information sharing. We have had quite a lot of discussion in very general terms and now I

24 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) want to be more specific. I would like to know what value the EU might add in tackling serious and organised crime and whether you support a framework to facilitate technical- security dialogue on common threats between the EU security actors, the EU agencies, third countries, possibly even the private sector. Does the EU have a role in trying to produce the framework for such a dialogue, and, if so, what should that role be?

Rob Wainwright: I think it is axiomatic that if we are establishing as a fundamental point of principle that fighting crime these days is more global, the response has to become more international as well. Therefore by its very nature one would expect the EU to have an important role in this area. In two particular areas it is making a decent fist of it. In the policy area, the elaboration of the new EU policy cycle and the supporting architecture, COSI, it is certainly working. At the operational level, mechanisms, including Europol, are beginning to deliver more value for money than perhaps has been the case in the past, although I am biased and you should instead take more reliable testimony from others on that point.

I think you make a good point about technical security, because it is becoming a more complicated environment with a proliferation of actors. It is also an industry, as we have said before, outside the EU, as Viscount Eccles mentioned. I think there is a possibility here for us to have a dialogue and to bring some sense therefore to these myriad different relationships. How we will do that I am not sure, but we should certainly start with a proper evaluation of third-country co-operation mechanisms which the EU is currently pursuing.

Lord Tomlinson: I am just going to ask the other two whether you absolutely agree with

Mr Wainwright.

Sir Hugh Orde: The short answer is yes. It is self-evident that the EU has a role. From where I sit and the people I represent, does it deliver the tools we need to deliver and keep people safe in this country through mechanisms that go outside our shores? The answer to that is yes. I would also agree that more work on EAWs, certainly around the

25 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) proportionality issue, would give us more practical assistance. Joint investigation teams are certainly growing in value.

One of the challenges we have to ask ourselves about in this country is whether we are fit for purpose to respond to the information coming into the country that we can then act on.

I have to say that we are still operating with a 20th-century structure of policing to deal with

21st-century threats. The last fundamental review of policing was in 1952, which is before colour television, never mind the internet. At the risk of sounding like a broken record, I do think there is an obligation on this country to look at that and to make sure we are as fit for purpose as we can be to act with the national agencies and the international agencies that give us the support and information on which we should be operating more effectively.

Lord Tomlinson: So that technical dialogue might teach you something as well.

Sir Hugh Orde: It is a two-way process, of course.

Q64 The Chairman: I do not notice any anxiety expressed on the part of all three of you about the point which the Government have made to us, which is that they are very worried that the new proposal for a Europol regulation might lead somehow to Mr

Wainwright directing British police officers on how they should conduct their inquiries. Is this a real problem, or is it just a problem over wording? I would quite like to have your take on that.

Keith Bristow: The contribution I was going to make in response to the earlier question was that I absolutely operationally draw the line at direction and control. I firmly believe that as a national agency it is right that I account to the Home Secretary and through the Home

Secretary to Parliament. Our interests converge where we have shared threats that go across borders and shared responses and solutions. Collaboration and partnership are how we should be working with real energy and enthusiasm, not through direction and control, because that would certainly not be in our interests and in the interests of UK citizens.

26 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) The only further point I would make, if I may, is that we should not underestimate the energy required to develop bilateral solutions without the benefit of having the frameworks to enable us to work alongside each other in a very positive and collaborative way. Bilateral working is very hard work. It is often worth it but it is hard work.

The Chairman: Mr Wainwright, you had something on this one. I have a feeling that a certain amount of misunderstanding has crept into this discussion.

Rob Wainwright: Yes. I do have an interest in the subject. In simple terms I can confirm that

Europol does not seek direction or control. Absolutely not. The whole ethos of our agency is very different. It is founded on the basis that we provide support. We do not direct and control. I think therefore that there has been to a certain extent a misinterpretation of the text proposed by the European Commission, to be fair not just by the United Kingdom but by other Member States as well. As the process of negotiation continues, I witness real attempts to change the articles in question to such an extent that I am confident that they will become finally acceptable to the United Kingdom. I certainly hope so, because as I have said in evidence to you in the past, there is a lot at stake here.

Sir Hugh Orde: We would support that. As Keith identifies, collaboration and partnership are certainly the way we would see it moving forward. Of course each chief constable is operationally independent in law, so it could create a difficulty that I do not think any of us needs. There is a certain irony, of course, that the director of the National Crime Agency can direct in extremis, but I think we jointly agree that that would not be what success looks like, and the willingness to co-operate and act collegially to deal with the most serious threats is there with every chief constable I have the privilege to represent. I would be very surprised if that ever had to be used.

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Q65 Lord Morris of Handsworth: It goes without saying that prevention is the starting point from whatever agency you are representing this morning. That said, is there a case for enhanced policy coherence in the area of cybersecurity?

Rob Wainwright: I think that has been reflected already. It is an increasingly complex environment. There have already been attempts in the EU to bring some coherence. A

European cybercrime strategy has been established by the Commission that includes a specific priority to establish a coherent international cyberspace policy for the EU. Again the question is about effective implementation, including transposition into the national arena, but at least we have made a pretty good head start.

One of the particular issues here is about getting the defined roles and policy boundaries right. People often confuse the terms “cybercrime” and “cybersecurity” for example. We have to make sure therefore that we are very clear about where the EU’s competence starts and finishes in this respect.

When I recently gave evidence to the European Parliament on its inquiry into the allegations concerning Snowden and the NSA, I attracted a significant amount of hostile questioning around why I was not already investigating at Europol these allegations that GCHQ and NSA were tapping into financial institutions in Belgium and other countries. That is an example of parliamentarians asking serious questions about whether or not Europol should have a competence also in the field of cybersecurity. We do not, and that was my answer. But I think the debate is already alive and we have to make sure therefore that we draw those boundaries in the right place.

Q66 Lord Faulkner of Worcester: My question follows on from what Mr Wainwright has just said. I want to ask you about the effectiveness of Europol, and it is probably Mr

Wainwright who is best able to answer this one. Should the next programme recommend a

28 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) review of how effective Europol is? If I could add as a supplementary to that, would Europol be more effective if it received more support from member Governments?

Rob Wainwright: The answer to the second question is certainly yes, in the sense that we still are in this dialogue with Member States about making sure there is optimum use of

Europol’s capabilities, in the end principally to serve the interests of those Member States, not Europol itself.

As for a review, I think we are rather review weary. We last had a major review according to a specific requirement in our legislation in 2012, and we are in effect going through another review of our competencies and effectiveness right now in the elaboration of the new Europol regulation, so to a certain extent we are looking forward to a period of regulatory calm over the next five years, even if, as I recognise, the landscape is changing very quickly and we should certainly be alive to every opportunity to improve the effectiveness of the organisation. I think we are working well, but we have our imperfections—of course we do—and we remain open therefore to any attempts to improve the effectiveness of the organisation.

Lord Faulkner of Worcester: What are your imperfections and what could you do better?

Rob Wainwright: We have reached the point where we are attracting more casework and information that we can reasonably deal with, and that has exposed certain internal inefficiencies in the way in which we organise our work. The last year especially has led to a major internal programme to try to reduce bureaucracy: administrative overhead. I have reduced the number of managers that we had by 20% to increase our ability to manage information flows, to produce outcomes, and to make sure that we remain singularly focused on providing support of an operational value to our partners rather than chasing

29 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) pipedreams in other directions. I think that our inefficiencies are no different perhaps from some other agencies, but at least we recognise that of course we can always improve.

The Chairman: In the NCA’s view from outside Europol, although it is an agency with which you co-operate a great deal, do you feel that any form of overall evaluation is necessary at this stage, or do you rather share the view of the director?

Keith Bristow: I do not think a review would be helpful. There have been plenty of reviews.

I rather subscribe to the idea that we should learn as we go. A comprehensive review every so often is very helpful, but let us implement and learn as we move on.

In terms of supporting Rob and Europol in what they are trying to do, a little bit like the

NCA in our domestic duties, the power of the response that the NCA can deliver is absolutely about the power of the partnership. It is less about an agency and more about how law enforcement and policing work together.

I would say we have a duty, and not just as the bodies that are similar to us, to support

Europol by sharing intelligence, by being willing for that to be shared where it is appropriate with Member States, and by engaging properly in undertaking investigations. That is absolutely what is required. If improvements are needed, they are improvements in the whole system, not improvements that fall to a particular part of that system.

Q67 Lord Rowlands: Mr Wainwright has already alluded a couple of times to the relationship between the public and private sector, especially as in some cases the private sector is now taking on some of the responsibilities that once belonged to the state. What sorts of issues does that raise in security terms and how far can it go?

Rob Wainwright: With particular regard to cybercrime, from my side we have a challenge to ensure the most effective arrangements for the private sector in three areas. As a source of information I think some of the work and some of the knowledge that is held in the private sector about criminal threats, especially online, is unique and we can do a better job

30 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) of tapping into it. As a response to the threats as well, where we have these legislative deficiencies, particularly online, we rely increasingly on Microsoft and other providers to do something about it at the front end. Only last week Europol participated in a joint operation with Microsoft to take down a major botnet that had infected two million computers.

In terms of R&D work, the police are being helped to develop new capabilities—to investigate the darknet for example—and to develop an awareness within the private sector that it should be careful about developing the next stream of technological capability so that it does not give yet another golden opportunity to organised crime. I do not see a sufficient understanding and commitment in the private sector about that where the bottom line is a commercial one—the rather moral and ethical debate about whether or not they should invest more in in-built security work to make sure that they mitigate the effects of the latest technology that has been developed.

Keith Bristow: Could I emphasise two important factors? There is a push factor and a pull factor for our work with the private sector. An example of push would be: frankly, there is no choice. If we want to block access to child-abuse images online, very much in the way that Microsoft and Google have done with us recently, we must work with the private sector if we want to stop horrible abusive images being shared. There is no choice.

There is also a pull. Frankly I do not subscribe to the view that some of the worst excesses of the private sector represent the majority, because of course the private sector is full of citizens who also care about their families, their neighbours and the place they live in. My experience has been that the vast majority of people, if treated with some respect and without the assumption that they have no role to play, with a focus on the unique skills, expertise and information that they can bring, want to work with law enforcement and policing to keep the public safe. The risks are predominantly around information security both ways—because the private sector is carrying risks in sharing information with us that

31 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) we all understand—and security and culture. Most of that is manageable if people focus on cutting crime and protecting the public and our shared interests.

Lord Rowlands: So you can devise a clear line that you should not cross between the two.

Keith Bristow: Absolutely. My view is that there are very good reasons for doing that, but frankly we must do it because not doing it will expose the public to risk, whether it is child- abuse images or pension-liberation fraud or whatever. We need to work with the private sector in a different way and redraw some of the boundaries of where the responsibilities sit for keeping the public safe.

Lord Rowlands: Would that require legislation, or can you do that by agreement?

Keith Bristow: I think there are plenty of opportunities to do that now with proper information-sharing agreements. Certainly from an NCA point of view we have the legislation to swear in private citizens as NCA specials, and we have people queuing up outside the door who want to do that. It is more about culture and assumptions about each other. We should focus on where our interests collide, and they collide around public safety.

Of course the private sector needs us to protect its interests as well. Wealth creation is not a bad thing. We need that for our economy. We have a responsibility to ensure that law enforcement contributes to creating a good environment for business to prosper in the UK.

Rob Wainwright: I think the environment is less liberal at the international level within the

EU. To give a specific example, Europol does not have the legislative capability to receive information directly from the private sector: it must be channelled through the national units. In an open cyberspace, that is becoming increasingly a suboptimal way of doing business, and we hope that we can change that in the next regulation, but even that is being met with some resistance from Governments. It is an example of where we need to modernise the framework of our capability, including our participation and engagement with the private sector.

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Q68 Baroness Eccles of Moulton: On the question of criminal records, is there a problem in the exchange of these records between Member States? Is a higher level of co- operation needed or even legislation? Also, is there any implication for data protection over criminal records being exchanged between Member States?

Sir Hugh Orde: I can certainly start on that one. In terms of where we are, from the UK perspective I think we would say that the exchange of criminal conviction records has improved massively over the last few years, and certainly since 2006 when the UK central authority was established, led by ACPO members and now based in Hampshire. Since my time in this position, the last four years, we have seen the use of that capacity increase exponentially and our colleagues in the United Kingdom are now benefitting very much from that. Of course we are slightly different in the sense that the police own information here. In most states, if I remember rightly, it is a judicial product, but that is still not a huge issue.

Some of the issues my colleagues have raised are around the amount of information they can retrieve quickly. While one can arrest someone and find they have a conviction for rape in another country, finding out more detail—for example the age of the victims, the sex of the victims—is difficult because different people hold information differently. So there may be some value in looking forward and asking whether there is a minimum standard that would aid investigation as well as the simple conviction data. But broadly I think it is one of the success stories, which is why organising and working with Europe is a very positive thing.

The Chairman: So presumably it is of great importance that the Government succeed in their objective of reinserting themselves into the ECRIS system, which is one of the 35 instruments that they have identified, because that has, I imagine, underpinned the improvement you are talking about.

Sir Hugh Orde: We would broadly agree with all 35 which the Government have proposed.

We had a list that was slightly smaller but not exactly determinate. I think it is important that

33 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) we opt back into all of those, but in particular the ones that give you not only the infrastructure but the authority. By going through Europol, for example, we get that stuff far more quickly. I cannot imagine how one would work without the overarching structures of

Europe as well as the precise bits that make it work.

Q69 Baroness Benjamin: I was interested to hear you mention in your introduction child-sex exploitation and human trafficking, which are a grave cause for concern for all of us in society. To combat what I feel to be a quite immoral and appalling practice, should there be further EU action to tackle human trafficking? If so, perhaps you can tell us where you feel the gaps are and what actions are to be taken to close those gaps.

Keith Bristow: You are right to say that human trafficking and child exploitation are if not the most then some of the most horrible threats that we need to tackle. They absolutely require institutions to join up and work collaboratively and share information effectively, including with the private sector on occasions. I made some points earlier about the importance of that. We absolutely need to improve our response to human trafficking and how it manifests back in the UK in forms of slavery. This area has not been subject to the sort of joined-up law enforcement response that we would want to see. The core role of our agency is pursuing criminals. We need to pursue more of those criminals, to bring more of them to justice and to see them going to prison for a very long time and having their assets taken off them, because this is a criminal trade in human beings. I frankly do not know what could be more despicable than that.

Although there is domestic trafficking and enslavement of people, the vast majority are trafficked from source and transit countries, travel internationally and arrive in the UK, whether on a false premise of promises of a better life or whether by choice to come here with an expectation that things will be different. What happens when people arrive, though, is horrible. To tackle it we need to go after the criminals. To go after the criminals we need

34 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) to work internationally. These people are not only servicing the UK, they are servicing other nations, so Europol, joint investigation teams, and the ability to bring people to justice internationally are all important. It is about working with those instruments with a clear focus on the threat. We currently lead the programme of work to tackle human trafficking that flows out of the threat assessment and which sits under Europol. That is something that we are very committed to. We will be driving for more joined-up action, more intelligence- sharing and more criminals getting locked up.

The Chairman: Could I just follow up on that? Are you satisfied with the way in which the other Member States are transposing the recently adopted legislation on human trafficking and are implementing it? Perhaps Mr Wainwright could also respond to that point. This new legislation went on the statute book I think two years ago, but often there is a delay in transposing that and even greater delay in doing something about it. In your eyes, how is the performance of other Member States, as well as that of the UK, in that?

Keith Bristow: Variable. With a hidden threat, inevitably and very sadly one sometimes needs a signal event that mobilises resources to focus on a particular challenge, and we have had some in the UK that have caused us to reflect on our response. One would never wish for those things to happen, but those are the sorts of events that focus a nation state around what it needs to do to tackle this horrible threat. I personally think that implementation and penetration are patchy in places.

Rob Wainwright: I would agree, and that has been the problem. We have been active for 10 years at Europol in trying to promote the kind of operational response that is necessary and have relied on the good will of probably no more than five or six Member States during that time. One of them certainly has been the UK and today the UK is our most important partner in the work that we do, but unfortunately it is still not seen as a top-line operational priority in every Member State. The Commission tried to do something about that last year

35 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) with the new EU strategy to tackle trafficking in human beings, establishing the new EU anti- trafficking co-ordinator for example. That is fine and the policy here has a good balance between prevention, victim support and prosecution, but I would like to see it emphasised a bit more. As Keith was saying, in the end we need to tackle this as an operational criminal problem. I still see not enough evidence that it is being taken seriously across the board in every Member State, which is surprising because labour exploitation and sexual exploitation are a universal problem. This certainly has to be a feature of the next programme. I pay tribute to the British response operationally and to the current Government’s emphasis on fighting modern slavery.

The Chairman: So what you are really saying is that the need in this human traffic area is not more EU legislation but more effective implementation of the legislation that exists, though not for all that long a time.

Rob Wainwright: I think so. Yes.

Lord Blencathra: Perhaps the language we have been using in this is not helpful. Mr

Wainwright and others have been talking about human trafficking throughout. We have been talking about human trafficking in the UK for years. It is only when politicians started using the word slavery in the last few weeks that it has shot up the agenda and Mr Wainwright ended by talking about modern slavery. I am off at a tangent here, but surely if we start using blunt and brutal language, we may get more traction in Europe.

Rob Wainwright: That is a very good point.

Keith Bristow: May I also add—I am not being a cheerleader here but it needs to be said— that the leadership that has been shown by the Home Secretary and others is not just about the language. There has been a very clear expectation that we as an agency and others working with the police are going to take on these criminals who ply this horrible trade.

Some of this speaks to understanding that serious and organised crime criminals are

36 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) increasingly sophisticated. They make clever judgments between risk and profit. They are entrepreneurial and they are cunning, and whether they are destroying an individual’s life by turning them into a prostitute or stealing someone’s pension or trafficking drugs, they simply do not care. We have to focus on the criminals and take them on and treat them for what they are, which is despicable, and bring them to justice.

Q70 Lord Judd: It seems to me that the internationalisation of crime, as you have been constantly stressing, and the need for the international response are complicated by the issue that what is legitimate international activity and what is criminal activity does not have an absolute dividing line. People can slither from one position into another. You say that one of the problems in trafficking is that some countries do not take it seriously enough and you would like to see that addressed. Are there any sinister forces at work here that we should bring into the open and recognise, or is it just a matter of advocacy and political exchange with leaders in other countries to try to bring them on board?

Rob Wainwright: I think one of the important shifts in the nature of the problem in the last few years has been increasingly that the victims are from within the European Union—of course not exclusively; there are still some from other parts of the world. Romanians,

Bulgarians and so on increasingly are the victims of not just sex trafficking but labour exploitation. Here, to echo Keith’s point, criminals have very purposefully identified an opportunity to exploit the freedom of movement and the open labour market in the

European Union, but not of course observing minimum wage levels and normal working conditions. They are doing that increasingly in labour sectors in a way that is exacerbating the problem. So I think there is a wider problem in the extent to which the nature of our integrated economy is being exploited by the criminals. That is yet another example of how they are doing that.

37 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) Baroness Benjamin: I would just like to ask you about one other point. Yesterday I was talking to some young people who had been sexually exploited, and one of the things they said was that they wished that the police would not give them the label of “child prostitute” because they find that quite offensive. They are the victims but yet they have a label, “child prostitute”. I nearly used the word just now. I am just wondering whether you could give some consideration to the point that when you find a child involved in sexual exploitation, you do not label them as a prostitute.

Keith Bristow: I think the context within which I was using the phrase “prostitute” was not necessarily about children or adults. It was that some women in particular are trafficked and then are forced to have sex where a payment does not necessarily go to them, it goes to someone else. By definition that is prostitution. Certainly Child Exploitation and Online

Protection Command, which is part of the NCA, absolutely would not when referring to children in those circumstances use the language “child prostitutes”. They are victims of child abuse or they are exploited people, and that is the language that we use. So if we or others have got that wrong, it would be helpful perhaps outside the meeting to know where we have got that wrong so I can ensure that it is put right.

Q71 Lord Judd: If we could come on to a rather different subject, Europol has argued that preventing and countering political and religious radicalisation requires a more comprehensive and multi-actor response. Should this be undertaken at an EU level? What might this look like?

Rob Wainwright: The EU is now working to an agenda around countering radicalisation, including through the new radicalisation awareness network that was launched in 2011. This is one of the areas of the counterterrorist domain that perhaps the EU can more safely tread in promoting good co-operation, because we are talking about education and legislative action, to make sure that there is a consistent banning of the incitement of violence, for

38 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) example, across the 28 Member States, and worthwhile approaches in developing messages in prisons and so on. I think the EU is making strides in this area. The one area that could benefit from further work again brings us back to the internet and the extent to which we should tackle the problem of radicalisation in particular on the internet. We have a limited response in Europol in monitoring extremist websites for example, but this is one area where perhaps we could do more within the EU.

The Chairman: Yes, I think when we looked at this in the context of the internal security strategy, which we wrote a report on about two or three years ago, we were sceptical about how far you could go at an EU level in this radicalisation area, because so much of it was really not even at national but at regional and community level and so much of it differed from country to country as to what the best prescriptions were likely to be. If I understood your response rightly, you see this more as an exchange of best practice and experience but not one in which the EU should try to define radicalisation in a Europe-wide sense and so on.

Rob Wainwright: That is right. Yes.

Lord Judd: Could I just follow up the question with this question for your thoughts? It seems to me that in this area there is not just a need for collaboration between security services and the police. There is also a tremendous need for joined-up government, sometimes within the same ministry that has responsibilities in both areas. If I may put it very bluntly, if your immigration policy is being administered insensitively and aggravating the issue, this may be a very big part of radicalising young people. Why is this not recognised?

Are there opportunities for the police to bring this point home and to discuss it with people who are responsible for the spheres of policy?

Sir Hugh Orde: I was just about to intervene, if I may. Certainly from speaking to senior chief officers from the large conurbations in this country I know there will be support for

39 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) this. I am not sure how we do it. It is hugely complicated, but I do not think that is a reason for not having a go. I was describing it to one of my chief officer colleagues this morning. The best practice issues are of great value, but is it right that currently to prevent a radical speaker speaking in a volatile area within a major city conurbation we are expecting police officers to persuade the owner of the property not to let it out to stop it happening? That does not sound very sensible to me, or to the chief officer involved. There must be more we can do. How you define radicalisation across the EU is, I think, a hugely difficult piece of work to look at. But certainly looking at it cross-sector, education would be critical. It is something that we would support and be happy to contribute to if it was helpful.

The Chairman: I suppose one of the pan-EU aspects that one could see coming down the track, not that far away, is the fall-out from what is going on in Syria and the radicalisation of various Muslims—and others, but mainly Muslims—from different Member States. If they do become radicalised and become terrorists, they are not going to respect national boundaries at all. Is that now on the radar screen in Brussels and in The Hague?

Rob Wainwright: I think it is because at a ministerial level we had a specific discussion in

Council about the problem of so-called foreign fighters and again how the internet allows young men, and women, to be radicalised in that way. So the response is as much about trying to control the message, or at least to have some of our own messages put out, as anything else. It is difficult to do that in the open space of cyberspace, of course, but I think more is required within the EU but at a national level as well and in the communities perhaps most of all. We have to rely on community leaders to make sure that we can manage the effects of a poisonous message that is transmitted, across the internet very often, by those responsible for this.

Q72 Lord Wasserman: I have one question while there is no one else in the room other than us. I want to ask you about the information system architecture. I am told—and I

40 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) know very little about this—that Europol recommended modernising the intelligence-sharing structure and information architecture and yet you said earlier, when you began, that the architecture part has already been done and that we do not need more work on it. I wonder whether you think this new programme should have anything about architecture in it or whether really that has been done.

Rob Wainwright: Data sharing is the oil in the engine that in the end will make this work to fight organised crime better at an international level. We often stress the need for more effective information exchange. There has been an incremental rise in the number of systems of course. They are used in an uneven way. They are certainly not very well integrated. It is complicated by general concerns about data security and data protection. I think we need to clarify what kind of modern information-sharing architecture.

The success we have had at Europol operates around the idea of a hub approach where you can have a trusted centre for the exchange of information. Where we have high levels of data privacy and data security we can operate a secure and effective environment for the exchange of that information, and I think we can do more to build a hub in that way. That is not to say that we should centralise this work, because I still think that the decentralised approach of operating through national systems is in the end the most important element in this. But of course with modern technology one can still have remote access to those decentralised systems facilitated by a hub-type approach. I think the two are mutually compatible and at the heart of Europol’s work is information sharing. We are calling, therefore, for the ability in our future legislation to have a modern environment for the more effective exchange of information in that way.

Lord Wasserman: Two more points. Do you want us to recommend that more work should be done on this? That is one of the questions.

41 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) In the other question, I am just going to ask for information. Does this work in the way the

Americans do: when you ask a question from the centre you are directed to the states where the information is held? If you ask a question about a criminal record in America, it is not all held in the centre and the FBI sends you to the state where that person’s record was held. Is that how you are going to work it, or do you want to hold it all yourselves?

Rob Wainwright: I think it is a bit more hands on than that in the sense that we will receive an information feed from a live investigation and we will find a hit in our database, as we increasingly do, and rather than just send the investigator on to ring this number in Romania, we will do that for him or her and we will provide the follow-up operational support mechanism to develop that intelligence hit into a full-blown operation. The power of data in this environment is so important and if we can leverage the power of those data through an effective hub and spoke approach, that has the potential to transform our ability to fight these new transnational effects of crime.

Lord Wasserman: So you would like to see in the programme a paragraph about more work to be done on this?

Rob Wainwright: I would like to see the programme recognise the importance of information sharing and the opportunities that we have with instruments like Europol to develop more systematic and co-ordinated ways of dealing with data while still according to high levels of privacy and security. We have the instrument there at the moment. We have a proliferation of systems that are not connected to that. We just need to bring some sense to the process.

The Chairman: Presumably a huge amount depends on whether the actors, the enforcement agencies and so on all round Europe are proactively using these systems that exist or whether they are still holding back, as it was no doubt in previous times very much their instinct to do. I suppose within many Member States, perhaps in this one too, there

42 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) was the belief that intelligence and knowledge were power and you wanted to hoard it, not spread it. But what you are trying to do seems to me to require people to spread it, because that is the way you pick up on the links between the various things. To what extent is that culture—perhaps Mr Bristow and Sir Hugh would also answer—now shifting to one in which the ordinary operative in a law enforcement agency really understands and sympathises with the way in which these exchanges of information can increase their effectiveness?

Keith Bristow: You are absolutely right to alight on the cultural issue, because some of this is not about systems or policies or legislation but about culture. Perhaps to reassure you, one of our intelligence principles for the NCA is need to share, not need to know. There is an absolute need. Some of what we have learnt is through the work that has been done by

Greater Manchester Police in the awful circumstances that they experienced: the assassination of two police officers and some members of the public. There has been a lot of work on how we can put data sets together to gain a real understanding of what is happening within communities and particularly what criminals are doing.

We are absolutely clear that we need to share our information. We can be careful about security—it needs to be legitimate and it needs to be lawful—but we have to work hard at sharing. That is a big cultural challenge.

Sir Hugh Orde: I think the culture is changing. It is a slow process. In my last command I was accused of having a force within a force in Northern Ireland—Special Branch—which we changed by changing the whole structure and bringing all the intentions into one part rather than having it in two separate places. So there is some mechanical stuff as well as some cultural stuff, but I do think it is moving in the right direction. The learning from some of the cases—the one Keith identified, for example—focuses the mind on moving that forward. But

I am positive about it. I think it is getting a lot better and the NCA is a force for good in that

43 of 485 Association of Chief Police Officers, Europol and National Crime Agency—Oral evidence (QQ52-72) regard. It is a new organisation with a new approach that has been very well received by the rest of the service.

The Chairman: Thank you all three very much for being so generous with your time and being so open and frank and helpful in your responses. It will really help our inquiry a good deal and I hope that when we do produce our report in March or so, you will think it is a small modest help to you too, because clearly Parliament and law enforcement professionals need not only to talk to each other but to realise that they are all on the same side. Thank you very much indeed.

Keith Bristow: Thank you.

Sir Hugh Orde: Thank you.

Rob Wainwright: Thank you

Baroness Benjamin: Have a nice Christmas.

44 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28)

Evidence Session No. 2 Heard in Public Questions 15 - 28

WEDNESDAY 27 NOVEMBER 2013

Members present

Lord Hannay of Chiswick (Chairman) Viscount Bridgeman Lord Faulkner of Worcester Lord Hodgson of Astley Abbotts Lord Judd Lord Morris of Handsworth Baroness Prashar Lord Rowlands Lord Sharkey Earl of Stair Lord Wasserman ______

Examination of Witnesses

Mike Kennedy, Sarah Garvey, Law Society of England and Wales, and Professor Estella Baker, Leicester De Montfort Law School

Q15 The Chairman: Thank you very much for coming along. I should remind you that this evidence session is public and is being broadcast. A note is being taken and a copy of the transcript will be sent to you to give you the opportunity to make minor corrections to it, although in fact it will be published online in an uncorrected form before that. The purpose of this session, which I am sure you know because you have responded to our call for evidence, is to go over the ground that we wish to cover in our current inquiry. It is about the future justice and home affairs programme of the EU, the one that is likely to emerge during the course of 2014 and probably to be agreed by the European Council in December

2014. It is likely to be called the Rome Programme, following the Stockholm, Hague and

Tampere programmes. What we trying to do is amass as much evidence as we can about

45 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) what people like yourselves, in civil society and institutions that are interested in this area, think about what should go in before we give any thoughts on the subject ourselves. With that, I would ask you very kindly to introduce yourselves. If any of you wished to make an opening statement, that is entirely acceptable to the Committee, but if you wish to go straight to the questions, that is equally acceptable.

Professor Estella Baker: I am Estella Baker, Professor of European Criminal Law and Justice at De Montfort University in Leicester and a member of the European Commission’s expert group on EU criminal policy.

Sarah Garvey: My name is Sarah Garvey, and I work at Allen & Overy, an international law firm in London. I am a member of the Law Society’s EU Committee, and perhaps just by way of clarification and possibly disclaimer, I focus on private international law and I am an expert in the area. On an almost daily basis, I advise clients on issues such as governing law, jurisdiction clauses, arbitration and immunity. What I do not specialise in is criminal law, so I would defer on that to others on the panel. As a result of the work I do, I spend a lot of time reviewing EU instruments—Rome I, Rome II, the Brussels Regulation—advising not just

UK-based but international clients who might be thinking of choosing English law in their contracts or of choosing the English courts as their dispute resolution mechanism or London arbitration. I advise clients worldwide on these issues, and obviously the EU instruments are hugely important as part of that conflicts of law analysis.

The Chairman: Thank you very much. That brings out the fact that not all three of you will be commenting on all the questions. Obviously we would like those with particular expertise to reply, so please do not feel under any pressure to respond, in your case, to criminal law questions.

Mike Kennedy: I am Mike Kennedy. I was a member of the Crown Prosecution Service for many years, but in 2001 I went to work in Europe as the UK’s national representative at

46 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) Eurojust. I served as the president of Eurojust from 2002 until 2007, when I came back to work for the Crown Prosecution Service as its Chief Operating Officer until last year, 2012, when I left.

Q16 The Chairman: Thank you. Shall we go straight on to the questions? Can you say whether you think there are any lessons from the Stockholm Programme, the one that is running now, for the design of the next programme? For example, have the road maps for particular areas that are in the Stockholm Programme been useful? Has the programme been the right approach, in your view? If not, where do you think it has gone wrong, either in its conception or in its implementation?

Mike Kennedy: Estella would like to make a preliminary point. We spoke about this earlier.

Professor Estella Baker: One thing that you can say about the Stockholm Programme as compared with its predecessors is that it is extraordinarily long and complicated. That is not necessarily desirable, and something a little more succinct and punchy might be better. What

I would say about all of these programmes, and it is a problem in general, is that it is not entirely clear what the area of freedom, security and justice actually is and therefore what it is that these things are supposed to be constructing. There is a lot of ambiguity about it which makes it potentially quite difficult to draw up a programme. The analogy at the beginning was supposed to have been with the single market, where I think the goal of the exercise was much more straightforward. If you ask people, they have different conceptions of what this whole enterprise is supposed to be for. If that has not been settled, it is difficult to draw up a programme for getting there, leaving aside the fact that it is going to be contentious anyway. It is a huge problem.

The Chairman: Could I interrupt you and ask, because I think that it is rather germane, whether you think that the lack of clarity about the end object is still as unclear now that the

Lisbon Treaty has entered into force. Of course, that was the difference. The Stockholm

47 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) Programme was adopted before the Lisbon Treaty entered into force. There was no Lisbon

Treaty on which to base it. Could you comment on that because I think that it would help the Committee?

Professor Estella Baker: Actually, that is not exactly right. The Treaty entered into force within days of the programme being agreed; the two events were virtually simultaneous.

However, it is instructive to look back at the Hague Programme in this respect because that programme was premised on the entry into force of the Constitutional Treaty. If you read through it, you see in lots of places words to the effect that, “We cannot do this now, but when the Constitutional Treaty enters into force, we will be able to.” I was saying outside, before this hearing started, that I have never come across an official document anywhere which says, “We wanted to do so and so, but the Constitutional Treaty fell apart and therefore we had to abandon the idea.” What seems to make the difference, or has done up to now, is the necessary political will, rather than transparent legal competence.

But in the eyes of some people, although not everybody, there is some confusion between the competences in the Treaty which provide the legal basis for action and these programmes which give a political mandate for doing various things. I think that some people sometimes treat the programmes as if they were legal competence documents, and they do not understand the difference. That is not necessarily an argument against having the programmes, but I do not think that the Lisbon Treaty per se, by providing a firmer legal footing for Union action, gets rid of the ambiguity about what the end goal is supposed to be. You can see the area of freedom, security and justice as basically a policy field, and in a sense that goes along with the programmes we have had so far. However, looked at through different eyes, it is an infrastructure and constitutional project, which puts a different complexion on the whole thing and on what kind of things should be there. The two conceptions are not always disentangled.

48 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) The Chairman: Thank you. That is very helpful. Are there any other comments from the panel on the first question?

Mike Kennedy: From a practical perspective, I agree entirely with Estella that the documents from Tampere, when there was a minimal amount of material produced, through to the Hague Programme and the Stockholm documentation, it has become far more lengthy, far more complex and actually very difficult to follow. That said, I think if you are going to be working in this area, it is always good to have some sort of business plan in order to set objectives about what you desire to do in a certain period of time. It tends to focus minds, and that helps a lot of people. Also, it gives some authority to the work that is being done, particularly if it has been agreed by all the Member States and under the new arrangements with the European Parliament as well.

However, so much has been covered, particularly by the Stockholm Programme, that it would be sensible to have a real evaluation not just of the programmes that have gone through—the Stockholm Programme is now coming to the end of its time—but perhaps halfway through or on an annual basis of any new programme that is agreed. One of the easy things to do is to agree a list of objectives and things that ought to be done. But then you come to implementing it and checking on the implementation within national legislation across the 28 Member States, and checking the effectiveness of that implementation and how the measures are working in practice. For example, it would be interesting to know how the implementation of the supervision order which was introduced at the end of last year is going in Member States both in terms of the legislation and in terms of practice.

The Chairman: That point about the evaluation has been made by previous witnesses and it is certainly one that we will want to look at.

Sarah Garvey: Very briefly, like a corporate having a strategy, the Law Society thought it was helpful to have goals in order to help prioritise issues in the broadest sense, but care

49 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) needs to be taken regarding the text because tiny references can be picked up by the

Commission and huge workstreams then developed. I think that the contract law initiative might be an example of that.

Professor Estella Baker: Can I just add something to your specific question about the road maps? I think that they have been quite helpful in terms of breaking things down into bite- sized chunks. That has been a lot more successful, albeit that some of the politics have changed which has helped in terms of getting procedural rights instruments actually adopted.

We are now in the process of implementing the first few. It has worked better than trying to chew the whole lot all at once and running into a lot of opposition. It is not a bad approach.

Sarah Garvey: And the Law Society supports that road map on minimal criminal protections.

Q17 Lord Rowlands: The Government’s response to the call for evidence states that their view is that the guidance should not repeat the format of the Stockholm Programme with its detailed list of proposed measures. As a point of clarification, do all three of you agree with that?

Professor Estella Baker: This comes back to what I said earlier about trying to work out what this is for. You can either see it as a policy field, in which case you might have a detailed checklist of measures that you think should be in the pipeline or you can see it in a more holistic, constitutional sense as being about the way that we do things within the EU. It is about the values that we are aiming for, which in principle would mean that there is more leeway for Member States to sort out for themselves the way they do things, as long as the common values that we think ought to be respected and protected are actually respected and protected. In a sense, it is the same kind of thinking that goes into a Directive. We are concerned about the end result, not the way in which we do it.

50 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) The Chairman: I suspect that we will end up with a mixture of the two, because that is what usually happens. Your answer is very helpful. Perhaps we could move on to Lord Stair.

Q18 Earl of Stair: I appreciate that forecasting five or six years ahead is extremely difficult. Do you think that the programme should focus on objectives and principles, possibly with a period of consolidation—bearing in mind what you have said about how the programmes have got so long—rather than setting out a “shopping list” of initiatives?

The Chairman: That is very similar ground to what we have just covered, but perhaps you could elaborate a little on this point.

Sarah Garvey: I think that a mixture is good. If you are going to aim for five years, it would be difficult to have a series of tangible goals because the world changes. You need some more general principles. A mixture would be good if you are going to cover that sort of period. You need to retain some flexibility.

Mike Kennedy: Often the shopping list of measures might be the measures that are required to deliver those principles, so they fit neatly together.

Q19 Lord Faulkner of Worcester: On the same theme, how far is any programme likely to constrain the Commission or, alternatively, encourage it to bring forward proposals?

Professor Estella Baker: The idea of constraining the Commission is interesting. Mike is also a member of the expert group I mentioned. Unless he corrects me, I would say that when we sit in meetings, there is not much sign in the Commission contributions that it thinks much about constraints other than the legal bases in the Treaty. It definitely thinks about that. Personally, I think that a lot more attention should be put into the way in which instruments and programmes are designed. One the problems we and the Commission have—it is certainly aware of this—is in what might be called the technology of regulation. It is quite new to the game of regulating in this field and thinking about what might happen

51 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) down the line if measures come before the European Court of Justice and are challenged. I do not think that the Commission has really made its mind up on the best approaches to take, but there are signs which suggest, going along with the stereotype, that it is more inclined to go with the techniques of drafting and regulation which give more of a toehold on national systems rather than keeping out. It is inclined to a way of thinking which tends to expand its view about what competence is actually there and what it might be able to do.

Somebody suggested to me the other day that some people in the Commission think that the mutual recognition framework decision on probation and alternative sanctions potentially gives scope for arguing that those Member States which do not have a full complement of alternative sanctions should introduce new ones, because otherwise they are not complying with EU obligations. I am not sure that I myself read the framework decision in that way. This is a whole area of the territory which needs to be closely inspected.

The Chairman: If I have understood your answer rightly, you are really saying that

Member States and bodies like this House should become more involved in the upstream shaping of Commission proposals rather than waiting for them to be delivered in a final form. If I have understood rightly, you are a bit critical of the way the Commission conducts consultations before it comes forward with a legislative proposal. It has made up its mind before it started and it does not pay a huge amount of attention to the consultations. Have I got that right?

Professor Estella Baker: I am not sure that I would go that far. There are some things on which the Commission has quite firm views and on which it has made up its mind. However, there are also quite a lot of things where it is genuinely not sure what should be done or how it should be done. It knows by and large what kind of result it wants to get at the other end, but it is trying to grapple with 28 Member States and even more criminal justice systems than that. It is difficult to design instruments that will work in all them, with lots of

52 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) different constitutional and cultural traditions. There are some things which the Commission is finding too difficult to handle, and on those it is genuinely open-minded and amenable to information and influence.

The Chairman: Thank you. Are there any other comments on the issue?

Mike Kennedy: Yes, I would echo that. There is clearly a desire from the Commissioner herself to focus on a number of areas and to bring the different criminal justice systems up to higher standards. Indeed, the Hague and Stockholm programmes focused on a number of individual issues to achieve that. A lot of the work within these programmes is not something that the Commission would feel particularly constrained about. It provides the

Commission with a framework. For example, an awful lot of energy has been expended on the European public prosecutor and getting the draft regulation for that off the ground. Not much mention is made of it was made in either the Hague or the Stockholm programmes, although it has been in the background. The Commission is very determined, from my experience attending the expert group with Estella, to think things through. It has its own ideas, but the ideal that it is aiming for seems to be to improve criminal justice systems. For example, at one of our recent meetings we talked about introducing a presumption of innocence, which is something we take for granted in our system, but it is not something that necessarily applies in all the other 27 systems.

The Chairman: Of course, the other thing that we have to bear in mind, and will hang over our inquiry, is that it will almost certainly be a different Commissioner and a different

Commission, which will carry out this programme and will be bringing forward whatever proposals may come forward. So we are in a rather grey area at the moment, but we have to live with that.

Lord Sharkey: The Law Society has suggested that a period of consolidation, allowing for legislation to bed in and for evaluation of its implementation, would be helpful. Do others

53 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) agree, and if so, would that apply to the entire period of the next programme? Further, is this a way of saying that we do not actually need a new programme?

Sarah Garvey: I think that I would like just to clarify the Law Society’s position in this area.

It is not a uniform do-nothing stance. In fact, it is a flexible stance. In some areas, the Law

Society can see a need for further measures, and in that sense setting up tangible goals would be helpful, but in other respects it would be helpful to take stock and see how certain new regulations or amendments to existing regulations bed down. In terms of representing the Law Society’s position, it is more nuanced than that. I can give examples on the civil side of particular areas where we think it might be helpful to do further work and for there to be further initiatives either now or later.

The Chairman: Could you give us that in writing? That would be very helpful indeed. We would then be able to use it in our evidence.

Sarah Garvey: Yes, of course.

The Chairman: Rather than take up a lot of the time of the Committee this morning, that would be very helpful. Thank you very much. Your answers to this question are linked to the issue of evaluation, which we have already discussed. The desire to have better evaluation mechanisms and to make better use of those mechanisms is going to be very much a part of our inquiry and our look at the future.

Q20 Viscount Bridgeman: Thank you, Chairman. In which areas of civil or criminal justice can the EU add value over the next five to six years? Conversely, are there any areas that the EU should keep away from—for example, because the implications for fundamental characteristics of national systems would be too great? I have to say that, as a non-lawyer, I have always been amazed at the dexterity with which the common law and the Code

Napoleon are moulded. I suppose that Mr Kennedy’s example of presumption of innocence might be relevant to this question.

54 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) Mike Kennedy: Yes, there are areas to look at, particularly with technology and the use of electronic evidence, that might benefit from some view from the EU to try to ensure that the quality and admissibility of the evidence is considered properly by the different systems.

There is no doubt that in a number of areas, we feel that in the UK—England, Wales,

Scotland and Northern Ireland—we have developed quite sophisticated systems for dealing with a range of both investigation and prosecution work, and indeed work in the courts. The presumption of innocence is something that we have had since Magna Carta and it goes back a long way, but its application is built in as part of all the criminal justice legislation that touches on practice and procedure. That goes back to perhaps the largest piece of recent legislation, which was the Police and Criminal Evidence Act 1984 and the various codes attached to it. We have done a lot of work and we tend to think that we are better than many other systems. I would not say that we are, but there are a lot that fall short of the standards that we might expect in this country. So the sort of work that the EU should be looking at is bringing up the weaker systems, which is why the idea of the European public prosecutor has, as it were, taken off. The EU wants to ensure that cases involving fraud against the budget of the EU are properly investigated and prosecuted.

Viscount Bridgeman: Going back to the presumption of innocence, are there any measures in the EU that would embed that principle, or is it still a totally new subject between the two systems?

Mike Kennedy: There are more than two systems; that is the problem. Certainly in the common law system, it is there, and in other systems as well there is that understanding.

Whether it is actually embedded and there is any EU legislation on it, I cannot think of any.

Professor Estella Baker: There is no specific legislation as such. I understand that the

Commission is about to produce a proposal on it. But the principle is enshrined in the

European Convention on Human Rights, and Convention rights are respected as

55 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) fundamental rights within EU law. In addition to that, it is written into the Charter of

Fundamental Rights, the EU’s own instrument of rights. The problem is not so much that the

28 Member States do not respect the principle; the problem is that when it comes down to enforcing it on the ground there is good reason to think that not all of them are doing it effectively. In a sense, the EU is now thinking about acting in this area because it recognises that the Convention system has failed sufficiently to secure rights across the Member States.

You then get into the mutual recognition debate that underpins the whole area of justice in that respect. I hope that that is of help.

Q21 Lord Hodgson of Astley Abbotts I want to ask Mr Kennedy whether his thought about electronic evidence would include things like closed-circuit television to avoid people having to be moved around pursuant to the European Arrest Warrant. If so, should the EU be mandating that to ensure that states are required to use it rather than shift the unfortunate person?

Mike Kennedy: I think we should take as much advantage as we possibly can of technology, but whether that would go as far as requiring or not requiring the surrender of individuals is quite a difficult question to answer. I am really thinking about the electronic world in which we live, and the capacity of criminal justice systems to deal with electronic evidence and to investigate computer-generated fraud and other criminality. In this country we are not perfect by any means. The Germans have done a lot of work on this, but other countries are lagging some way behind. If we want to raise standards of investigation and prosecution, this is certainly something that would be worth looking at. The question is what issues might be addressed.

The Chairman: These are presumably areas in which the trans-border or trans-national aspect of criminality is very obvious and we are all vulnerable to it.

56 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) Mike Kennedy: Indeed, both in terms of individuals and in terms of companies. The capacity of this criminality is not just trans-national, it is global.

Lord Rowlands: Has not the basis of most of these measures been mutual recognition? If that is the case, what has been the experience? How effective has the process been, and should it be the basis on which we co-operate for the next five or six years?

Professor Estella Baker: There is a whole family of mutual recognition instruments.

Obviously the best known of them is the European arrest warrant, which if not literally unique, it is all but unique in the sense that all Member States have implemented it and are operating it. We have witnessed effectively 10 years of its operation, for better or worse.

But as for the rest, there is a very patchy picture of whether these instruments have actually been implemented into national law and then whether they are being used. One of the points I wanted to make alongside what has been said is that from 1 December 2014, at the end of the transitional phase of the Lisbon Treaty, the European Court of Justice will acquire an expanded jurisdiction over the pre-Lisbon body of Third Pillar measures. We might expect at that point, for those Member States which do not have an opt-out as we have, that there will be more action in terms of implementing the other mutual recognition measures and getting them working. It is crystal clear from things that the Commission has been saying for some little while that it is thinking hard about enforcing these measures, which so far it has not been able to do. It is quite clearly thinking about––I would put quite a lot of money on this––which guinea pig case or cases to bring before the Court of Justice in due course.

We might have a clearer idea about how effectively mutual recognition works across the board when a bit more of it is actually operating.

The other point tangentially to make about this is that the prospective new programme is also potentially a signal to the Court in terms of where the political will lies and what

57 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) Member States might or might not wear. That is a missing dimension in thinking about it, but it is an important one, and certainly will be from December 2014 onwards.

The Chairman: I think I am right in saying that the Court has in fact had jurisdiction in this area in quite a large number of Member States on a voluntary basis.

Professor Estella Baker: It has had some jurisdiction, as some Member States agreed during the Amsterdam phase to allow their courts to send questions for preliminary rulings from the Court of Justice. Some Member States did not opt into that jurisdiction, and of course we were one of them. It has produced some interesting case law. However, the Court will have full competence across this whole area, leaving aside our own special position, from 1

December next year. One of the other things that can be seen happening in the case law, which I think will be accelerated by this, is that the Court will start joining up the bodies of law on European citizenship, on the Charter of Fundamental Rights and on criminal law and criminal justice. There are some signs that that is happening already. It is different route through which to consolidate this area from the political, legislative process, and it will coincide exactly with the start of any new programme.

Q22 Lord Morris of Handsworth: Could you give us your thoughts on the current problems in private international law? Do you think that EU legislation could help to solve those problems wholly or partially?

Sarah Garvey: Maybe I could just address the civil law aspects. The Brussels regulation, which is the regulation dealing with jurisdiction and enforcement, has been broadly helpful for litigants before the English courts. It has allowed jurisdiction clauses which specify that disputes have to go to the English courts. That jurisdiction clause is then recognised under

Article 23 by other Member States. They are common rules, and that is helpful for legal certainty. It has also meant that it is much easier to transport English judgments and get

58 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) them enforced in other Member States. That is a relatively straightforward process. The

Brussels Regulation has been really helpful.

However, there have been problems, and the Commission has sought to address some of them in the new ‘recast’ Regulation that will be applied from January 2015. That has been a helpful measure. One thing that litigants have experienced is the lis pendens rules where proceedings between the same parties and the same matter are pending between two

Member State courts. What parties have done is where there has been a contractual agreement to go, say, to the English courts to resolve the dispute, one of the parties, usually the debtor, has started proceedings in breach of contract before another Member State.

They have tended to choose a Member State court that will be quite slow-moving and one that deals with the question of whether or not they have jurisdiction, not as a preliminary matter, but some time on. This has been a real problem for commercial parties because they have seen their jurisdiction clauses breached. It became known as the ‘Italian Torpedo’. We see this very regularly. It seems to be courts in Italy, and to a certain extent courts in

Greece, which do not deal with jurisdiction as a preliminary matter as we do in England. The reason this is a problem under the Brussels Regulation is that the rules say that where there are pending proceedings dealing with the same matter and the same parties, if you are second in time it does matter if you are the named court, you have to wait until the Italian court, for example, has determined whether it has jurisdiction before you can even proceed to hear the case. It is a massively effective strategy as a litigation tactic. To its credit, the

Commission has grappled with this problem in the ‘re-cast’ and has sought to fix it. Indeed, there is a partial fix in the ‘re-cast’ Regulation because the new rules now say that if you are the named court, you do not have to wait for a year or two years until the court has determined whether or not it has jurisdiction. If you are the named court, you can proceed and determine the issue. So it has tackled the ‘torpedo’.

59 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) There are other things it has not done that it might have been able to do, but I would definitely point to this as an improvement. Where the EU could take the lead and do more is in relation to third states—non-EU jurisdiction clauses where there are proceedings outside the EU. I understand that the Hague Choice of Court Convention is to be ratified by the EU in the period running up to January 2015. This should be helpful, because it will mean that signatories, Contracting States, will recognise jurisdiction clauses in favour of Contracting

States’ courts. The problem is that currently only Mexico is a Contracting State. The Hague has some way to go, but it would be fantastic if the EU could lead the move to get people to sign up to Hague.

I think that it could help with service to other Member States because it is still taking too long. It can take four months to serve proceedings in other Member States, and that is too bureaucratic. You do not have to get the permission of the English court to serve in other

Member States, but you do have to go through certain competent authorities, and that is taking too long. You also have to get lots of translations. It would be good if the EU could do an impact assessment and ask whether there is a better way. For example, could registered post be used, particularly between companies? Perhaps more protections are needed where individuals are concerned.

One big issue that is being looked at is the Unified Patent Court. That is a massive initiative.

That may be an area, in terms of bedding down and further change, to focus on in order to see how it works. That is a massive initiative and a big change in the IP field.

We need to look at the plans for a pan-European freezing order, which is more controversial. We are currently opted out of that, but it looks as if in Council they are seeking to reach agreement next week and it will go to the Parliament in the new year. So it may be that there is a consultation, and the UK may opt in to the freezing order. But, again, that is quite a controversial area.

60 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) Lord Morris of Handsworth: Would you be in favour of opting in to the freezing order?

Sarah Garvey: I think that I would need to see what the draft said. I felt that the original draft that the Commission put out did not sufficiently protect defendants. It would allow a

Member State court to issue a freezing order blocking bank accounts of a defendant on an ex parte basis and on paper. The test that was set out in the rules was really low. It is pretty hard to get a freezing order in England in civil proceedings, as the test is quite high, but this test was very low. There were real concerns that parties could just put in a paper application saying, “I’ve got all this evidence and this is my damages claim”, and effectively block all accounts in Europe. It would really depend on what the ultimate draft looked like.

Q23 Lord Judd: Following on from your very interesting comments in this area, it is argued that the differences between the way in which Member States’ criminal justice systems operate in practice mean that there is an insufficient basis for mutual trust. How far do you feel that the principle of mutual recognition depends on mutual trust in each other’s systems? Is this really still viable as a foundation for EU criminal justice policy?

Mike Kennedy: Let me try to answer. Trust between the criminal justice systems is based on two important issues. The first is the individual—the individual exchange with, from my perspective, prosecutors talking to one another, or police officers talking to one another or, indeed, courts engaging with one another. If those outcomes are positive, there tends to be a generation of trust. The second point is the operation of the interchange. If one has had a good experience on one occasion, it is likely that one would be more likely to try that same route. It is difficult to envisage an interaction between the very different criminal justice systems within Europe by any means other than mutual recognition. In all the states, in every criminal case there will be a crime committed and an investigation, hopefully. There will the gathering of evidence and a point at which someone is arrested and interviewed. A decision will be made on whether the evidence is sufficient for there to be a charge. These various

61 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) building blocks or stepping stones along the route to conviction or acquittal and then penalty are very similar—you can find all those stepping stones in each system. It is quite natural to look at recognising and accepting that a conviction in France, for example, is a conviction that we can accept in this country. The thing is that the routes by which one makes those steps between the various stones is very different. In the different countries, the individuals conducting those steps might be very different. In one country it will be a police officer and in another country it will be a judge or an investigating prosecutor, or it might be somebody completely different.

Recognising the stepping stones gives the capacity to build trust and confidence, provided that one can follow through with that recognition, as we have in a number of areas. For example, with the European Arrest Warrant, the arrest process has, although there have been problems, generally worked pretty well. Further down the line, we have had problems with the recognition of asset-freezing orders; in this country, we deal with things on the basis of a civil arrangement, but other countries cannot accept that at all—that is a problem.

Yet, moving further down the process, as it were, there is the question of penalties such as a driving disqualification or the imposition of a probation order or supervision order of some sort—those are the things that can be recognised. The more the systems work together, using these stepping stones as building blocks, the better the trust and confidence are.

Certainly, at Eurojust, the fact that we had 26 or so prosecutors—one from each country— working round the table together helped to build trust and confidence. It might be possible to develop such trust and confidence in a different way, through bilateral arrangements or through multilateral conventions, as happened pre the third pillar, but it is quite difficult and it takes a lot of successful operational practice for that trust and confidence to grow from a very small seed.

62 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28)

Q24 Lord Judd: I am interested in how this operates psychologically. Is it a question of those involved saying, “There really aren’t viable alternatives and we’ve therefore just got to get used to the differences and make the best of them”? Or is there a widespread sense of confidence, which is the basis of trusting one another? Is it making the best of it or is it really just saying, “We have to accept”?

Mike Kennedy: I think that it is probably making the best of it. There is not an alternative at the moment.

Lord Judd: Can I ask one other question against this background? Are there areas of crime that should be the subject of further measures defining offences and sanctions?

Mike Kennedy: I thought about this, because the European Union has made a comprehensive effort in the programmes that we have been talking about to address crime types. One could start thinking about high-tech crime and its relationship with child abuse and pornography on the internet, but work has been done in that area. As we mentioned, there is a time for consolidation, evaluation and improvement of what we have. I could not think of any particular additional area of crime that would need to be addressed.

The Chairman: I think Lord Faulkner would like to follow that up and I know that

Professor Baker would like to come in on this.

Lord Faulkner of Worcester: It is not just a question of diversity of approach when a matter gets to court and where a sentence or a punishment may vary from one state to another. Some actions, particularly actions of a private nature, may be crimes in one country but not crimes in another. Do you see any way in which issues such as that can be resolved under EU auspices?

Mike Kennedy: It depends. What is that you are thinking about and what do you want to resolve? Which sort of problem is it? For example, the EU has tried to list offences with, for example, the European Arrest Warrant—which offences it applies to and which offences it

63 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) does not apply to. There is a realm of criminal activity that is within the ambit of some of these mutual recognition measures and there are other offences that are not.

Lord Faulkner of Worcester: Should there be a constant effort to reduce the number of those that are not or should the state be allowed to pass its own laws?

Mike Kennedy: This is one of the principles: the investigation, prosecution and trying of criminal cases should be a matter for domestic law and the Member States. That applies across the board, but the EU has tried to introduce some common standards, particularly for the more serious offences. I do not think that it would be necessary for the more minor offences to be taken within the ambit of that sort of work.

Q25 The Chairman: I see very large resistance in this country, for example, to doing that.

It would be grist to the mill of those who say that the Commission is trying all the time to homogenise this area, when it is probably not desirable that it should be homogenised.

Professor Baker?

Professor Estella Baker: I have several things to say arising from the discussion that has just occurred. One of them is that of course there are two things going on. When we talk about the mutual recognition instruments, we are talking about an EU instrument being there to help Member States to enforce their own internal laws across borders, by and large, whereas when we talk about EU instruments that instigate the introduction of offences and sanctions, we are effectively talking about a harmonised measure at EU level that the

Member States have to implement. Those two things are not the same; they have to be distinguished, albeit that, the longer this goes on, the more they start to join up and the analytical distinction starts to fall away. If they are all somehow regulated by EU law, we would expect there to be some kind of common principles and regulation. However, I still think that it is important to distinguish them and to think about them separately, because

64 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) they are not the same thing—the principles that we might think apply to one, we might think do not apply to the other.

The Chairman: Could you give examples of the two categories, so that we can get an understanding of this at the practical level?

Professor Estella Baker: For example, on mutual recognition measures, we have written into them the list of 32 offence types in respect of which the principle of double criminality is, or may be, abolished. In fact, in the financial penalties instrument, there are slightly more than 32 offence types. The basis of these instruments is that the offences that we are talking about are defined by national law. Rape is one of them. The law of rape differs in detail across the different criminal jurisdictions in the 28 Member States. The EU instrumenst say quite clearly that what is in issue is rape as defined in the national law of the issuing State and as penalised in that national law.

You can contrast that with, for example, the human trafficking Directive, a piece of EU legislation that says, “Member States will criminalise behaviour X and their sanctions for this behaviour must comply with these specifications”. Member States might have already criminalised some of the relevant behaviour—we had done so in this particular instance— but that is a different kind of thing. It is a top-down criminalisation from EU level and the implementation of that. It is not about “ordinary decent criminal law”, if you want to put it in those terms, which has grown up in the national legal order, and the Member State’s ability to get its hands on somebody who has fled out of its jurisdiction and to bring them back to face justice. As I say, the two things are starting to join up and common principles apply to both of them, but they are not the same thing.

The other thing I would like to say about mutual recognition is that one reason why there has been more progress with adopting instruments to enhance procedural rights is the problem with mutual recognition and the unwillingness of Member States to send people

65 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) back to other Member States where they do not feel that their procedural rights are respected. That has been a critical driver. In the allied field of asylum law, there is a Court of

Justice case that says that even if you have an instrument based on mutual recognition, if you have knowledge of the fact that fundamental rights are not respected you cannot use the instrument. You can see that the whole system would break down completely if we found that this was happening in respect of all criminal justice instruments.

The Commission is also quite concerned about the potential consequences of the justiciability of the Charter now. Specifically, it is worried that will happen in due course is that people will start to sue the Union for having been transferred across borders under these criminal justice instruments, basing their case on the Charter. That might fuel a lot of litigation.

There is another practical issue about the amount of business going before the Court of

Justice in Luxembourg, as opposed to Strasbourg, as you can bring proceedings before the

Luxembourg court a lot quicker than you can the Strasbourg court. There is a worry that the Luxembourg court is going to be completely overwhelmed with cases coming out of criminal justice systems where people are arguing that their fundamental rights have not been respected.

From what I hear from people in practice, it is also the case that they trust some Member

States more than others and they do not see all Member States as being the same.

The other point that I want to make, going back to what ought to be put into the new programme—we talked about evidence—is that something that I think is quite clearly missing, and defence lawyers would also say is missing, is some kind of infrastructure to enable defendants and suspects to enforce their rights when they are in other Member

States. We have the instruments coming along now in a steady flow, but the infrastructure

66 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) to match that and to make the enforcement of rights happen in practice is quite clearly a missing piece of the machinery.

Lord Rowlands: With the two categories that you have described, is not that the basis on which the Government have chosen the 35 opt-ins? They have gone for those that fall in the first category with the intent to say that they do not want to take part in anything that smacks of harmonisation? Is that the basis?

Professor Estella Baker: No, I do not think that is the basis. They have chosen what to opt into on the basis of what is practically useful, such as the European Arrest Warrant, and what we have already implemented or do not mind implementing, and where we would not find ourselves in front of the Court of Justice having to answer for our failure to implement relevant pieces of legislation.

Lord Rowlands: But they all fall in that first category.

The Chairman: If you do not mind, I honestly do not think that we had better get on to protocol 36. It is extremely interesting, but not entirely germane to the inquiry that we are conducting now.

Q26 Lord Judd: The Chairman at the beginning asked whether we had learnt any lessons and whether you felt that lessons had been learnt and that there were things that should be addressed in the next programme. Are you saying that this whole area, which can be strikingly imperfect, to put it bluntly, should be addressed in the next programme, or do you think that it would be too soon?

Professor Estella Baker: I do not think that it can be. There is no getting away from the fact that there is a very real tension in having a system that you might say is very effective, with all Member States enforcing it as it should be enforced, which means having uniformity, harmonisation and a single EU criminal justice system, and so on. There is a tension between that and, on the other hand, saying that Member States should have the ability to respect

67 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) their own cultural and national traditions and their own constitutional rights, and all the rest of it. The game that we are in, for all the time that we are doing this, is trying to reconcile the tension between those two things. It is a matter of how good and smart we are in designing regulations to reconcile those tensions, and working out—this is partly what I was referring to earlier—at what level of abstraction the EU regulations should be there and what the framework should be, and how much wriggle room or flexibility there should be within that framework for Member States to sort out details of their own, whilst travelling in one common direction. In a sense, that was also what I was getting at when I asked whether the programmes are directed at “doing justice” in a certain way, or “brand Europe”, if you like, or about having a shopping list of measures which we can tick off and say that we have implemented them. You come up with different answers, depending on how you think about this and what you think the objective actually is.

The Chairman: Thank you, I think that that was an admirable description of a paradox that we live with all the time.

Baroness Prashar: Thank you very much for the very interesting discussion. Following on from that, would you support the EU’s effort in areas of training and exchange of the judiciary, judicial officer-holders and practitioners? If so, how do you think the EU can contribute?

Professor Estella Baker: I would say, resoundingly, yes.

Baroness Prashar: I thought you might say that.

Professor Estella Baker: For all kinds of reasons, I would say a resounding yes. It is of course written into the Treaty. There is some competence in this area, with respect to the judiciary and prosecution, notably in Article 82 of the Treaty on the Functioning of the

European Union. There are two things here. First, there is what actually can be done. The

Commission has budgets, and so on, and throws some of its money at constructing training

68 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) programmes and drawing up training materials. It can do more of that and it can try to incentivise, but it is faced with a situation where, again, national traditions are very different.

If you go across the Channel, to Member States that have a career judiciary, there is a formal expectation that there is a lot of training. I know that our Dutch colleagues, for example, write the EU dimension into their training manuals for the judiciary across the board,; it is just incorporated, full stop—whereas I have done a little bit of training here with the Judicial

College on EU criminal law, and there you get one day’s worth out of a session of a day and a half, and the last occasion on which it was due to run it was cancelled due to lack of demand. I understand the constraints that the Judicial College is operating under, but it is disappointing. We have to be very careful about how much workload gets attached to all this and how much it is reasonable to expect. I am not saying that such a short course is not valuable—I think that it was valuable—but if you cannot get people to participate, there is a different kind of problem. The other thing that the Commission or somebody could do is to accredit people who really do genuinely know about this stuff, because I get the impression that quite a lot of people who really do not understand it very well can see that there is money in it and that they can get a career out of it. I am not sure that that is very helpful to anybody. As a colleague of mine said, you do not really dabble in this stuff. It is very complicated, as you will be well aware.

Q27 The Chairman: It sounds to me that it is a rather like the situation over the British attitude towards learning foreign languages.

Sarah Garvey: It is hugely important in the civil sphere. We have to apply EU instruments, and it is hugely important for practitioners and the judiciary. We have not currently opted into the justice programme, which would help on the funding. Certainly the Law Society would support that opt-in. There is a worry that if we do not, we will find City law firms being able to train their lawyers on conflicts of law issues, but high street practitioners

69 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) would just not be able to afford to fund that sort of training. The training that the

Commission runs is okay, although it is quite academic, and it tends to run programmes on private international law in Trier, which is not easy to get to. You cannot get there and back in a day, and it costs at least £1,000, because you have to stay over. That is unfortunate, and could be changed. The training that they run could be more about what the law is and how it is applied, as opposed to what it might be and how we might change things in future, which tends to be the focus of these two-day conferences. On a practical level, if we are involved in the training and our judges are there, they can share the common-law perspective, and really add value. We are running consultations, for example, with the Chancery Review. We are looking at things—we have done ADR for years now, and are ahead of the game, in many respects. So we have a lot to offer, and it is important that we are there, participating in the training, both judges and practitioners.

The EU could also improve its access to materials. Last night, I went on the Europa website just to have a look. I think that the Bailli online service is brilliant; we can get our English judgments very easily. It is free—it is amazing. If you go to the UK site, you can access it that way, but other Member States do not have that facility. With EU judgments, you have to register, and with one of them you actually have to pay to access the case reports. That cannot be right. It should be free, and there should be a way of doing a Google translate for the headnotes. That is what they have done with the patent courts at the UPC. That is the approach that they are taking. Okay, it is not perfect, but at least you can see something.

There should be a better way in which to organise material when you have Member State judgments on these instruments that affect all of us, to see how people are implementing them. I think that the Commission could do a lot to improve that, as they have the funds.

Baroness Prashar: Mr Kennedy, would you like to add anything?

70 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) Mike Kennedy: Yes, I would, if I could. I agree that there should be awareness-raising, and I think that it should be focused. The EU’s role here would be to organise and accredit programmes. It is no use having people going on these programmes who are not working in this area. It is quite an unusual area, and most criminal practitioners would not know anything about mutual recognition. If you talked to them about it, they just would not understand it. But there are those who would benefit from it, on both the prosecution and the defence side, and that would be very helpful. My experience in my previous role at the

Crown Prosecution Service was that there was a lot of demand for our prosecutors to give training and to go and work on secondment in developing countries—in Africa and the

Caribbean, prosecuting pirates in the Seychelles, for example. It is a huge drain on resource, so I think the EU might be able to find some resource for this, if it could, to fund the programme and accredit it. But there is huge ignorance in this regard, and that applies not just to prosecutors as criminal justice practitioners but probably to practitioners in the judiciary and on the defence side.

Q28 Lord Wasserman: All this talk about practical measures and training in details and location brings me to my concern about the agencies and institutions, Eurojust and Europol.

Do you think that we should be reviewing them in the programme? We have been talking a lot about legal aspects, theory and policies, but here we have institutions where people are working. Would this not be a good opportunity to evaluate them and get some improvements, if necessary, in implementation?

Mike Kennedy: I would think so, yes. It is an ideal opportunity. I talked about evaluation earlier in this session. Eurojust has been running for about 10 years and Europol, in previous guises, for a little longer. There is a big opportunity here to evaluate. However, the

Commission has just produced a new draft regulation that has been considered on reforming

Eurojust, or at least potentially its structure and organisation. There is the question that is

71 of 485 Professor Estella Baker, Mike Kennedy, Law Society of England and Wales—Oral evidence (QQ15-28) coming up about the European Public Prosecutor and whether Eurojust will be involved in that. It certainly will be involved in some way, but in quite what way I do not know. I am a great believer in having a fairly regular evaluation and a fairly rigorous and robust approach to that sort of evaluation, particularly looking at the numbers of cases and the outcomes of those cases, as well as at the money that has been spent on the organisation as a whole.

The Chairman: Are there any additional points on that? We have definitely registered that this evaluation issue is something that needs to be looked at, and we will do so in our report. It has a number of different facets—the periodicity in which you do it. To some extent, I suppose that you can say that the negotiation of the new Eurojust and Europol regulations are inevitably going to involve a degree of evaluation on the existing ones, but probably not in a very scientific or objective way. So I think that we will certainly want to return to that. If nobody has any other questions, I thank all three of you for coming along this morning. We have learnt a great deal from your expertise and I hope that you will find, when we come to write our report, that we will have benefited from it—I believe so, anyway.

72 of 485 Bar Council—Written evidence

Bar Council—Written evidence

Introduction

1. This is a response by the Bar Council to Sub-Committee F’s Call for Evidence of 29 July 2013 into the EU’s five year agenda for Justice and Home Affairs (JHA) activity (2015- 2019).2

2. The Bar Council represents over 15,000 barristers in England and Wales. It promotes the Bar’s high quality specialist advocacy and advisory services; fair access to justice for all; the highest standards of ethics, equality and diversity across the profession; and the development of business opportunities for barristers at home and abroad.

3. A strong and independent Bar exists to serve the public and is crucial to the administration of justice. As specialist, independent advocates, barristers enable people to uphold their legal rights and duties, often acting on behalf of the most vulnerable members of society. The Bar makes a vital contribution to the efficient operation of criminal and civil courts. It provides a pool of talented men and women from increasingly diverse backgrounds from which a significant proportion of the judiciary is drawn, on whose independence the Rule of Law and our democratic way of life depend. The Bar Council is the Approved Regulator for the Bar of England and Wales. It discharges its regulatory functions through the independent Bar Standards Board.

4. The present inquiry identifies a number of policy areas which may be touched upon in the next EU JHA Programme. The Bar Council’s observations below are based on our views, expertise and experience of EU activity to date in just a few of those named, namely Criminal justice; Civil justice; Data protection/privacy/retention (including the revision of existing legislative proposals); and Relations with third countries on JHA. We have focused our response on the areas that have been, and remain, of greatest interest to the Bar of England and Wales.

5. We have divided our response into two sections:

• Section I sets out the questions posed by the Call for Evidence and our brief general responses, and • Section II provides comments and suggestions about the possible content of the future JHA programme, looking in particular at civil and criminal law.

Section I – General responses to the Inquiry questions

Question 1. Should there be a fourth JHA programme? If so what should its content, focus and purpose be, with reference to the previous programmes and evaluations thereof?

6. Yes, we would support the adoption, by the Council, of a new five year JHA programme. A well-considered and defined programme should provide a route map of what is to be achieved, and the context in which it is to be achieved, aiming at a coherent whole.

2 Lords Select Committee, Future Justice and Home Affairs Programme (2015-2019)

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7. Its aim should, in the first instance, be to consolidate and simplify existing EU JHA measures, including revising and repealing them where necessary; and identifying and filling in any gaps, in accordance with the principles of subsidiarity and proportionality, to enhance mutual trust and ensure effective judicial cooperation across the range of policy areas covered.

8. It is important that the Member States, through the Council, develop and agree these plans in advance:

• The Council’s direction adds to the democratic accountability of the EU’s work in this area - the Member State governments have defined in advance the aims and how to achieve them – it is not simply “Brussels bureaucrats talking”, as some would have us believe; and • Member States can, and should, be reminded of this support in principle should they demur once a measure they called for is later tabled.

Question 2. What is the relevance of the political context? For example, how relevant will the debates and controversies surrounding the free movement of persons, privacy (the Prism programme in the US, as well as similar programmes in some Member States) and the negotiation of a US-EU free trade agreement be?

9. The political context is certainly relevant, particularly when there is a marked increase in nationalistic and related protectionist sentiment in many Member States, as well as pressure on the public purse. The JHA area encompasses many policies that go to the heart of these debates, including immigration; the many aspects of the fight against crime; privacy and fundamental rights.

10. It is important that the Member States work together to support each other in identifying and pursuing policies to assuage and deal with some of the public concerns, legitimate or otherwise; and for the other EU institutions to support the Council in that endeavour.

Question 3. What lessons from the application of the Stockholm Programme could usefully be reflected in the next JHA Programme? Did the Stockholm Programme involve too much or too little legislation and what were its tangible outputs? How successful have some of these outputs, such as the Standing Committee on Operational Cooperation on Internal Security (COSI), been and are they working as intended?

11. During 2009, the Bar Council joined the calls for the emphasis of the Stockholm Programme to be on evaluation, simplification and consolidation. In practice however, the past five years have seen a rapid expansion of the EU acquis in this area. This is not in fact surprising, bearing in mind the increased competence of the EU in general and the European Parliament (EP) in particular, in these fields following the entry into force of the Lisbon Treaty, which coincided with the adoption of the Stockholm Programme. We do, however, consider that a more considered and modest focus is needed now, to enhance legal certainty and mutual trust, thus improving the functioning of the area of security and

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justice. Moreover, such an approach is also in keeping with the current political and economic climate.

12. In saying this, we recall that the Stockholm Programme Action Plan as adopted by the Commission in April 2010, which set out the Commission’s plans to implement the Stockholm Programme, including a detailed legislative timetable, was in fact more ambitious than either the Council or the EP desired. The June 2010 JHA Council Conclusions expressly underlined the fact the Programme and the Action Plan diverged in material respects and that the Programme was the authoritative instrument. It thus called on the Commission to adhere to the latter. Later that year, the EP also indicated some reservations about the scope of ambition and the sheer volume of legislative proposals that the Commission aimed to push through in one legislative period. We caution against a repeat of that scenario.

13. Apart from considerations of legitimacy and accountability mentioned above, a programme that is designed to consolidate, identify outdated and unnecessary legislation and as necessary, replace it with updated versions, and fill in any gaps where need is shown - all done in a more measured and less rushed manner - ought to produce more coherent and better legislation, an express EU goal. There are several examples of legislative files that have emerged in the past five years, that would have benefitted (for example in the scope, quality and fitness for purpose of the initial Commission proposal, thus perhaps avoiding problems in Council and the EP later on) from more time and care taken at the outset to take account of Member State and key stakeholder needs and concerns. Examples include:

• The January 2012 package of proposals to reform the EU Data protection rules (the fact that there were more than 3000 amendments tabled in the EP to the general regulation alone is telling in and of itself); • the 2011 proposal for a European Account Preservation Order – this went too far; • Common European Sales Law and its precursor, the Common Frame of Reference (proven need, the type of instrument to use, legal basis); • Freezing and confiscation of the proceeds of crime (where the proposal gave rise to concerns about lack of defence safeguards); and • the recent proposal for a European Public Prosecutor’s Office (EPPO), to which 11 Member State Parliaments objected on grounds of subsidiarity.

14. It is important to underline the fact that the Bar Council is not doubting the work that was put in by Commission officials in the preparation of these proposals. Rather, we consider that a legislative agenda containing fewer but more considered measures would have produced better results through the EU legislative process, and in all likelihood more quickly.

15. The Commission also has an important monitoring role in ensuring that legislation adopted at EU level is implemented in the Member States. The production of too much legislation may reduce the focus on measures gone before. It is particularly important in the newer areas of competence, such as judicial cooperation in criminal matters, that measures are reviewed for their practical application. This may reveal that assistance is needed in some Member States, through training and from the funding programmes, to support implementation, or ultimately that amendments are needed to the legislation where a

75 of 485 Bar Council—Written evidence measure is shown not to be productive.

16. This desire to emphasise considered quality over quantity is widely supported, including among influential officials in the Council of the European Union, who have recently cautioned that before the EU takes steps in the justice field, it should take care that it does not damage or erode the legitimacy of national justice systems with their own social and historical roots in society. With this in mind, there have been calls for greater reflection upon the effective implementation of existing measures and the effects of those measures, rather than the production of further measures.

Question 4. Should the EU’s focus be on consolidating existing JHA cooperation before embarking upon further EU legislative proposals and initiatives? The UK Government, in particular, has emphasised in the past that the EU should focus on practical cooperation, which does not necessarily require a legislative underpinning.

17. Yes, for the reasons explained above.

Question 5. Should the Programme include a timeline for repealing and/or consolidating existing JHA legislation where necessary?

18. Yes – but based on solid objective evidence, rather than political considerations.

Question 6. What should be the format of the next JHA Programme? For example, should it comprise a concise set of principles or contain a longer, and more detailed, set of initiatives as per the previous programmes?

19. A set of principles supported by a more detailed list of initiatives. It is useful to define general objectives to which reference can be made as measures are developed.

20. For the reasons set out in answer to Question 3 above, the Bar Council also takes the view that the Council should lay out quite detailed plans about the types of measures, legislative and otherwise, that it wishes to see pursued in particular policy areas. It should not be open to the Commission significantly to add to this (except to react to a significant and unforeseen event or change of circumstances), particularly when, as last time, the other institutions did not welcome the Commission’s action plan.

Question 7. What role should the European Parliament and national parliaments play, if any, in defining the content of the next JHA Programme?

21. For the reasons of legitimacy and accountability set out in answer to Question 3 above, we expect that the EP and national parliaments would have, at the least, a consultative role. We would, however, prefer to avoid overly politicising the process, which would carry the risk of the process being hi-jacked for short-term political gain rather than the medium to long-term enhancement of the area of security and justice.

Question 8. Is the funding allocated to JHA activity in the Multiannual Financial Framework for the period 2014-2020 sufficient to achieve existing aims?

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22. The Bar Council would like to see European Commission conduct more thorough, open-ended public consultations and transparent impact assessments (IA) and then properly to take account of the results. In particular, if the IA or key stakeholder responses indicate that it should revise its planned approach, the Commission should be willing to do so. This may mean no action at EU level. There have been a number of examples in recent years of the Commission prioritising its stated political ambition over the actual proven need on the ground. It is the view of the Bar council, and has been for a long time, that considerable funds – both public and private - could have been saved in some areas over several years in the past if only the Commission had paid greater heed to informed opinion that the need for a particular measure was not proven; or that the planned EU approach was inappropriate.

Question 9. What are the potential implications of further EU Treaty change for JHA cooperation, including the position of the UK?

23. We do not consider it likely that further Treaty change will occur in relation to the JHA area during the course of the next work programme. The Bar Council believes the full scope of the present Treaty provisions that cover the JHA area remain to be fully explored and tested before the Court of Justice. In the area of civil justice, for example, the changes from the wording of Article 65 TEC to the current Article 81 TFEU include:

• The statement of Union competence in Article 81 is more open to interpretation than the previous version. The Commission has shown signs that it considers the requirement of “cross-border implications” to be less binding under the TFEU. This phrase was interpreted strictly by the Council under the TEC. • Article 81(1) permits the adoption of measures approximating the law and regulations of the Member States and not just the procedural rules as before. • The list of objectives of possible measures contained in 81(2) is longer than under 65 TEC, and notably includes the wide aim of ensuring “effective access to justice”. • Family law remains a special case (81(3)), with Council unanimity required to adopt a measure, or to introduce any other form of legislative procedure such as the ordinary legislative procedure – the “passarelle”. It is not thought likely that the required unanimity to adopt this change could ever be secured, but enhanced cooperation (Article 329(1) TFEU) is becoming more of a feature. • The Commission is increasingly trying to rely on Article 114 TFEU as the legal basis for action in the civil law field, when Article 81 proves too limiting. This approach has yet to be tested judicially in this context, but it opens up other avenues if it stands, and ones that remove the UK’s right to opt-in or not to particular measures.

24. In the criminal justice field, the Lisbon Treaty brought in significant changes, not least the EU competence to adopt binding and enforceable judicial cooperation measures, as well as to apply criminal sanctions in the pursuit of other EU policy objectives, which are familiar to all, and will not be examined further here.

25. The Bar Council thus considers that the TFEU already provides significant competence to the EU in these areas, and does not perceive a particular appetite for further Treaty change. That said, if there were to be a move to expand competence in the family law field, or (for example) to move from the present requirement for unanimity in order to extend the competence of the future EPPO, we would be very concerned.

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Question 10. What form could or should the UK’s future participation in JHA matters take beyond the 2014 opt-out decision? What are the priority areas for potential cooperation in this respect, assuming that the UK will end up participating less in this area than it does at present? Will exercising the opt-out undermine the UK’s ability to influence the content of the next JHA Programme?

26. The UK’s legal system has enjoyed a deservedly high reputation over many decades; and as a result, its input has been sought and taken account of in the development of EU JHA policy over the past 20 years or so. Indeed, the cornerstone of judicial cooperation, mutual recognition, was an idea that originated in the UK.

27. From this position as one of the most influential players in the development of justice policy in the EU, we now find ourselves increasingly isolated. That is not to say that EU officials and judicial actors from other Member States no longer hold our system in high esteem. Rather they are losing patience with the political stance taken at Member State level. They would prefer us to be in the club, but not at any price.

28. The Bar Council has given evidence to the House of Lords EU Committee during the past year, in the context of the separate inquiries relating to the 2014 opt-out decision, in which, amongst other things, we highlighted our very real concerns about the potential damage to the UK’s influence of exercising the 2014 opt-out, not limited to the criminal justice, or even the JHA fields. Those concerns, are, if anything, even stronger now, and certainly go to influencing the future JHA programme.

29. We said then, and we say again now, that it was the wrong battle to fight. A great deal of time of the EU institutions is having to be being given over to the UK-opt-out and the negotiations to opt-back in once the list is defined and formal notice given. This is time and manpower that could usefully have been focussed on the future JHA programme.

30. Moreover, it is not only the Opt-out decision that may undermine the UK’s ability to influence the future programme, but also our option to opt-in to each measure that is proposed. Frequent exercise of this protocol right not to opt-in (such as in the criminal sphere in relation to the Directive on the Right of Access to a Lawyer and the Proposal for a Directive on the Freezing and Confiscation of Assets, or choosing not to opt-in when other Member States believe that they have accommodated UK concerns during the legislative negotiations, as seems to be the view abroad of the Succession regulation) may create an impression that the UK is not committed to the further enhancement of the JHA area, thereby limiting any sensible and productive contributions that the UK could make with regard to consolidation and effective implementation of the existing acquis.

31. In an ideal world, the Bar would like to see the UK continue to lead and engage across the range of EU JHA policy areas in a constructive manner and with its customary pragmatism. Not all EU initiatives are to be welcomed, but many are. In order to be able to influence which initiatives find their way to the statute book and which do not, and the form and content of those that do, the UK needs to be at the table.

32. We refer to Section II containing some suggestions for measures that that we would like to see included in the future JHA programme.

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Section II Comments and suggestions regarding possible content of thefuture JHA programme, looking in particular at civil and criminal law

General remarks

33. The Stockholm Programme, adopted in December 2009, contained a full and ambitious legislative programme, much of which has been tabled, and some measures adopted, over the intervening five years. We call on the EU to focus its energies in the coming years on completing that work; reviewing its product and that of previous JHA programmes and where necessary, repealing, simplifying, consolidating, modernising; and filling in gaps where need is proved.

34. The Commission’s public consultations on future measures should be, and be seen to be, open-ended – that is not anticipating or leading towards a pre-determined result.

35. The Commission should take account, and be seen to take account, of stakeholder responses to consultations, particularly if the target group(s) for a particular planned measure express a strong opinion for or against a possible course of action. The Commission should act, or decide not to act, accordingly.

36. Impact assessments should be conducted in a more transparent, open-ended and thorough manner.

37. Rule of law – the idea being mooted that formal notice (Possibly under Article 2 TFEU) could be given by the Commission to a Member State that is acting inconsistently with the rule of law may be worth exploring, but more needs to be done regarding competence, legal basis, what such a formal notice would look like; and issues of enforceability.

38. We would also welcome improvement to the functioning of the General Court so that it operates as a true administrative court for decisions and acts of the EU institutions, including in relation to Charter rights. Currently the General Court fails in that regard (see C-40/12 P of 26 November 2013) through excessive delay in hearing cases.

39. If the Commission wishes to be taken seriously by the Member States on high level matters such as the rule of law, it should in turn be seen to be, and be, respectful of Member States’ concerns. An example would be in its response to reasoned opinions from national parliaments regarding a proposal’s compliance with the principles of subsidiarity and proportionality under Protocol 2 TFEU, particularly when the so-called yellow card threshold is reached. In this, we refer to the July 2013 proposal for a European Public Prosecutor’s Office (EPPO), which attracted just such a yellow card. The Commission’s late November 2013 Communication responding to the Member States’ concerns tells them, in essence, that they are wrong, and re-tables the proposal without amendment. Whilst this is strictly within the terms of the protocol, it seems ill-advised given that this is only the second time that the yellow card has been invoked; and also given the sensitivity of a proposal having constitutional significance for several Member States.

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40. Judicial training, including for defence lawyers in criminal cases, must continue to be a cornerstone of JHA policy. Member States should engage with all such initiatives without reservation.

41. E-justice - EU standards could be developed to ensure the interoperability of certain national e-justice systems and to enhance the quality of cross-border proceedings.

Criminal law

42. Please refer to Annex 1, a text based on the address given by the 2013 Chairman of the Bar Council, Maura McGowan QC, at the Commission’s Assises de la Justice Conference which took place in Brussels on 21-22 November 2013. That address ends with the following action list, some of which would need to be reflected in the future JHA work programme:

• The completion of the Roadmap of defence rights as originally foreseen, as well as measures laying down minimum standards for other defence rights already identified, as soon as possible; and in particular the adoption of a binding measure on legal aid to cover the entirety of the proceedings. • Transfer of evidence – relying on principles of mutual recognition. This should be explored, but delicately. In principle, we would not support any initiative aimed at harmonising evidential standards, except in the most limited of circumstances, for example when it was shown to be necessary to support defence safeguards. • An EU measure to provide for remedies when procedural safeguards are breached, or mutual recognition instruments are misapplied. • The inclusion of appropriate defence rights in other EU instruments whenever there is a possibility of criminal or quasi-criminal sanctions being applied. • The review and if necessary amendment of existing criminal justice measures to ensure that the rights of the defence are properly reflected. • The swift adoption or full implementation of measures such as the European Supervision Order, by all Member States. The Commission should take necessary steps to ensure that is the case. • The Commission actively to police the implementation by the Member States of the measures already in place, and where necessary, to bring infringement proceedings. • The reform of the European Arrest Warrant (EAW) to reduce its misuse, and adoption of flanking measures such as the EIO. • Funding for training and exchange of best practice between defence and other practitioners and legal professionals • e-justice – continuing investment and expansion.

Institutional

43. Appointment of judges to the Court of Justice of the EU (CJEU) with criminal justice experience and training for all CJEU judges who may preside in such cases, on criminal law.

44. Ensure that Commission officials, so far as possible, who are drafting legislation in this field, not only have criminal justice experience, but are also drawn from the different legal traditions in the Member States. The Commission should make greater use of temporary staff to fill lacunae where necessary in order to achieve the right mix.

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Civil Law

45. Mutual recognition, combined with EU rules of private international law and jurisdiction, have proved to be an effective combination to date and we continue to support this approach.

46. External dimension – we would support the ratification of the Hague Convention and a renewed attempt to revise the Brussels I regime to make it less Euro-centric.

47. Support a new focus on new procedural matters in cross-border cases, for example service and recognition of documents, and gathering of evidence.

48. The Stockholm Action plan included for 2014 a legislative proposal aimed at improving the consistency of existing Union legislation in the field of civil procedural law. We endorse this and call for it to be included in the future JHA programme if it is not achieved under the current one.

49. Collective redress, but not based on the US model.

50. Initiatives to increase awareness, both of judicial actors and of the public, of existing EU measures that provide access to justice, but which may underused – for example, the EU Small Claims procedure (now under revision), European Protection Order; the recent ADR and ODR measures amongst others.

European Contract Law

51. The Bar Council does not support the development of a European contract law instrument, either in the currently tabled form of an optional Common European Sales Law, or in any of the other forms so far mooted. We continue to believe that the need for such an EU instrument has never been proved.

52. We would not support the inclusion in the future programme of any similar initiative, such as in the field of insurance contract law, or service contracts.

53. The Bar Council continues to support the idea of maintaining the valuable content of the Common Frame of Reference that preceded the CESL as an up-to-date, non-binding toolbox for legislators.

54. Optional instruments - The Bar Council continues to doubt the suitability of Article 114 TFEU as the legal basis for an optional instrument, either the CESL or any other that might be under consideration. We would look at any future proposal for a truly optional instrument, with the appropriate legal basis, on its individual merits.

• Consumer Rights Directive – proposals to complete it should be explored once its operation has been reviewed. • Family Law - Areas of improvement could include more cooperation in cross- border aspects, better tools for locating debtors abroad, and harmonised criteria for

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the assessment and evaluation of the child’s interest in order to avoid contradictory conclusions.

Fundamental Rights

55. The Commission could do much to educate the public and legal practitioners on the application of the EU Charter of Fundamental Rights to the JHA area, through information to EU citizens, support for training of practitioners and exchange of information.

12 December 2013

82 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101)

British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101)

Evidence Session No. 6 Heard in Public Questions 86 - 101

WEDNESDAY 15 JANUARY 2014

Members present

Lord Hannay of Chiswick (Chairman) Lord Blencathra Viscount Bridgeman Lord Dykes Baroness Eccles of Moulton Viscount Eccles Lord Faulkner of Worcester Lord Morris of Handsworth Baroness Prashar Lord Wasserman ______

Examination of Witnesses

Simon Lewis, Head of Emergency Planning and Response, British Red Cross, Hans Das,

Head of the Civil Protection Policy Unit, European Commission, and David Powell, Head of Emergency Planning, Lincolnshire County Council

Q86 The Chairman: Just to explain the background before going into the formal session, this inquiry is designed to enable the Committee to write a report on the European Union justice and home affairs forward programme for the years 2015 to 2019. Traditionally, ever since the Tampere Programme back in the last century, there have been a succession of such programmes, including the Hague Programme and Stockholm Programme, which we are living through at the moment. Our inquiry is designed to enable us to report on, and if necessary make recommendations about, how the 2015 to 2019 programme might best be

83 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) structured, what its priorities should be, and so on. It is therefore an attempt to respond to the Commission’s own encouragement to national parliaments to get involved more upstream with the formulation of European policy and not just wait for the Commission to make a formal proposal. In any case, this programme, which will probably be known as the

Rome Programme because it is likely to be adopted at the end of this year under the Italian presidency, is not a specifically commissioned initiative. It is one in which the Commission and Member States work together in the Council to lay down the strategic objectives. The

Commission will then take its role in making proposals as appropriate. That is the background. We have taken a lot of evidence from a number of witnesses in all the different areas covered by justice and home affairs. This morning we are looking at civil protection disasters, and that sort of thing. Unfortunately, we do not have a government witness this morning for the panel, because they are busy dealing with the flooding, which I suppose can reasonably be considered a disaster—albeit, thank heavens, not of a massively terrible kind, such as an earthquake. Nevertheless, it is quite bad. They will give written evidence to these questions, which will be part of our inquiry evidence, of which we will take account when we come to write our report. I remind you that the session is in public and is being broadcast. A transcript is being taken and a copy will be sent to you to have an opportunity to make corrections to it, although it will be published online in an uncorrected form. I have spoken about the purpose of the session; at the end of the evidence session, if you have any additional information or written material that you want to transmit to the Committee, that would be entirely acceptable. Unless any of you wishes to make an opening statement, could

I just ask each of you to introduce yourself and to explain a little of your background and involvement in these matters? We will take it on from there on the basis of questions. But if you do wish to make an opening statement, that is fine—please go ahead. Let us start with the Commission.

84 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) Hans Das: Thank you very much, Lord Chairman. Let me first of all apologise for being slightly delayed this morning. I am very happy to be here. I also thank you for the invitation to the Commission and for giving us the opportunity to provide evidence in this session. My name is Hans Das. I am head of the civil protection policy unit in DG ECHO, the directorate general dealing with humanitarian aid and civil protection inside the Commission. I can say a few words right at the start to set the scene for the discussion. Would that be all right?

The Chairman: Our first question will enable you to do that very fully, if you can wait till then, when we have heard from the other two witnesses. On the first question, on how things have worked out in recent years, I shall come to you straightaway.

Simon Lewis: Lord Chairman, I am Simon Lewis, the head of emergency planning and response at the British Red Cross. I have been in that post for three and a half years; before that, I was in the police service. My last five years in the police was as head of emergency planning at Scotland Yard. So I have had some involvement in crisis management.

David Powell: Lord Chairman, I am David Powell, head of emergency planning for

Lincolnshire County Council and the secretariat for the local resilience forum, which deals with emergencies at a local level. I also co-chair the east coast flooding group, joint with

Defra. Of course, we have been planning for the last four years for the coastal surge that we have just experienced in December through to January, so I have some direct experience of our most recent and ongoing challenges. I am also currently one of the co-initiators of an EU exchange of experts, a funded programme through the European Commission, allowing us to work with partners in France, Iceland, Germany, Poland and the Netherlands, specifically looking at how we might learn from each other to improve our responses to coastal flooding. I am pleased to say that we have been able to apply some of that learning in our recent and ongoing responses. I do not wish to make a statement, but thank you very much for the invitation today.

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Q87 The Chairman: That will be very interesting, and I hope you will find an opportunity in the course of answering the questions to say a little bit about how you have been able to benefit from those exchanges and that kind of peer group process. Let us start with the first question, which is the introduction that I referred to. How effectively do Member States engage with each other in tackling natural disasters, and how effectively is the EU working in that area? On a second, quite discrete, area, how well is the EU doing working with other international actors on this issue—principally, when the EU gets involved in a disaster outside the European Union, such as the typhoon in the Philippines or Haiti, or whatever it may be? Perhaps, Mr Das, you could start us off on that.

Hans Das: Thank you very much. The subject could not be more topical. The images of the sheer devastation and human suffering in the Philippines are still very much in our minds.

The change in climate, population growth and rapid urbanisation mean that natural disasters are striking with greater frequency and severity. The combined costs around the world are simply unaffordable. In 2012, for the first time, the world has experienced three consecutive years when the threshold of $100 billion for economic losses from disasters was passed.

Developing countries are hit particularly hard, certainly in terms of fatalities, but the developed world is not immune. Last year, Hurricane Sandy managed to shut down one of the greatest cities in the most powerful country in the world. The great earthquake, the tsunami and the subsequent nuclear incident of 2011 cost the Japanese economy some 4% of its GDP. Disasters do not stop at Europe’s borders, as your own country has been experiencing in recent weeks. This summer’s flooding in central Europe, mainly in Germany,

Austria and some other countries, is estimated to have cost more than €13 billion. The floods are likely to be the most expensive disaster in Germany’s history. If you look at the statistics over the last 10 years, you can see that between 2002 and 2011 the total disaster impacts in Europe are estimated at $151 billion in economic damage; 7.3 million of our

86 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) people were affected by these disasters and 146,000 people lost their lives. We are, moreover, becoming more vulnerable. To give one example, it is estimated that by 2050 the urban population exposed to earthquakes and major storms will more than double, reaching

1.5 billion. We are living in a world that is richer but that is also more fragile in exposure to these disasters. Against that context, it should be no surprise that most Member States are engaging actively in European co-operation to protect against disasters. Most of them have seen, and are seeing, real added value in working together at European level. The European civil protection mechanism, which is the main instrument that governs the co-operation among Member States in this field, is a young instrument; it was established only in 2001, but it has developed fairly rapidly since then. It is probably important to point out right from the very the beginning, so that it does not pollute any discussion, that it is based on two principles. First of all, it is very firmly based on the principle of individual responsibility of

Member States; each Member State is responsible for preventing, preparing for and responding to the disasters occurring in its own territory. At the same time, it is based on the second principle of solidarity. It is widely agreed today that disasters can overwhelm the response capacity of any country, including the strongest and richest. In these cases, we need to be able to work together at European level among Member States to provide assistance and help each other in the best and most effective way possible. To give you an idea of the level of co-operation today at European level on civil protection, we are organising some 50 training courses a year for civil protection experts, with an average of 1,000 participants per training cycle. Over 100 UK experts have participated in many of these training courses. We financed some 30 exercises over the past 10 years. These are full-scale simulation exercises involving teams from many different Member States. Two of these were organised by our

UK colleagues. You will certainly remember the Orion exercise in 2010. We are also organising smaller and more technical exercises, which we call module exercises, in which

87 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) again Member States are actively participating. We have defined 17 types of modules at

European level. These are predefined response capacities, which meet a number of minimum criteria. Member States have registered 150 of these modules as being potentially available for mutual assistance in our systems. The Monitoring and Information Centre, or MIC, recently transformed into the ERCC, has been extremely active and has become a real co- ordination hub over the past three years. We have monitored over 300 disasters inside and outside the EU, and have been involved in and effectively helped Member States in responding to some 180 requests for assistance.

Some of these were very small requests and did not get much visibility, but others were very important operations. In each of these emergency operations, Member States worked together in assessing needs and deploying expert teams on the side to see how Europe could best help to avoid any duplication and to make sure that the limited funding that is available for these purposes was used to the best of our ability. We pool our transport capacity; it makes no sense for all Member States to send their own planes to faraway countries to help them, so we pool together our response capacities and encourage Member States to make the best possible use of available transport capacities. In 2013, the European Commission received 33 requests for assistance, including for Typhoon Haiyan in the Philippines in

November. It also included requests from Jordan, for instance, asking for help in accommodating the Syrian refugees spilling into the country, and from our southern Member

States to help them with the destructive forest fires that they faced. In 2011, examples included the Japan earthquake and the nuclear incident, when Japan asked for a number of different types of assistance, and the evacuation of EU citizens and repatriation of third- country nationals from Libya, when the conflict started there. Perhaps it is interesting to mention that your country, the UK, has actively engaged in many of these response operations. In 2010, the United Kingdom provided assistance to Pakistan following the floods

88 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) there, to France in a cave diving incident, to the United States following the oil spill in the

Gulf of Mexico and to Haiti following the earthquake there. Most recently, your country provided very valuable assistance to the Philippines and benefited for that purpose from significant financial support from the European Commission. A request for transport funding has been made for over €900,000 to help the United Kingdom to bring that much needed assistance to the Philippines. So this work with Member States is clearly reaching a level of maturity where it is becoming systematic. Member States are working together a lot on disaster management issues, and we are increasingly trying to combine that with efforts of international outreach. We already have very close co-operation with the United Nations, and that co-operation has become even stronger in the last few years since civil protection was moved inside the Commission from DG Environment to DG ECHO, which also deals with humanitarian aid and has very close co-operation with the UN. We regularly do joint operations with the UN; we have deployed several joint missions and have worked together on the assessment of needs and on the response. In the new legislation that was adopted on

17 December, to which I will come in a second, the UN’s central role in co-ordinating relief efforts outside the EU is very clearly recognised. We have even gone a step further by giving the United Nations the possibility to activate our civil protection mechanism. So the UN can request civil protection assistance from European Member States through our civil protection mechanism. They have already made use of that for the situation in South Sudan in the past two weeks. We also have close dialogue with our colleagues in the International

Federation of Red Cross and Red Crescent Societies, and we are looking at different types of co-operation.

We have substantial regional cooperation programmes with the candidate countries and our neighbouring countries in the south and the east. We have arrangements in place to ensure co-operation with Russia, with FEMA—the Federal Emergency Management Agency in the

89 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) United States—and with Australia, Ukraine, and the Republic of Moldova. We are also reaching out to our colleagues in ASEAN through the ASEAN Regional Forum. In conclusion, we have a well functioning instrument in place, whereby we have an active engagement of our Member States on a wide range of activities, increasingly embedded in international structures and international co-operation arrangements. But we need to continue to improve, for the reasons I outlined at the beginning, because the needs are increasing. To meet growing needs, we need to continue to improve our instrument, which is why we most recently adopted new legislation that takes the work forward on a number of strands. But perhaps I can come back to that.

Q88 The Chairman: Thank you very much. I have just one question to follow up before I turn to the other members of the panel to give their view of how the European Union’s efforts have been developing. There was a lot of criticism at the time of Haiti of confusion, lack of co-ordination, NGOs and governmental agencies falling over each other, and so on. I am sure you are very familiar with that criticism. Is it your impression that things are getting better in that respect, or do we risk, if there was a really huge disaster like that in a place that is completely unable to cope with it itself, of having a repeat performance of what happened in Haiti? In the Philippines, I am sure the Government were a great deal more resilient and robust than the Haitian Government, for obvious reasons. Is it getting better, in your view?

Hans Das: I will limit my answer to the European contribution to the overall relief effort, and there the answer is clearly yes. I think that we are seeing very clear improvements over the past few years in the co-ordination at European level. Member States are aligning themselves much more with other Member States, avoiding duplication and making sure that we send the right type of assistance at the right time in the emergency and to the right place.

Big disasters such as the Philippines and Haiti will always be challenging, and there will always

90 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) be scope for improvement, but I am fully convinced that we have done our best to help our

Philippine colleagues over these weeks. We have deployed expertise as the first actors internationally; we were on the ground with expert teams from our Member States, ready to help to assess the needs. We worked very closely with the UN from day one, and we worked very closely with our military colleagues in the EU military staff from day one. In this case, there was no need to deploy military assistance from Europe—also because of the distance, and so on. But the co-ordination and co-operation were in place from day one. So from my side the evaluation is definitely positive. We will be organising “lessons learnt” meetings with all our Member States in the coming weeks to see what lessons can be taken from this experience and how we can further improve for the future. But I think the

European co-ordination worked well. I will refrain from saying anything about the international co-ordination. They were two different processes.

The Chairman: Do the other two members of the panel have a comment to make about how this has evolved in recent years, and how the EU’s role has evolved, too?

Simon Lewis: Yes. From my perspective, speaking for the Red Cross, as you are aware, the international Red Cross is an international player with almost 190 separate national societies, co-ordinated by the international federation and the International Committee of the Red Cross, based in Geneva. The international federation has invested in a fully staffed and functioning European office in Brussels, and that team works very closely with DG

ECHO and with Hans in particular. They have a really healthy, strong, important and vital relationship.

It also allows in that setting to have what we would call a disaster management working group, where I as head of the emergency planning response in the UK for the Red Cross and my counterparts in all the European Red Cross societies meet at that European office at least annually. At the last event, Hans came to present on progress that has been made on

91 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) European investment into the co-ordination response to disasters in Europe in particular.

Also, I chair a voluntary sector civil protection forum in the UK, which is basically made up of national emergency response voluntary sector agencies, such as the Salvation Army and St

John Ambulance. But I am also a member of a European equivalent, where I attended my first meeting only a couple of months ago and where you have similar representatives—but I was the only Red Cross representative, so I got a good view from across that table with people from Croatia and Hungary, and so on. I would say, first, that we need to reassure ourselves in the UK that we have the best civil protection arrangements that there are, but I cannot say the same for the other representatives who were sitting around that table with me. The new legislation that is in place and guidance such as the Stockholm Programme is not just important but vital to many of those countries in Europe, which find it challenging at times. That is my personal opinion. It is really important that we continue to have interface with DG ECHO and Hans’s team and that we are focused as a movement on building strong relationships not just with our own national societies around the world. I guess I am really talking about Europe, because there is an international division of the British Red Cross, which does more internationally. I am more concerned with domestic and European countries, too. We are not just interested in working within our own network; we will never respond on our own to Haiti, Pakistan or the Philippines, where we have people at the moment. We will always do it in partnership, and we need to build those relationships.

Programmes such as Stockholm and the legislation that is in place now help us. We are big players, clearly—that is obvious—but there are other players that need the guidance and the legislation to bring them to the table and give them a better standing. That is my view.

The Chairman: And from the more local point of view?

David Powell: I thought that Hans gave a very comprehensive overview, so I guess from a practitioner’s point of view there are two examples that I can share with you, where we can

92 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) corroborate what Hans is saying about effectiveness. The first is around flood rescue as an

EU capability. The modular training package that Hans described has allowed us to be very clear on what standards we require for flood rescue. I think that the module of training has helped us to describe exactly what a boat team would look like, what is required and what kind of equipment is needed. If we had asked for that incoming assistance—and in fairness, we did not need to with the recent flooding—we would have received it from our European colleagues and would have known exactly what was going to arrive for us to deploy locally, safely, with our own command and control structure. That is probably a relatively minor point but an important one about the benefits of the EU interactions.

The second practical point to talk about is coastal flooding knowledge. I am sure that most of you are aware that in 2010 the French suffered their coastal storm, Xynthia, which killed

53 people on mainland Europe. Up until that point, for me in my position in Lincolnshire, it was quite hard to imagine what another 1953 storm would look like; it was before my own professional memory time. The ability to visit French colleagues and look at how they dealt with the event has had a direct influence on the successfulness of our own response in recent months, certainly in Lincolnshire and, as I know from colleagues, along the whole east coast. Those are two very practical, albeit at an operational level, experiences that I hope will corroborate what Hans said about the political and policy level.

Q89 Lord Faulkner of Worcester: I would like to ask you about the Stockholm

Programme. You will remember that it said that, “future Union action should be guided by the objectives of reducing vulnerability to disasters by developing a strategic approach to disaster prevention and by further improving preparedness and response while recognising national responsibility”. How well are we doing in meeting these objectives? Do you think that the adoption of those priorities has led properly to action?

93 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) David Powell: Personally, I do. Again, I need to limit my answers to coastal flooding, as it is my direct area of expertise. For example, the exchanges on forecasting and our ability to look at things such as defence management, risk reduction and vulnerability reduction, right the way through to our operational knowledge of how to deploy assets and work with local communities about their awareness of risk, have been very successful. Certainly, in the priorities, I would support those continuing. I think there is space for us to do a lot more work on community recovery following disasters, both within the European sphere and in the UK and elsewhere. There are also a lot of opportunities here for research that I am not sure we are maximising. Research tends to be commissioned, understandably, at a very high policy or academic level. From a practitioner and operational point of view, being able to translate that research into reality on the ground is a very important factor that I am not sure is always picked up. That might be an area of priority development for the next programme.

Q90 The Chairman: Mr Das, I just wonder whether you could say something about research at the European level. The European Union now has a very big research programme. Research into civil protection and things such as the periodicity of these events, and whether there really is a link with climate change—all that sort of thing—are going to be very important. To what extent is the EU involved in all that?

Hans Das: We have been mainstreaming disaster management considerations in the past three years, including in the area of research, where civil protection and disaster management have been included as a priority area for funding in many of the research programmes that the European Commission is running. There is a whole programme on security research, which includes a priority on disaster management, and in the overall framework programme on research there are various strands included that deal with disaster management. We are benefitting a lot from these research activities. We have done

94 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) the same with the structural funds, for instance, at European level, where it is possible under the new multiannual financial framework for Member States to receive funding for further work on disaster prevention and risk reduction within their own countries. This includes the development of risk management plans, but it also includes the investments necessary to deal with different risks. Mainstreaming disaster risk considerations has been an important part of the work.

Q91 Lord Wasserman: No one has mentioned communications in dealing with responding, or with interoperability of voice and data. Are we doing anything about trying to get countries to have interoperability arrangements and set international standards? In this country, we are about to replace our airwave system with a new system. The question is whether we are going to take any notice of European interoperability when we plan our next generation of emergency service communications.

Hans Das: I am not an expert on that issue. I am aware that work is ongoing on those issues. We are financing some projects that deal with the interoperability of communications systems. I would need to check on the details.

Simon Lewis: Certainly, from the Red Cross perspective, we are part of the government-led programme for the new arrangements to take over from airwave, so we are in bed with that already with our statutory partners. Currently, we have airwave, so we can interoperate with police, fire, ambulance and local authorities across the country. I am speaking on behalf of the Red Cross; when we meet at the disaster management working group, we discuss ways in which we can communicate. Again, I do not have answers on how clear that is, because airwave will not be able to operate outside the UK. I am hoping that as part of this new vision for mobile technology to take over from airwave we might be able to move forward to something more cross-cutting across Europe.

95 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) David Powell: On the non-technical side, the modular training has described common language and understanding of command control structures. I cannot answer on the technical side, as it is not within my personal knowledge.

Lord Wasserman: Looking ahead at the programme—and we ought to be looking at this—we may send people to another country and, lo and behold, find that they cannot speak to each other. There is real problem there. It happened here when those underground could not speak to those above ground. It would be so much worse if we sent them to Poland, or somewhere far away.

Simon Lewis: There needs to be within each country a contingency to have a pool of radios so that if I arrive in Poland to a disaster, there should be a hard case full of radios and they are distributed.

Lord Wasserman: Correct.

Simon Lewis: That is how it happens in the international deployment of the Red Cross, which actually does that—it has sat phones and radios, which the other humanitarian organisations will share.

Q92 Viscount Bridgeman: Mr Das, would it be true to say that the on-site presence in international disasters is invariably through member countries and/or NGOs, and that your role is co-ordination and financial?

Hans Das: Yes. The goal of the civil protection mechanism is to facilitate co-operation between the Member States, primarily, in response to disasters inside and outside the EU, and in preparing for and preventing these disasters. We facilitate the deployment and sending of Member States’ experts, teams and capabilities to a disaster-stricken country. We train them beforehand to do that, and we run exercises to make sure that it works smoothly and is efficient. That is the overall process. If you will allow me, I would like to add two words on the new legislation that we have just recently adopted, which is very important in

96 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) this context. Basically, we have now reinforced the co-operation at European level in three different ways. First, we have placed a lot more emphasis on disaster prevention and risk reduction. There is for the first time a legal requirement for Member States to have risk assessments in place, and that is something that your country has been one of the first to do at European level. Many other Member States still have some homework to do on that.

Member States also have an obligation in the future to assess their capability to deal with those risks and to share that information with other Member States at European level. That is combined with a system of voluntary peer reviews, where we can exchange best practice and learn from each other. This is a step change in the EU’s approach to disaster management. Initially, we were very much focused on disaster response, but increasingly we are all seeing that we also need to invest very significantly in disaster prevention.

Secondly, we are strengthening our response to disasters by creating an emergency response capacity at European level. This is based on Member States’ capacities and it is a purely voluntary system, involving the establishment of a voluntary pool of pre-committed response capacities in the different Member States, so Member States on a voluntary basis can pre-commit certain response capacities for European civil protection missions inside or outside the EU. Member States also need to offer quality assurance in that respect. We are in the process of establishing certain quality requirements based on existing international criteria, such as those from the Red Cross. There will be a certification process whereby

Member States will have to show that the capacities that they have available to assist each other actually meet these requirements. That will also allow us to take some of these technical issues into account, such as communication equipment, just to make sure that we can work together effectively during major disasters. In turn, for these extra commitments of higher availability and quality, Member States will benefit from increased financial incentives, so they will receive financial support from the EU for having certain response

97 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) capacities on standby. I am very much hoping that we will also benefit from UK expertise and experience in the development of that voluntary pool and that your country will look at making certain response capacities available.

The big benefit of this, apart from the financial incentives, is that we can rely on certain types of response capacities being available in case of need, and we can rely on the quality of those capacities. The final change in legislation is the creation of the new emergency response co- ordination centre. The Monitoring and Information Centre, or MIC, has been in existence for 10 years. It is widely agreed in Europe that it has done a good job in helping Member

States to respond to disasters and in supporting co-operation between Member States. A lot of work has been done also on monitoring and satellite images in the past few years, but everyone agrees that we need a much more robust structure at European level to make sure that we meet the increasing challenges of the future. That is why the Emergency Response

Coordination Centre has been established, which offers more sophisticated technologies and is a 24/7 fully staffed centre. It is most importantly an open centre, and more than anything else a meeting place where different actors can come together during emergencies and representatives from Member States can meet, liaise and make sure that we all have the same understanding of emergencies. Representatives of the military staff can come, along with the EU Presidency and consular authorities, so we can all have a common understanding of big emergencies and of how we can best help the countries affected by those emergencies. This Emergency Response Coordination Centre will also be the central hub in the implementation of the solidarity clause, for which the Commission and the

European External Action Service made a joint proposal a year ago. That is still being debated in the Council, but we hope it will be adopted fairly soon. That will complete the legislative landscape on disaster management. It is the one missing piece still out there today, but we are very hopeful about having it. It will have added value in ensuring better political

98 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) co-ordination in the Council and in Brussels during big emergencies, and that we send the right types of assistance at the right time to the right place.

Q93 Baroness Prashar: Thank you very much, Lord Chairman. Your description of the legislation is very interesting. My question is really in two parts. Has the Monitoring and

Information Centre succeeded in its goal of achieving a higher and effective level of disaster resilience within the European Union? Building on that, can you see that the new Emergency

Response Coordination Centre will be an improvement?

Hans Das: Thank you very much. The role of the Monitoring and Information Centre was to facilitate co-operation between Member States in response to disasters and preparing for them. I think it is widely accepted that the MIC has been very successful in fulfilling that mandate. It has established monitoring and early warning systems, which are shared among all Member States. There are specific systems in place for floods and forest fires3. It provides

Member States with easy access to satellite images during emergencies and ensures information exchange between Member States on a continuous 24/7 basis. Perhaps the most important added value of the MIC has been in matching needs with offers. We are not in the business of just sending whatever assistance is available. We like to send exactly the right type of assistance, the type that is needed on the ground, with a minimum burden on the affected Member State. We deploy experts to the disaster site and provide support to

Member States in transport and various systems. Perhaps to some extent the MIC has developed into a help desk for Member States—a place where they can get advice and help on what to do and not to do in emergency situations when trying to help others and to overcome practical obstacles in a lot of these situations.

One of the main innovations over the past few years has been the guidelines on host nation support. We have developed guidelines for our Member States on what is needed not only

3 In addition, there are more general early warning systems in place that cover different types of disasters.

99 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) to provide assistance but to receive assistance, because receiving international assistance is one of the most complicated issues in disaster management. You have to imagine a situation in which, all of a sudden, teams from many different countries are coming into your country, with a lot of good will, wanting to help but not necessarily having the local knowledge or the language skills, and so on. So we have done a lot of work on making sure that, at least within the EU, there is a system in place whereby everyone is clear on their obligations and responsibilities, and the receiving country knows exactly what it has to do to integrate this international assistance into its domestic system. These guidelines are now being copied in other parts of the world, and that is very rewarding to see.

The Emergency Response Coordination Centre was opened on 15 May and is the successor of MIC. It is a more modern crisis centre with more sophisticated tools. Additional investment is being made in early warning and communication. We now have the possibility to do video conferences with many Member States at the same time and to organise co- ordination meetings in Brussels with all the Member States. It is very much an open centre, as I said, where different stakeholders can come together. The ERCC will continue the same functions that the MIC had before, but it will have a number of additional roles; it will implement the new legislation, for instance, and manage the voluntary pool of pre- committed response capacities, as well as co-ordinating the efforts there. It will also ensure closer co-operation between the humanitarian aid actors of DG ECHO, Member States and civil protection. In that sense, it will also provide a platform for closer co-operation with the

Red Cross, some of the big NGOs and the international organisations. It will also be a support platform for all sorts of other emergency actors inside the Commission. It can act as a service provider for DG SANCO during health threat situations, for DG Energy, when dealing with nuclear crises, and for DG Home Affairs, when dealing with terrorist attacks. It

100 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) is a general, horizontal type of crisis centre, which will support and provide services in a number of situations.

Baroness Prashar: Do you wish to add anything?

David Powell: No, thank you.

Lord Wasserman: Who staffs the new centre? What is the background of the people who are running this thing?

Hans Das: It is a combination of different staff profiles. First, there is a group of national experts seconded by different Member States, which is extremely important because we need that operational expertise from Member States. We need to have the knowledge to deal with flood situations, earthquakes, and so on. That is an important part of it. Then there is a contract with a service provider, which gives us a number of colleagues who are experts in information technology and communication, making sure that the IT systems work flawlessly throughout emergency situations. The third group is Commission officials and general staff.

Q94 Lord Wasserman: I want to follow on. We talked about all these structures, but what about money? Do you have enough money for this? Is enough provision made for the next period of the multiannual financial framework to cover all these terrific plans, ideas and schemes you have, the new legislation, and so on?

Hans Das: The new multinational financial framework for 2014 to 2020 has set the civil protection budget at the level of €368 million for the next seven years, which is divided into approximately €223 million under heading 3, for activities inside the EU, and €144 million for activities outside the EU, under heading 4. This is a significant increase compared to the previous multiannual financial framework; civil protection is one of the rare areas in which funding has actually gone up. While disasters remain unpredictable, making it difficult to

101 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) estimate precisely the needs there will be, in principle it is considered that this amount is appropriate for the actions that are currently set out in the legislation.

The Chairman: Presumably the figures that you have given, which in terms of the great disasters that you mentioned in your opening statement, with economic losses far greater than any of the figures you have given, are basically core expenditure. They do not take account of what the 28 Member States and the EU together would do if there was a major nuclear disaster or a typhoon, or whatever it is. Then resources are added to that, presumably, in the context of their immediate response. Is that the case? So the figure does not give a true picture, really; it gives a picture of a sort of steady state situation, but not of what actually happens when there is an emergency.

Hans Das: This is the budget that is available for EU activities supporting Member States to deal with disasters, and supporting third countries to deal with disasters, under the Civil

Protection Mechanism. The cost of assistance provided during disasters is borne by Member

States providing the assistance. We help in covering a part of the transport costs, so

Member States can make a request for financial contributions to transport assistance to other countries, other Member States or third countries. The cost of the actual assistance is borne by the Member States directly. So this does not give an accurate picture of what is needed to deal with all these disasters that may be coming at us; it just gives us a picture of what the EU is going to spend to support Member States to deal with these disasters.

The Chairman: Right. I would like the other two members of the panel just to comment about the sufficiency of resources, in their experience, when one of these disasters occurs.

But I know that Viscount Eccles wanted to come in on a previous question.

Q95 Viscount Eccles: I am not sure. It is a rather general question. How do you see the balance between the effort that we put in to deal with what you might describe as European problems, and that for other problems? Europe has a relatively temperate and equitable

102 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) climate. It may change, but I would rather not speculate on that. We do not, in general, have hurricanes or a Philippines-type experience, and we have never had that severity of experience in the whole history of Europe, as far as I know. Therefore there is a big question, which was raised at the beginning, I have to admit, on the international dimension of this. You mentioned just now the example of many countries coming to the assistance of the Philippines. It cannot be said that the 28 countries in Europe are the central actors in a very bad disaster in the Philippines, for example, and they are very unlikely to be so. I wonder how you see that dimension of balancing the interests of the European Union with the much wider international interests.

Hans Das: There are two parts of my reply to that. First of all, European Member States have very different risk profiles. In the south of Europe, we have a relatively strong earthquake risk and a relatively significant tsunami risk in some parts of Europe. For instance, in the Mediterranean there are historical examples from centuries ago of tsunamis that had devastating effects on some of our Member States. So one needs to be careful in thinking that Europe may be immune to these very big disasters. However, I fully agree that most of our work in helping countries affected by disasters and most of our operations over the past decade have been in countries outside the EU. Certainly, Europe cannot solve all these problems on its own—that is fairly clear. We are trying to provide a reasonable contribution to these international relief efforts, based on the assistance available from Member States and with a minimum of support from the EU. Perhaps I should make one clarification: the budget that I mentioned is the budget for civil protection co-operation. Of course, in addition to civil protection, there is a much bigger budget available for humanitarian aid, which we also use in DG ECHO but which is not covered by this session, to assist humanitarian actors or respond to humanitarian needs, mainly in developing countries. That money is used to support the UN, the Red Cross family and NGOs in responding to these

103 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) big humanitarian disasters. For instance, in the case of the Philippines, the EU very clearly responded through these two instruments, the civil protection mechanism, which brings the assistance from Member States, and the humanitarian aid instrument, whereby a much more significant amount of money is available to support the UN, the Red Cross and others.

The Chairman: Perhaps the other two members of the panel could comment on to what extent their activities are constrained by inadequacy of resources—or do they think that what we have heard this morning shows that we are getting better at being able to respond quickly, and that those quick responses are not too much constrained by resource issues?

Simon Lewis: From a Red Cross perspective, we are quite fortunate in that we have maintained a large disaster fund, made of general donations, which allows us to respond immediately to a disaster worldwide. That is when you see the public appeal for funds to backfill or go straight to the country in need. So from an internal Red Cross perspective we are quite fortunate. But there is response, recovery, preparedness and resilience—that sort of circle approach. Even in the flooding that David mentioned, which we currently have in the UK, we have been quite slow in attending to the humanitarian needs of people made homeless by the floods, some of whom may not go back to those homes for maybe six months to a year, or ever. Perhaps we could turn the spotlight on our own country, because when the blue lights stop turning the media move away from the incident. Just using the UK example—I am sure it is replicated in floodings in other parts of Europe—there are many people with a real psychological and emotional need, plus a tangible need for proper shelter.

I appreciate that that is a local authority responsibility, and David can speak on behalf of a local authority or county Council, but if anywhere needs a spotlight it is with recovery. We could and should be doing more in that regard.

David Powell: If I can add to that, one other relevant risk to us is the effusive volcanic eruption. That is the reality for Iceland, which is why we engaged them in our exchange of

104 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) experts programme. We learnt an awful lot from them, I have to say. Simon commented right at the beginning that we should celebrate because we have some very effective civil protection arrangements in the UK. We are quite strong, and the basis of that strength is that we are very good at doing risk assessment and capability analysis. So we understand that in most disasters we will have to rescue people—we will have to evacuate and therefore shelter them after the event. There are 10 or 12 key capabilities which I think we have invested in very well in the UK. A great example is with flood rescue. In Lincolnshire, we believe that we would need up to 63 boat teams to be able to respond effectively to a worst case scenario flood on the scale of 1953. The one that has just happened was not on that scale; it was very much smaller. When I arrived at my job five years ago, we had two rescue boat teams in the county, which was clearly inadequate. With investment through Defra and working with the capability programme, we have 10 to 20 craft that we immediately deploy.

More importantly, we also know where to go next in the UK to get additional support, and that includes the ability to trigger the EU mechanisms to ask for boat rescue teams from

France, Germany and elsewhere, although we have actually never done it. It is my understanding—Hans can correct me if I am wrong—that we have asked only once, and that was during the severe weather. So we probably ought to recognise and celebrate that we are quite strong in the UK. But I still think, and I agree with Simon, that this is the value of looking outwards to our European colleagues. We can still learn from them about mass evacuation recovery and community resilience in particular, in engaging citizens and raising their awareness of what they ought to do to protect themselves and their businesses, because in future in times of constraint there may be less funding to do that at local authority level. That is why the exchange programme, for example, has not really talked about the assistance we might receive; it is more about what we can share from learning, rather than reinventing the wheel.

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Q96 Baroness Eccles of Moulton: I wanted to ask you a question about humanitarian aid, because humanitarian situations can be produced by natural disasters but also by manmade disasters, with refugees. This obviously applies more to the international work that you do outside the EU. You mentioned that the new emergency response centre related to quite a number of other departments within the Commission. How do you, from your centre, distinguish between humanitarian natural disaster needs and manmade refugee needs, to put it in rather simple language?

Hans Das: The European civil protection mechanism can be activated for any type of disaster—natural disasters but also manmade disaster situations, be it or a refugee crisis nature or even a terrorist nature, and in certain cases even armed conflict. So in principle the instrument and all its tools, the co-operation on transport, the needs assessment, the module of approach, and so on, can be used for both situations. There have been examples of that, such as in the Libyan conflict, where a lot of our European citizens got caught in the country. We had a first phase, where we concentrated on the repatriation of EU citizens, and where the contribution of the EU civil protection mechanism was to provide transport capacities and medevac, medical and evacuation capacity, to get people out quickly. In the second phase, we had a very difficult refugee situation on the borders of Libya. We were involved in the international efforts of repatriating many of the third-country nationals to their homes of origin. We are talking about a crisis that was geographically very close to the borders of the EU, and where there was a very clear risk of the refugee crisis spilling over into the EU. I believe that more than 20,000 or 30,000 third-country nationals have been repatriated to their countries of origin through the assistance provided by Member States under the civil protection mechanism. At the same time, of course, we use for these types of situations the humanitarian aid funding that we have, which was also the case in Libya, where very significant humanitarian aid funding was provided to implementing partners such as the

106 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) UN, the International Organisation for Migration, the Red Cross and a lot of NGOs.

Through that system, a lot more people were helped and effectively repatriated. So in those situations, the civil protection mechanism can provide a contribution; our centre will certainly monitor and be very much involved in that, but the much bigger and more important assistance is provided through our humanitarian aid system. The centre serves both the civil protection community and the humanitarian aid community.

Q97 Viscount Bridgeman: Some Member States, including the UK, may choose not to participate in exercises organised by the ERCC or to contribute resources to the ERCC.

How might this affect the EU’s operations in this area?

Hans Das: There are indeed very few legal obligations on Member States in our systems.

The civil protection mechanism is, with a few exceptions, very much a voluntary system, whereby Member States can choose to participate in activities or choose not to participate.

From the European Commission side, we of course hope that Member States remain convinced of the added value of co-operating in these activities, and that they will continue to engage actively in all these different activities. There is also a little peer pressure built into the system, because we are organising and co-ordinating a system of mutual assistance and exchange of best practices between Member States. That of course requires a certain degree of transparency and of quid pro quo. Member States contribute to the system in the same way in which they will benefit from it, whenever they are in need. So when it comes to the emergency response capacity, the Commission would like to strongly encourage all Member

States, including the UK, to join the system. We are convinced that the UK has unique expertise and capacities to offer to the voluntary pool and that it can benefit from that system. It will provide your country, and a lot of other Member States, with funding for training activities and exercises; it may even give you funding to adapt some of your response capacities to a level of international interoperability.

107 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) In the case of a big disaster, including in the UK, the possibility cannot be excluded that one day you might benefit from the assistance available from that emergency response capacity, should you ever need some. It is clear that, without the active engagement of all Member

States, all these instruments remain an empty shell. We have created a system, and we are ready to support that system, but it is up to Member States individually and collectively to fill that system with substance and to do that in a meaningful way. So the engagement of

Member States on a voluntary basis is critical.

Viscount Bridgeman: Is this by way of an annual subscription or case of need? Is participation on an ongoing subscription, or just when disaster strikes?

Hans Das: Two systems are possible. Whenever there is a major disaster overwhelming the national response capacity of the affected country, that country makes a request for assistance. Any Member State can provide ad hoc assistance to help to respond to that emergency. For the future, we are creating a second strand, which is a more organised and co-ordinated strand of work, whereby Member States pre-commit certain response capacities and therefore, for a certain period of time, each Member State would have certain response capacities on stand-by for a co-ordinated European response. That gives a much higher level of predictability and more transparency on the quality of the assistance.

The Chairman: If I am right, in one of your previous replies you said that you did not yet know whether the British Government would pre-commit. Is that correct?

Hans Das: We do not know for any Member State at this moment in time.

The Chairman: Because this only came into effect in December, and you are not yet aware of how much people are going to pre-commit.

Hans Das: No, we are not. The legislation was adopted on 17 December. It entered into force on 1 January, and we are now at the stage of developing the implementing rules for these new instruments, which will presumably take another two or three months.

108 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) David Powell: I just come back to the exercise question. I had direct involvement in both the EU flood exercise and Orion, which Hans has already mentioned. One was a flooding exercise, while the other was an earthquake exercise, which was hosted by the UK. My experience of both those events is that they are a great opportunity for responders— practical and operational people—to learn from European colleagues. Every time we interact with each other, we learn something different and more, and that alone is invaluable and worth the effort. They also, of course, allow us to develop the capabilities—and I am a personal supporter of the modular approach for how we develop some of these capabilities.

Hans made the point about how it also allows the UK to access some of the funding available, which is often an opportunity that we might be missing here. Our fire colleagues, for example, within the EU modular areas, but other organisations may not be getting their value for the investment around exercises, in particular.

The Chairman: Just to clarify one point about the pre-commitment, which I am not sure I have quite understood, will pre-commitment still leave Member States to make their own decisions, or will they pre-commit to putting resources under Commission control?

Hans Das: No. The final decision to use these capacities in any given emergency is clearly with the Member States that pre-commit to response capacities. The principle will be, however, that whatever is pre-committed is expected to be available, unless there are reasons for not making it available. In the legislation, three different scenarios are foreseen;

Member States may need response capacities themselves, at home, for domestic emergencies. There might be cases of force majeure—technical reasons why deployment is not possible. Thirdly, a Member State might have serious reasons for not deploying, which is not further qualified. So there is a little bit of discretion for Member States to decide whether or not to deploy, which we think this is the correct approach. This is not about the

Commission taking control; it is simply about making sure that the assistance becomes more

109 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) predictable, so that we know what is likely to be available and can effectively plan for the use of these capacities.

Q98 Lord Blencathra: Can I ask you about the involvement of public-private partnerships and volunteers in what we now call civil society? I give you an example. About

10 years ago, there was massive flooding in the city of Carlisle, in the north of England. The whole community and farmers round about turned out with massive tractors and machinery; the building companies turned out with their bulldozers, cranes and pumps. The fire and police HQ in the centre of Carlisle were flooded out under 10 feet of water, but the police and emergency services and the county and district councils told all those volunteers to kindly go away. They were not needed, they had not been part of the training programme, they were not built into the command plan, and they were not sure about their insurance liability or the health and safety obligations. Those are not just my observations—they were in the independent report afterwards. I would like to think that that has changed in this country, but I worry that if Lincolnshire has to look for boats from Europe when there may be hundreds of little boats in Lincolnshire available to be used in an emergency, we may still be pushing away civil society. Have you built into the plans not the certainty that hundreds or thousands of volunteers will turn up with big, very expensive equipment but the contingency that you can use them to the fullest extent if they do turn up? That also included in Carlisle the fact that the WI turned out with tea and buns and the Red Cross with the blankets—and they were also told, “I’m sorry, the halls are locked and you can go away”. We cannot allow that to happen again.

The Chairman: Let us start with David Powell.

David Powell: I have a very recent and relevant experience from the coastal surge flooding.

There are two answers to that. One is on the structured voluntary sector response, which it is part of my responsibilities to co-ordinate. In Lincolnshire we have an incredibly effective

110 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) arrangement with Simon’s colleagues at Red Cross and all the other established voluntary sector organisations—St John Ambulance and the Salvation Army. The beauty of that is that over the last four years, we have been jointly training with them for exactly that scenario, so we now exactly what they will ask for and what they will give us, and we know how to integrate that into our co-ordinated response. That is very effective, certainly in Lincolnshire and, to my knowledge, in other areas as well. The bit that we are learning rapidly is on what we would call convergent volunteers—somebody who turns up on the day with a leaky boat, who it might be quite difficult for us to use. You do not want to upset that person by not using that commitment and enthusiasm. The riots response and the self-help groups in

Boston are two great examples where, through social media, people formed as a group of volunteers only for that event. They do not want to join the British Red Cross or become a regular signed-up member, but on this occasion and in that circumstance they have a genuine desire to assist. That is the challenge for us going forward. It is not around whether we want to use them; we will not have much choice because resources are diminishing. We need to make them a very effective part of our response arrangements. The difficulty is with the policy areas, and with who deals with the insurance issues if, under our direction, somebody does a bit of activity that is less than well thought through and as a result injures themselves or somebody else. There are some UK policy issues that need to be addressed, but on the fundamental principle of whether we want to integrate those people I would say yes, absolutely. They need to be an increasing part of the response structure.

Two great examples of where this is done well are with FEMA’s core of volunteers and with

Germany’s THW organisation, which is a large voluntary organisation with a role in disasters. But of course that is all co-ordinated by a central policy department, which is what is missing now. We have, with Defra’s support, just launched some research conducted by

Warwick University to help us to unpick recent experiences and come up with some ideas

111 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) with what the policy issue are, and the myths about injuries. The great one is the one about clearing your drive from ice and snow. We can finally deal with those issues and then talk to responders about how you make them an effective part of the response. That is a very local and recent experience.

Simon Lewis: From the Red Cross’s perspective, I am sure we have moved on since the example that you gave. We have convergent volunteer guidelines. We are very often faced with volunteers who have just turned up on the scene with a 4x4 vehicle, and so on. You are right that a health and safety group in years gone by might have pushed them away, but there are guidelines. Clearly, we need to protect people to whom we are providing care—in the normal workforce you have CRB checks and competences and so on. But there are ways in which to deal with that. One is by buddying people up, for example: you have a Red Cross person with that 4x4 driver, or with somebody doing a one-to-one or group activity in a rest centre, to embrace them and make sure that the tasks they are given are appropriate to the skills that we feel that they have, having carried out some sort of assessment.

We are also working with the Cabinet Office at the moment. We have a support line capability, to have a virtual call centre and trained volunteers to handle a catastrophic incident in the UK, with perhaps hundreds of people and organisations that are willing to throw either people or resources at it. I have a meeting later this month with the CCS on that issue. The voluntary sector across the board has a lot to bring to this, and it needs to be used far more. Coming from the police service and wearing a different hat, I would have been one of those who said, “The voluntary sector will come to us when we need it”. But that is so wrong; we need to be in bed with them in peacetime as we are in emergency. The voluntary sector can bring an awful lot to the corralling and the verifying of abilities of convergent volunteers. Also, having spoken to our insurance department, I know that if I ask a convergent volunteer to do something for me, on my behalf, they are insured under the

112 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) Red Cross—they have volunteered. We have moved an awful long way. I have something else to mention around the private company partnership, if I may. I have a couple of examples, but it involves mentioning brands. Is that okay?

The Chairman: Yes.

Simon Lewis: To give you two examples of private companies—I think this is an untapped resource, and something that the voluntary sector does relatively well—with Tesco and

Land Rover it is a win-win. These big organisations are wealthy, and it is good for them to be involved in crisis response. There is no doubt about it. We know that that is one reason why they do it, as well as the humanitarian need of course. You might not know this, but with more and more Tesco stores having 24-hour capability, in times of an emergency we have a corporate arrangement whereby we can walk into any Tesco store and walk out with

£500-worth of anything. It could be food, blankets, water, torches, batteries or whatever.

Lord Faulkner of Worcester: It is just you, is it?

Simon Lewis: Yes, that is where I got my suit. No, any Red Cross representative in an emergency can go into any Tesco store and do that. That is really important. In terms of the cost to us a charity, it means that we do not have to have a warehouse full of blankets—we have 24-hour stores. I spoke to a counterpart of mine in the American Red Cross and his jaw hit the floor, because Walmart in the United States is massive and contributes financially to the American Red Cross, but he had never thought of using Walmart as a logistical tool, as we have with Tesco and some other stores. Land Rover provides us with free Land

Rovers, and in an emergency—in the extreme weather that we may have in Wales,

Northern Ireland or parts of Scotland—wherever it might be we can walk into any Land

Rover dealer and they will give us free hire vehicles that are available for as long as we need them in response to an emergency. Those are just two examples. There are more with

113 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) insurances companies investing in the voluntary sector to respond to emergencies. It is an untapped resource, it really is.

David Powell: If I can just supplement that a little bit, from a local authority point of view one thing that we are developing is an emergency procurement framework, so that we can access some of the large-scale stocks. We cannot keep them—we do not have that luxury at the local level. But it strikes me that maybe some of that arrangement should be national rather than local. Why am I trying to enter into procurement arrangements with what could be national assets and businesses, because then there is duplication?

Lord Blencathra: That seems to me quite a good little British plan, Mr Das. Can Europe replicate it?

Hans Das: I will be very brief. From the Commission side, we certainly agree about the very valuable role that volunteers and the private sector can play in disaster management, but how that is organised is very much within the competence of individual Member States—and there we see very strong differences between Member States. As was already mentioned, some of our Member States rely very much on trained volunteers for their entire disaster management system. There are examples in Italy and Germany, where systems are built very much on voluntary support from individuals. When it comes to public-private partnership and the private sector contribution, we have benefited from a bit of that in certain response operations. For instance, in the response provided by Europe to the Japan disaster in 2011, we and several of our Member States benefited from cost-free transport that was provided under corporate social responsibility schemes by different air carriers. A lot of the assistance was transported for free, at no cost to individual Member States, because big companies were willing to step in and make a contribution. Some of our Member States have made partnerships with commercial service providers for different types of assistance. We work a

114 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) lot with public-private partnerships for some of our exercises and projects. But I agree that a lot more reflection is needed around those issues.

The Chairman: You talked a lot in your earlier answers about training programmes, and so on. This sounds to me like an area where a lot of the best practice could be spread around more widely than it is at the moment. Of course, you are right that each Member

State will have to decide how to fit this sort of thing into its own disaster relief effort. But in a way it is probably the ignorance that these possibilities exist which the European Union and the European Commission could help to fill. Is that not so?

Hans Das: We would be very keen to support best practice and learning and reflection processes on those issues.

Q99 The Chairman: I wonder whether we could turn to a different question, which concerned us quite a lot when we looked at the civil protection issue about three or four years ago. I had just joined this Committee at that time, and my predecessor Lord Jopling was very concerned about it, because he had been directly involved as a NATO parliamentarian with the NATO disaster relief machinery. He was pretty shocked, as was the Committee, by the absence of proper co-ordination between what the EU was doing and what NATO was doing. You had pan-European exercises taking place in a ridiculously short timescale, one after another, or at times when they could not be properly co- ordinated. Has that got any better since we looked at it then? We expressed some quite sharp criticism of the lack of co-ordination. You spoke about the UN and you told us quite a bit about how you fit the EU involvement in handling disasters outside the EU into a UN framework, but what about the NATO one, and any other regional organisations?

Hans Das: There are practical arrangements in place between NATO and the European

Union to ensure that information is exchanged throughout emergency situations. Whenever both organisations are contributing to relief efforts for a given country, we will talk to each

115 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) other, and we do talk to each other. I have previously been the head of the emergency response unit dealing with the practical operations on the EU side, and I have always had very good contact with my NATO counterpart. That has certainly improved further over the past few years. There is very good understanding on both sides that we need to avoid duplication of efforts and ensure maximum synergies and complementarities between what we do. So at a working level the system works much better than it sometimes seems to.

There have recently been a number of meetings at working level, where further areas for co-operation have been discussed. Invitations have been given to each other’s meetings; I have personally been invited to some of the NATO meetings recently, and we are doing the same on our side. So there is a basic level of co-operation in place, which can certainly be further developed over time but which is there. From a strictly operational point of view, our need for co-operation with NATO has probably even become less, because we have now very good and close co-operation in place with the military authorities of our Member

States through the EU Military Staff and our own organisation. There have been no cases recently where we have had to make an appeal to NATO for military support. There have been many cases where we needed military transport capacity, or other types of support, but in each of these cases that has been dealt with through the EU military staff. I am personally convinced that even if the need arises one day that we need further support, the basic contacts are in place to make sure that we can work together and communicate.

Q100 Lord Wasserman: This is just a very general question, and I am very conscious of the time. What other further action do you think we should recommend for the next period, for the Rome Programme? Do you think that we need legislation, more strategy, more work on communications or more operability? Do have anything to leave us with as a recommendation?

116 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) The Chairman: Or do you just need more effective implementation of what you already have?

Hans Das: Allow me to give one small caveat at this point. As you probably know, inside the

Commission discussions are still ongoing on the follow-up to the Stockholm Programme, so whatever I say now I cannot prejudge the outcomes of the Commission’s internal processes over the next few weeks. The Commission will soon come up with a Communication on that topic, as you know, so I cannot prejudge that. Just speaking for my own field specifically,

I would like to mention briefly four points. First, we need the legislation on the solidarity clause in place. That is on the table at the Council and the legislation just needs to be finalised. I think that that can be done very quickly, and that will complete the legislative landscape. There are no further pieces of legislation currently being considered or that are foreseen in the field of civil protection.

Secondly, with the needs increasing and the budget remaining constant for the next few years, we need to continue to look for efficiency gains. So it is very much about maximising efficiency in our work. That is where the focus is very clearly on the implementation of the new legislation. That is now to be the emphasis of all our work. The new civil protection legislation gives us all the basic tools to develop further European co-operation.

We now need to implement it. To give you two examples, more needs to be done on disaster prevention and risk assessment. For instance, your country was one of the first to provide a risk assessment, or a summary thereof. In total, 16 Member States have done that so far, but obviously we need risk assessments from all our Member States. So that is an area that urgently needs to be taken forward. We need to encourage peer reviews. Again, the UK has set an example by volunteering for the first peer review. It is now being followed by Finland, but we need other Member States to engage in this.

117 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) The third point is that we need to continue to mainstream disaster management considerations into all our policies and funding instruments. Our future challenges in disasters will not be resolved by first responders alone, or by the civil protection authorities of Member States. This needs to be a more inclusive process, looking at land use, building codes and all sorts of issues across society, where more resilience needs to be built into it.

We need very much to continue on that path of mainstreaming disaster management.

The final point from my side is that we need a very strong international framework to guide and support these efforts at global level. The Hyogo framework for action has been instrumental in that respect, but Europe has to take a leading role in ensuring that the successor of that framework will be robust and ambitious.

In conclusion, we need to take work forward across all those areas to build a more resilient

Europe that can protect its own citizens and is equally able to help others when disaster strikes.

Lord Wasserman: But do you not have any other major infrastructure projects that you think we need in order to co-ordinate better? Are you are saying that you have a control centre and you can leave it to Member States to bring resources?

Hans Das: What do you mean by infrastructure projects?

Q101 Lord Wasserman: I go back to things like communications and equipment, and all the stuff that we must have if we are going to be effective first responders. Getting there is only one thing. When you get there, you have to have the infrastructure and the equipment to be effective quickly.

Hans Das: There is certainly scope to work further on these areas, but the legislative framework for that is in place and the funding instruments are available. We need to make sure that we make good use of that. I would not like to be misunderstood—I think that there is a lot of development required on some of these issues such as communication and

118 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) technical equipment. A lot more can be done, but we are increasingly making sure that the funding instruments that are available at European level can be used for those purposes. It is now very much up to Member States to take advantage of those possibilities and come up with the right type of proposals to do that. I certainly do not want to be understood as saying that everything is perfectly fine and okay. There is still an enormous amount of work to be done on all those fronts.

The Chairman: Yes—David.

David Powell: From a personal and professional point of view, the greater co-operation bit is the bit that I would comment on. I cannot comment on anything else, of course, coming from a county council. The understanding of shared risk is an area that we need to continue to work on. I take Hans’s point about our risk assessment being very good—it is. But we need to understand a little bit more about some of the neighbouring risks that we would share, in particular around energy provision, as our stance becomes slightly more strategic across Europe. Research, as has already been said, is invaluable, and we must do as much as we can. On community resilience, we all need to understand how better to prepare our citizens for local disasters so that they can deal with them better themselves. The last point is that the UK might be able to look at extending its access to the number of modules. At the moment, we access a relatively limited number of the modules that are available to us.

The Chairman: Yes—Simon.

Simon Lewis: I have just one quick point on exercising, because I know that my colleagues have said quite a lot on the issue already. To cover the points that you raised on communications, it would be quite an aggravating factor for the UK to respond to France or

Germany and so on without understanding the difficulties that we might have in communication, language, or systems and processes. The exercising is vital, and we need to

119 of 485 British Red Cross, European Commission, Lincolnshire County Council—Oral evidence (QQ85-101) carry on doing that as much as we can; that is how we will learn, so it is not a surprise when we have to do it in reality.

The Chairman: Thank you very much. One point that I draw from this very useful session is that there is a good story to tell and that things have been getting better, nationally and internationally and at EU level, but nobody knows about it. On what you said about the public-private partnership, for example, and what Tesco does and so on—how many people know about that? I just wonder whether all the institutions that you represent should reflect a little bit more on how to get the general public to understand that they should not just be frightened of the fact that there may be more of these events in future. They should have a little more confidence in our ability to cope when they arrive and to take action to prevent them. I do not know what other members of the Committee feel, but I feel that some of the things that we have heard this morning are really pretty encouraging, about the national, the

EU and the wider UN ability to cope with these things, but I am not sure that many people understand that. Anyway, that is just an observation from my own part.

Thank you very much for coming along. It has been a very valuable session, and I think that we have all learnt a lot. We are most grateful to you for the time that you have spent with us.

120 of 485 European Asylum Support Office—Written evidence

European Asylum Support Office—Written evidence

INTRODUCTION The European Asylum Support Office (EASO) is an EU regulatory agency that as an independent centre of expertise contributes to the implementation of a common European asylum system (CEAS) by providing support and facilitating, coordinating and strengthening practical cooperation among Member States. EASO provides practical and technical support to Member States, operational support to Member States with specific needs and to Member States subject to particular pressure on their asylum and reception systems, including the coordination of asylum support teams made up of national asylum experts; and scientific input for EU policymaking and legislation in all areas having a direct or indirect impact on asylum. The legal framework underpinning the CEAS, also called EU asylum package, has been adopted by the EU in June 2013. This consists of five legal instruments: the Qualification Directive (Directive 2011/95/EU), the Dublin III Regulation (Regulation (EU) No 604/2013), the Reception Conditions Directive (Directive 2013/33/EU), the Asylum Procedure Directive (Directive 2013/32/EU) and the Eurodac Regulation (Regulation (EU) No 603/2013). EASO will play a key role in supporting Member States in the implementation of the new EU asylum acquis through a vast array of tools that are being developed to fulfil this purpose. In developing these tools, EASO has taken into account the existing best practices and practical cooperation measures to ensure complementarity and avoid duplication. After the entry into force of the Lisbon Treaty, the area of asylum has been incorporated in the normal decision-making processes of the EU. Therefore the next JHA programme could incorporate policy orientations rather than a catalogue of actions. Flexibility, cost- effectiveness and evidence based policy making should be guiding principles of the programme. All EU institutions, national parliaments and civil society should play a role in defining the next JHA Programme. This paper provides two sets of suggestions; 1) general orientations, and 2) specific actions.

1. GENERAL ORIENTATIONS 1.1 Focus on implementation and consolidation The focus of the Stockholm Programme in the field of asylum was to ensure that a Common European Asylum System (CEAS) is established by 2012. With the adoption of the EU asylum package, the focus of the new JHA Programme should therefore be directed towards ensuring effective and coherent implementation of the EU asylum acquis. Key to the further development of the CEAS is sufficient capacity in Member States' national asylum systems. EASO will have a more central role in coordinating these capacity building measures.

1.2 From mutual trust to mutual recognition The Stockholm Programme called for a CEAS characterised by solidarity, responsibility and mutual trust. These concepts are pertinent if the CEAS is to work effectively. A natural implication of the harmonisation process characteristic of the CEAS is interdependency of the national asylum systems in the EU. A decision on an asylum claim by a Member State could have a direct effect on another Member State. Furthermore, information provided by a

121 of 485 European Asylum Support Office—Written evidence

Member State could affect the policies of another, and so on. Ideally, national asylum systems should mirror each other; the aim should be to have a framework within which Member States' asylum systems operate. Therefore special attention needs to be paid to the interdependency Member States on each other in a CEAS and the important role that EASO, as coordinator of practical cooperation among Member States has in ensuring that this interdependency is strengthened.

Moreover, once an assessment of the impact of the recast EU asylum instruments takes place, the possibility of transferring protection for beneficiaries of international protection when exercising their acquired residence rights under EU law should be explored. This has already taken place within the framework of intra-EU relocation measures that have been implemented from Malta, and is necessary in view of possible joint processing. However, this dimension becomes all the more important in an increasingly borderless (internal) Europe and adequate legal and practical solutions need to be identified.

1.3 Constant evaluation and assessment of the EU asylum acquis The adopted recast EU asylum instruments must be constantly evaluated and reassessed to ensure that the desired goals are met and that legislation provides better solutions to the constantly changing circumstances in the asylum and migration field. Focus should be placed in particular on the Dublin III Regulation, which still, in its recast version, does not provide a comprehensive framework to adequately support the CEAS. Furthermore, possible additional legislative and/or non legislative instruments could be considered following evaluations and provision of evidence based policy input.

1.4 EU agencies as a source of evidence based policy input In achieving the EU’s objectives in the JHA domain, EU JHA Agencies are playing collectively a significant role by supporting the implementation of the EU acquis. Such actions are predominantly of operational or practical nature and consist of exchange of information, data collection and analysis, capacity building, training, provision of expertise and specialised networks. Given that EU Agencies are usually closer to the action in the field, they can better understand the challenges and realities that Member States encounter when implementing the EU acquis and can provide useful evidence based input to the policy debate. Member States and EU institutions should harness this opportunity and give agencies the mandate to do so.

1.5 Enhanced use of the Asylum and Migration Fund From 2014, the new Asylum and Migration Fund (AMF) will become the principal instrument for allocation of EU funding in the field of asylum and migration. In the area of asylum, Member States will be expected to use their national programmes to further strengthen and develop the CEAS with a strong focus on prevention of crises and solidarity and responsibility sharing. One of the opportunities that the AMF offers is the move from the current system of annual national programmes to one of multiannual national programmes covering the whole Multiannual Financial Framework (MFF) 7 year period. This creates ample room for flexibility and possibilities to plan in a more long term and strategic manner. Furthermore, there are more possibilities for funding under the AMF and the strategic priorities are being discussed with each individual MS with input from EASO. Member States should use to the (asylum) funds to improve the quality of their asylum and reception

122 of 485 European Asylum Support Office—Written evidence systems even through transnational initiatives, as well as to improve practical cooperation at EU level and show solidarity with those MS that need it most.

1.6 Boosting efforts on the External Dimension of Asylum and Migration Boosting cooperation, partnership and solidarity with third countries by building capacity on asylum and migration issues should be one of the key priorities of the new JHA Programme. EASO can support EU and MS actions on the external dimension of the CEAS through the coordinating the provision of information, data and analysis that could inform policy decisions in this field. EU agencies could coordinate this effort with the European Commission and the European External Action Service (EEAS) through the EU Delegations present in third countries. Furthermore, the concept of Regional Protection Programmes could be evaluated to ensure that it is sufficiently effective, flexible and addresses the key objective for which they have been established, i.e., to improve protection. Finally, resettlement efforts made within the EU should be enhanced. Improvements to the EU resettlement programme on the basis of an evaluation in 2014 should be considered to ensure that the programme reaches it intended objectives. EASO could play the role of clearing house to this effect.

1.7 Recognising the interdependence between asylum and migration Over the years, efforts to decouple asylum and migration have backfired and evidence clearly shows that there is interdependence between asylum and migration. Several policies have been developed in both fields in recent years. Consolidation of these policies in the new JHA Programme will also imply the development of a detailed common understanding of the meaning of the agreed rules in both fields, which is crucial for their effective implementation.

2. SPECIFIC ACTIONS

2.1 A more central role for training in asylum There are differences in training of officials dealing with asylum and reception in Member States. Some MS provide extensive training to their staff, others do not. The EASO Training Curriculum has spread to more Member States in particular during the past two years since it has been taken over by EASO. The EASO Training Modules are developed with MS experts and is constantly updated to reflect recent developments and more modules are added every year. Therefore a European Certification process, using the EASO Training Curriculum could be put in place to ensure that those officials that deal with asylum claims have an adequate level of knowledge that is common across the EU.

Moreover, a functioning appeal system is an essential part of the asylum procedure. Approximately one half of all applications go to appeal. The second instance also has a strong influence on national policy for first instance as Member States seek to avoid making decisions that will be rejected at appeal. Therefore, providing training to judges (which can range from non-specialised judges in regional courts to expert judges in specialised tribunals) and boosting communication between second and first would greatly improve the application of the acquis and thus the functioning of the CEAS. A specialised European curriculum could also be developed by EASO in cooperation with members of the judiciary and other relevant partners.

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2.2 Production of Common Country of Origin Information (COI) COI is an integral part of the asylum procedure and should continue to be a principal aim of national quality processes. The creation of COI however should be rationalized – considerable capacity in COI production already exists at EU level – it is expected that the network approach adopted by EASO will a) accurately map needs for COI at EU level, and b) thus help to fill gaps and avoid duplication.

Therefore more emphasis should be placed on producing common COI with EASO playing a key coordinating role. EASO should produce more COI reports in cooperation with MS to ensure a European dimension to the reports. Furthermore, joint fact finding missions, coordinated by EASO, should become standard. This concentrated effort would yield better results and save time and money. The choice of countries could be determined by EASO and the COI strategic network. Of course, this would not impede MS from conducting their fact finding missions.

2.3 Improving and sharing reception capacity There are considerable differences in reception capacity in Member States. Some Member States have limited capacity, others have excess capacity. There is lack of monitoring of capacity and standards and lack of funding in a number of Member States. Therefore measures should be aimed at establishing reception monitoring systems and contingency planning for possible influxes of migrants.

Furthermore, as the analytical section of the 2012 EASO Annual Report shows, influxes of asylum seekers are not evenly distributed across the EU and vary considerably from year to year. Looking at the statistics for past 20 years, overall the numbers of asylum claims has remained relatively stable at 300-350 000 year with variations of not more than 20% (and usually around 10%) from year to year. In comparison, in 2012 alone, flows at national level have risen and fallen compared to the previous year by as much as 56% and 9 MS of 27 saw variations of more than 40%. It is thus advisable to invest in transnational projects/initiatives aimed at rationalising the use of reception capacity in the EU, and possibly also for creating intra-national capacity.

2.4 Creation of databases, adjusting existing databases and linking with EU platforms One way of supporting the development of the CEAS is through easy exchange of information. Many Member States would benefit from creating central databases such as on COI, jurisprudence etc.., at national level and to connect those databases to EU platforms, such as the EASO COI Portal and the future EASO asylum information and documentation system. MS should allocate funding to create databases or to modify existing ones to make them more effective and/or those that would like to link their databases to European/regional/national portals.

2.5 Better identification of vulnerable persons and victims of trafficking requesting asylum and assistance to unaccompanied minors Asylum officials in a number of Member States are not adequately trained to identify and cater for the needs of vulnerable persons, victims of trafficking seeking asylum and unaccompanied minors. The number of unaccompanied minors in Member States has increased over the past years and not all Member States provide adequate assistance to

124 of 485 European Asylum Support Office—Written evidence them. Shortcomings exist in age assessment, family tracing, education, legal guardianship and reception conditions. Member States should invest in national/transnational/European measures aimed improving identification and needs assessment of vulnerable persons, victims of trafficking and unaccompanied minors, in particular through training on unaccompanied minors issues (also through EASO Training Modules, expert meetings on family tracing, the EASO book on age assessment) but funding should be prioritised for measures aimed at vulnerable persons which involve provision of education, legal guardianship, psychological and or legal assistance and appropriate care conditions for unaccompanied minors according to best practice manuals gathered by EASO.

2.6 Early warning, preparedness and Crisis Management The Early warning, preparedness and crisis management are essential tools for a well functioning CEAS. EASO is developing and Early warning and Preparedness System (EPS) that aims at providing Member States, the European Commission, the Council of the European Union and the European Parliament with accurate, timely information and analyses on flows of asylum seekers to and within the EU and the Member States’ capacity to respond to them. The EASO early warning and preparedness system (EPS) will feed into the early warning, preparedness and crisis management mechanism provided for in Article 33 of the recast Dublin III regulation. Therefore the EPS together with the mechanism under Article 33 of the Dublin III Regulation should be further enhanced over the coming years. In addition, a toolbox for crisis management should also be developed in order to be better prepared for an EU coordinated response to emergency or specific situations.

2.7 Production and collection of asylum statistics Clearly, it is difficult to gain an accurate overview of the functioning of the CEAS if asylum- related statistics are not collected in the same way. However, there may be objective difficulties with this in several MS that, because of their national organisation, would find it very time-consuming or impossible to collect certain types of information. Notwithstanding, EASO has, in cooperation with Commission, EUROSTAT and Frontex devised a comprehensive set of indicators, Member States could update their systems in order to allow submission of information under these thanks to new management information systems. Much greater use of biometrics and integration with EURODAC checks as far as possible should be supported so that misuse of the asylum system can be largely eradicated. Systems should be made capable of quickly and accurately registering and following applicants through all stages of the asylum system so that those who need protection are afforded it and those who do not are quickly removed.

2.8 Improving the quality of asylum decisions Not all MS have quality systems which allow them to review asylum decisions they have made and check their conformity with the legal requirements and the appropriateness of the policies chosen. Quality processes should be put in place in all Member States in cooperation with EASO. Interviews, credibility and evidence assessment, awareness of the latest state of the CEAS including relevant EU jurisprudence, use of COI in the asylum procedure, and many other aspects of the asylum system require staff to be trained to a high and uniform standard. EASO training programme is taking the train-the-trainer approach with blended learning methodology.

2.9 Joint processing of asylum claims

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Joint processing of asylum applications in the EU would constitute a major step forward in the development of a CEAS taking it to a new level. Building on the concepts of solidarity, responsibility and mutual trust, Member States could consider engaging in joint processing particularly in emergency situations of mass influxes of migrants possibly also coupled with intra-EU relocation of beneficiaries of international protection. As suggested in the recently published study on joint processing of asylum applications and discussion in the Council of the EU, EASO will start coordinating pilot joint processing operations. It is advisable that cross training of staff as decision makers should be established to make this possible.

2.10 Better integration of beneficiaries of international protection Better integration, in particular access to education and employment, could avoid secondary movements. Integration issues should be incorporated in a comprehensive way in all relevant policy areas.

2.11 Assisted voluntary return and reintegration measures for beneficiaries of international protection In some cases, beneficiaries of international protection originating countries where the situation has improved, would be willing to return to their countries if supporting measures are offered. Taking advantage of the experience of IOM, such support measures could consist of training, counseling, and reintegration package in the form of start up grants and temporary accommodation in the country of origin. Such initiatives were undertaken successfully by some Member States in the past.

CONCLUSION So much has been achieved in the Justice and Home Affairs field since the Tampere Programme adopted in 1999. Similarly, there have been significant developments in migration and asylum, in particular with the development of a CEAS consisting of common rules and common practices. The asylum related priorities in the New JHA Programme 2015-2019 should focus on implementation and consolidation of the CEAS, which contrary to popular believe, is a living framework that needs to be flexible enough to respond to a constantly evolving context. Consequently, the second phase of the CEAS is certainly not the last phase and therefore new legislative/non-legislative measures might need to be put in place over the coming years. The EU should become a single genuine area of protection for those who need it and therefore MS should be supported to fulfill their obligations within a common framework characterized by the principles of responsibility, mutual trust and solidarity with an element of subsidiarty and proportionality that are at the core of EU treaties.

10 October 2013

126 of 485 European Commission (DG Home Affairs)—Oral evidence (QQ102-112)

European Commission (DG Home Affairs)—Oral evidence (QQ102- 112)

Evidence Session No. 7 Heard in Public Questions 102 - 112

MONDAY 27 JANUARY 2014

Members present

Lord Hannay of Chiswick (Chairman) Viscount Bridgeman Lord Faulkner of Worcester Lord Sharkey Lord Wasserman ______

Examination of Witness

Stefano Manservisi, DG Home Affairs, European Commission

Q102 The Chairman: Director-General, to what extent did the Stockholm Programme, the one that is running at the moment, the JHA programme, control and govern the

Commission’s approach to the whole area of freedom, security and justice during this period? How relevant to the Commission are these programmes adopted by the Council in advance of the next five-year period, which would seem to be even more strongly supported with the Lisbon provisions to adopt strategic direction from the Council?

Stefano Manservisi: Well, since it is a decision of the European Council at the highest level, obviously in what we have been doing in the last few years the Stockholm Programme has been the cornerstone of our reference points. We did not do anything outside it, unless we were pushed by events. An example was in 2011, in the moment when there was the phenomenon of flows of immigrants from northern Africa. At that moment, there was a question mark over the Schengen system and whether it was able to cope with those

127 of 485 European Commission (DG Home Affairs)—Oral evidence (QQ102-112) difficulties. Therefore, we presented the proposal to amend the Schengen border code and evaluation mechanism. It was not foreseen that we would do that in the Stockholm

Programme. But apart from cases dictated by short-term events, the Stockholm Programme has been our constant reference—for example, to enact the legislation on the common

European asylum system, to complete the legal migration legislation and so forth.

Q103 Lord Sharkey: Following on from that, you mentioned some of them but could you say what aspects of the Stockholm Programme actually led to action and what areas require further action to achieve the goals in the programme?

Stefano Manservisi: Well, let us say this. The Stockholm Programme, as with the Hague

Programme, was a bit different from the Tampere one. It was very much based on the logic of building the area and catching up with the other legislation. That was the approach: knowing that a certain number of things were necessary to complete [the acquis] on freedom, security and justice, we had to enumerate a number of things.

This was instrumental in order, for example, to bring the common European asylum system up the agenda, which we were able to deliver on the basis of the Stockholm Programme.

We were able to present proposals on legal migration—on the single permit, on seasonal workers and on intercorporate transferees, which I hope, with a bit of optimism, we will be able to achieve in February. We were also inspired by the Stockholm Programme in completing the system of our agencies, setting up EASO and the EU-LISA agencies, which were some of the tools that were considered necessary to implement the system, which started before but which, like the VIS and SIS II, received another push from the Stockholm

Programme. We were inspired by the Stockholm Programme in dealing with prevention of terrorism, in particular in setting up the radicalisation awareness network. Strictly speaking, that was not foreseen but it is an operational tool for what we are doing in fighting against terrorism. We have tried to set up a more integrated vision of the external projection of

128 of 485 European Commission (DG Home Affairs)—Oral evidence (QQ102-112) internal affairs, and for migration policy in particular, through the global approach for migration and mobility. On that basis, we established the mobility partnerships, which in future will be one of the key instruments to link what we do internally and externally.

Strictly speaking, those were not foreseen in the Stockholm Programme, but they were inspired by it. We were inspired by the Stockholm Programme also in setting up the new funds, which are coming into force now and will enter into operation in a few months, to have a financial tool that is more in line with the policy priority. All those things were done on the basis of the Stockholm Programme or inspired by the Stockholm Programme.

At the same time, on the basis of our assessment, we believe there it a necessity to change our approach and this is inspiring our work. Having catching up and going from the intergovernmental into the Union way of working, with co-decisions and qualified majority voting and so on, this area was brought into the normal way. Now, instead of setting up a catalogue of things that are predefined, we believe that the criterion should change. Now we have to look at the environment, the needs and the evidence for these needs; then we must choose whether to act at the legislative level. Legislating is not our priority, because we think that we should first consolidate the existing acquis and see how it works, with the support of robust practical co-operation and use of funds in the most strategic way. We believe that our approach should be open, and instead of having predefined priorities we should analyse the needs, the reality and the functioning of what we have done and then assess on that basis what we must do. It is exactly the same method that we apply in other policy areas; we believe that now it is time to apply it also to this area.

There are new challenges because, obviously, the European Council deciding something is extremely important and we cannot criticise it because it is a bit of a Christmas tree, as it is at the highest level. The factors to identify now are criteria and, therefore, priorities to be decided. Politically, that could be much more difficult, because it means that we have to

129 of 485 European Commission (DG Home Affairs)—Oral evidence (QQ102-112) negotiate and agree together at a certain phase; only if there is agreement can we go on. But

I think that it is fair, because as a Commission we will be requested to provide more evidence, which was not always the case so far. Member States may also be willing to talk about politics and political orientation, to see what is necessary and what is not. So in my opinion, it will be politically much more mature as an approach but also more difficult.

Q104 Viscount Bridgeman: Director-General, thank you very much. You have touched on our third question, about the lessons from the application of the previous programmes that can usefully be reflected in any future JHA programmes. Have you anything more to say about the sweeping up of the lessons from the previous programmes?

Stefano Manservisi: There is no ground any more to make a list inspired by this approach of catching up, because the environment has changed. For example, take the economic situation or legal migration and the economic environment in which we are working.

Because of the economic crisis and the economic governance that the European Union has set up, and because of the approach of the European semesters, which looks at the macroeconomic compatibility of our economies and competitiveness, we are working in an even more integrated labour market, which is now almost superimposed on the integrated internal market. In this context, instead of making a list of Directives that we need to agree for further harmonising conditions of entry and staying of legal migrants, we should look at how we can match the demand for labour that exists inside the European labour market, possibly boosted by the internal market, and how we manage the division of competences between Member States, which are obviously responsible for work permits, and the necessity to give it a certain coherence vis-à-vis third countries and our migration policy.

That could inspire some ideas such as a bit of upstream co-ordination or a different way in which to use the mobility partnerships. In the light of this, we can see whether or not we need legislation.

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The Stockholm Programme foresaw us having a code on migration, but we did not do it— and we did not do it on purpose, because it would have been extremely cumbersome in legislative terms and would have been in a bit of a vacuum. Instead of launching ourselves into a pure technical codification, it would be useful in the light of all this to see whether we need more legislation or not, or whether there is a need for some sort of corpus that could come from a handbook to create something more intense—a common set of rulings to define some criteria to allow workers entering into the EU labour market to circulate more freely and have access to job opportunities, and for the recognition of their skills. One common feature of legal migrants is that, on average, they are highly qualified and they are all over-qualified in respect of what they are doing, as there are rigidities in our economies. So all those things must be analysed, and we would be inspired by this.

On another aspect, more linked to the security side, it would be wise to have some better thinking on the balance of interests between security and freedom. The debate has gone on in the European Parliament in a conflicting way. Take the case of the European Passengen

Name Record, a typical example of a proposal that suffered precisely because of the lack of clarification about interests that should be protected. The result was that the file was blocked. In implementing the Stockholm Programme, we have been inspired by these lessons, and we are taking out elements that could become criteria to assess the need to take action in policy and legislative terms or in more practical operations. For example, the common European asylum system has a new set of rules. That is fine, but if you look at what is going on in Bulgaria—it is very visible—and in Italy, the system is under stress. Obviously, we have to work to create the conditions for a more homogeneous way to implement these rules. The difference in the acceptance or refusal rates of asylum applications for similar cases is still too wide; it shows that there is not a common approach, a common culture or a common knowledge of the countries of origin, which would allow us to have more

131 of 485 European Commission (DG Home Affairs)—Oral evidence (QQ102-112) compatible results in terms of asylum. That should be addressed not by harmonisation but by working on the ground.

Q105 The Chairman: To what extent is this complicated by the political debate of a very negative kind that is going on about immigration, which is likely to be reflected to some extent in the outcome of the European elections in May? To what extent is the Commission thinking how to handle that kind of push-back?

Stefano Manservisi: Well, clearly this has affected so far the capacity to forge a policy that can be called policy. For example, the Treaty calls for a common European migration policy.

My personal judgment, although it is not mine alone—it is shared by many—is that we do not have a common European migration policy. We have a set of instruments, but the construction of the policy is probably one of the biggest challenges that we have before us.

Therefore we have to use the debate, which will lead to guidelines of the European Council in June, to have a consensus on this necessity, to configure the instruments in a more coherent way and to use the practical instruments that we have with our agencies and funds to know the situation better and to create a policy.

What we are doing with EASO in terms of country of origin knowledge for asylum seekers is extremely important. We were not able for institutional reasons to define a common list of safe countries of origin, for example. I do not want to question now whether we have the power to enact; that is not the important point. The important point is to have a common culture, to assess these issues in a similar way. All this has been prevented by the context and difficulties in dealing with migration, to an extent. As regards the process that has led to the adoption of the new common asylum system, in reality, in Council and Parliament, the debate was more about irregular migration than about asylum. In reality, today it is very difficult to make the case even for asylum, because in the public and in many political parties it is identified with the pressure on the European Union of people coming from outside. This

132 of 485 European Commission (DG Home Affairs)—Oral evidence (QQ102-112) is something that we have to take care of very clearly—we must take care of people’s fears and their impact. This is all very serious.

But at the same time, we should also build an evidence base that shows that the situation is not exactly like this. The situation is that in Europe, in demographic terms, we need more people coming from abroad, because the ratio of active to inactive people within 30 years will simply not allow us to keep the welfare systems that we know. Secondly, we need to remain an open economy; the European Union is an open economy, and there is a competition for talent at a global level. We need to be able to attract people and to use them, not individually but for the single market—we are interesting at a global level because we are a single market, not because we are 28 economies. Therefore, we must say all this in a much clearer way, but we need to have evidence to show this.

Clearly, in the moment of the European elections, that will be one of the most difficult things. But looking at it from a technical point of view, we should not consider that it is easy and that everything can be solved with more migration—but at the same time, we should not leave this area to extremism, as if it was something purely ideological. This is not purely ideological. It is one part of the composition of our ability to become more competitive and to make our growth path more sustainable.

Viscount Bridgeman: In your earlier reply, Director-General, you talked about the assessment of skills and different countries of origin. I take it that that was entirely directed at third-country immigration, and it did not affect the free movement Directive.

Stefano Manservisi: Of course not.

Q106 Lord Faulkner of Worcester: Looking forward to 2015 to 2019, what do you see as being the likely timetable for the development, consideration and agreement of a future

JHA programme?

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Stefano Manservisi: I go back to what Lord Hannay said about the Rome Programme of

2015 to 2019. I would put some nuances on this. The process will basically be the following.

We have been consulting different stakeholders in the past months—civil society,

Governments at all levels, in the Council and in bilateral meetings. I did it every time I had a bilateral meeting. So there was a big process of consultation, with think tanks involved, such as Friends of Europe. We will then organise a conference this week that will wrap all this up to consolidate the key messages. By the way, many of those are converging—for example, on the fact that we do not need a catalogue any more but we need to change the culture.

The Council has gone through different debates, inspired by us and by different presidencies, and the Parliament will issue in March an own initiative report in order to set up its view— we have been working with the Parliament, with the three rapporteurs, on that. That means that basically, in March, we will have all the papers on the table. Then the Greek presidency wants to go through the usual COREPER debate and other internal forms of discussion in order to arrive at the European Council in June with the input for President Van Rompuy, who will wrap all this up and present the guidelines. In the mind of President Van Rompuy but also as reflected in all the debates so far, the programme will be the guidelines that will be adopted by the European Council in June, not a "Rome programme". This does not exclude that perhaps the Italians would like to add something on operationalisation—I do not know—but this what is now on the table.

The idea of having a period covered by this, 2015 to 2019, is also something on which there is not a consensus yet. There are two camps. One camp instantly says, “Let’s do something that is more or less identified with the next Commission, or the next financial perspective”, while the other one says, “No, let’s identify the policy elements of guidance and then let’s go on with an assessment at a certain moment, but not necessarily with a timeframe”.

Lord Faulkner of Worcester: Do you have a preference for one or the other?

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Stefano Manservisi: Well, I would avoid making an artificial timeframe of four or five years.

I would prefer to be clear on the political objective and then have some deliverable, which could be used as a sort of test of whether the method works. We need to have the three actors a bit more involved, but not only the three actors; national Parliaments should also be more involved. Willing or not, in particular in the security area, this implies a different way of thinking about subsidiarity. The downside of the Stockholm and Hague approach, the catching up, was also the non-discussion about the division of competence between a

Member State and the Union on internal security—for example, saying that everything concerning national security is by definition national. Indeed, but the problem is that with a space like Schengen and with terrorism and organised crime organising itself around our single market, it is obvious that we need to agree on something more.

For example, I was struck by Janet Napolitano, who in 2011 told us that the United States was about to issue a travel alert to US citizens travelling to Europe because of terrorism threats in Europe. We were informed, of course, and then we had a meeting of the Justice and Home Affairs Council by chance the week after, to which we invited Janet Napolitano.

She expressed all this, and Member States were divided into three groups. One group said,

“Yes, we know, because our intelligence is working together”. Another group said, “We are not concerned”, and a third said, “Well, we are listening and we take note, but we don’t know exactly”. Napolitano told us, “You know, it’s always like this—you don’t have a space for freedom and security, but there are threats that are common to all of us. In any case, we consider you as one space and therefore we advise our citizens not to travel to the EU, irrespective of whether one Member State feels that it is not at risk and another does not”.

That is to say that even if instinctivally we say your crimes are yours, it requires a bit more discussion, because the threats, in particular the terrorist threat, are common, and people are circulating around. Therefore, in this area we need to think about how to do it better.

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Q107 The Chairman: Do you not think that initiating a discussion in the European

Council at such a high level of generality, as would necessarily be the case, on the balance of competences is more likely to create disagreement and confusion than it is to provide much useful guidance? I think everyone is perfectly conscious of the fact that there is shared competence in this field and that there will be shared competence in this field for the foreseeable future, that there is no conceivable chance that the whole of this field will become a Community competence. Therefore, that sort of theoretical discussion could be not terribly positive. I was struck by what you say about wanting to get away from the fixed time periods, but I really wonder whether just having a programme that gives guidelines for an indefinite period ahead might be more difficult to achieve than one which people see as relating to a particular time period.

Stefano Manservisi: First, just to clarify, I certainly hope that there will not be a discussion on the division of competences. I simply gave that as an example to identify things to do to address these issues in a different way. I was certainly not suggesting that we should have a theoretical discussion about division of competences in June, because this would bring us nowhere—on the contrary, against a wall. But in identifying the priorities or actions to be taken, in particular through a stronger practical co-operation, there could be elements that should bring in the fact that we need to think in a different way. For example, there is the proposal that we have made based on the Lisbon Treaty regarding Europol, where we envisage giving Europol the possibility to launch alone a joint investigation and in any case to be a beneficiary by default of the exchange of information among Member States. Those two points are driven precisely by the idea that, irrespective of the competence, we have an agency that is the most operational one in our area. Either we could reinforce it and give it a bit more autonomous power—or at any rate a stronger power—or it will remain a sort of co-operation chamber which, according to the need of the day, will either do something or

136 of 485 European Commission (DG Home Affairs)—Oral evidence (QQ102-112) not. Those are precisely the two points on which we have the biggest difficulties, including with the United Kingdom. We need to tackle that not in terms of a struggle for competence but as an example that we need to do more together in practical terms to be better equipped.

The Chairman: If I was going to respond to you on that point—and I am not the UK

Government—I would say that by bringing this issue forward in the context of Europol you have probably applied a brake to an increasing amount of co-operation that is actually going on all the time, because Europol is now seen by all European countries as being a crucial part of their internal security. You could do better by simply allowing that to develop over a period of time than by forcing the issue by changing the ground rules. But I am sorry for that—I have no doubt you have heard it from other people of the same nationality as me, although I am nothing to do with the British Government.

Stefano Manservisi: I have given that as an example of how it is not necessary to have an abstract discussion on the division of competence to identify steps forward. This is a practical example of a common body, which is not necessarily trusted by everybody, because some Member States still work more with Interpol than with Europol. So we have to build on this, but at the same time we cannot wait another 10 years to give the body at least the possibility to reshape. That was an example. The fact that without a timeframe the discussion could turn into something generic is certainly a risk. However, that is my personal preference, if I had to choose between a rigid timeframe as is used now and something a bit more fluid and political. But you are probably right that something in the middle should be fine.

Lord Sharkey: Let me observe that I do not think that the distinction between the two may be quite as hard as it might at first appear, because, if there was a general no-timeframe framework, I would hope that underneath all that, when you decide what you are actually

137 of 485 European Commission (DG Home Affairs)—Oral evidence (QQ102-112) going to do, there will be clear timeframes attached to the actions—and clear measurements attached to them as well.

Stefano Manservisi: I think so. We can go along this line to get guidance, but maybe the

Italian presidency has in mind to try to operationalise that into a sort of operational agenda.

That is what I have heard around. When we were working on the single market, with the

300 measures, there was also a plan that was focused on the objective, and then we identified a certain number of things to do—but in this order, not in the other one.

Q108 Lord Wasserman: That is very interesting, because we have to focus on individual areas, and we have had evidence from people who say that the priority should be asylum, for example, or that the priority should be policing. What do you think should be the strategic priorities, getting down to detail? You have talked very widely about all sorts of issues and approaches and so on, and what was in the last period and what should be different in the next period. But do you have a list in your own mind of strategic priorities or particular bits of legislation that you would really want to see in the next period?

Stefano Manservisi: What we are thinking about is to have basically two chapters. One is the cluster of migration and mobility and the other one is more about security, including border management.

On migration, in our view we need to link the discussion not with the instruments for entry and staying but rather on the added value that migration can bring to the European Union’s economic recovery and sustainability over time. That means a certain number of things. It means seeing migration as a structural element of our labour market and using all the instruments that we have in a more co-ordinated way. For example, there is a need for access to information on jobs such as, as I said before, for the recognition of diplomas and for connecting the mobility partnership and the common agenda of migration in something that is not planned—because that is not possible—but in a more co-ordinated approach. At

138 of 485 European Commission (DG Home Affairs)—Oral evidence (QQ102-112) the moment, when a worker is admitted in one Member State that is part of the single market and of the European labour market, that person is inevitably either an asset for everybody or could at a certain moment become a problem for all the others. That is already the case with all the migrants who have become unemployed. Therefore, we need to address this in this way, with a common European migration policy. For example, we need to work with the business community—we are working with the business community every day—to have some form of co-ordination or steering of the European Union on what is needed. For the whole system to take advantage of this, what could the European Union do to facilitate internal movement and the portability of rights and so on? This is not an easy bit.

But symmetrically, we also need to have a much more credible policy on returns of irregulars. So far, in reality, this is working, but not as it should. If you look at the figures of people who are seized by law enforcement or migration authorities, there is a huge gap between those who have been ordered to leave the country and those who actually leave the country. The United Kingdom is among those countries that are doing quite well, even if the number of returnees has increased. But this does not give people a credible message that

Europe is taking care of migrants in having them more part of our future but also respect for the rule of law, as those who have no rights should go back. Those are things that are part of our thinking.

On the second aspect, managing the border, we have to be inspired by our economic interests, such as in our visa policy, which is currently a mix of the old-fashioned belief that through a visa we can block people—in reality, it is just a filter—and that, secondly, we can deal with such issues still as an instrument of pure foreign policy or pure security. We are not dealing enough with our economic interests. Are we equipped enough? I think that we are not. We have to balance it a bit more, and use in a different way the Schengen

Information System, which is much more powerful than the visa, in reality. You can put all

139 of 485 European Commission (DG Home Affairs)—Oral evidence (QQ102-112) the alerts that we need, and have real-time information for all the border managers and law enforcement authorities about people who are undesirable. If linked with some more common actions in terms of law enforcement and more interconnection of the different databases that exist, we can have something better and much more credible. These are things that we will try to sketch out in our paper.

Lord Faulkner of Worcester: Can I ask you how effectively you think things are working out? Do you think measures would benefit from a review on their efficacy and implementation?

Stefano Manservisi: In preparing ourselves for this discussion on Protocol 36, I have done an analysis and screening of our legislation. Even though I do not necessarily buy the argument from the British Government about defunct measures in our legislation, there is certainly in this area, as in many others, a bit of over-legislation or bad legislation still in place. So I have done for our internal purposes some screening of what could be repealed or consolidated or reviewed. The technique of programmes has created a superimposition of layers. Tampere asked for something, and we did it; the Hague asked for something, and we did it; Stockholm asked for something, and we did it. At the same time, we were dealing with third pillar measures. In terrorism, for example, you will have seen the number of measures that we have theoretically in force. We should probably repeal some of them and consolidate some others. For example we can perhaps think of whether the Framework

Decision on terrorism is enough.

The problem also is that many of those measures have not been assessed yet, because they have not been in force for many years. Therefore, we cannot say that we have evidence to take. That is why the buzzword for the next programme is first to consolidate and implement what we have and to reinforce what we do on the ground, what we call practical cooperation. On that basis, we can come out with some ideas for policy orientation—for

140 of 485 European Commission (DG Home Affairs)—Oral evidence (QQ102-112) example, in security, on the basis of the internal security strategy, which was a first attempt and should be developed, or on anti-radicalisation which should also be developed. In migration, we have to do it. It is not excluded that in migration we need to have some piece of legislation that is still missing, but only if the system needs it. So that is the approach.

Q109 Viscount Bridgeman: This very much follows on from the last question. It is the question of process. There were problems with the mid-term review of the Stockholm

Programme. What lessons could be learnt for the mechanisms of a review for the subsequent programme?

Stefano Manservisi: You noticed that the mid-term review of the Stockholm Programme was not done by the Commission. We left that to the Secretary-General of the Council, because we did not believe that we had time, resources and priority to do an exercise that would have been largely paper based and not evidence based. I think that we should shy away from a bureaucratic approach, from ticking boxes or not ticking boxes. We should try to do something that is more difficult, perhaps along the lines that you have described—to have an assessment of effectiveness. If this is the objective, we need to see what have we been able to do through our policy mix?

This can be done, for example, at the moment of the mid-term review of the funds as I very much link it with what we are doing with the funds. All the philosophy of the new home affairs instruments is, instead of funds to be distributed, to identify the output that we want to have and indicators to see whether they produced a result or not. And then let's leave

Member State with much more freedom to spend the funds, and monitor them in a more policy-oriented way. Then, in 2017, we could perhaps make a sort of mid-term review of the funds but also of our policy effectiveness. In the light of the guidelines that will be adopted by the European Council, we could see whether the policy mix has worked—but in a policy- oriented way rather than that of a catalogue.

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The Chairman: That sounds good sense to me, I must say. It is a very interesting idea, which we will take on board. I had not previously seen the overlap, as it were, between the provisions in the funds that have been adopted and the question of the mid-term review of the next programme. That sounds like very good sense to me.

Q110 Viscount Bridgeman: You said that last time the Secretary-General of the

Council did the review. At what level would you suggest that it was done in this case?

Stefano Manservisi: This time, it would be by the Commission. It will be more political.

The Chairman: It would have to be the Commission. In any case, you spend the funds and allocate them, so it would not be very sensible for you not to analyse it.

Stefano Manservisi: I think the issue should more normally be with the institution that is responsible.

The Chairman: So you would discount the possibility that the Commission would again say that they did not have the time to do it?

Stefano Manservisi: If the guidelines are considered to have Council ownership or Member

State ownership, it might be difficult then to have an institution that is setting the scene in political terms and not just making an inventory. But let us see. It is not a question of changing competence or powers. The end product is to have consolidation, practical implementation, policy orientation and the use of funds, with the four of them being much more coherent and more output oriented; then I would point to the mid-term review of the funds in 2017. Since all the funds have been tailor-made precisely by anticipation of this, it would make sense for the Commission to put a paper on the table, and the institutions, including the European Council, could discuss it.

The Chairman: It goes without saying that it is the Council that has to conduct the review, but it would be much better placed to do so if it had evidence-based material put on the table by the Commission.

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Q111 Lord Wasserman: Several of our witnesses talked about independent evaluation.

It is one of the things that they kept saying—that there is not enough evaluation of these programmes, and this next programme should contain serious concrete proposals for evaluation by outsiders, by a think tank perhaps. They could look at the objectives and funds, and so on, and see how far they have been achieved with the resources allocated to them.

Stefano Manservisi: Very much personally speaking, I cannot prevent myself saying, when you talk about independent evaluation, that the institution which has been created as independent is the Commission. Therefore, I can hardly see an auditor doing this, because it is not just a technical audit—it is a political one, and you need an institution that is accountable for that. But that is my opinion.

Q112 Lord Sharkey: Talking again about the Commission and the Council, do you think there is likely to be a tension between the two of them when it comes to the development of what may not be called the Rome Programme? How would you manage all that?

Stefano Manservisi: So far in the different discussions that we have had recently, such as on

Friday in the informal Council in Athens, I noticed that there is a fair convergence on this approach. In any case, our role is certainly not to stand in the middle and confront but to facilitate an agreement. I also have to say that President Van Rompuy paid a lot of personal attention to be the one who is putting these guidelines on the table for the June European

Council, and I think that he is a man of consensus. We certainly do not need to have fight on this, because these areas are extremely crucial for citizens and democracy. I keep doing what

I am always doing to facilitate agreements, and certainly not to clash.

The Chairman: On that note, Director-General, on which my colleagues I am sure will heartily concur, I thank you for coming along and spending some time with us. I hope that when our report comes out it will be of use to you as well as to our own Government.

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European Commission (DG Justice)—Oral evidence (QQ113-121)

Evidence Session No. 8 Heard in Public Questions 113 - 121

MONDAY 27 JANUARY 2014

Members present

Lord Hannay of Chiswick (Chairman) Viscount Bridgeman Lord Faulkner of Worcester Lord Sharkey Lord Wasserman ______

Examination of Witness

Director-General Françoise Le Bail, Director-General, Justice, European Commission

Q113 The Chairman: Thank you very much, Director-General, for coming along this afternoon. We will not do long introductions because I think you know us of old. At the moment we are conducting an inquiry, which will lead to a report at about the end of March, into the future justice and home affairs programme, the one that sometimes has been called the Rome Programme, although I gather it may be moving eastwards to Athens or I do not know where, depending on when it is adopted. But we all know what we are talking about, I think, that is a programme like the previous ones which will run from 2015 to 2019, which seems to be most people’s assumption but it is not certain.

That is the work that we are doing, and it would certainly be very helpful to us if we could now go over the bit of it that is the responsibility of Vice-President Reding and you in all that. We have had a very useful session with Director-General Manservisi and, of course, we have taken a lot of evidence from NGOs and so on. We have been encouraged by

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Commissioner Šefčovič to get involved with policy formulation from a national parliament point of view upstream of the Commission and the Council taking any decisions. That is why we are moving in roughly the same time zone as you are moving in at the moment. We hope that the report we write will be a modest contribution to shaping these decisions.

If I could, I will begin by asking you to what extent the Stockholm Programme set the framework for the Commission during the period it has been applied? In your view, has it been a useful and effective tool for drawing up the strategic direction? Of course, the Lisbon

Treaty now places that duty on the European Council, which did not exist at the time the

Stockholm Programme was adopted. What do you think about that?

Director-General Le Bail: First of all, the situation is a bit different from what it was at the time of the adoption of the Stockholm Programme because in between there has been the

Lisbon Treaty and therefore justice policy has become a common EU policy, a normal policy like competition policy. This makes a difference because although I think the Stockholm

Programme was a useful tool, the situation, as a result of the Treaty, will be different now, which means that what we are all working for—and when I say “all” I mean the Council, the

Commission and the Parliament— something which is very different from the shopping list that was the Stockholm Programme.

We are working for strategic guidelines, which means that the Commission will adopt a communication at the end of February or the beginning of March—quite soon—giving an indication of where we see either a need or what should be developed or consolidated further. The European Council will adopt its strategic orientation in June. Of course, it is different not only in its shape but in the way the institutions are taking part. I see with pleasure that as a national Parliament you are taking part in this. The European Parliament is also taking part in this, and as you know the situation is a bit difficult because there will be a recess very soon.

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Altogether the Stockholm Programme was a useful tool at that time because it was in accordance with the institutional system of that time. Now it has changed and the new—I hesitate to call it a programme—phase of justice policy will have to be defined in accordance with the Treaty, which means the right of initiative is with the Commission and the involvement of the Council and Parliament in a co-decision.

What does it mean in practice? In practice, we have been listening to stakeholders and we have organised "the Assises de la Justice" Conference. We are also listening to what Member

States have to say. We had a very useful discussion at the informal Council meeting in

Athens last week. We are also listening to what the Parliament is saying. There is a resolution by the Parliament, which is in preparation. We are trying to listen to what everybody involved has to say. We have also been working on the results of these policies for the past four years, which are in my view interesting for a number of reasons. First of all, we very much worked on measures that reinforced mutual trust. I am thinking, for example, of the measures in criminal law under which if you are a suspect in any Member State or a victim, you will have minimum rights.

There have also been interesting developments that may not have been completely foreseen by the Stockholm Programme, which tell us that there is a need for some flexibility in the justice policies. What happened in the Hungarian case, for example, is of interest; the

Commission was able to intervene on the basis of the Charter and existing law. Also of interest were justice policies contributing to economic growth or being an enactor of economic growth, the inclusion of the efficiency of justice systems in Europe 2020, and the measures that have been taken for Member States in the reform programme. So, yes, it has been useful at particular times, and although it is a policy that is defined very clearly and in detail by the Stockholm Programme it also has to react to new circumstances, whether political or economic.

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Q114 Lord Sharkey: Director-General, you talked about some aspects of the Stockholm

Programme that led to action, and perhaps there are more examples you can give us. In particular, what areas of the Stockholm Programme do you think still need further action to achieve the goals of the programme?

Director-General Le Bail: As far as we are concerned we have taken all the measures in the Stockholm Programme. The last set of measures which the Commission has adopted is in procedural rights in criminal law, which were the last measures that we had not yet taken.

We have done around 95% of the Stockholm Programme. Your question may be about what could be done on top of the Stockholm Programme? That is interesting, and it is worth reflecting on.

First of all, we hear from stakeholders and from Member States that you should not legislate if there is no need. We are very cautious in the reflections that we are carrying out, of course, to identify the needs that may exist. These needs may exist in civil law, for example, because we have adopted a number of measures and have sometimes adopted them in a very independent way. Looking at it from a global point of view you may see that there is an element missing here and there that could simplify everybody’s life. This may also exist in family law, which is not an easy subject, we all agree. There may be a need in measures that could be taken for children, for example. I suggest this not because we are going to do it but simply because it is a kind of reflection that we are leading and the same applies to criminal law. The question we are asking ourselves is: where is there a need?

Q115 Lord Faulkner of Worcester: Director-General, you have partly answered my question, but you may want to expand a bit. What lessons could be learnt from the application of the previous programmes that will help us when we go forward with future

JHA programmes?

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Director-General Le Bail: First, on what we have learnt from the policies, given where we were it was not that clear that the Stockholm Programme would take us to the point where an efficient justice system would contribute to the economy and to economic growth. This is important not only now but for the future. We are looking at systems that are different and have to remain different. I am very clear on this. But some Member States need to revamp their justice system in order for the justice system to support economic development. We have seen this with Portugal and Greece.

Lord Faulkner of Worcester: Can you give a practical example of that?

Director-General Le Bail: Portugal, for example, has revamped its traditional system completely, such as introducing alternative dispute resolution, introducing mediation, making it work. All this, of course, has an impact on the economy. This in itself is interesting. We have learnt from the adoption of these measures how far justice measures or measures in our field of action sometimes go beyond pure justice, as you understand justice. It is the way all these measures can simplify people’s lives. I am thinking, for example, of the measures that we have taken for international divorce—the UK is not participating in this—where we are simplifying the lives of international couples, where time is no longer lost in identifying the applicable law on their divorce.

I am also thinking of the measures that we have taken in the suppression of the exequatur, which cut costs and time lost, and the measures that we are currently discussing on documents that you have to present in various Member States, which in itself is a very interesting field. Again, these measures are contributing not only to making people’s lives easier but to the economy.

I did not mention that the third lesson is mutual trust. For me, mutual trust is one of the pillars of justice policies in Europe: how much you can trust the justice system in another

Member State. We have taken a number of measures to strengthen this.

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Q116 The Chairman: To what extent do you think the implementation in many Member

States of some of the legislation that has gone through on both the justice and the home affairs side in the last few years is lagging behind? Is there a need to try to speed up that implementation and to give it time to bed down and see whether it actually produces the positive consequences that you, and I think many of us, would foresee? We were rather startled to discover, when we were looking at the Protocol 36 issues, that practically nobody was applying the European Probation Order, for example, and apparently absolutely no one except us and the Irish were applying the Convention on driving Disqualifications.

Now the British Government want to go off and do it bilaterally with the Irish instead of doing it multilaterally. When we reproached them on that they said, “But nobody else is applying this”. To what extent should a high priority of the next period be to get everyone to be actually doing the things they sign up to?

Director-General Le Bail: First of all, for the measures you mentioned we are in a transitional period, and from 1 December 2014 the Commission will be able to take infringement measures, so this has certainly played a role. In general I think there is certainly a case, first of all, for watching the implementation and trying to facilitate it. Sometimes

Member States or the Administrations that are in charge of implementing the measures need training, help and all that, and there is a case for making Member States respect the transposition dates. There is a better record than this in other fields, although not in the field you are mentioning.

There is a need for making sure that implementation is done the right way. There is also a need for reinforcing the measures that reinforce mutual trust. This is essential and this comes through training. As you know, we have adopted a programme for training where we aim at giving training to more than half of the practitioners by 2020, and by practitioners I do not mean only judges but also lawyers and so on.

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There is a need for these professionals to know and trust each other better or, if they do not trust each other better, to identify the useful measures that will make them respect the legislation. In some cases the legislation is not respected because the system in one Member

State does not trust the system in another Member State.

Q117 Viscount Bridgeman: This very much follows on your reply to Lord Hannay’s last question. What do you see as the likely timetable of the measures and the developments you are considering? Are you prepared to say what the priorities might be during the 2015-

19 period?

Director-General Le Bail: It is a bit difficult for me to say because the Commission has not adopted this Communication. First of all, this Communication is going to be adopted at the end of February/the beginning of March. We will certainly look at the gaps in whatever area, whether civil law, criminal law or anything that has to do with the economy. We are also looking very much at the measures that can consolidate what has been adopted in training and IT systems, which are very important in order to facilitate the application of this legislation.

We are looking at what will be needed in the system to tackle the difficulties we have encountered in the last three to four years. I am thinking, for example, of what happened in the framework of the Hungarian crisis. We are looking at all that. The Commission will decide the end result of this discussion.

Q118 Lord Wasserman: I just want to come back for a minute to something you said.

You say that you are going to publish your own views, or your director’s views, in March.

What is the rest of the timetable for this programme? Could you give us some idea of how you see this rolling out over the next year?

Director-General Le Bail: The next step will be the European Council in June during the

Greek Presidency. The Greek Presidency is planning to have guidelines adopted for these

150 of 485 European Commission (DG Justice)—Oral evidence (QQ113-121) policies, whether they are justice or home affairs. We hope that the European Parliament will be able to make its views known in the interval.

Lord Wasserman: If we want to have any influence on what the programme looks like, when do we have to have a report of it?

Director-General Le Bail: You can have a report any time between now and June, I guess.

Lord Wasserman: Can I pick up on the point about mutual trust? I was very pleased to hear you talk about mutual trust, because it is absolutely essential. We certainly heard a lot about mutual trust when we talked about European Arrest Warrants and why people do not like them, because there is no trust in what happens in the other jurisdictions. It is souring the attitudes and it is preventing new policy from being developed that could do a lot of good. We saw that with probation, we saw it with arrest warrants and so on. It all comes back to trust. I do not know how you can change that. It is much more than a marketing programme because it runs very deep. There are historical differences in the criminal justice systems between our system and, say, the French system. There is the whole idea of different legal bases, and it is very difficult to overcome these prejudices against other people’s legal systems.

Director-General Le Bail: It is not so much about the nature of the justice system; it is about the degree of development of the justice system. It is not because the British and

French systems are different that there is no mutual trust. In other more recent Member

States there are question marks about how the justice system operates. There are a number of ways to reinforce this mutual trust.

What we have done in procedural rights, for example, is given suspects and victims the same minimum rights in Europe, wherever you go. If you are arrested in Poland, you are a suspect, you know you will have minimum rights, which are to know why you are arrested, a letter of rights, having interpretation if you do not speak Polish, and access to a lawyer. We are

151 of 485 European Commission (DG Justice)—Oral evidence (QQ113-121) adding legal aid and the protection of vulnerable people. In doing this, we are guaranteeing a minimum. Where there is no mutual trust you do not know what is going to happen to the suspect you are sending to wherever, and this contributes to this. Of course, that is not to say that it is perfect, but it contributes to this.

The other way of doing it is intense training between practitioners and sending practitioners from one Member State to the other so that people understand. Of course, it is not completely easy because you have to go beyond the obstacle of language and all this. There is a need for quite a lot of organisation for this, but I think it is worth it. It is also worth doing it between Member States that have affinities with each other. We are not going to do that centrally, but all organisations, bar associations and traditional networks have to be involved in this and try to develop a better knowledge of the system and a better knowledge of people among themselves.

Lord Wasserman: I agree with all that and I wish you luck, but you know what happens when the media gets one case of someone who is being kept in jail. That comes up in all our debates; people produce the very same case. There were three or four cases of people who have been sent back to their country.

Lord Faulkner of Worcester: Or not sent back.

Lord Wasserman: Or not sent back, and it simply sours the atmosphere for a very long time. It is a very big job.

Director-General Le Bail: When you think about it, you hear of this exception but most of the time it works. There is another aspect that is worth looking at, which is the condition of detention. Of course, we have no competence ourselves to improve the situation of jails in

Member States, but this is sometimes one of the reasons why, in the framework of European arrest warrants, people are not transferred. There are, in a way, a number of things that we

152 of 485 European Commission (DG Justice)—Oral evidence (QQ113-121) can do at the European level. Most of the time it works. When it does not work it is highly publicised but this is rather an exception.

The Chairman: The real problem, as you know full well, is that every bad hard case has a

Member of Parliament somewhere, and that of course means that it is not just a lamentable fact that they have been badly treated but it goes into the echo chamber of national politics and becomes very powerful. That is one of the reasons why we have been so critical of the

British Government for not implementing the European Supervision Order when they should have done, so that they are now in the ironic position of having to ask to rejoin an order which they failed to implement. I hope they will succeed in joining it and implementing it because that is part of the answer to some of these cases. The Symeou case would have fallen into that category, and the man would not have been kept for a year or whatever it was in very bad conditions outside his own country before he was brought to justice. That is something where we share the same concerns as you do, basically.

Q119 Lord Faulkner of Worcester: I want to ask about mechanisms of review for the next programme. There were problems with the mid-term review of the Stockholm

Programme. What lessons can we learn from that, and how can we do it better next time?

Director-General Le Bail: I am not sure. Did we have problems with the mid-term review?

The Chairman: The Commission did not participate. It said that it did not have the time or the resources to participate, and would the Council kindly do it? We heard from

Director-General Manservisi that he foresees a somewhat different approach. He argued that it could be sensible to conduct this more under the rubric of evaluating the effectiveness of the funds, which have now been completely reorganised, and then looking to see in the mid-term of this next period how those funds, and the instruments which they support, were giving value and being effective. I must say that I thought he struck a note that we found rather interesting in that respect. He then suggested that this time round there

153 of 485 European Commission (DG Justice)—Oral evidence (QQ113-121) would be more of an evidence-based approach, and there would be more evidence to go on because the various instruments would have been in existence for a period of some years and it should be possible to make it more meaningful. I wondered what your feeling was.

Director-General Le Bail: First, the situation is a bit different for justice because we have very little money. Home affairs has more money for funding.

The Chairman: They say they have very little money compared to the other policies, and we can all agree about that I am sure.

Director-General Le Bail: But the essence of the home affairs sector is based a lot on very important amounts of money. On the justice front we have very little money, and rightly so in a way. I am not claiming that we need more. We did not ask for more because we have the money that we need to do the sort of programme that we need, and of course we need to evaluate these programmes. It is not because we have much less money that these programmes should not be evaluated. I certainly agree with that. But I agree that we should have an evaluation of the impact not only of the programmes in the sense of how you spend your money but of the legislative measures as well.

We have adopted a lot of legislation and we should look at the impact. I am sure they will be the right ones, but if you adopt a measure in civil law, for example, and adopt another one, there will be an element of overlapping between the two. Maybe at some stage there will be a need to look at this and say, “We are going to make it simpler. We are going to codify it”.

In the justice system we will make an effort to make sure that in the long run all this is completely consistent and is perhaps adjusted to new circumstances. We will have to do all this. We will certainly have to evaluate the programme in terms of value for money, what have we achieved with it, and the way we are doing it.

We also realise that in most of the legislative text or law that we have adopted, you have in it a review that is planned. For example, in the field of civil law we regularly issue a report to

154 of 485 European Commission (DG Justice)—Oral evidence (QQ113-121) explain how it has been applied and how it works. I am very much in favour of reviewing, if possible in a simple way, but reviewing, of course, yes.

Q120 Viscount Bridgeman: This is a question that we asked the former DG too. Is there likely to be a tension between the Commission and the Council on the development of the programme, and how will that be managed?

Director-General Le Bail: Did you say tension? Again, we have worked very closely with the Council. When we organised the Assises de la Justice the idea was to collect everybody’s thinking, whether practitioners or public authorities, to try to understand what the needs were and how they were seeing things. We work very closely with the Greek Presidency, and I think everybody has agreed that there should be guidelines rather than a detailed programme. I think we understand what Member States want. We can propose a number of things, and after that there will be a discussion.

Q121 The Chairman: Could I go back to the previous question and ask you whether it would be possible to give us a list of the current reviews and evaluations that you are required to provide under individual sectoral things?

Director-General Le Bail: That should not be a problem.

The Chairman: We are quite clear that part of our report is going to cover evaluation and, we want to try to make some sense of that and, above all, to make it more user-friendly and more effective, not just box-ticking. It would help us a lot if we had the factual background absolutely clear as to the Commission’s obligations, what they have accepted to provide reports on. Our ideas would be a bit better and more solidly founded, I hope, if we had that. Would that be possible?

Director-General Le Bail: I have no problem with that.

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The Chairman: That would be really helpful. Does anybody else have any thoughts? Thank you so much for that. It has been very useful for us and I hope you will find the outcome will be of use to you as well as to our own Government.

Director-General Le Bail: I am sure it will, as it was for Protocol 36.

The Chairman: I think your response may be slightly longer on this one.

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European Commission (DG Justice)—Supplementary written evidence

Reporting obligations under the existing acquis of DG JUSTICE

TABLE OF CONTENTS

1. CIVIL JUSTICE 1.1. Legislation 1.2. Programmes

2. CRIMINAL LAW 2.1. Legislation 2.2. Programmes

3. CONTRACT AND CONSUMER LAW 3.1. Legislation

4. PROTECTION OF PERSONAL DATA 4.1. General Legislation 4.2. Commission Decisions on the adequacy of the protection of personal data in third countries 4.3. Model contracts for the transfer of personal data to third countries

5. ANTI-DRUGS POLICY 5.1. Legislation 5.2. Programmes

6. FUNDAMENTAL RIGHTS 6.1. Programmes

7. UNION CITIZENSHIP 7.1. Legislation 7.1.1. Free Movement and Right of Residence 7.1.2. Electoral Rights 7.2. Programmes

8. EQUAL TREATMENT 8.1. Legislation 8.2. Convention

9. FINANCIAL PROGRAMMES

157 of 485 European Commission (DG Justice)—Supplementary written evidence

1. CIVIL JUSTICE

1.1 Legislation

Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ L 160 of 30 June 2000, p. 1);

Reporting obligation: 1/6/2012 and every 5 years thereafter. Existing reports: COM(2012) 743 final of 12/12/2012

Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 12 of 16 January 2001, p. 1. Corrigendum published in OJ L 307 of 24 November 2001, p. 28);

Reporting obligation: 5 years after the entry into force. Existing reports: COM(2009) 174 final of 21/4/2009

Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters (OJ L 174 of 27 June 2001, p. 25);

Reporting obligation: by 1/12/2005 and every 5 years thereafter Existing reports: COM(2006) 203 final of 16/5/2006

Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (OJ L 174 of 27 June 2001, p. 1);

Reporting obligation: 1/1/2007 and every 5 years thereafter Existing reports: COM(2007) 769 final of 5/12/2007

Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in cross- border disputes by establishing minimum common rules relating to legal aid for such disputes (OJ L 26 of 31 January 2003, p. 41);

No reporting obligations Existing reports: COM(2012) 71 final of 23/2/2012

Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ L 338 of 23 December 2003, p. 1);

Reporting obligation: 1/1/2012 and every 5 years thereafter

Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims (OJ L 261 of 6 August 2004, p. 15);

Reporting obligation: 1/1/2009

158 of 485 European Commission (DG Justice)—Supplementary written evidence

Existing report: COM(2009) 170 final of 20/4/2009

Regulation EC No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation No 1348/2000 (OJ L 324 of 10 December 2007, p. 79);

Reporting obligation: 1/6/2011 and every 5 years thereafter Existing reports: COM(2013) 858 final of 4/12/2013

Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure (OJ L 199 of 31 July 2007, p. 1);

Reporting obligation: 1/1/2014 Existing reports: COM(2013) 795 final of 19/11/2013

Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) (OJ L 199 of 31 July 2007, p. 40);

Reporting obligation: 20/8/2011

Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (OJ L 136 of 24 May 2008, p. 3);

Reporting obligation: 21/5/2016

Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177 of 4 July 2008, p. 6. Corrigendum published in OJ L 309 of 24 November 2009, p. 87);

Reporting obligation: 1) on the application of the Regulation in general - 7/6/2013; 2) on the question of the effectiveness of an assignment of claims against third parties – 17/10/2010

Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (OJ L 7 of 10 January 2009, p. 1; Corrigenda published in OJ L 131 of 18 May 2011, p. 26 and OJ L 8 of 12 January 2013, p. 19);

Reporting obligation: by 18 June 2016

Regulation No 662/2009/EC of the European Parliament and of the Council of 13 July 2009 establishing a procedure for the negotiation and the conclusion of agreements between Member States and third countries en particular matters concerning the law applicable to contractual and non-contractual obligations (OJ L 200 of 31 July 2009, p. 25. Corrigendum published in OJ L 241 of 17 September 2011, p. 35);

Reporting obligation: 13/7/2017

159 of 485 European Commission (DG Justice)—Supplementary written evidence

Council Regulation No 664/2009/EC of 7 July 2009 establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries concerning jurisdiction, recognition and enforcement of judgements and decisions in matrimonial matters, matters of parental responsibility and matters relating to maintenance obligations, and the law applicable to matters relating to maintenance obligations (OJ L 200 of 31 July 2009, p. 46. Corrigendum published in OJ L 241 of 17 September 2011, p. 35);

Reporting obligation: 7/7/2017

Council Regulation No 1259/2010/EU of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ L 343 of 29 December 2010, p. 10);

Reporting obligation: 31/12 /2015 and every 5 years thereafter

Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (OJ L 201 of 27 July 2012, p. 107. Corrigenda published in OJ L 344 of 14 December 2012, p. 3 and in OJ L 60 of 2 March 2013, p. 140);

Reporting obligation: by 18/8/2025

Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351 of 20 December 2012, p. 1);

Reporting obligation: by 11 January 2022

1.2 Programmes

Decision No 1149/2007/EC of the European Parliament and of the Council of 11 July 2007 establishing for the period 2007-2013 the Specific Programme Civil Justice as part of the General Programme Fundamental Rights and Justice (OJ L 257 of 3 October 2007, p. 16).

Reporting obligation:

(a) an annual presentation on the implementation of the Programme; (b) an interim evaluation report on the results obtained and the qualitative and quantitative aspects of the implementation of the Programme, including on the work carried out by the beneficiaries of operating grants referred to in Article 4(d), not later than 31 March 2011; (c) a communication on the continuation of the Programme not later than 30 August 2012; (d) an ex-post evaluation report not later than 31 December 2014

Existing reports: COM(2011) 351 final of 15/6/2011

2. CRIMINAL LAW

160 of 485 European Commission (DG Justice)—Supplementary written evidence

2.1 Legislation

Council Framework Decision 2000/383/JHA of 29 May 2000 on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro (OJ L 140 of 14 June 2000, p. 1);

No reporting obligations Existing reports: COM(2007) 524 final of 17/9/2007; COM(2003) 532 final of 3/9/2003 and COM(2001) 771 final of 13/12/2001

Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings (OJ L 82 of 22 March 2001, p. 1);

This Framework Decision foresaw a report by the COM to the Council on the implementation by the MS following the implementation dates indicated in the FWD (March 2002, March 2004 and March 2006)4

Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ L 190 of 18 July 2002, p. 1)5;

Reporting obligation: 31/12/2004 Existing reports: COM(2006) 8 final of 24/1/2006, COM(2007) 407 final of 11/7/2007 and COM(2011) 175 final of 11/4/2011.

Council Framework Decision 2002/465/JHA of 13 June 2002 on joint investigation teams (OJ L 162 of 20 June 2002, p. 1);

Reporting obligation: 1/7/20046 Existing reports: COM(2004) 858 final of 7/1/2005

Council decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime (OJ L 63 of 06 March 2002, p. 1);

• Council Decision 2003/659/JHA of 18 June 2003 amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime (OJ L 245 of 29 September 2003, p. 44); • Council decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust and amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime, OJ L 138 of 4 June 2009, p. 14);

Reporting obligation: at regular intervals7

4 This Framework Decision is replaced by Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime. 5 See Statements made by certain Member States on the adoption of the Framework Decision (OJ L 190 of 18 July 2002, p. 19). 6 This Framework Decision will cease to have effect when the MLA 2000 Convention enters into force in all MS (all but four MS have ratified it). 7 Will be replaced by the Regulation of the European Parliament and of the Council on the European Union Agency for Criminal Justice Cooperation (Eurojust), COM(2013) 535, once adopted.

161 of 485 European Commission (DG Justice)—Supplementary written evidence

Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence (OJ L 196 of 2 August 2003, p. 45; Corrigendum published in OJ L 347 of 27 December 2006, p. 20);

Reporting obligation: before 2/8/20068 Existing reports: COM(2008) 885 final of 22/12/2008

Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties (OJ L 76 of 22 March 2005, p. 16);

Reporting obligation: No later than 22/3/2008 and also within seven years of the entry into force of the FWD which was 22/3/2005 Existing reports: COM (2008) 888 final of 22/12/2008

Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders (OJ L 328 of 24 November 2006, p.59);

Reporting obligation; No later than 24/11/2009 and by 24/11/2013 Existing reports: COM(2010) 428 final of 23/8/2010

Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the member States of the European Union in the course of new criminal proceedings (OJ L 220 of 15 August 2008, p. 32);

Reporting obligation: 15/8/2011

Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union (OJ L 327 of 5 December 2008, p. 27);

Reporting obligation: by 5/12/2013

Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law (OJ L 328 of 6 December 2008, p. 55);

Reporting obligation: during 2013 Existing reports: COM(2014) 27 final of 27/1/2014

Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions (OJ L 337 of 16 December 2008, p. 102);

Reporting obligation: 6/12/2014

8 In what concerns freezing of evidence, this instrument is replaced by Directive

162 of 485 European Commission (DG Justice)—Supplementary written evidence

Existing reports: COM(2014) 57 final of 5/2/2014

Council Decision 2008/976/JHA of 16 December 2008 on the European Judicial Network (OJ L 348 of 24 December 2008, p. 130);

Reporting obligation: the Council shall, every four years from 24 December 2008, carry out an assessment of the operation of the European Judicial Network on the basis of a report drawn up by the Commission in cooperation with the European Judicial Network.

Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters (OJ L 350 of 30 December 2008, p. 72);

Reporting obligation: 19/1/2012 and 19/1/20149

Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principal of mutual recognition to decisions rendered in the absence of the person concerned at the trial (OJ L 81 of 27 March 2009, p. 24);

Reporting obligation: 28/3/2014

Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States (OJ L 93 of 7 April 2009, p. 23);

Reporting obligation: 27/4/2015

Council Decision 2009/316/JHA of 6 April 2009 on the establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2009/315/JHA (OJ L 93 of 7 April 2009, p. 33);

Reporting obligation: the Commission services shall regularly publish a report concerning the exchange, through ECRIS, of information extracted from the criminal record based in particular on the statistics referred to in Article 6(2)(b)(i). This report shall be published for the first time one year after submitting the report referred to in Article 13(3) of Framework Decision 2009/315/JHA (which is 27/4/2015).

Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principal of mutual recognition to decisions on supervision measures as an alternative to provisional detention (OJ L 294 of 11 November 2009, p. 20);

Reporting obligation: 1/12/2013 Existing reports: COM(2014) 57 final of 5/2/2014

9 Will be replaced by the Directive of the European Parliament and of the Council regarding the European Investigation Order in criminal matters.

163 of 485 European Commission (DG Justice)—Supplementary written evidence

Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings (OJ L 328 of 15 December 2009, p. 42);

Reporting obligation: 15/12/2012 Report to be adopted in April 2014

Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ L 280 of 26 October 2010, p. 1);

Reporting obligation: 27/10/2014

Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European protection order (OJ L 338 of 21 December 2011, p. 2);

Reporting obligation: 11/1/2016

Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ L 142 of 1 June 2012, p. 1);

Reporting obligation: 2/6/2015

Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA (OJ L 315 of 14 November 2012, p. 57);

Reporting obligation: 16/11/2017

Regulation (EU) No 606/2013 of the European Parliament and of the Council of 12 June 2013 on mutual recognition of protection measures in civil matters (OJ L 181 of 29 June 2013, p. 4);

Reporting obligation: 11/1/2020

Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ L 294 of 6 November 2013, p. 1).

Reporting obligation: 28/11/2019

2.2 Programmes

Council Decision 2007/126/JHA of 12 February 2007 establishing for the period 2007 to 2013, as part of the General Programme on Fundamental Rights and Justice, the Specific Programme "Criminal Justice" (OJ L 58 of 24 February 2007, p. 13);

164 of 485 European Commission (DG Justice)—Supplementary written evidence

Reporting obligation:

(a) an annual presentation on the implementation of the Programme; (b) an interim evaluation report on the results obtained and the qualitative and quantitative aspects of the implementation of the Programme no later than 31 March 2011; (c) a communication on the continuation of the Programme not later than 30 August 2012; (d) an ex-post evaluation report not later than 31 December 2014

Existing reports: COM(2011)255 final of 11/5/2011

Decision No 779/2007/EC of the European Parliament and of the Council of 20 June 2007 establishing for the period 2007-2013 a specific programme to prevent and combat violence against children, young people and women and to protect victims and groups at risk (Daphne III programme) as part of the General Programme Fundamental Rights and Justice (OJ L 173, 3.7.2007, p. 19).

Reporting obligation:

(a) an annual presentation on the implementation of the Programme; (b) an interim evaluation report on the results obtained and the qualitative and quantitative aspects of the implementation of the programme not later than 31 March 2011 accompanied by a list of the projects and measures financed 31 March 2011; (c) a communication on the continuation of the Programme not later than 31 May 2012; (d) an ex-post evaluation report not later than 31 December 2014

Existing Reports: COM(2011) 254 final of 11/5/2011

3. CONTRACT AND CONSUMER LAW

3.1 Legislation

Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ L 158 of 23 June 1990, p. 59);

No reporting obligations Existing reports: SEC(1999) 1800 of 5/11/1999

Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95 of 21 April 1093, p. 29) (modified by Directive 2011/83/EU);

Reporting obligation: five years after the transposition date (which is 31/12/1994) Existing reports: COM(2000) 248 final of 27/4/2000

Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on the consumer protection in the indication of the prices of products offered to consumers (OJ L 80 of 18 March 1998, p. 27);

Reporting obligation: three years after the transposition date (which is 18/3/2000)

165 of 485 European Commission (DG Justice)—Supplementary written evidence

Existing report (Communication): COM(2006) 325 final of 21/6/2006

Directive 99/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ L 171 of 7 July 1999, p. 12) (modified by Directive 2011/83/EU);

Reporting obligation: no later than 7/7/2006 Existing report (Communication): COM(2007) 210 final of 24/4/2007

Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ L 149 of 11 June 2005, p. 22);

Reporting obligation: by 12/6/2011 Existing reports (Communication and Report): COM(2013) 138 final and COM(2013) 139 final of 14/3/2013

Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (codified version) (OJ L 376 of 27 December 2006, p. 21);

No reporting obligation Existing reports: COM(2012) 702 final of 27/11/2012

Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts (OJ L 33 of 3 February 2009, p. 10);

Reporting obligation: no later than 23/2/2014

Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ L 304 of 22 November 2011, p. 64);

Reporting obligation: by 13/12/2016

4. PROTECTION OF PERSONAL DATA

4.1 General Legislation

Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23 November 1995, p. 31);

166 of 485 European Commission (DG Justice)—Supplementary written evidence

Reporting obligation: at regular intervals starting no later than three years after the transposition date (which is November 1995) Existing reports: COM(2003) 265 final of 15/5/2003; COM (2007) 87 final of 7/3/2007; Impact Assessment to the Data Protection Reform presented on 25/1/2012, (SEC(2012) 72 final), Annex 2: evaluation report on the implementation of Directive 95/46/EC

Framework Decision 2008/977/JHA on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (OJ L 350 of 30 December 2008, p. 6);

Reporting obligation on the implementation: before 27/11/2011 Existing reports: COM(2012) 12 final of 25/1/2012, with annex SEC(2012) 75 final

Reporting obligation on the evaluation: before 27/11/2013

4.2 Commission Decisions on the adequacy of the protection of personal data in third countries

On all of the adequacy decisions above, the Commission has no regular reporting obligation. It just has an obligation to monitor the functioning of the Decisions and report any pertinent findings to the Committee established under Article 31 of Directive 95/46/EC.

AD - ANDORRA Commission Decision 2010/625/EU of 19 October 2010 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequate protection of personal data in Andorra (OJ L 277 of 21 October 2010, p.27).

AR - ARGENTINA Commission Decision 2003/490/EC of 30 June 2003 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequate protection of personal data in Argentina (OJ L 168, 5 July 2003, p. 19).

CA - CANADA Commission Decision 2002/2/EC of 20 December 2001 on the adequate protection of personal data provided by the Canadian Personal Information Protection and Electronic Documents Act (OJ L 2, 4 January 2002, p. 13);

CH - SWITZERLAND Commission Decision 2000/518/EC of 26 July 2000 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequate protection of personal data provided in Switzerland (OJ L 215, 25 August 2000, p. 1);

FO - FAROE ISLANDS Commission Decision 2010/146/EU of 5 March 2010 on the adequate protection provided by the Faroese Act on processing of personal data (OJ L58, 9 March 2010, p.17).

GG - GUERNSEY Commission Decision 2003/821/EC of 21 November 2003 on the adequate protection of personal data in Guernsey (OJ L 308, 25 November 2003, p. 27).

167 of 485 European Commission (DG Justice)—Supplementary written evidence

IL - STATE OF ISRAEL Commission Decision 2011/61/EU of 31 January 2011 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequate protection of personal data by the State of Israel with regard to automated processing of personal data (OJ L 27, 1 February 2011, p. 39).

IM - ISLE OF MAN Commission Decision 2004/411/EC of 28 April 2004 on the adequate protection of personal data in the Isle of Man (OJ L 151, 30 April 2004, p. 48; Corrigendum: OJ L 208, 10 June 2004, p. 47).

JE - JERSEY Commission Decision 2008/393/EC of 8 May 2008 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequate protection of personal data in Jersey) (OJ L 138, 28 May 2008, p.21).

US - UNITED STATES OF AMERICA Commission Decision 2000/520/EC of 26 July 2000 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the safe harbour privacy principles and related frequently asked questions issued by the US Department of Commerce (OJ L 215, 25 August 2000, p. 7; Corrigendum: OJ L 115, 25 April 2001, p. 14). Existing reports: COM (2013) 847 27.11.2013; SEC (2004) 1323 20.10.2004; SEC(2002)196, 13.12.2002

UY - URUGUAY Commission Implementing Decision 2012/484/EU of 21 August 2012 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequate protection of personal data by the Eastern Republic of Uruguay with regard to automates processing of personal data (OJ L 227, 23 August 2012, p. 11).

NZ – NEW ZEALAND Commission Implementing Decision 2013/65/EU of 19 December 2013 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequate protection of personal data by New Zealand (OJ L 28, 30 January 2013, p. 12).

4.3 Model contracts for the transfer of personal data to third countries

• Commission Decision 2001/497/EC of 15 June 2001 on standard contractual clauses for the transfer of personal data to third countries under the Directive 95/46/EC (OJ L 181, 4 July 2001, p.19; Corrigendum: OJ L 253, 21 September 2001, p. 34)

Reporting obligation: 3 years after the adoption of the Decision • Commission Decision 2004/915/EC of 27 December 2004 amending Decision 2001/497/EC as regards the introduction of an alternative set of standard contractual clauses for the transfer of personal data to third countries (OJ L 385, 29 December 2004, p. 74).

168 of 485 European Commission (DG Justice)—Supplementary written evidence

Reporting obligation: 3 years after the adoption of the Decision • Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council (OJ L 39, 12 February 2010, p.5).

Reporting obligation: three years after the adoption of the Decision Existing reports: SEC (2006) 95 of 20/01/2006

5. ANTI-DRUGS POLICY

5.1 Legislation

Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking (OJ L 335 of 11 November 2004, p. 8);

Reporting obligation: 12/5/2009 Existing reports: COM(2009) 669 final of 10/12/2009

Regulation (EC) No 1920/2006 of the European Parliament and of the Council of 12 December 2006 on the European Monitoring Centre for Drugs and Drug Addiction (recast) (OJ L 376 of 27 December 2006, p. 1);

Reporting obligation: the COM shall initiate an external evaluation every six years to coincide with the completion of two of the agency's three-year work programme

Council Decision 2005/387/JHA of 10 May 2005 on the information exchange, risk- assessment and control of new psychoactive substances (OJ L 127 of 20 May 2005, p. 32);

No reporting obligation for the COM Existing reports: COM(2011) 430 final of 11/7/2011

5.2 Programmes

Decision No 1150/2007/EC of the European Parliament and of the Council of 25 September 2007 establishing for the period 2007-2013 the Specific Programme ‘Drug prevention and information’ as part of the General Programme ‘Fundamental Rights and Justice’ (OJ L 257 of 3 October 2007, p. 23).

Reporting obligation: (a) an annual presentation on the implementation of the Programme; (b) an interim evaluation report on the results obtained and the qualitative and quantitative aspects of the implementation of the Programme not later than 31 March 2011;

169 of 485 European Commission (DG Justice)—Supplementary written evidence

(c) a Communication on the continuation of the Programme not later than 30 August 2012; and (d) an ex-post evaluation report not later than 31 December 2014

Existing reports: COM(2011) 246 final of 5/5/2011

6. FUNDAMENTAL RIGHTS

Charter of Fundamental Rights of the European Union (OJ C 83 of 30 March 2010, p 389);

Existing reports: COM(2013) 271 final of 8/5/2013; COM(2012) 169 final of 16/4/2012 and COM(2001) 160 final of 30/3/2011

6.1 Programmes

Council Decision 2007/252/EC of 19 April 2007 establishing for the period 2007-2013 the specific programme "Fundamental rights and citizenship" as part of the General programme "Fundamental Rights and Justice" (OJ L 110 of 27 April 2007, p. 33. Corrigendum published in OJ L 141 of 2 June 2007, p. 83).

Reporting obligation (a) an annual presentation on the implementation of the programme (b) an interim evaluation report on the results obtained and the qualitative and quantitative aspects of the implementation of the programme, including on the work carried out by the beneficiaries of operating grants referred to in Article 4(d), not later than 31 March 2011; (c) a Communication on the continuation of the programme not later than 30 August 2012; (d) an ex post evaluation report not later than 31 December 2014

Existing reports: COM(2011) 249 final of 5/5/2011

7. UNION CITIZENSHIP

7.1 Legislation

7.1.1 Free Movement and Right of Residence

European Parliament and Council Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ L 158 of 30 April 2004, p. 77; Corrigenda published in OJ L 229 of 29 June 2004, p. 35; OJ L 30 of 3 February 2005, p. 27; OJ L 197 of 28 July 2005, p. 34; OJ L 204 of 4 August 2007, p. 28);

Reporting obligation: 30/4/2008

170 of 485 European Commission (DG Justice)—Supplementary written evidence

Existing reports: COM(2008) 840 final of 10/12/2004

7.1.2 Electoral Rights

Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976: Decision of the representatives of the Member States meeting in the council relating to the Act concerning the election of the representatives of the Assembly by direct universal suffrage (OJ L 278 of 8 October 1976, p. 1; Corrigendum published in OJ L 326 of 25 November 1976, p. 32);

• Act concerning the election of the representatives of the European Parliament by direct universal suffrage (OJ L 278 of 8 October 1976, p. 5); • Council Decision of 25 June 2002 and 23 September 2002 amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to Decision 76/787/ECSC, EEC, Euratom (OJ L 283 of 21 October 2002, p. 1. Corrigendum published in OJ L 126 of 21 May 2009, p. 23);

No reporting obligation Existing reports: COM(2010) 605) final 27/10/2010

Council Directive 93/109/EC of 6 December 1993 laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals (OJ L 329 of 30 December 1993, p. 34);

Reporting obligations: By 31 December 1997 and thereafter 18 months prior to each election to the European Parliament, the Commission shall submit to the European Parliament and to the Council a report in which it shall check whether the grant to the Member States concerned of a derogation pursuant to Article 8b (2) of the EC Treaty is still warranted and shall propose that any necessary adjustments be made. Last report: COM(2013) 126 final, 12/3/2013.

• Council Directive 2013/1/EU of 20 December 2012 adapting Directive 93/109/EC as regards certain detailed arrangements for the exercise of the right to stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals (OJ L 26 of 26 January 2013, p. 27);

Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in municipal elections for citizens of the Union residing in a Member State of which they are not nationals (OJ L 368 of 31 December 1994, p. 38);

Reporting obligations: The COM shall submit a report within a year of the holding in all MS of the municipal elections. Existing reports: COM(2002) 260 final of 30/5/2002; COM(2012) 99 final of 9/3/2012

Reporting obligations: The COM shall submit by 31 December 1998 and every six years thereafter a report in which it shall check whether the grant to the Member States concerned of a derogation under article 22(1) of the TFEU is still warranted

171 of 485 European Commission (DG Justice)—Supplementary written evidence

Existing reports: COM (1999) 597 final; COM(2005) 382 final of 22/08/2005; COM(2012) 99 final of 9/3/2012

• Council Directive 96/30/EC of 13 May 1996 amending the Annex to Directive 94/80/EC laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals (OJ L 122 of 22 May 1996, p. 14);

• Act concerning the conditions of accession and the adjustments to the Treaties- Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic (OJ L 236 of 23 September 2003, p. 334) replacing the Annex to Directive 94/80/EC;

• Council Directive 2006/106/EC of 20 November 2006 adapting Directive 94/80/EC laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals, by reason of the accession of Bulgaria and Romania (OJ L 363 of 20 December 2006, p. 409);

• Commission Implementing Decision 2012/412/EU of 19 July 2012 amending the list of "basic local government units" in the Annex to Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in municipal elections for citizens of the Union residing in a Member State of which they are not nationals (OJ L 192 of 20 July 2012, p. 29);

• Council Directive 2013/19/EU of 13 May 2013 adapting Directive 94/80/EC laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals, by reason of the accession of the Republic of Croatia (OJ L 158 of 10 June 2013, p. 231);

7.2 Programmes

Council Decision 2007/252/EC of 19 April 2007 establishing for the period 2007-2013 the specific programme "Fundamental rights and citizenship" as part of the General programme "Fundamental Rights and Justice" (OJ L 110 of 27 April 2007, p. 33. Corrigendum published in OJ L 141 of 2 June 2007, p. 83).

Reporting obligation: (a) an annual presentation on the implementation of the programme; (b) an interim evaluation report on the results obtained and the qualitative and quantitative aspects of the implementation of the programme, including on the work carried out by the beneficiaries of operating grants referred to in Article 4(d), not later than 31 March 2011; (c) a Communication on the continuation of the programme not later than 30 August 2012;

172 of 485 European Commission (DG Justice)—Supplementary written evidence

(d) an ex post evaluation report not later than 31 December 2014

8. EQUAL TREATMENT

8.1 Legislation

Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ L 6 of 10 January 1979, p.24);

Reporting obligation: 7 years after the notification of the Directive (which was 1978)

Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC) (OJ L 348 of 28 November 1992, p. 1);

Reporting obligation: periodically (without specific date)

Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services (OJ L 373 of 21 December 2004, p. 37);

Reporting obligation: no later than 21/12/2010

• Guidelines on the application of Council Directive 2007/113 to insurance, in the light of the judgment of the Court of Justice of the European Union in Case C-236/09 (Test-Achats) (OJ C11 of 13 January 2012, p. 1);

Directive 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (OJ L 204 of 26 July 2006, p. 23);

Reporting obligation: by 15/2/2011 Existing reports: COM(2013) 861 of 6/12/2013

Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC (OJ L 180 of 15 July 2010, p. 1).

Reporting obligation: no later than 5/8/2016

Non Discrimination

Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ L 180 of 19 July 2000 p. 22);

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Reporting obligation: by 19/7/2005 and then every 5 years Existing reports: COM(2006) 643 final of 30/10/2006

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ L 303 of 2 December 2000 p. 16).

Reporting obligation: by 2/12/2005 and then every 5 years Existing reports: COM(2008) 225 final of 8/7/2008

Joint report on the two anti-discrimination directives: COM(2014) 2 final 17/1/201

8.2 Convention

Council Decision 2010/48/EC of 26 November 2009 concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities (OJ L 23 of 27 January 2010 p. 35). The Convention entered into force for the EU on 22 January 2011.

Reporting obligation: to the UN, two years after the entry into force and thereafter every 4 years (based on art. 35 of the Convention)

9. FINANCIAL PROGRAMMES

Regulation (EU) N° 1381/2013 of the European Parliament and of the Council of 17 December 2013 establishing a Rights, Equality and Citizenship Programme for the period 2014 to 2020 ((OJ L 354 of 28 December 2013 p. 62);

Reporting obligation: (a) an annual monitoring report based on the indicators set out in the legal basis and on the use of the available funds; (b) an interim evaluation report by 30 June 2018; (c) an ex-post evaluation report by 31 December 2021

Regulation (EU) N° 1382/2013 of the European Parliament and of the Council of 17 December 2013 establishing a Justice Programme for the period 2014 to 2020 ((OJ L 354 of 28 December 2013 p. 73).

Reporting obligation: (a) an annual monitoring report based on the indicators set out in the legal basis and on the use of the available funds; (b) an interim evaluation report by 30 June 2018; (c) an ex-post evaluation report by 31 December 2021

14 February 2014

174 of 485 European Commission, British Red Cross, Lincolnshire County Council—Oral evidence (QQ85-101)

European Commission, British Red Cross, Lincolnshire County Council—Oral evidence (QQ85-101) Transcript to be found under British Red Cross

175 of 485 European Parliament (Juan Fernando López Aguilar MEP, Judith Sargentini MEP)—Oral evidence (QQ145-151)

European Parliament (Juan Fernando López Aguilar MEP, Judith Sargentini MEP)—Oral evidence (QQ145-151)

Evidence Session No. 11 Heard in Public Questions 145 - 151

TUESDAY 28 JANUARY 2014

Members present

Lord Hannay of Chiswick (Chairman) Lord Sharkey ______

Examination of Witnesses

Juan Fernando López Aguilar, Member of the European Parliament, and Judith Sargentini, Member of the European Parliament

Q145 The Chairman: Welcome. What we are doing at the moment is conducting an inquiry, which has been going on for about two or three months, into the future Justice and

Home Affairs programme covering, we assume, the period roughly 2015 to 2019. We understand that this is likely but not certain to be adopted by the heads of government in

June. The Parliament is producing some resolutions on it and the Commission is meant to be producing two communications on it by the end of February or the beginning of March.

To explain to you, it is also part of our effort in our Committee in the House of Lords to follow the advice that the Commission has given on a number of cases, which is for national parliaments to get involved more upstream in European legislation rather than sit around waiting for it to be set in concrete when the Commission makes a formal proposal and the

Parliament and the Council get involved in co-decision. This inquiry, along with one or two others we have done in recent years, on the drugs strategy and on the internal security strategy, is designed to get national parliaments involved further upstream. That is what we

176 of 485 European Parliament (Juan Fernando López Aguilar MEP, Judith Sargentini MEP)—Oral evidence (QQ145-151) are trying to do. We will produce this report about the end of March, probably, and we hope that it will be of use to you and your colleagues, to national parliaments, to national governments and, of course, to our own Government to whom it is directed.

The evidence we are taking will be recorded. You will have an opportunity to comment and it will then appear on our website. We are gathering evidence and advice from a wide range of people—practitioners in the legal professions, the police, other law enforcement agencies, government, our Government obviously, and European parliamentarians—about what they think of the present programme, the Stockholm programme. Has it been properly implemented? Has it been useful? Has it had the right priorities? Moving on from that, what are the lessons learned for the next programme and what should be the content of the next programme? Should it be just broad strategic objectives, such as Article 68 of the treaty calls for, or should it, like the Stockholm programme and the Hague programme before, contain a bit of a laundry list of legislative proposals?

Perhaps you could start us off, both of you perhaps, with some reactions to those preliminary questions, then we could move on to other issues like how the European Union should evaluate and assess the programmes that it has. Let us start with the Stockholm programme. Has it done what it set out to do? Has it been useful? What should go into the new programme? What sort of nature should the programme have?

Juan Fernando López Aguilar: First of all, I am sure that you know that the Stockholm programme was on its way before the Lisbon treaty entered into force but it was finally adopted once the treaty entered into force. It means that the development of the Stockholm programme has been conditioned by the new rules, procedures and institutional rules of the game, or the play, for all the institutions involved: the Commission, the Council and the

European Parliament itself.

177 of 485 European Parliament (Juan Fernando López Aguilar MEP, Judith Sargentini MEP)—Oral evidence (QQ145-151) Secondly, we adopted a resolution by the beginning of this mandate of the European

Parliament. I am sure you know that it was the outcome of the co-operation of three communities, AFCO , Constitutional Affairs, JURI, Legal Affairs and, most importantly, because it was the largest part of the whole thing and the report, us, the LIBE Committee—

Civil Liberties, Justice and Home Affairs. That is exactly the picture that we are bound to compound by the end of this term by delivering a second report on the Stockholm programme, which is to assess the work of the mandate and to enlighten the Commission for the guidelines. That is the commitment that the Commission has made to deliver by June.

In that regard, I have complained more than once, both in writing and in oral interventions in the plenary sessions, because I find it unacceptable—not only not suitable but unacceptable—that the Commission delivers guidelines by June when there will be no

European Parliament. The incoming European Parliament is to be elected by 25 May and it should be resuming its work by 1 July. That would be the beginning of the term of the incoming European Parliament. By June, naturally, the European Parliament will be self- constituting, but it will not be there in place having plenary sessions. So we will not be given a date when precisely the point will be that the European Parliament is now to be taken into consideration, on board, by the Commission and by the Council before tackling the very idea of guidelines to a successor programme to the Stockholm programme. That is a complaint of ours.

As to the assessment of how did it go, we are coming close to the end of our negotiations in order to come up with a joint report. It is to be debated first in a joint session by the three committees, JURI, AFCO and LIBE, and then to be voted on by the plenary. Of course there are lights and shadows. There have been a number of things that have been more or less okay and a number of criticisms that we should not avoid or ignore, one being that the

Commission has failed to follow the programme and the agenda that was once scheduled.

178 of 485 European Parliament (Juan Fernando López Aguilar MEP, Judith Sargentini MEP)—Oral evidence (QQ145-151) The Commission has drifted somehow when taking the initiative and failed on a number of occasions to come up with initiatives when they had been announced at certain points of the calendar on the development of the mandate. Secondly, it is not only that the Commission has undergone a number of delays; there have been a number of goals that have not been accomplished so far. That is something we are also ready to discuss.

On a number of issues there have been accomplishments, particularly in the area of

Lisbonising the Schengen package and Lisbonising the asylum package. We have made progress on procedural rates. We have taken some initiatives in criminal law-making, aiming to the renowned European Public Prosecutor’s Office but not yet there. The Commission finally took the initiative, but not early enough to make it feasible in this mandate of the

European Parliament. It will certainly have to wait and there are a number of pending issues that we should stress in order to do our best to make it happen before the end of the mandate. The most important thing, according to our view, is the data protection package. It is not the only thing, but the data protection package should be a major accomplishment of this mandate. We still have a chance. I made that point very insistently, very strongly, in my last contribution to the Council of Ministers of Justice and Home Affairs only last week in

Athens.

Finally, there are a number of points I would also add, such as the importance of getting legal professions involved, legal training concerning judges and public prosecutors—but not only them, also legal practitioners, attorneys and solicitors at law. Legal practitioners should be skilled up to some European legal culture, which is of the essence if we really want to enhance mutual trust, mutual recognition and active co-operation between legal and judicial branches of the Member States of the European Union in order to shape up with something of the sort of an area of liberty, justice and security.

179 of 485 European Parliament (Juan Fernando López Aguilar MEP, Judith Sargentini MEP)—Oral evidence (QQ145-151) Finally, there is the implication for citizens. I am only sorry that we have such a big issue there. The European Union has not been in good shape for the last years of this mandate of the European Parliament. We have never seen the European Union in such a bad shape. Not only is it not in good shape, it is in very bad shape, which means that the European public simply does not exist. We are simply missing it. We are not coming up to the European public. European citizens do exist, and the European Union should know it. It is of the utmost importance that we get them on board, but we are failing. We are failing to let them know that it is about them, about their rights, about citizens. We really have a problem there. We are doing our best. We are making an effort with the lack of visibility and lack of impact. It is slow progress—a slow train coming. I will summarise with those hints. Do you want to add something?

The Chairman: Please.

Judith Sargentini: Mr López Aguilar is the rapporteur for the Civil Liberties Committee in this common exercise to go with the European Parliament evaluation. He has to try to take into account every political view in the committee. I represent a political grouping, so I do not have to do that. That might be helpful.

On the political process, you named the Hague, Tampere, Stockholm. Those are intergovernmental approaches. You could question—and that is what we do—whether that is still the approach you should take in the Justice and Home Affairs field now after Lisbon.

You could say that is totally outdated. It is not the way forward and it is simply the

Commission following its own path, and then you have your normal dialogues where

Parliament and Council play their part.

You could also argue that yes, indeed, this is outdated and this is intergovernmental where the Parliament now has a full role to play, but the nice part of the Hague, Tampere,

Stockholm is that at least in the beginning when it looks not so political yet but only looks

180 of 485 European Parliament (Juan Fernando López Aguilar MEP, Judith Sargentini MEP)—Oral evidence (QQ145-151) like a dream, you have all the Member States agreeing on the need for certain issues to be dealt with in the European perspective. We finally got a proposal last week on provisional legal aid. I would like you also to talk to us about opt-outs and the UK debate in this field, but provisional legal aid, without that or without clarity in the European Union on legal aid, mutual trust in judicial issues is really difficult. I am a very pro-European person but I do not like to see more co-operation on the basis of mutual trust on justice issues. It is just plain dangerous. If we look at the European Arrest Warrants and how people are stuck between a rock and a hard place, that mutual trust is not the right basis. It needs something else. We need legal aid.

It has been in the Stockholm programme that we get a proposal on legal aid, so 27 Member

States agreed, but a full proposal on legal aid does not end up on our tables because by now when it comes to the practicalities of it and the dreaming is over, Member States have very different opinions: “The principle is okay but I am not willing to pay for it”. The same goes for access to a lawyer, which is not a common thing among the Dutch, not a common thing in my country. Access to a lawyer at the first interview: the Dutch Government does not want to say it out loud but it comes down to, “Police work is so much simpler if lawyers are not there for the meeting with the suspect, so let us not do it”. Besides that, if we do that we have to finance it because we have a legal aid system in the Netherlands and you are always entitled to legal aid. So there you go.

It went from principle, dreaming, and it comes to practicalities. The Commission listens to the Council, sees that the Council is completely split. You would be a daredevil if you touched on the issue of mutual trust because if you start to discuss mutual trust as a principle, you do not have a justice co-operation system any more. But if you do not touch on it, how are we supposed to deal with citizens of one Member State who are in detention in another Member State under circumstances that you would call inhuman? Not dealing

181 of 485 European Parliament (Juan Fernando López Aguilar MEP, Judith Sargentini MEP)—Oral evidence (QQ145-151) with it leads to the call for human rights telling us that you are not allowed to send people to Bulgarian—it could be Italian, Romanian or Greek—prisons. There you have it.

I think the majority of the Parliament would not like to see another intergovernmental dealing—and this is all from my account, Juan—or intergovernmental piece of paper named after a capital. The Parliament would like to proceed in the normal way with business, but on the other hand I like Member States to sign up to something and then be held accountable.

Although for Stockholm it does not work as well as we would like it, maybe the only way to more or less let you sign up to it—I address you as Britain now—is by having you sign up to a full package at the beginning of the legislation.

Q146 The Chairman: Perhaps I could respond to two of your points, very broad points, because I think they are important. The first is the question of the change that took place at

Lisbon, which was clearly an important change, with the third pillar being dissolved and all becoming part of the first pillar. That is a reality with which, for better or for worse, we all have to live. It is the acquis communautaire. But I do think that some quite unwise conclusions are sometimes drawn from it. What happened with Lisbon was not that it was decided that the whole of justice and home affairs should become a competence of the

European Union. There are large chunks of this that are still national competence, as we know—counterterrorism, many of the aspects of the law enforcement agencies and so on— and that is going to remain for the foreseeable future. One just cannot foresee a date at which that will be dealt with on a centralised basis—and nor, in my view, should it be.

However, it is irrelevant whether I think it should be; it is not going to be.

That means that we are in an area of shared competence, and that means we have to have great respect for all the people who are involved in this, which means national governments, national parliaments, the European Parliament, the Commission and the Council, because none of them owns this. It is not like trade policy or agricultural policy or fisheries where it

182 of 485 European Parliament (Juan Fernando López Aguilar MEP, Judith Sargentini MEP)—Oral evidence (QQ145-151) is quite clear that the European Union as such owns the policy and is the maker of policy.

This is different. It is shared. I think that leads one to perhaps accept some slightly odd procedures that would not be appropriate for foreign trade or for fisheries or agriculture, because it recognises that national parliaments and national governments are still in charge in many aspects, whether it is cybersecurity or dealing with various crimes.

I am afraid that I am somewhere between your extremes on this, and I think that our report will certainly emphasise that. Does that mean that we cannot together work towards shared objectives? No, of course it does not. It is perfectly permissible to do so. We have seen it again and again with Europol, with Frontex, with the Asylum Office. We have seen it with legislation on human trafficking and so on. We can do it and should do it but we cannot do it by simply saying, “Méthode communautaire: rien ne va plus”. That will not work.

Judith Sargentini: I agree there, but you use Frontex and Europol as an example, but we have found out there is no democratic scrutiny of Europol and Frontex because we are not allowed to do it—and you will not be allowed to, either.

The Chairman: The Chairman knows very well my views on that because he and I have worked very closely together on that. I think we both believe—we did when we last spoke—that we need to construct an arrangement under which once or twice a year at least there should be sessions in which the national parliament representatives and the LIBE

Committee representatives sit down, receive reports on the activities of Frontex, Europol,

Eurojust, the Asylum Office and so on, and scrutinise them, have the directors in front of us, ask them difficult questions and, if necessary, pursue it through our own activities. I think there is a way of democratising those agencies but it cannot be done by handing the democratising process simply to the European Parliament.

Judith Sargentini: I am not arguing for that.

183 of 485 European Parliament (Juan Fernando López Aguilar MEP, Judith Sargentini MEP)—Oral evidence (QQ145-151)

Q147 The Chairman: No, I know you are not, but nor should it just remain with national parliaments. You are quite right, national parliaments up to now have done absolutely nothing on this, either. They are not effective in it. We have to have something that reflects the shared competence.

Perhaps I could also respond to your thinkings about opt-outs and the British Government’s position. My Committee and our sister committee, the Justice Committee, and the overall

EU Select Committee in the House of Lords, have written two, alas far too lengthy, reports on the decision that was taken for the opt-out under Protocol 36. We concluded that the

British Government had not made a very convincing case for it, while recognising that the choice they had to make was a difficult one that was imposed on them by their predecessors not by themselves. They did not draft the Treaty of Lisbon, which said that it is all in or all out. They have triggered—and our Parliament, both Houses, have approved the triggering of the opt-out. But they have also identified 35 measures that, under the protocol, Britain will seek to rejoin, and is seeking to rejoin.

Our assessment in our second report was that in fact the 35 measures, although not numerically as numerous as the ones they were not going to rejoin, are the heart of the

European programmes in this area and contain most of the really valuable material. We had no difficulty in endorsing the 35 measures as ones that it was in Britain’s national interest to rejoin. That dossier is now with the Commission, whose job it is to assess how that can best be done and whether the list of 35 is coherent, whether the British Government—not us— has chosen all the ones that need to be chosen to produce a coherent involvement of Britain in justice and home affairs. We also have the British Government opting into post-Lisbon measures all the time. We have 49. They have now opted into 49 post-Lisbon measures, which is quite a lot.

184 of 485 European Parliament (Juan Fernando López Aguilar MEP, Judith Sargentini MEP)—Oral evidence (QQ145-151) We do not think that the accusation of cherry picking is correct. The cherries that are not being picked, which the British are keeping to themselves, are thin, bitter, not very sweet cherries, and the ones that they are wanting to come back in on are the big, fat, juicy cherries, which it is in everyone’s interest that they should come back in on.

This is not part of our job this week—we have been looking at the future JHA programme— but clearly this has implications for that. We would like to see the Commission responding rapidly now to the approach that was made to them last July by the British Government to firm up the arrangements for rejoining these 35 measures. If there is anything that the

European Parliament can do to impress upon the Commission the need for speed, it should do it, because what above all else needs to be avoided is a hiatus. The risk is that come 1

December this year there will be a hiatus. The involvement of Britain in all 133 measures will lapse and the rejoining of the 35 will not have been all sewn up in a proper way.

That would be quite disastrous, frankly, particularly insofar as the Arrest Warrant is concerned. It could lead to infinite amounts of litigation as individuals fall between the cracks. We hope that the Commission will respond promptly. If they have doubts, or if they want the British Government to rejoin one or two more measures because of grounds of coherence, they must say so. I think the British Government will probably agree if the case is well argued. What we cannot afford is a vacuum. That is the answer that I would like to give you on Protocol 36.

Juan Fernando López Aguilar: How will we assess the progress that has been made on the

UK rejoining or re-opting in?

The Chairman: To be very frank, the progress that has been made is zero, because the

Commission has not yet responded. It has been given the list by the British Government. It has been given a lot of all the detail of what the Government wants to do but it has not

185 of 485 European Parliament (Juan Fernando López Aguilar MEP, Judith Sargentini MEP)—Oral evidence (QQ145-151) responded. That is, I think, not wise. There is still time, but time is ticking away and we could be watching a train wreck gradually taking shape. I do not know.

Judith Sargentini: But is there a common understanding already that the Commission accepts the fact that you do an opt-out? Now you are leaving the ball in their corner. I do not choose sides here; I think your opt-out gives us an opportunity to debate certain issues and, for instance, the issue of mutual trust. It puts pressure on the process, which I think is attractive, but you are now putting the ball in the corner of the Commission, where they could simply argue, “Who put us in this mess?”

The Chairman: The answer to that is the 28 Member States who ratified the Treaty of

Lisbon.

Judith Sargentini: Exactly.

Q148 The Chairman: We have all ratified the Treaty of Lisbon. We ratified Protocol 36; maybe we should not have done so. In my personal view, the British Government should not have drafted Protocol 36 in the way they did, but that is all water under the bridge. Every national parliament has ratified Lisbon, and that is the law of the European Union. That law binds the Commission as much as it binds everyone else and it states that the job of the

British Government is to tell the Commission the things they want to re-join.

On non-Schengen measures, it is entirely in the power of the Commission to then say, “That is fine” or, “It is not enough”. On Schengen measures, the Council gets involved as well.

Because these are all pre-Lisbon measures, the Parliament is not directly involved because this is not post-Lisbon legislation. To tell you the honest truth, it would be really—what is the right word?—provocative if the Commission were suddenly to pop up now and say,

“Well, actually we do not want to have anything to do with this”, because they are bound by the ratifications of treaties by the Member States just like all the rest of us are.

186 of 485 European Parliament (Juan Fernando López Aguilar MEP, Judith Sargentini MEP)—Oral evidence (QQ145-151) Anyway, I hope it will not come to that, but what I am saying is that the clock is ticking, time is marching on, 1 December is not that far away, and we all know that these measures, the reintegration aspects, are quite tricky. They require careful drafting and legal work and so on, and none of that has started yet. Now we are six months since the British decision was taken and the Commission was notified.

Juan Fernando López Aguilar: To complete the picture, just let me advise you that in our exchange of views with the Commission as to the successor of Stockholm, the first point is that the European Parliament is there to stay and you should be on board. The time of intergovernmental arrangements in the area of liberty, justice and security is over. The area of liberty, justice and security has turned out to be a European policy, subject to negotiations, which means politicians of the European Parliament must be on board. So the priorities should take into account what have been our priorities all over this mandate.

We have been missing the point of completing the asylum policy think and the Schengen package with a view to legal migration—that is still lacking—and we are imploring the LIBE

Committee. I would say there is an overall feeling within the LIBE Committee, which is the vast majority of the political groups involved in this assessment, that the European Union fails to give legal migration a real chance, and that is a source of so many other problems.

That is a source for stimulating illegal migration attempts, tragedies in the seas, tragedies in the Mediterranean, tragedies in the Atlantic Ocean, a lack of co-operation between Member

States, and exceptions to the Dublin 2 regulations. Why would we like any particular

Member State in trouble, such as Bulgaria, to be exempt from the Dublin 2 requirements at a certain point of time because its capacity is overloaded, because of the lack of co- operation with other Member States in a particular situation of migration pressures on its borders?

187 of 485 European Parliament (Juan Fernando López Aguilar MEP, Judith Sargentini MEP)—Oral evidence (QQ145-151) We need a comprehensive approach to legal migration from the European Union. Of course, we need to overcome prejudices that see all sorts of migration as tantamount to threats to internal security. It is a big mistake—for demographic reasons, for one thing. On humanitarian and moral grounds, and grounds of civilisation, we should have a second thought about the issue.

That is also the case when it comes to Lisbonising a certain instrument—intergovernmental instruments that were adopted from the third pillar. We are not there yet. Completing some aspects of the remaining chapters of the acquis so far, we are coming close to the surveillance of the sea. As I said, finally, I think we have to have a common approach. We must have—we should have—a common approach to the mass surveillance programmes for terrorists. We should have a common approach on that in order to provide sufficient guarantees for the privacy of our citizens. I think it is no answer to say simply what can be done technologically; technologically it is going to be done anyhow. Legal or illegal, no matter, it will be done. That is no answer at a European level.

Those will be the lines that we are suggesting that we should take into account in order to frame up the successor of the Stockholm programme. Surely, from the next mandate, we will insist that it should be taken into proper consideration as a branch of this whole thing.

Q149 Lord Sharkey: I want to return to a point you made about engagement of citizens and understanding of citizens in the JHA goals. I think you said they were not engaged, in general, and did not understand, in general, what the goals of the JHA programmes were.

How important do you think this is? Do you think, for example, that it should be a goal of the successor programme to Stockholm that citizens should become more engaged and understand more of the JHA programmes themselves?

Juan Fernando López Aguilar: That is a political assessment and, of course, I am not happy about it. I am a fighter against that status quo, against that situation. I have always insisted

188 of 485 European Parliament (Juan Fernando López Aguilar MEP, Judith Sargentini MEP)—Oral evidence (QQ145-151) that the European Union should be about citizens. I cannot accept that it is about the euro. I cannot accept it is about internal markets. I always insist it should be about citizens and I am only sorry we stand with not only hints, but with evidence that many European citizens do not feel involvement in this whole thing.

Lord Sharkey: I agree with that assessment. My question really was whether you think that is such grave defect in the system at the moment that it ought to be an objective of future

JHA programmes to put that right.

Juan Fernando López Aguilar: Yes. Reaching out to citizens’ rights, reaching out to citizenship—yes.

The Chairman: In a sense, this can be made quite graphic. Are you ever going to get

European citizens to understand the intricacies of the new Europol regulation? Of course you are not. It is a complex piece of legal drafting. They are never going to understand it and they are never going to want to understand it in detail. Are you going to bring home to them that Europol has a beneficial effect on their daily lives? You can, if and when Europol rolls up a network of paedophiles on the internet. You bet they understand that. They understand it straightaway and if they understand that it only happened because the British, Dutch and

German law enforcement agencies have been brought together by Europol to do this, they will understand that all right.

It seems to me that sometimes we are trying to do the impossible, which is to make the intricacies of our legislative process understood, which probably is never going to happen, but we are completely failing—or not completely but often failing—to get across to people what in a national context we would do straightaway. The Minister of the Interior in Britain or in Holland or in Spain, when they have a huge success against serious organised crime, will be out there explaining it, but does the EU ever do it? Well, Rob Wainwright does try to do it and he has been more successful than his predecessors were, but we have not begun

189 of 485 European Parliament (Juan Fernando López Aguilar MEP, Judith Sargentini MEP)—Oral evidence (QQ145-151) to use that to the extent that we could to show what Frontex has been doing on the Greek-

Turkish border, which has reduced a problem that was really horrendous to a problem that is difficult and has some very unpleasant aspects to it but which is under control.

Judith Sargentini: That is a political point of view on the success. Let us not go there, because I assess that completely differently. I do not think that the issue is explaining to the

British, Dutch or European citizen what the management system of Frontex is. You and I both know that if it goes wrong, if there is not a success to claim but if something goes wrong in Europol—working with data of European citizens is an example of when it could go wrong—there is nobody that has to take the blame, and then everybody takes the blame.

That is dangerous and that needs to be solved. You gave an example but there is more of that.

Where do citizens find us on issues that we are not involved with, such as family law? If you live in a country where same-sex marriages are still forbidden but you see other Member

States having it, you blame us for not allowing you to do so. If you live in Spain, where they are now trying to change the abortion law, you turn to us but we do not have anything to do with that. So that lack of clarity is still there, but it touches on people’s personal lives, and I do not want to have anything to do with family life, let us not touch that. It is so culturally defined that let us not go there, but it is what people feel strongly about and what influences them daily. As long as we give security to them, they are fine, but when it goes wrong—

Q150 Lord Sharkey: I do take the point but I think there is a difference between avoiding contentious claims about things going right—claims that are either contentious in fact or contentious politically—and engaging citizens in the goals and the work on JHA programmes, which I thought the Chairman was talking about.

What I would like to do, if I may, is continue the theme of assessment. Do you think that there are adequate mechanisms for assessment in the JHA programmes that currently exist?

190 of 485 European Parliament (Juan Fernando López Aguilar MEP, Judith Sargentini MEP)—Oral evidence (QQ145-151)

Juan Fernando López Aguilar: They are on their way and they are in process; it is a work in progress. We have seen some instruments, ingredients, coming up like the Justice Court board, which is an instrument for analysis as a tool. Of course, the hearings go over the people in charge of the agencies. The galaxy of LIBE competences are also an instrument for scrutinising or assessing, for European Members of Parliament to relate to their constituents—who are the citizens, after all. There are ingredients of that in progress, very incipient, not satisfactory.

Judith Sargentini: Is there the political will for that? For instance, we have a Fundamental

Rights Agency, which is a European agency that still does not have the mandate to do what is in its interests without us asking and giving them an opinion. There are even debates on whether the Fundamental Rights Agency should have a different mandate that gives it even less space. Was it last year that they were toying with the annual programme of the

Fundamental Rights Agency? There was no agreement in the Council on the Fundamental

Rights Agency annual plan and, therefore, they could not do the work any more. If you have measures in place to see what the effect of something is, you can still use them as politics, which is politics between Member States.

Lord Sharkey: I take your point.

The Chairman: I think the Chairman has to go.

Juan Fernando López Aguilar: I have meetings with leaders of the delegation of the S&D group, which I belong to, but I want to make that point. We have a way to go, a very substantial way to go, but we must cover that way step by step. We want to be there; the

European Parliament wants to be there. The goal is to make it relevant in every possible respect. Of course, we know the task is huge, the difficulties are there. It is not easy to relate this huge scale policy area to 500 million people. You cannot do it like that but you must try to build up an institutional framework in which it is believable that this is a

191 of 485 European Parliament (Juan Fernando López Aguilar MEP, Judith Sargentini MEP)—Oral evidence (QQ145-151) democratically elected House that influences policy-making and that relates to the public by making those in charge accountable for the decisions that have been built up by this

European machinery. That is our goal in this particular area of action.

Q151 The Chairman: One of the things that strikes me, looking at it and talking to you and your colleagues, is that when we talk about the future JHA programme, there is still quite a big agenda in progress and that is a very important part of it. You spoke about the data protection regime. That is obviously absolutely crucial. There is the new Europol regulation and the Eurojust regulation, the asset-freezing proposals, the PNR and so on. It seemed to me, though it sounds rather boring to say this, that one of the big priorities is to finish what we are already doing and that, let us face it, is going to take quite a bit of time, probably a year or two years to get to the end of that legislative process. There are many tricky issues in it, but I think we all know that if it is successfully achieved, justice and home affairs will be in a much better place than it is now. Part of the response, which people hate saying in the European Union, is to say, “Come on, let us finish what we started doing, not think up about 15 new things to do, which merely get in the way of finishing off what we have started”. I think our report is bound to say, “Here is the list, let us get on with”.

Judith Sargentini: I think that is very smart because that also forces the Member States to revisit the promise they make when they signed up to the Stockholm programme.

The Chairman: Absolutely. Otherwise, they are just words on paper—of which there are far too many.

Juan Fernando López Aguilar: That could be a fine concluding remark.

The Chairman: Yes. Thank you very much indeed for giving us your time.

192 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85)

European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85)

Evidence Session No. 5 Heard in Public Questions 73 - 85

WEDNESDAY 8 JANUARY 2014

Members present

Lord Hannay of Chiswick (Chairman) Baroness Benjamin Baroness Eccles of Moulton Viscount Eccles Lord Elystan-Morgan Lord Faulkner of Worcester Lord Morris of Handsworth Baroness Prashar Lord Sharkey Earl of Stair Lord Tomlinson Lord Wasserman ______

Examination of Witnesses

Charlie McMurdie, former head of the Metropolitan Police Central e-crime Unit and senior cybercrime adviser, PricewaterhouseCoopers, Professor Douwe Korff, Professor of international law at London Metropolitan University, and Steve Purser, Head of Core

Operations, European Union Agency for Network and Information Security (ENISA)

Q73 The Chairman: Right, if you are all settled comfortably, let us start the session. As I think you know, because you will have seen the written call for evidence, we are conducting an inquiry into the future justice and home affairs programme, which is likely to run from

2015 to 2019, as the successor to the temporary Hague and Stockholm Programmes. In doing this, we are trying to get upstream of the formulation of policy in the European Union,

193 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) to influence it if we can and to take evidence on it before it is set in concrete and becomes what will probably be called the Rome Programme, likely to be adopted at a European

Council in the second half of next year, when the Italians are in the chair. We have been taking evidence from a wide range of people involved in this field, including you, and this morning we are looking principally at data protection, cybersecurity and so on. That is why your expertise is going to be very valuable to us.

I will go over the formal points about the meeting. The session is in public and is being broadcast. A transcript is being taken and a copy of the transcript will be sent to you to give you an opportunity to make corrections to it, although it will be published online in the uncorrected form straightaway. It would be very helpful to the Committee if you would each do a brief introduction explaining in particular your relevant experience in these fields that we are looking at. If any of you wishes to make an opening statement, that would be fine, but if you would prefer to move straight on to questions that would be equally acceptable.

Steve Purser: Good morning, everybody. My name is Steve Purser. I am currently head of operations for the European Union Agency for Network and Information Security. My background is that I have been in security for 21 or 22 years. The vast majority of that time was spent in the private sector, where I was the chief information security officer for several financial institutions, culminating in Clearstream, which has a risk of about $10 trillion. I moved from Clearstream in 2008 to join ENISA, where I started as head of the technical department. I have since taken over the stakeholder relationship side as well. Essentially, I have three responsibilities: one is to work with the stakeholders to agree on the annual work programme; the second is to ensure that we execute it and achieve the results; and the third is to help the executive director in developing stakeholder relationships throughout the EU.

194 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) The Chairman: Of course, this Committee did a report on ENISA two or three years ago, which I am sure you are familiar with.

Steve Purser: Indeed.

The Chairman: So we have some knowledge of the activities of ENISA, but it will be very useful to look ahead when we come to ask questions.

Charlie McMurdie: Good morning. I am Charlie McMurdie. I am currently the senior cybercrime adviser at PricewaterhouseCoopers. My background is 32 years’ law enforcement; I retired from policing in the middle of last year. I set up the Police Central e- crime Unit in the Metropolitan Police in 2007 to deal with national cyber incidents and attacks. That unit, with its national remit, delivered the operational capability as well as the national programmes of work to improve law enforcement cyber capability throughout the

UK. It has delivered some success, preventing over £1 billion worth of financial cybercrime harm in the past 18 months. That unit has now been subsumed, together with the SOCA cybercrime capability, into the new National Crime Agency.

The Chairman: Yes, whose director we saw just before Christmas. We did not discuss this aspect very much, but it was a very useful evidence session.

Professor Douwe Korff: I am professor of international law at London Metropolitan

University. My name is Douwe Korff—Douwe rhymes with flower—and I am a human rights and data protection expert, not a technical expert, so if you have questions on data protection I will be happy to answer them. I am an associate of the Oxford Martin School of the University of Oxford and involved with its cybersecurity centre, where I look at the regulatory aspects of these matters.

Q74 The Chairman: Yes, the data protection aspect is very relevant and there will be specific questions about which I hope you will be able to enlighten us. I assume that none of you wishes to make an opening statement, so let us start with the first question. What is

195 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) your assessment of both the cybercrime and the data protection priorities that were set out in the Stockholm Programme, the current European Union programme for justice and home affairs? Did these priorities as identified lead to effective action, value-for-money action or action that is desirable, or indeed did they miss out things?

Steve Purser: Our assessment of the Stockholm Programme, although we are not in justice and home affairs—our agency is rooted in the open market pillar, if we talk about the old system—is that the priorities were rather balanced, so it was a good programme for the period it covers. Perhaps when we come to the future, there are some things that will probably need to be changed. Did it achieve what it was expected to achieve? I would say partly. Where it certainly did very well was, if I am not mistaken, in leading to the internal security strategy of the EU, which itself led to the European Cybercrime Centre, which is a very significant development and is doing very well, considering the short amount of time it has been in existence. In the area in which ENISA is most interested, cybersecurity, there is measurable progress, which is very good.

One of the things I will say later on is that I think there is a need to align more closely data protection legislation with cybersecurity legislation. They are compatible on paper, which is one thing, but making them work in practice will require an awful lot of work. Indeed, in the area of data protection, we are critically short of tools and procedures when we look at the ambitions we have set ourselves for the future. To summarise, I think it is a balanced programme. In the area that I know about, I think it did rather well. I cannot comment on some of the other areas. I cite the European Cybercrime Centre as an example.

Charlie McMurdie: I would certainly echo Steve’s comments about lack of tools and procedure being a consistent factor throughout the EU. My involvement with those programmes has really been where they hit the ground, so those programmes informing how we pull together the national cybersecurity strategy in the UK and the programmes of

196 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) work sitting beneath that strategy to improve the UK’s cybersecurity standards and data protection standards. For me, one area where we are lacking is in how we ensure that those data security and data protection standards are actually implemented. Recent government surveys in the UK have identified, certainly within SMEs and larger businesses, a fairly substantial lack of cybersecurity and data protection processes to ensure that our data is looked after appropriately. Certainly there are numerous programmes of activity in place to address that but we have a long way to go yet.

The Chairman: I imagine that we are among the more sophisticated of the Member States in our approach to these things so presumably if we have big gaps, other people around

Europe have as big gaps, if not bigger ones.

Charlie McMurdie: Most definitely, yes. You mentioned the Rome agreement. Certainly some of the work that the Italian authorities are doing to pull together strong working relationships, with law enforcement, academia and industry coming together to build joined- up programmes of work to improve data protection and cybersecurity, is a good example.

They are doing some very good work there. The UK has the capability, the expertise and the programmes of work to lead the way and inform a lot of EU engagement, which tends to be fairly far behind what we have in place in the UK.

Professor Douwe Korff: I would echo the need for a balance between security and data protection. I am not so much looking back as looking towards the future. The big trend that we have seen is ever more co-operation in justice and home affairs, which is ever more intrusive on individual rights and human rights. The blurring of the lines between national security and law enforcement is one area that I am particularly concerned about, which relates to the EU competence, of course, and the whole issue of the Snowden revelations. If you look forward, working on what we have learnt from the Stockholm Programme, there is a need for greater democratic oversight and greater data protection oversight. There was a

197 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) letter from the European Data Protection Supervisor to that effect. I would support Mr

Hustinx and Mr Buttarelli in saying that the European Data Protection Supervisor should lead in that. Generally, you cannot have enhanced co-operation in the justice and home affairs area, let alone in the national security area—and the two are really difficult to separate—without enhanced protection for human rights and enhanced involvement of the

European Parliament. That is going to be crucial.

Q75 Baroness Prashar: What further action at EU level, if any, should the future programme recommend in relation to cybercrime? Do we need more legislation, more co- operation or more strategy?

Charlie McMurdie: There is plenty of legislation out there and legislation can inhibit the timely exchange and implementation of improved protocols and processes. We all know that most of the data, systems and expertise exist within industry and that is where we need to improve co-operation, bringing together the industry, which has the knowledge, the intelligence and the systems, with law enforcement, and brokering that exchange between industry sectors to inform our cybercrime picture and the programmes of work coming out of that intelligence threat picture. Currently there seem to be significant barriers to exchanging the intelligence that industry sees on a daily basis of new tools, new threats and new attacks that are occurring. We need to consider how to capitalise on that intelligence, exchanging it with other industry sectors or other law enforcement partners to take the appropriate steps to inform our strategy or our operational tactical response to those issues.

Steve Purser: I have several comments. The number one challenge still is to make effective use of the different communities that are out there. In general terms, those have already been alluded to. We have come out of the old pillar system—the Lisbon Treaty sort of abolished it—but in real terms we are still working in silos. This is a major problem because

198 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) we are not learning from each other. We need to go a long way to make this work correctly. For example, it is very difficult at the moment to co-operate successfully in the defence area, whereas a lot of work that is done in defence is not confidential or classified; it is doing the same kind of thing as the public sector is doing.

We need to work a lot harder at the specifics of the problem and say, “Look, it is good to talk about co-operation and sharing information but that in itself means very little. It is far too abstract”. Yet when you go to conferences today, you still hear the same old platitudes, to be brutally frank: “We must share more information”. I actually believe that we should share less information but the information that we share needs to be the right information.

It needs to be information that gets us to the goal that we want to get to, which requires a lot of analysis and sharing of what we at ENISA call good practice—knowing how other people have solved a problem and ensuring that that information is available to others, whichever community they come from.

Coming back to the point about processes and tools, first, we need to develop some tools, notably in the area of data protection, where there are very few. As an example, you log on to the internet and want to use something new, you get a 67-page thing asking if you agree with this, this and this. That is a liability protection mechanism, not a privacy tool. A privacy tool should help you make rational decisions based on the kind of interaction you have with the system.

The involvement of more communities is key, but in a structured way. I stress again the need for tools, and we are really at the starting block there. Focus will be important. Although it is important for communities to work together well and have increased collaboration, it is equally important that they do not step on each other’s toes and repeat each other’s work, yet this still happens to some extent. For instance, CIIP—critical information infrastructure

199 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) protection—is a very sexy topic. I see lots of people getting involved. That is okay as long as the focus is where it needs to be.

Finally, we need to get some very specialised communities operational with law enforcement as quickly as possible. This is happening. I would cite the CERT—computer emergency response team—which is globally, not just in Europe, the primary response mechanism for dealing with cyberattacks. Of course, the problem is that these communities have a totally different set of values, procedures, et cetera, from law enforcement. To put it brutally, in law enforcement you want to catch the guy who did it and put him behind bars. A certain number of things must happen. For instance, if evidence comes along, you are forced to take account of it, which is logical. The CERT environment is not used to working in this kind of framework so a lot of work has to be done to put these together so that they can work in an effective manner. This has started. ENISA is working with the European Cybercrime

Centre and the CERT community to make this work. Again, I stress that it is not a simple job. It will take many years for us to get it right, and increased emphasis should be put on this in a practical sense.

Q76 The Chairman: Can you be a bit more specific about this in European Union terms?

You talk about silos, which is very familiar to all of us, and we now of course have the

European Cybercrime Centre at Europol and your own organisation, ENISA. We have the

Commission, which sits above all those and makes policy and legislative proposals. Now, perhaps in response to one of the points you made, just before Christmas the European

Council endorsed the concept of what I think is called an EU cyberdefence policy framework, and the Commission has called for all concerned to contribute to this during

2014. Can any of you guide our footsteps through this maze? How are these silos to be broken down and how are these organisations to work together—presumably not by creating another one?

200 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) Steve Purser: No, absolutely not. I think you have a lot of power in this. The Council is a good place to begin. For instance, in the Council there is the Friends of the Presidency

Group on Cyber issues. The right words need to be said at this level to start the ball rolling, but it needs to come from the Member States themselves. Obviously, you need a clear view of what you want to achieve. To my mind, there should be a ground rule that the different communities, specialised as they are, should be able to share unclassified information in a very free manner and they should be able to home in on problems that are interesting and research them together without going through any overhead of bureaucracy or administration.

There are two steps. First, the Member States have to be comfortable with agencies such as

ENISA talking to NATO on an unclassified level about problems that are affecting both communities, identifying issues of common interest and pursuing them, as long as no rules are broken regarding national security or the classification of information, et cetera. We are a long way from this. It is very difficult. If I go to see someone in NATO, my management board understandably wants to know what is happening straightaway, because it may be concerned that we are moving into military territory, which of course we would never do.

Increased collaboration could help us learn things. For instance, NATO does cybersecurity exercises, as does ENISA. ENISA helps the Member States run the pan-European cybersecurity exercise, which is the equivalent of Cyber Storm in the US. It is very successful. All the Member States are involved. We can learn from NATO and NATO can learn from us. That is just one example.

As I say, it really needs to come from the Member States that they would be okay with this kind of communication. There, some work needs to be done: what are the parameters, what are the conditions, when does it become not acceptable and when is it difficult for a Member

State to control the results? In another example, at the most recent management board

201 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) meeting of ENISA, we were told not to work on cryptography for the moment because this was a national competence. I have absolutely no problem with that but I think there was a level of misunderstanding which I need to sort out, in my role as an operational manager.

Secondly, there is a strong role for a European presence in cryptography because it is so important in security; it is one of the chief methods that we use to protect the internet and it is vastly important in commerce. Having a consolidated European approach—I would go even further and say a global approach—to cryptography will be essential to facilitate international commerce and to ensure that things work correctly. Those are two specific examples.

The Chairman: Would you like to add anything?

Charlie McMurdie: Perhaps I can bring it down to a tactical, cop level with an example of how we improved our operational capability and our working together consortium-type approach. About 18 months ago in the UK we established a virtual taskforce, bringing industry to the table together with academia and law enforcement. This was primarily with the financial sector, so representatives from all UK banking institutions came together to work with law enforcement to share time-critical intelligence and information to produce an operational response. That was on only a case-by-case basis, where we all had a common problem: the UK financial sector was being utilised to facilitate cybercrime. The cases taken on by the virtual taskforce demonstrated where our capability existed and where the gaps in our capability were, any issues that we had with international engagement and any strategic issues, but they also delivered clear, tangible arrests and prosecutions, preventing harm to the UK. That coming-together sector approach can work; we just need to exploit it on a larger basis to enable that sharing of tactical and strategic intelligence.

One issue with that, certainly in the UK, where we are rolling out further models, led by

GCHQ, under the CISP programme, to bring industry partners together to share common

202 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) intelligence about threats and alerts, is that you need somebody in the middle to process the data, to make it useful to the members who sit round the table. There needs to be a two- way flow of intelligence. What is useful to the parties sitting at the table? Who is going to develop that intelligence and brigade it and send it back out to those members? You need that resource in the centre, otherwise people will not engage. There are some programmes at a European level—certainly the NIS programme talks about this national intelligence- sharing exchange—but you need to do something with it. A lot of industry partners have raised frustrations that if they put intelligence information into this central pot and do not get anything out, that is where you lose the engagement.

Steve Purser: It probably will not come as a surprise but there is a high probability that the weakest point in the UK’s approach to cybersecurity is not in the UK but outside the UK.

You have an enormous interest in ensuring that the partners you deal with are sufficiently protected themselves so that they are not back doors into the UK infrastructure. This goes for everything. A very simple example would be botnets. I do not know if everyone knows what a botnet is; it is essentially a distributed network of things that attack you. Very often, the command and control centres for these things are situated in countries where we cannot get at them. You can treat only the symptoms, not the cause. Of course, any approach to cybersecurity needs to be strong nationally, but it needs to be strong not only at the European level but at the global level. Until we get that level of co-operation, there will always be weak links, some very major, to which we will be exposed. So this is yet another plea to ensure that we collaborate with as many people as possible, under structured conditions, of course.

The Chairman: I have a feeling that this is what our report said two years ago, but probably less eloquently than you did.

203 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) Professor Douwe Korff: The earlier comments started a few red lights burning in my head.

It is important to distinguish between technical exchanges—information on technical matters—and operational exchanges. The moment you start talking about operational intelligence information exchanges between different law enforcement agencies, the private sector, law enforcement agencies in other countries and national security agencies, you are treading in a very delicate human rights-sensitive area. I was at the Octopus conference in

Strasbourg in December and we talked about the links between the Convention on

Cybercrime—the Budapest convention—on the one hand and the data protection convention on the other. Those are or should be the two cornerstones for international co- operation in criminal matters, including cybercrime, in the long term.

However, there are big problems with the cybercrime convention, particularly Article 32, which suggests that law enforcement agencies can access data across borders without telling the targeted country. We have seen in the context of the Snowden revelations how problematic it can be if one country accesses databases in another country. Asking GCHQ to help with protecting the security of the internet when it has just been revealed that together with the NSA it has been trying to corrupt the security of the internet is somewhat problematic. You have to be extremely careful.

When you talk about law enforcement in a transnational context, the traditional method—as a human rights lawyer, what I consider to be the proper method—are MLATs, mutual legal assistance treaties. Every policeman you speak to says, “They are terrible. We cannot use them. They take too long”. The answer to that should not be, “Let’s bypass them and throw the law out of the window”. It should be, “Let’s come up with new types of MLATs that can be speedy”. You should be able to put in a request for data, or for the preservation of data, by e-mail and get an immediate response. It is extremely important to think about that.

Without that, the whole security apparatus is going to fly off and at some stage hit the fan.

204 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85)

Q77 Lord Elystan-Morgan: I wonder if I could ask a supplementary that is rather wider of the mark. It seems to me as a complete non-scientist that there are three facets of the one central problem of cybersecurity. One is cyberfraud. Another is cyberespionage. The third and perhaps most menacing of all is cyberterrorism. Perhaps 10, 20 years from now, important though the question of cyberfraud will be, massive though the problem of cyberespionage will be, it will be small beer compared with cyberterrorism, whereby the whole apparatus of a state can be attacked and brought to its knees within minutes. I am sure that that is not an impossible situation and is something that we should be thinking about now. When we think of security, we should be thinking of security at the very highest level and facing the highest threat, and that everything else would then be subservient to that. That is a lay view, but I suspect that there may be some realism there.

The Chairman: I think your label of cyberterrorism is perhaps too narrow, because you are talking about terrorists trying to use the cyberarea to attack a country, but another country could be doing that.

Lord Elystan-Morgan: Indeed.

The Chairman: I think the label is slightly too narrow. Anyway, would any of the panel like to react to that question?

Charlie McMurdie: Perhaps I can come back first to Professor Korff’s earlier comment about law enforcement engagement, the MLAT process and being able to use Article 32 basically to deal with trespass on foreign soil into computer networks outside the UK.

Within the UK, we are aware of the Budapest convention but we have the Computer

Misuse Act, and should we require data from outside the UK or interaction into systems outside the UK the normal way of expediting that relationship is to work with the other country’s in parallel investigations so that we are carrying out and conducting our business

205 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) under UK legislation and the country we are engaged with is using its own legislation. That goes on through Europol, with Eurojust engagement, under joint investigation treaties.

I echo the point that the MLAT process is very cumbersome. Virtually every crime that law enforcement deals with nowadays will have suspects’ victims or infrastructure that is outside the UK, and we do not have appropriate resources to progress the MLAT process, which can take many months to secure data, when attacks can cause significant harm in minutes or hours. We need that time-critical exchange, which currently is very difficult to achieve.

Moving on to the fraud and counterterrorism issue, yes, cybercrime can be used to make substantial financial gains that can fund terrorism, but the same tools, techniques and compromises that occur within cyberfraud attacks can just as easily be picked up and used to facilitate cyberterrorism. You can just as easily use the techniques and tools that a lot of the cybercriminals are using to cause substantial harm to our UK infrastructure, so in doing one you are not ignoring the other. One course of conduct is to take on those cybercrime investigations to inform and improve our cybersecurity systems, processes and capability.

That will contribute, should cyberterrorism come into play.

Lord Elystan-Morgan: I bear in mind very much the distinction drawn by the Chairman between cyberterrorism, for example, causing an aircraft to fall out of the sky 2,000 miles away and doing something that completely immobilises and causes the total impotence of the electronic system of a country, that country not knowing where the attack is coming from.

What label you attach to that I do not know, but we need to be advised.

The Chairman: We have reached only the second question of 11 at the moment. Could we have one more comment please from Mr Purser?

Steve Purser: I would like to respond very quickly. The good news is that there is a massive amount of work going on to do exactly what you say in the area of critical information infrastructure protection. There is a European programme that was kicked off in 2009 by a

206 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) Commission communication, which is now very mature. I will not go into all the details, but the specific goal of this programme is indeed to make sure that the critical information infrastructure of the Member States is correctly protected. It has come a long way.

I will give you one good example of what has happened under this programme. The pan-

European cybersecurity exercise is an exercise in which 27 members—I am sure that the

28th member will be in part 2—play rather a sophisticated game with operational teams in the Member States to see how they would react to a cyberattack affecting Europe. When we started this exercise, there were no procedures for talking to each other in the event of a cyberattack. Let us be clear: there is no centralised decision-making capability in the event of an attack on Europe. We all know that. It is distributed decision-making. What the pan-

European cybersecurity exercise has given us is a first set of standard operating procedures that have been agreed by Member States, under which this decision-making can take place.

Let us be clear: if there is such an attack, those decisions have to be made in minutes, hours at the latest. It can be no longer than that. That is very clear progress.

To summarise, while it is true that you can look at many different types of attack— cyberwarfare, cyberespionage, cybercrime et cetera—the good news is that the techniques that we use to defend ourselves against these different attacks are broadly similar. Those techniques are being worked on quite extensively by a number of communities. Indeed, the whole idea of critical infrastructure at the Member State level is being taken seriously and has been subject to a lot of work. This will not stop, I am sure. This has a lot of momentum at the moment within Europe and within the Member States. The CPNI in the UK, for example, has been very involved with this in the past, as have many other government departments.

207 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) Lord Sharkey: I want to turn briefly to something that Mr Purser said. You talked about the need for tools, and I think you also talked about the lack of tools. Could you give the

Committee an example of the kind of tool you have in mind.

Steve Purser: Yes, let me give you a very simple example. I am sure you will all appreciate it straightaway. Let us say that you want to do a bank transaction tomorrow morning from your computer. When you go on to your computer, you log in and you have absolutely no information whatever on how safe that transaction is. You could envisage—it does not exist at the moment, as far as I know—a big green circle on the screen. When you log into your computer at the moment, everything is fine because you have not done anything yet. Then maybe you log into your bank. Now the circle becomes a little red because you are talking to someone else, and while your bank may be very safe it is not perfectly safe: you have introduced a risk, not to speak of the network over which you are communicating et cetera.

Now let us say that the counterparty of this transaction is in some country that is not friendly to the UK. Then the red becomes a bit stronger. That is a very simple example to illustrate that we do not have tools that people understand to enable them to make good decisions on the internet.

This does not have to be just about privacy either. This is another example. I watched a television programme: I live in Belgium. It was about Belgian girls who had allowed rather suggestive photographs of themselves to be put on the internet because they thought they were giving them to their boyfriends. You can protect against these kinds of things with the approach of producing software that educates the user. This is really necessary. We need a sort of electronic common sense to make people behave in the electronic world in a way that is similar to the way in which they behave in the real world. You would never give out your details to someone on the street who asked you, but it is amazing how many people would put anything on a screen because they are asked. We need to help people by

208 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) producing tools that help them to think correctly. Then they will develop the habit automatically.

The Chairman: That is fascinating. We must move on.

Q78 Baroness Benjamin: First, thank you all for what you are doing to keep the country safe and secure on every level. Earlier you mentioned that not all EU countries have robust systems in place, as we do here in the UK, to tackle cybercrime. How effectively do Member

States engage with each other in tackling cybercrime, and how effectively is the EU working with other international operators on this issue?

Steve Purser: ENISA is at the centre of many of these programmes. We work with all 28

Member States in the area of CIP, data protection et cetera. Of course, it is not at all an even playing field. There are very mature states, of which the UK is undoubtedly one. Some

Member States—I will certainly not mention any—are at the other end of the scale.

Whereas you might have a data centre that employs 100 people, all of whom are trained and using the latest technology, the equivalent in some of the other Member States may be five people working with out of date technology. It is a completely different ball game.

This poses an enormous number of problems because, as I said, security is global. You can be as secure as you like, but if your partner is not secure you may be hit via your partner. So one of the problems that the Member States have is making sure that the people they deal with on a regular basis are sufficiently protected themselves. This is one of the major worries of the more developed Member States. In fact, I know it is from discussions with various people in this business.

How effectively is this happening? It could be better. I am not criticising anyone, because the task is very difficult and one of the problems we have at the moment is the global resource shortage. We have a financial crisis. There are so many priorities on the table that it is very difficult to give money to things like this. Nevertheless, as I say, it is strategically very

209 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) important in the UK that its most frequent partners are correctly protected so that there is no backdoor into your own systems.

This is not a simple thing. It certainly does not happen through high-level dialogue. That is the starting point. In five years working at ENISA I have noticed that it is very common for things to stay at the high-level dialogue stage. I have been to conferences for five years where I have heard the same statements repeated almost incessantly. The example I will give you is information exchange. We need to progress beyond this. What information needs to be exchanged? How does it need to be exchanged? Who needs to exchange it? This, of course, is where the work starts. Whatever you do in the next approach, you need to make sure that it trickles down into very practical useable things very quickly. Now the framework is solid and the principles are good. We have good treaties in place, and we have good strategies and good policies. What we do not have is the implementation of these things.

I will wrap up because I know my colleague has something to say here. Of course this is very difficult to do. A lot of the difficulty is in the detail, as it were. In 20 years of industry, one of the biggest problems we have in security is scaleability. If you want to apply access rights at the file level, if you have 3 million files and 1,500 users you can forget it. It just does not work, whatever way you tie it up and put a bow around it. There, perhaps, the example is to give out bigger chunks of access but to do so in a more controlled way. That might be a better approach. We need to have things that go quickly down into practical implementation strategies. Then we need to be able to measure them and put them right.

Charlie McMurdie: Perhaps I should answer from a law enforcement perspective rather than a PricewaterhouseCoopers perspective. Having engaged for a number of years in EU working groups, I know that unfortunately you have to engage at the lowest common denominator level to ensure that everybody can take part in that engagement. Any programmes of work, any best practice and any guidance is usually aimed at a fairly low level,

210 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) whereas some countries have far greater capability and should be working at a higher operational or strategic level. There has been some frustration around that. Different capability obviously exists in different countries. There are opportunities within a lot of the big companies within the industry sectors, which tend to have more international, corporate and better standards and consistency throughout the EU. They have the knowledge and the capability and should impart that and engage with a lot of the EU working programmes to improve them and the implementation of them.

One frustration that we have seen over a number of years is a lot of good work—good guidance, good policy, good practice—being produced but the question arising of how we implement that, as Steve has just said, and how we become sighted or share that information. A lot of information and work takes place over in the EU either under Europol or ENISA guidance. How do we disseminate that to those who need to know that information? There is no central knowledge database. There is no library that you can go to that hosts that best practice, that guidance, that latest attack mechanism or the best tool, which is really frustrating. You see the same problems being addressed time and time again because members are not aware of the existence of some really good work that is being carried out with investment put behind it. Capitalising on what already exists would be a starter for 10, as would better engagement with industry and utilising industry’s knowledge, skills and standards to improve our across-the-piece EU delivery of cybersecurity.

Professor Douwe Korff: I will make one short comment on co-operation with industry. I am not a technical person but I should issue the warning that there is a danger of the security industry trying to capture an enormous market here, plugging their own proprietary standards rather than open standards. That is a danger to security and to all kinds of things.

We have certainly seen it in the Snowden context. The Global Cyber Security Capacity

Centre in Oxford that I am associated with looks at many of these issues, specifically at the

211 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) police side of things. The report of the LIBE inquiry into surveillance is coming out today or tomorrow. It has a big section on IT—I think it is paragraphs 72 to 94—which would be useful for this Committee to look at. It includes a recommendation for an EU IT academy, and that could well include a cybersecurity and even a law enforcement side.

Q79 Baroness Benjamin: Are we ever focusing on children and young people? You mentioned earlier how exposed they are to cybercrime. Is there a programme in place targeted at very young children?

Charlie McMurdie: In the UK we have CEOP, which does some fantastic work on child protection, education, standards and raising awareness, as well as providing an operational enforcement and investigation capability. The UK is probably one of the EU leaders in implementing and improving standards in child protection measures. Obviously, it is a global problem. With the internet, we may find suspects or infrastructure being hosted internationally. CEOP has some fantastic relationships with industry to identify and remove some of that abuse and to disseminate best practice guidance and education.

Baroness Benjamin: To other EU countries?

Charlie McMurdie: It works on an international basis, yes. It is an entity to be looked at for best practice.

Professor Douwe Korff: I must warn that there has also been criticism of the anti-child pornography measures that are being taken, particularly the privatisation of law enforcement, which again is a threat to fundamental rights. Lord Macdonald is carrying out a review of the IWF, to which I gave evidence, together with an expert from the University of

East Anglia. We alerted him to this particular problem. It is very important to protect children. I have children and a grandchild, and a second one on the way, so believe me, I am aware of it, but we have to do it in a human rights-compatible way. Education is important. I do not quite agree with Steve that you need technology to teach children. You can have

212 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) teachers teaching children, in class, the appropriate way to interact online. The Danish Data

Protection Agency did a very nice DVD on trying to train children in school. It sent it to all the schools in the country and children talked about what they should and should not do on the internet.

Steve Purser: We do that as well, actually. One thing the Committee might like to consider is that we now have information security in universities, but why not in schools? ENISA is pushing the concept of information security in schools. We worked with Luxembourg and

Austria to set this thing off. Schoolchildren are perfectly capable of understanding the basics of information security. There is an argument that says that the adult group—notably us— are the weaker party sometimes in this. Of course, I am not talking about very young children, but quite often adults think they know everything but they are the ones who make the mistakes, whereas the children, at least the older ones, sometimes know better.

The Chairman: We must move on, I think. Thank you for the reference to the LIBE

Committee. We are having a meeting with it at the end of the month when we are in

Brussels taking evidence on the whole justice and home affairs programme. If you could give us the references afterwards that would be very helpful, and we will follow that up when we visit Brussels at the end of the month.

Q80 Lord Sharkey: What preliminary assessment have you made about the work of the

European Cybercrime Centre? Do you think that Europol effectively promotes Member

State co-operation when it comes to cybercrime?

Charlie McMurdie: From a law enforcement perspective, every investigation that we carry out requires international or EU engagement. We could not conduct most of our investigations without the assistance of Europol bringing Member States together; there is also Eurojust with the joint investigation treaties. On an operational basis, Europol is a significant partner and contributor to the EU. UK law enforcement has a couple of officers

213 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) based in Europol. Where we are perhaps missing out is on the work that is being delivered by Europol in the more strategic area—the working groups, looking at best practice—so the slower time, non-operational work that is delivered there is probably where we are missing a trick in capitalising on that work and bringing it back and benefiting from it back in the UK.

That said, a lot of the work that is produced within Europol on best practice, learning, guidance or strategy tends to be at a fairly generic level. The UK already has a very good national cybersecurity strategy, with numerous programmes of work that we are moving at pace to deliver with a multi-agency approach—law enforcement, industry, academia, all sectors coming together with more than 100 different programmes of work, one of which is being led by BIS around the education of children. There was something on the news this morning about coding coming in for primary schoolchildren. These programmes are being pushed out, some of them informed by EU engagement and what is taking place within

Europol. Obviously we have one eye on what is happening over there, but we have our own game plan, if you like, here. It comes back to being sighted on what is happening and sharing who is doing what to save duplication and to improve common standards.

Lord Sharkey: Would anyone like to address the issue of the cybercrime agency itself?

Steve Purser: The European Cybercrime Centre?

Lord Sharkey: Yes.

Steve Purser: I am on the programme board, which means that I have a very good oversight of the way it was set up and the way it is working. I have several comments to make. It has been excellent in the way it has come up to speed in the time it has had. It was extremely challenging. It came up to speed very fast. It has a good professional team. It has a massive challenge, of course, because it is new and there are a lot of things that it will need to learn and, having learnt them, will need to push to its operational communities. Here I come back to the point I made earlier. The police have a lot of competences that are well developed

214 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) which they can pass to others, such as forensics, but a lot of techniques that have been developed in the open market will go the other way. It is essential that this happens as soon as possible. What we try to do in the programme board is to ensure that this kind of knowledge flows between the communities as soon as possible, without having an overlap of work or indeed gaps in the work.

I will make one very strategic comment that applies to the whole of security and which I find very frustrating, and that is that recruitment policies across Europe are terrible in this area.

If you want to work in cybersecurity for Europol, nine times out of 10 you will need to come from a police force. You actually want the opposite because you want to bring in experience from other communities to teach you things. This goes for just about everything.

If you want to work in defence, you have to come from a defence environment. This is really crazy in today’s world. Of course, to a certain extent you need to have this, but if you do not open up the doors and let people and expertise flow more freely, this is another example of where you will build silos by default. This is the quickest and most efficient way for expertise to flow.

ENISA helped the Commission run the European Cyber Security Month. We had a session on training and someone stood up and said, “We’re really frustrated because all the people who are experts in security are old”. You do not get 19 year-old generals either. To be an expert in security, you have to have a long track record. It requires a lot of expertise. These are the people you need to get moving between communities to start things going and ensure that the younger generation learn. This is really important for all communities.

Q81 The Chairman: Do you think that the new cybercrime centre, which was set up just about a year ago, is being properly resourced?

Steve Purser: It is a good start. Of course, the whole community budget has been hit. From my perspective, you have to take it for what it is worth. When you see some of these

215 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) research projects being set up with multimillion-euro budgets and see that ENISA fights for a budget of €8 million, and consider the kind of impact that is giving—the European

Cybercrime Centre is in a similar position, I think—it has potentially an enormous impact. I can understand large amounts of money going into research in similar things, but I think that sometimes some of these lower budgets could be beefed up and you would get a much better return on investment. The European Cybercrime Centre is one of them. I would also make a plea for ENISA because we have very good impacts. We delivered 100% of our deliverables this year and spent 100% of the budget, but you can only do so much with €8 million. It is a general principle.

The Chairman: I have to say that when this Committee looked at ENISA, we came to the conclusion that if you were not in Heraklion you could save quite a lot of money as well, but we will not go down that road today.

Steve Purser: Oh, that was you!

The Chairman: Yes. We have covered the question on ENISA so I do not think we need another ENISA-specific question. Presumably you think that the new Rome Programme, if that is what it is called, should give certain tasks to ENISA. Does it need an overall review or not?

Steve Purser: I think it should give to ENISA what ENISA does best. The worst thing you could do would be to assign tasks to the European Cybercrime Centre that ENISA is already doing. I do not expect the Rome Programme to give any responsibilities to ENISA that are specifically justice or home affairs. We are not the best people to do that. But there are a whole lot of things that we can do to support you in a very efficient way. For instance, we do global threat analysis. That is clearly in our mandate. We do community-building. We could supply you with global threat analysis on which the police could base further work.

We could help you bridge the gap between other communities. The most important thing is

216 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) to make sure that we do not reinvent the wheel and start to develop centres of competence when they already exist. As I say, we have absolutely no ambition to do anything specifically in defence or policing, et cetera, but we do think that we could offer more service and give better value for money if we were called upon more often by communities such as yours.

Nevertheless, you can be specific and still build on what we have. Our most recent risk analysis took into account more than 200 sources from all over the world. But if you say,

“We really want to know about this”, of course we will include it in the study from the beginning. This is the way to work, I think.

Q82 Lord Tomlinson: During this session I have heard lots of feel-good words—best practice, collaboration, better collaboration with industry, multi-agency approaches, information—all those things, and nobody could be against them. But I start from a point of view that it as axiomatic that public-private partnership has to be the imperative way of conducting a fight against cybercrime. What needs to be done in practical terms to enhance the mechanisms for public-private partnership to facilitate and encourage further developments? Whose responsibility is it to take the lead? Who should be the driver in this process—Governments or the European Union—and how do they engage enthusiasm from the private sector? What are the two or three most important things that you consider need to be done—not an exhaustive list; I imagine you could write lists for ever—to get a structured approach to public-private partnership?

Charlie McMurdie: From the law enforcement perspective, or any perspective, a partnership is maintained only if you get something out of it. Too often in the past, partnership has been a token word for law enforcement to get stuff from industry or academia and not being able to give anything back for security reasons or disclosure issues.

We have had strong, good, tactical and strategic working partnerships before. In the

Metropolitan Police there are loads of different groups engaging. It has to be two-way. You

217 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) need those trusted relationships. I have already mentioned the virtual taskforce, which clearly delivers good, solid benefit for all parties who are engaged in those relationships.

In law enforcement we are structured in such a way that most of our resources are committed to dealing with crime that is happening. We have to deal with what is hitting the pavement day in, day out. We do not have additional resources that are “fit for purpose”—I ask you to make note of that—to engage with academia or industry to capitalise on those relationships. The recently launched National Crime Agency is starting to recruit staff to do that partnership engagement piece. Until recently, it has had only a couple of people able to do all the outreach for the UK to capitalise on those partnership relationships.

We need to invest more—this is almost a change of priorities—to enable that working relationship to take place. It has to be a two-way benefit. It is really frustrating when you see some fantastic work going on in academia and industry that could really improve the UK law enforcement side of the security resource. We have always said that policing is a relatively poor resource; we only have so much capability to deliver a response to a really big problem. The resource and the intelligence exist in academia and industry. I completely agree with your comments: we need to build those relationships and people need to be held to account for not sharing. We have not mentioned liability or accountability for what happens when there are data breaches and other such issues. There is good policy and good security in place. We need to make sure that that is adhered to and that we are actively working better together.

Professor Douwe Korff: Can I add something to that? I am all in favour of these partnerships, but beware: industry’s aim—and there is nothing wrong with this—is to maximise its profits. What it would like to get out of it is to sell you massive contracts for its

IT systems, or if it is in the security business it would like to be the prime preferred party.

You have to watch out here. I do not want to call the Government virgins, but you have to

218 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) be pretty careful when you climb into bed with industry. Accountability should be there as well. It should be clear who the partners are. Revolving doors between industry and government are not healthy. Academia is a bit purer but not that pure these days either. By all means co-operate and do as much as you can together, but do it openly and make sure that open source, for instance, is not stifled because industry would like to have its proprietary systems on display. Beware, is all I am saying.

Charlie McMurdie: Just on the issue of industry engagement, where you can you have to engage openly with trusted relationships so that you negate that commercial advantage. By bringing groups together to work as a consortium, the information, the benefit and the exchange is there for all who are engaged. You negate the commercial advantage factor in working in that sort of environment.

Steve Purser: There is a different aspect, which has not been touched on. I certainly agree that everyone needs a return on investment for their involvement—that is for sure. How do you do this? Trust is built in small groups—this is a proven thing; we have studied it and produced reports on it—and on personal presence. That means that if you have large groups, such as the European Public-Private Partnership for Resilience, which is around 100 people, it is incredibly difficult to build trust. If you want to do this, you have to structure the system in such a way that you insist on small groups, with personal presence, allowing people to build up a relationship, and then you need a mechanism for making it bigger. This is really important in Europe because the smallest public-private partnership you can have in

Europe is 28, and you have only one type of person from each Member State in that, so that is not very useful. One thing you may consider, in order to take your idea forward, is to use existing public-private partnerships as building blocks for a bigger system. In any case, you need to have the rule, if you like, that once things become too big, you need to break the thing up or it will not work.

219 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) It is also important to note that we need to move from doing this via physical presence to doing it over networks, and then it becomes even more difficult because none of us trusts networks. I do not trust networks. I do not know who the hell is sitting behind the screen when I do a videoconference with someone. His mother could be in the room, for all I know. It is really important that we study how to take these concepts and put them in the electronic world and make them work as well. Trust is the key word here. The mechanisms we have are a starting point, and we can only go with that to start with, but we need to take it forward to advanced electronic systems that allow us to share information under structured conditions with moderators, et cetera, so that we can make the process scalable.

Lord Tomlinson: One small supplementary, Chair. Who should be the main driver? Should it be the European Union? If it were Member States, you would get different drivers on different sides of the road driving with different levels of competence.

Steve Purser: Both. For instance, if there is a public-private partnership in the UK, the principle of subsidiarity says: what has Europe got to do with it? But if you want a public- private partnership with people in France, Finland and Greece, obviously it makes a lot of sense to have Europe in there to do some degree of steering and co-ordination. I do not think you can make hard and fast rules. I would look at what kind of public-private partnership it is, who it is serving, and then make sure you have the appropriate level of authority. We have principles for that. We have sovereign state control and subsidiarity. It could even be done at the local level. There could be a Greater London Metropolitan public- private partnership. Why not? This could make sense in some circumstances.

Q83 Earl of Stair: It has been a very interesting and informative hour. Thank you very much for everything you have said. A lot of the points you have raised are covered in the question I am going to ask. Perhaps we could summarise it a bit. What action should the

220 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) future JHA programme recommend to modernise the EU’s intelligence-sharing structure and information management infrastructure?

Steve Purser: I will kick off because I have just been speaking about it. One thing you need to do is to be very specific about what information you want to share. This is exactly what is not happening at the moment. I would also recommend that whatever you do is not too ambitious. I would recommend a more bottom-up approach than a top-down one in this problem. So start small, achieve results and build on them, and make sure that whatever information is exchanged can be proved to leading to some goal. We live in a world of data pollution. We have far too many data. We have so many data that we do not know what to do with them. We do not make any better decisions.

To summarise: the right kinds of data, keep it small and build up but then put the rules in place. This concept of trust is really important. If you share information and the conditions of trust are not there, that information will probably not be acted upon. A lot of thought needs to go into who sends the information, who receives it, what guarantees you are given about its validity, its point of origin, et cetera. All these things are incredibly important.

Again, I would really plead for a small start and then to build up gradually, at each stage proving that the system is actually doing something, so that we do not end up with tons and tons of data and no use for them.

Q84 Lord Faulkner of Worcester: How effectively are data protection measures being implemented? Do these need to be reviewed and improved? Are there any gaps that need to be filled?

Professor Douwe Korff: As you know, the EU is discussing a new framework for data protection in the form of both a general regulation to replace the Directive and a Directive for police and judicial co-operation matters. It is really important that that package is pushed through as soon as possible. Without a strong framework of data protection, all the

221 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) measures that you are talking about will at some stage stumble and fall. There will not be the necessary trust in, and the integrity of, the system. For Europe, this is extremely important.

Of course, data protection is in the Charter of Fundamental Rights of the European Union as a separate right. It is strongly underpinned by both the European Convention on Human

Rights and EU law, including the courts in both Strasbourg and Luxembourg. You will not be able to progress judicial and home affairs co-operation in Europe without the counterbalance of a really strong data protection framework, both in what used to be the third pillar and in the rest of the EU. You will have to discuss that with the non-Europeans.

One particular problem is that we are talking in Europe about data protection in what used to be the first pillar, which is now going to be the general Directive; you talk about data protection in justice and home affairs. There is this hole for national security. National security is supposed to be outside the competence of the EU but internal security is not outside the competence of the EU. There is a common security policy that also touches on national security issues. If you have a big hole in a system, you know that it is going to drain whatever you put in it. It is going to be important to discuss it. It is going to be a very difficult debate politically because some Member States, particularly the UK, are not very willing to enter into discussions of national security issues at a European level. But if you leave it out, you are left with a system that has a big hole in it. You cannot have police action against cybercrime without touching on national security and anti-terrorist issues. You really need this. The human rights aspect of this is not just me, as some kind of liberal-thinking

European, saying that we have to protect human rights. Protecting human rights is fundamental to maintaining trust on the internet, including trust in companies, and it is going to be fundamental in fighting crime and fighting terrorism. It is not, “Oh, we will also have to think about it”. It has to be fundamental.

222 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) Lord Faulkner of Worcester: Do you not think that data protection and people being able to say, “My data are personal to me”, is going to work against the sharing of information to fight cybercrime?

Professor Douwe Korff: The Council of Europe Recommendation R(87)15 concerns privacy and data protection and police data. That is an old recommendation, going back to 1987. It has been reviewed four or five times; very interesting and worthwhile reports to read.

There was a very large review of it just last year, and there will be a revised recommendation in the next few years. That tackles an awful lot of the issues that you have raised and I would recommend that you look at that because it deals specifically with personal data in the police sector. It includes important principles such as not using sensitive data such as race and religion specifically as a criterion for investigation, sticking to the purpose limitation principle as much as possible, and minimising data as much as possible. It is not impossible to square good data protection with good police intelligence. Other countries have much more rigid regulation, particularly Germany. It would be worth your while to look at the German legal regulations because they start from this constitutional point and they do not seem to find it impossible to tackle crime. Compulsory suspicionless data retention is contrary to the rule of law—you do not need it. A big study from the Max

Planck Institute showed that it was not effective. What you need is a rapid data preservation order, a quick freeze of data; the moment something comes on your radar you say, “That person looks suspicious, let’s collect data on that person”, but not on everybody just for the sake of it. It is perfectly possible to square national security, the fight against terrorism and the protection of human rights, but you have to think about it.

The Chairman: Presumably that is the sort of area where this new cyberdefence policy framework, which the European Council has now endorsed and has asked to be taken

223 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) forward, has the potential to break down the silos and avoid the gaps that you have talked about. I assume that you are saying that that opportunity should be seized.

Professor Douwe Korff: Absolutely, and it should not just be paying lip service. Of course, the policy says, “We must respect human rights”—it could not very well not say that. But that has to be put into practice.

Lord Wasserman: Is there a need to evaluate the data protection compliance of existing

European databases?

Professor Douwe Korff: There is a joint supervisory board that has been criticised by the

European Data Protection Supervisor. The European Data Protection Supervisor is the most appropriate body. It is highly experienced. I would especially mention Mr Giovanni Buttarelli, the Deputy European Data Protection Supervisor. He is a former anti-mafia judge, so he has great experience in anti-terrorism and police co-operation. He is an extremely nice man as well—dare I say it—and somebody whose brain would be worth picking. He has this experience and he has written the rules at both European level and his own national level on how to deal with these kinds of data in these particular contexts.

Q85 Lord Morris of Handsworth: Listening to your responses, and indeed to the questions, it is very clear that there are a lot of stakeholders in this debate. In the light of that reality, what balance do you think should be struck between meeting law enforcement community needs and protecting privacy rights when developing data protection policies?

Should this be reflected in the programme and, if so, how?

Professor Douwe Korff: It should at the centre of the programme. That is what the programme should be about: how to balance these things. The first thing to say is that it is not a zero-sum game. It is not a matter of more privacy means less law enforcement. I really do not believe that that is the case. The second thing that I really believe is important is that suspicionless mass surveillance of everybody is neither effective nor compatible with the rule

224 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) of law. You must be able to come up with policies that are both effective and respect fundamental rights. It can be done. I will not go into a three-hour lecture, but if you want to read it in a rather technical, legal way, the German rules are probably the ones that spell it out most: how to preserve data and how to ensure that the right people get the data and the wrong people do not get the data. Recommendation R(87)15 is still an extremely good one to start with. That is just a few pages of some very good, straightforward principles on how to use police data.

Lord Morris of Handsworth: How do we get citizens involved in the debate and understanding and participating? If they do not understand, co-operation might be more difficult than it needs to be. How do we crack that particular nut?

Professor Douwe Korff: The United Kingdom has always been the leader in policing as a communal thing. It should be based on trust, rather than policing with a heavy hand. Policing is more effective if people trust the police. That, again, should be the starting point. You can do that on the internet and in the digital world as well, to make sure that people know that they can find the right person, both in business and privately. That, again, is an argument for not allowing everybody access to all the data. If somebody confides in a social worker about a child protection issue, that person may want to know that it does not go to the police.

Sometimes you might want to confide in the police and not have that passed on to your school. These are silos, in some respects, but sometimes silos are also barriers to maintaining trust and confidentiality. Those are also important pillars for police work.

Steve Purser: Of course, the question of privacy in data protection is not specific to the police. You have given one very important aspect, which is the balance between one or the other. A much more global problem is the fact that the general public do not have a good appreciation of privacy in data protection in general, irrespective of the role of the police.

This is something in which ENISA and many institutions can play a role. My fear is that we

225 of 485 European Union Agency for Network and Information Security (ENISA), Professor Douwe Korff, London Metropolitan University and Charlie McMurdie—Oral evidence (QQ73-85) will have an extremely nice and probably very effective policy but we will not be able to implement it.

The Chairman: And it will probably impose very heavy burdens on commercial operators.

Steve Purser: Exactly. You risk all kinds of economic inefficiencies because people will be penalised because they do not know they are doing wrong, et cetera. It is really important that two things happen. One is that there is a more general programme for making the

European citizen aware of what privacy in data protection is all about and what their role is.

Many organisations can play an important part in this. Secondly, the new data protection legislation is a very ambitious piece of legislation. I think there will have to be some compromises and trade-offs, as there are in everything. This is where organisations such as ours—but not only ENISA; all the Member States have organisations such as ours, including the police—have to show what is practically possible. The worst kind of security is the kind of security that exists on extremes, which cannot be achieved and then we achieve nothing.

The Chairman: What you are saying chimes very much with the view of this Committee when we have been looking at the draft data protection Directive and so on is that this is going to take a bit of time. Even if there were not going to be European Parliament elections next year—and a spillover into the new Parliament, which is certain and not avoidable—it is not necessarily a bad thing that this will take time but one of the earlier answers suggested that we needed this new data protection legislation quickly. I am a bit dubious about that, frankly, because I do not think it is realistic to say that and I am not sure that we would get the right answers that way. Perhaps we could close this session on that note, and thank you very warmly for giving us such a fascinating insight into an area in which I suspect you are, by several thousand degrees, more qualified than we are, which is clearly an important part of the future justice and home affairs programme. Thank you very much indeed.

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Europol—Written evidence

1. Should there be a fourth JHA programme? If so what should its content, focus and purpose be, with reference to the previous programmes and evaluations thereof?

According to article 68 TFEU, the strategic guidelines for the legislative and operational planning in the area of freedom, security and justice (AFSJ) shall be defined by the European Council.

On 27-28 June, the European Council decided to hold a discussion at its June 2014 meeting, precisely to define strategic guidelines for legislative and operational planning in the AFSJ. In preparation for that meeting, the incoming Presidencies were invited to begin a process of reflection within the Council. The Commission was also invited to present appropriate contributions to this process.

This reflection process has already started and Member States have already circulated a series of ideas and non-papers on the matter in various fora.

The Commission intends to launch an open and inclusive debate involving relevant stakeholders in a conference at the beginning of 2014. It will also present its ideas in a Communication on "the future European Agenda for Home Affairs" planned for the beginning of 2014, which will go hand in hand with a Commission Communication on the future priorities on Justice.

From Europol’s perspective, there are three main arguments in favour of a fourth JHA programme:

1. A legal and organisational requirement to set the main strategic guidelines for the EU home affairs agenda over the mid to long term. 2. The need to finalise the implementation of the Stockholm programme on the basis of recent evaluations carried out (e.g. by the Council and Parliament), as well as to consolidate the important acquis of legislative action and operational developments of the last few years, in particular by enhancing overall policy coherence. 3. To provide a long-term vision for this policy field in the context of a continuously changing strategic environment.

While we are still at an early stage in our reflection, a number of key issues can already be identified in the area of internal security, which constitutes Europol’s remit. The new JHA programme should give adequate attention to serious and organised crime, whose importance and impact on societies and the economy is often underestimated when compared to other security threats, such as terrorism. In this regard, it could give a more prominent role to the Policy Cycle, which is based on Europol’s Serious Organised Crime and Threat Assessment (SOCTA) and determines the establishment of EU priorities in the fight against organised crime. For example, by maximising SOCTA’s baseline threat assessment to include policy objectives and recommendations to facilitate effective interventions in the fight against organised crime.

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The JHA programme could address the impact of OC on the economy to give a conceptual underpinning to policy proposals in the area of economic crime, in particular in areas such as detection and tracing of criminal proceeds, counterfeiting and infringements of property rights, the development of EU standards on financial investigations or the fight against corruption.

The JHA programme could enhance policy coherence in the area of cyber-security, one of the major challenges facing the EU internal security. The EU legislative framework has not kept up with technological developments and the exponential growth of cyber-criminality, which has created a number of vulnerabilities. In particular, the JHA programme could enhance cross-government and public-private cooperation. It should also provide clear support to the European Cyber-crime Centre.

The private sector has become a key actor of internal security in the EU and there is a need to identify ways of involving it in a more systematic way, both in policy development in the JHA area and in the implementation phase.

The new programme will most likely coincide with the adoption of the new Europol Regulation, already foreseen in the previous Stockholm programme. The latter should consolidate Europol as the operational centre for the coordination of police cooperation throughout the EU.

In view of the growing complexity and sophistication of organised crime, there is a need to provide a more sophisticated EU response and to modernise the EU intelligence sharing structure and information management architecture. One area where the new programme could be instrumental is a revitalised approach towards ensuring effective trans-border exchange of information on security, building on the Commission’s European Information Exchange Model (EXIM). In this regard, there is a need for greater integration of systems around a single central hub at Europol, in order to avoid overlapping of systems and duplication of activity and more alignment of all agencies activities. This could complement the Integrated Data Management Concept (IDMC) proposed in the new Europol Regulation to answer Member States’ operational needs and ensure flexibility in the future.

Counter-terrorism will remain a core task of Member States, but the JHA programme could give some orientations on the ancillary EU role in this domain, for example in areas such as prevention and countering radicalisation, which require a more comprehensive and multi-actor response.

Finally, further efforts are needed to ensure synergy between the internal and external aspects of security, especially as the European External Action Service did not exist when the Stockholm Programme was adopted. One relevant aspect is providing a framework to facilitate a “technical” security dialogue on common threats between EU security actors, including EU agencies and third countries, in particular as regards organised crime.

Here, while many of the challenges to the EU internal security still derive from the EU neighbourhood, it is important that the JHA programme does not adopt an overly narrow geographical perspective, but rather takes due account of the combined effects of globalisation and the increasingly dynamic and complex nature of organised crime. The relevance of transatlantic security partnerships should be properly valued in this respect.

228 of 485 Europol—Written evidence

2. What is the relevance of the political context? For example, how relevant will the debates and controversies surrounding the free movement of persons, privacy (the Prism programme in the US, as well as similar programmes in some Member States) and the negotiation of a US-EU free trade agreement be?

Undeniably, the political context will be relevant for the preparation of the next JHA programme, although it is difficult to assess the precise effect on its final outcome.

In this regard, 2014 will be marked by important institutional changes at EU level: European Parliament elections, appointment of the new Commission, the new President of the European Council and new High Representative. This will involve new political priorities which will also have to feed into the reflections on the future of the JHA area.

National political calendars (recent election in Germany, parliamentary elections in Belgium, local elections in France, the UK opt-out, the Scottish referendum, etc.) may also have an impact on the content of the JHA programme.

Recent developments related to data protection and privacy rights are relevant in this context. There is a growing concern in civil society and the public opinion about data protection and privacy issues, which needs to be taken into account when developing policies. The new home affairs agenda will have to ensure that the principle of proportionality is respected, finding a proper balance between ensuring citizens’ protection and security and upholding fundamental rights. In other words the EU will have to reach a lasting political consensus on the balance between security and freedom, something which has become more challenging in the context of serious criminality operating online and across borders to a greater extent than ever before.

The next JHA agenda will also have to acknowledge the rapid changes in civil society, in particular the ever growing e-dimension of society, and the force of inclusion, as technology is shifting power to individuals who want more participation in decision-making. For Europol, especially in the context of its new Regulation, this will mean maintaining the principle of “purpose limitation” in the implementation of its mandate as well as the highest levels of data protection. The Treaty of Lisbon has reinforced the overall legal framework of data protection and contains clear provisions in this area (Article 16 TFEU). Europol is proud of the reputation it has earned for having the most robust and effective data protection regime of any police agency in Europe. It is therefore important that it retains the key elements of a data protection regime that has worked very well for over 15 years, in particular the application of a tailor-made regime to ensure that data protection principles can be applied effectively whilst meeting the unique requirements of law enforcement to access personal data.

Therefore, while addressing data protection and privacy issues, it is crucial for the future of European internal security that the new JHA programme takes into account the specific requirements of the law enforcement community.

No less important than the political context will be the effect of the economic crisis and the changing security environment on the future JHA programme.

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The deep and sustained economic crisis has made European societies more vulnerable to security threats and has affected European governments’ capacity to invest in security. The effects of globalisation in society and business have facilitated the emergence of significant new variations in criminal activity: commodity counterfeiting, intellectual property rights infringements, tax frauds (e.g. VAT fraud in the carbon credits market or cigarette smuggling), payment card fraud, etc. In a deregulated market context, organised crime groups exploit loopholes and inconsistencies in legislation and enforcement as well as the possibilities offered by the Internet to generate illicit profits at low risk.

In this context, it is important that the next JHA programme provides a clear understanding of the EU security weaknesses and anticipates future evolutions to better define and adapt policies and strategies. It should emphasise the importance of risk and threat analyses, such as Europol’s Serious and Organised Crime Threat Assessment (SOCTA) or the EU Terrorism Situation & Trend Report (Te-SAT) as a prerequisite for any effective internal security strategy.

It could also seek to associate security policies with actions aimed at securing an effective economic recovery, such as a strong focus on the fight against economic and financial crime. The harmonisation of legislation to prevent further expansion of organised crime will also be important.

3. What lessons from the application of the Stockholm Programme could usefully be reflected in the next JHA Programme? Did the Stockholm Programme involve too much or too little legislation and what were its tangible outputs? How successful have some of these outputs, such as the Standing Committee on Operational Cooperation on Internal Security (COSI), been and are they working as intended? The ambition of the Stockholm Programme was to create a more secure and more open Europe where the rights of individuals are protected and cooperation focuses on measures that provide added value for citizens' life.

In the face of serious cross-border security challenges in the areas of organised crime and terrorism, the Stockholm Programme called for a coordinated approach to police cooperation and border management, and for a more efficient use of existing EU instruments in the fight against organised crime, in particular to facilitate the exchange of information and remove technical or legal obstacles to effective law enforcement cooperation.

The role of EU justice and home affairs agencies, including Europol, was also underlined with a view to give them the powers and resources necessary to achieve their goals and improve inter-agency cooperation.

In terms of implementation over the last three years, the Stockholm Programme offers a mixed balance. Clearly, a number of important steps have been taken and objectives fulfilled. There is a now a robust body of EU legislation in the JHA domain and a considerable number of initiatives have been adopted in the following areas: tackling crime profit, trafficking in human beings, the establishment of the European Cyber-crime Centre (EC3), preventing radicalisation though the Internet, pooling of resources, etc. Obviously, other proposals are yet to be developed or have not yet reaped their full potential, either because of their recent adoption or for lack of implementation. The European Parliament noted in

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July 2013 that further progress needs to be made, for example, in the fields of cybercrime, protection of critical infrastructure, the fight against corruption, money laundering, funding of terrorism and the trade in illegal firearms.

Of particular relevance has been the establishment of the Standing Committee on Operational Cooperation on Internal Security (COSI), which has considerably enriched the opportunities for EU-level coordination in the field of internal security. COSI has improved the joint use of strategic resources and expertise on organised crime to inform policy-making, especially through the adoption of the "EU policy cycle on serious and organised crime" to which Europol makes a key contribution. The implementation of the Policy Cycle and, in particular, of the Multi-Annual Strategic Plans and Operational Action Plans could be further enhanced by addressing certain shortcomings, such as funding, Member States' involvement and the lack of awareness regarding the Policy Cycle. Again, the JHA programme could highlight the relevance of the Policy Cycle to improve the quality of the decision-making process in the fight against organised crime.

In general, there is still room for improving effective operational cooperation within COSI. In this regard, a more active presence and role for law enforcement agencies could be envisaged.

4. Should the EU’s focus be on consolidating existing JHA cooperation before embarking upon further EU legislative proposals and initiatives? The UK Government, in particular, has emphasised in the past that the EU should focus on practical cooperation, which does not necessarily require a legislative underpinning.

Europol is an operationally-oriented organisation, whose objective is to provide support to Member States investigations in the fight against organised crime and terrorism. Europol provides direct operational support functions, in terms of intelligence and information sharing, operational analysis and investigative leads, coordination of cross-border operations (including Joint Investigation Teams) and concrete field support through forensic and technical expertise (drug labs, counterfeit currency print shops, computer hardware, etc.).

Therefore, practical cooperation is at the core of Europol activities and that should also be the focus of the JHA programme from Europol’s perspective. This said, in certain areas of police cooperation, an additional legislative underpinning may be required. This is the case for the fight against cybercrime where often the legislative framework has not kept up with technological developments. Legislative harmonisation and standardisation of law enforcement practices across EU Member States can also help levelling the playing field for practitioners and eliminate unnecessary differences between jurisdictions, which on the other hand, offer vulnerabilities that can be exploited by criminals (e.g. in synthetic drugs regulation).

In any case, as noted under question one, the new JHA programme should set the main strategic guidelines for the EU home affairs agenda, but also finalise the implementation of the Stockholm programme and consolidate existing JHA legislation and cooperation.

In this context, implementation should be prioritised against new legislation. There is indeed a need to properly implement the enormous amount of already existing and

231 of 485 Europol—Written evidence upcoming legislation (e.g. Europol Regulation) rather than adopting new rules in order to fulfil the strategic guidelines and objectives.

The European Parliament recently noted that the current landscape of the different instruments, channels and tools is complicated and scattered, leading to an inefficient use of instruments available, therefore offering another argument in favour of consolidation, coherence and cohesiveness of the new package.

The Commission has also identified an important lesson learned from the implementation of the Stockholm Programme, which puts the emphasis on ensuring transposition and implementation of the justice and home affairs acquis. There is indeed a need to ensure timely and full transposition into national law and harmonised practical implementation across the EU of all existing legislative instruments. This is not just a matter of formal compliance, but of effective operational implementation, which can be supported by the strategic use of the new EU funding in this area.

5. Should the Programme include a timeline for repealing and/or consolidating existing JHA legislation where necessary?

Given the likely nature of the next JHA Programme (see answer to question 6) it may not be the most suitable document to include a timeline for repealing or consolidating existing legislation.

The need to repeal or consolidate existing legislation is very much linked to the issue of strengthening the evaluation of JHA instruments and policies. This is best done by monitoring the implementation of existing rules, from a legal and practical perspective; by using article 70 TFEU to conduct objective and impartial evaluations of the implementation of the Union policies; by following-up on the implementation of measures; and by assessing the cost of implementation.

6. What should be the format of the next JHA Programme? For example, should it comprise a concise set of principles or contain a longer, and more detailed, set of initiatives as per the previous programmes?

It is unlikely that next JHA Programme will contain a long and detailed list or catalogue of deliverables and concrete outcomes in the different thematic areas for the next five years. It would rather be a more concise set of principles, providing a more strategic approach and flexible enough to adapt to a fast moving environment and evolving societal challenges. So, in terms of format, the future JHA guidelines would probably be different from the Stockholm Programme and more in the spirit of the Tampere conclusions. This does not exclude that a number of priorities are identified to underpin EU action. This could involve implementing identified policy objectives in three ways: through legislative action and legislative consolidation, practical cooperation, and the strategic use of funds

7. What role should the European Parliament and national parliaments play, if any, in defining the content of the next JHA Programme?

Home affairs are no longer part of a separate intergovernmental setting after the changes introduced by the Lisbon Treaty. They have become a mainstream EU policy area, based on

232 of 485 Europol—Written evidence the Treaty procedures for conducting the legislative work and ensuring accountability and democratic control.

Article 68 TFEU does not foresee any role for the European Parliament in defining the strategic guidelines for the legislative and operational planning in the area of freedom, security and justice. The June 2013 European Council conclusions also remain silent regarding the involvement of other institutions, in particular the European Parliament. However, the European parliament is an important stakeholder and in line with the new institutional framework set by the Lisbon Treaty, it should have a particular say in defining JHA policies and should be fully involved in the discussions on the future of the JHA area.

8. Is the funding allocated to JHA activity in the Multiannual Financial Framework for the period 2014-2020 sufficient to achieve existing aims?

The overall share of the EU budget given to JHA policies is very small: about 0.77% of the total EU budget (heading 3a of the 2007-2013 Multiannual Financial Framework - MFF) amounting to 6.449 M euro. As things stand now, the Multiannual Financial Framework (MFF) makes an appropriation of 3.318 M euro for the Internal Security Fund programme and of 2.780,3 M euros for the Asylum and Migration Fund programme for the entire period 2014-2020. Altogether, the Commission proposes to allocate €8.2 billion for the period 2014-2020 in the area of home affairs.

While this represents an important effort in times of austerity, from Europol’s perspective, the funding allocated is not reflective of the size and scale of the security threats and problems facing the EU.

Precisely because the funding allocated to JHA activity is and will continue to be limited, the emphasis of the new JHA Programme must be on promoting collaborative options and avoid duplication. In this regard, international cooperation must play an essential part in any effective strategy to fight organized crime and terrorism.

As a multilateral hub for law enforcement cooperation, Europol is a good example of useful and cost-effective solutions. Europol provides a direct access to effective police cooperation mechanisms, through a law enforcement community of about 150 liaison officers from almost 40 countries (including Europol’s third-country partners: United States, Australia, Norway, Switzerland, etc.). It also offers direct operational support to Member States in the conduct of national investigations. This is important as EU Member States are progressively reviewing their bilateral police cooperation networks and closing bilateral police liaison officer posts and transferring that work to their respective Europol Liaison Bureaux.

9. What are the potential implications of further EU Treaty change for JHA cooperation, including the position of the UK?

Previous JHA multiannual programmes were linked to major treaty changes: the Tampere conclusions followed the adoption of the Amsterdam Treaty; the Hague Programme was linked to the process leading to the adoption of the “EU Constitution”; and the Stockholm Programme came along the entry into force of the Lisbon Treaty.

However, it is very unlikely that the forthcoming phase will be linked to such major Treaty change. It is perhaps the first time in the last 15 years that this policy field is not

233 of 485 Europol—Written evidence subject to a fundamental modification, notwithstanding some changes deriving from the application of Protocol 36 on transitional provisions, including the UK opt-out.

10. What form could or should the UK’s future participation in JHA matters take beyond the 2014 opt-out decision? What are the priority areas for potential cooperation in this respect, assuming that the UK will end up participating less in this area than it does at present? Will exercising the opt-out undermine the UK’s ability to influence the content of the next JHA Programme?

Traditionally, the UK law enforcement community has always been at the forefront of EU police cooperation. The UK has also made an invaluable contribution to policy-making in EU internal security and has been one of the most influential Member States in shaping European internal security legislations. Overall, the UK often sets the EU agenda in the AFSJ domain. Europol expects that it will continue to do so, including with regards to the next JHA Programme.

A UK exit from Europol or other key policies and measures in the AFSJ domain would have a considerable impact on the UK’s ability to influence and participate in policy development in the area of law enforcement and the next JHA programme in particular.

From Europol’s perspective it is important that the UK continues to be a primary player and driver in international police cooperation and a leading partner in the fight against organised crime and terrorism, in particular by maintaining and even increasing its current level of engagement with Europol.

Other areas for potential cooperation of particular relevance from a law enforcement perspective are the Joint Investigation Teams, the Schengen information System or the European Criminal Records Information System.

For more details on Europol’s views on the potential impact of the UK exercising the opt- out, reference is made to three sets of written evidence submitted by Europol to the House of Lords inquiry into the UK’s 2014 opt-out decision on 18 December 2012, 14 February 2013 and 11 September 2013.

15 October 2013

234 of 485 Europol, Association of Chief Police Officers, and National Crime Agency—Oral evidence (QQ52-72)

Europol, Association of Chief Police Officers, and National Crime Agency—Oral evidence (QQ52-72) Transcript to be found under Association of Chief Police Officers

235 of 485 Fair Trials International—Written evidence

Fair Trials International—Written evidence

Further to the call for evidence on the Future Justice and Home Affairs Programme (2015- 2019), we write to make a delayed submission to the enquiry. As oral evidence is still being taken, we hope you may take into consideration this email and attachments [not printed here] which formed the basis of Fair Trials International’s submission to the EU Commission’s consultation on the future programme as part of the Assises de la Justice.

Fair Trials International is a non-governmental human rights organisation which works for fair trials according to internationally recognised standards of justice. We do this by helping defendants to understand and exercise their fair trial rights; providing training and networking opportunities to legal experts; and through advocacy work to tackle the underlying causes of injustice. Based on conclusions reached in consultation over the past four years with our network of over 120 criminal justice experts from 28 Member States – the Legal Experts Advisory Panel (LEAP) – we have established the following priorities for future EU work in the area of criminal justice:

1. Effective implementation of adopted directives: Recognising the achievement of the European Commission, Council and Parliament in adopting the first three directives under the Procedural Rights Roadmap, we call upon the EU institutions to ensure that these important protections of defence rights are implemented effectively by working closely with Member States as they transpose them into domestic law.

2. Completion of the Roadmap: Given the interdependent nature of the rights set out in the the Roadmap, we call upon the EU institutions to adopt and implement the other envisaged measures on procedural rights, including through robust legislative measures on legal aid and vulnerable suspects.

3. Minimum standards on pre-trial detention: The existence and application of appropriate safeguards relating to the use of pre-trial detention are key factors in the fair operation of, and public trust in, existing mutual recognition measures. We therefore urge the EU institutions to continue their work on pre-trial detention in the EU by committing to revisit the case for legislative action which we believe is necessary.

4. Reform of the European Arrest Warrant: Since 2009, Fair Trials and LEAP have raised concerns about suspects being extradited under European Arrest Warrants to face trial or serve sentences for minor offences, spending months in pre-trial detention waiting for trial and subjected to serious violations of their fundamental rights. We continue to call for EU-wide safeguards to prevent abuse of the European Arrest Warrant and to protect defence rights within its operation.

We attach the following three joint letters [not printed here], coordinated by Fair Trials and addressed to Vice-President Viviane Reding, which further elaborate upon the priorities listed above:

(i) Joint letter on the European Arrest Warrant, submitted by Fair Trials and leading defence practitioners from the LEAP network in October 2010;

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(ii) Joint letter on the future of defence rights in Europe, submitted by Fair Trials and four other NGOs in July 2013; and (iii) Joint letter on the need for further action on pre-trial detention, submitted by Fair Trials and 21 other NGOs in September 2013.

We also attach a brochure which further highlights our priorities for future EU work in the area of criminal justice [not printed here].

19 November 2013

237 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14)

Evidence Session No. 1 Heard in Public Questions 1 - 14

WEDNESDAY 20 NOVEMBER 2013

Members present

Lord Hannay of Chiswick (Chairman) Lord Blencathra Viscount Bridgeman Baroness Corston Lord Dykes Baroness Eccles of Moulton Lord Judd Lord Morris of Handsworth Lord Sharkey Lord Tomlinson Lord Wasserman ______

Examination of Witnesses

Professor John Spencer, Centre for European Legal Studies, and University of Cambridge, Professor Steve Peers, University of Essex, and Professor Elspeth Guild, Queen Mary University London.

Q1 The Chairman: Good morning. Just before starting our evidence session, I look behind the panel and welcome the Members of the Serbian Parliament who are with us this morning to have some idea of the way in which the House of Lords European Union Select

Committee, in this case its sub-committee that deals with home affairs, health and education and scrutinises European policy, but also in this case is taking evidence on the possible content of the next justice and home affairs programme, which is likely to be adopted by the

European Council towards the end of next year but which will be the subject of lively debate and negotiation during 2014. We are aiming to produce a report on that by next March or

April so that it will help to shape the views of our own Government, we would hope, and of

238 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) other Governments, too, on the content of this programme. I say that because it is perhaps useful for our panellists also to hear that introduction.

I now welcome all three of you. Two of you at least are very familiar to the Committee because you gave us very valuable evidence in the context of the Protocol 36 inquiry that we did on the block opt-out. This, as you know, is a session in public. It is being broadcast. A transcript is being taken and a copy of the transcript will be sent to you, to give you an opportunity to make minor corrections to it, although it will be published online in an uncorrected form. If you would like to make any opening remarks, that would be entirely welcome to the Committee, but if you would prefer to move straight into questions, that would equally be welcome to us. Do you have any views on that?

Professor Steve Peers: I will if I may make a brief opening remark, a criticism of the timing of the plans to come up with a new programme. It would make sense to come up with a new programme, if one is needed at all, in 2015 after there is a new Commission in place and after the European Parliament and the President of the European Council have fresh mandates, rather than at the very end with a lame-duck Commissioner and the European

Parliament about to be re-elected, probably with half its Members turned over as usual. It seems a bit precipitate. This timing also weakens the UK’s position. We have this intention to opt back into key legislation, but that cannot be put into place until 1 December 2014 at the earliest. Perhaps after that point our participation would look more solid. At the moment, however, we have just opted out of everything pre-Lisbon relating to police and criminal law, having not yet accomplished our intended opt back in. It seems to me that our influence is bound to be weaker because of this timing.

The Chairman: Yes. I think your desire is probably not going to be met for a number of reasons. One, of course, is that the present Stockholm Programme runs out and some people certainly want to see continuity. The other is that it is not going to be adopted in any

239 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) case, as is my understanding, in the first half of next year but in the second half of next year, under the Italian presidency, which is why it is sometimes called the Rome Programme, although we are not allowed to call it that. The Lisbon Treaty, as you know, puts the requirement on the European Council to give strategic guidance in this matter to the

Commission, the Parliament and all other institutions. The European Council, although its members are often being elected or re-elected at various different moments, will not be so prevented from acting next year. I just add that. I gather that this Commission is now thought likely to produce a communication on it in about March. I do not think that we will have quite the lacuna that you fear. Would other of your colleagues like to make an opening statement?

Professor John Spencer: No thank you.

Q2 The Chairman: If that is okay, I will start the questions. By no means are any or all of you answering each of the questions. That would be very welcome to us, but it is not obligatory that all three of you answer all of them. Could each of you give a brief overview of your view of the UK’s involvement in the development of the European Union’s justice and home affairs programmes to date, the sequence that runs from Tampere, through the

Hague through to Stockholm?

Professor John Spencer: My area is EU criminal law and criminal justice. Viewed from my perspective, the main contribution that the UK has made was inventing and selling the notion of mutual recognition in criminal cases, which was an idea that it put forward as an alternative to attempting to harmonise the law across the different Member States. We took the lead in that for many years. We also took a significant lead in matters of police co- operation, sharing of information and so forth. Less happily, we put a spoke in the wheel in the mid-2000s of the development of an EU programme on defence rights, as to which I am very sorry. Nobody knows what the UK actually did to feed into the original programmes

240 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) when they were proclaimed by the European Council, but in terms of what we have done, leadership in the two areas that I have mentioned is the most important contribution, I think.

Professor Elspeth Guild: Thank you very much Lord Chairman and Members of the

Committee. It is indeed a pleasure to be here. It has been some time since I have appeared before you. My field of expertise is borders, immigration and asylum. I will leave my colleagues to discuss the issues of criminal justice. As regards the role of the United

Kingdom in respect of EU policy on border controls and prisons, the UK has been out of step with the rest of the European Union since 1985 and the signing of the Schengen agreement. The introduction into the Single European Act of the objective of the abolition of internal border controls in the European Union was the subject of a declaration inserted at the request of the United Kingdom not to participate in that project. Since that time, the

UK’s position has been consistently opposed to participation in both the abolition of internal border controls in the European Union and the refusal to participate in the external border control activities, with a number of exceptions, where the UK has sought to participate, for instance in FRONTEX. This has been challenged by the Council, and the Court of Justice has found that the UK, as it does not participate in border controls, cannot participate in those parts of EU border controls where the UK Government has perceived this to be in its interests. As regards border controls, the UK remains very much outside and has been since the EU began to develop a common border control policy.

In respect of a common immigration and asylum policy, there is a slightly different scenario.

After the introduction of competences in 1999 for the European Union to adopt legislation in the field, the United Kingdom has participated in the development of the common

European asylum system and in all the measures in the first phase. However, the second- phase measures, the last of which were adopted in July this year, have been quite a different

241 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) matter. On the second-phase measures, the UK has opted out of all except two, the Dublin

III and Eurodac regulations.

On immigration, from 2000, the United Kingdom notified the Council that it would not be participating in the family reunification Directive. It has not participated in the long-term residence Directive, or in EU measures on students, researchers, employees and labour migration. So the UK has remained consistently outside all the measures on EU immigration.

On the fight against irregular migration, the UK has participated in some of the marginal measures, carrier sanctions being one of them, but remains outside the major measures, the

EU returns Directive in particular. Thus the role of the UK in respect of borders, from the perspective of the European Union, has been consistently negative, if I can put it that strongly. On the development of a common immigration policy, it has been, as seen from the perspective of the other Member States, ambivalent, to put it at its strongest. In respect of the common European asylum system, again from the perspective of the other Member

States, the UK has been unhelpful, particularly to the extent of having opted into the first- stage legislation and not into the recast legislation. Thank you very much for your attention.

Q3 The Chairman: You did not mention, which is perhaps worth mentioning, that the

UK gives very broad support to the activities of FRONTEX, and indeed subscribes to some of their costs. It was stated in our own national security directive review that the effectiveness of FRONTEX was in our national interests. The UK has also made a huge investment in the Schengen Information System, which is due to come on stream fairly soon and which the British are seeking to rejoin after the block opt-out. I mention those because they surely offset to some extent the negative view that you have taken.

Professor Elspeth Guild: I would clarify to some extent the FRONTEX question. The

Court of Justice of the European Union found in 2007, when the UK challenged its exclusion from participation in FRONTEX, that, indeed, under the terms of the UK’s opt-out, it is not

242 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) entitled to participate. This may explain why the UK authorities have expressed such interest in practical co-operation. The degree to which practical co-operation is indeed lawful, following the judgment of the Court of Justice of the European Union, is a matter that may eventually require clarification by the court. There is certainly a question as to whether practical co-operation is lawful if the legality of participation has been excluded. As regards the Schengen Information System, the UK is of course excluded from all parts of it that relate to the signalling of persons to be refused admission to the European Union. The majority of the information on the Schengen Information System II is in fact information on third-country nationals to be excluded from entry into the Schengen area. The UK cannot have access to that part of the database because it does not participate in the borders policy.

Professor Steve Peers: I think I would answer the question from the perspective of the process of drafting these programmes. On all three occasions I have looked in detail at the drafts of these programmes as they were being negotiated, and commented on them on the

Statewatch website and so on. With Tampere, it is very clear that there was a different process. That was a programme that the European Council was the author of: the Member

States, heads of state and Governments. There was little input beforehand from national ministries of justice and home affairs. What is interesting with Tampere is that, although it is usually supposed to be just the heads of state and Governments, plus maybe Foreign

Ministers who meet in the European Council, on that occasion our Home Secretary, Jack

Straw, went out to Finland somewhat unofficially to participate. That shows you that we had a genuine impact. I remember some of the changes that were made at the UK’s behest. It was supposed to be called the uniform European asylum system, and Jack Straw insisted it be the common European asylum system. As Professor Spencer said, it was certainly the British

Government’s intervention at Tampere that made sure that mutual recognition became the centrepiece of both criminal and civil law as well. It dates back to the British presidency of

243 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) 1998 when the mutual recognition principle first began to be developed. This was a kind of continuation, but if you look at the subsequent two programmes, the Hague and Stockholm

Programmes, the European Council’s role has in practice been nominal. It is the official author of the text of these programmes, but you could say that they have in a way been ghost-written by the officials of the ministries of justice and home affairs of the Member

States holding intensive meetings and, mainly, the presidency of the Council, which took the lead in the drafting and redrafting in each of these two cases. It is hard to find an individual

Member State’s influence. Just from what I can remember from looking at all these drafts, it was almost entirely the presidency that was doing the drafting work. You do not see a lot of evidence of papers and comments from other member states. It was probably happening, but it is hard to trace back exactly what the UK’s Government’s influence was. It was bound to be less in 2004 and 2009, because by then we were using our opt-out and by 2009 is was just then being expanded as the Lisbon Treaty entered into force to cover policing and criminal law, whereas in 1999 the Amsterdam Treaty had just entered into force. We had not used it yet. We had applied to join parts of Schengen and so on, so the Government had to give much more favourable statements towards participation in this EU policy. As we detached ourselves more, our influence has inevitably become less. Although that jumps ahead to your question 8, it is useful in answering question 1 as well.

Q4 Lord Sharkey: Can you tell us what value these EU programmes actually add, and to what extent the Stockholm Programme governed or influenced the Commission’s approach to freedom, security and justice matters?

Professor Steve Peers: They set a sort of agenda which the Commission and to some extent Member States, where they have legislative and administrative power, take some account of. You can find quite a lot of account of it being taken over the years, but that has its limits. The Commission has proposed a European public prosecutor, for instance, which

244 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) was not mentioned in the Stockholm Programme. The Council itself does not always follow the Tampere programme, for instance. The Tampere programme included a statement that it was urgent that the EU have extensive legislation on legal migration. The Commission made an extensive proposal in 2001, and Member States were not at all interested in it. It took years before we started to have EU legislation on legal migration, in a piecemeal fashion. Equally, in 2004, the Hague programme talked about the second phase of the common European asylum system going ahead, and it took some years for that to come to fruition. Those deadlines were extended and the second deadline was missed for the creation of the common European asylum system. I think you can find cases where to some extent they have been followed and cases where to some extent they have not. Certainly, the Tampere programme had a bigger influence. Some of the text of the Tampere programme got written into the Lisbon Treaty, such as the concept of a common European asylum system and the central importance of mutual recognition. That is all now written into the treaty text, not just a political declaration but a legally binding set of rules. Certainly, in criminal law, you can see in the early years after Tampere quite a strong adherence to the idea that mutual recognition ought to be the rule. With the arrest warrant and other measures, that was the predominant approach for a number of years, until we started to have defence rights measures after the Stockholm Programme, which was one of the things that pushed defence rights. You can see that there is a significant degree of influence, but you can also find exceptions where the programmes have not really been implemented, either by the Commission or by the Council, in the way that was intended in the text.

Professor John Spencer: The value of these programmes is that they are an affirmation of political will to attempt to do something about a particular issue or particular issues. The problem is that they are just a statement of aspiration, and where laws are later needed to actually do something, the legislative process has to be followed. The fact that the aspiration

245 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) was stated earlier does not mean that there will later be the necessary consent to produce the legislation, but at least they give a signal of political will for something to be done and hence an encouragement to the Commission and other bodies to work in that direction.

On the extent to which the Stockholm Programme governed the Commission’s approach and so forth, there is a problem. The Stockholm Programme has never been the subject of a thorough and official evaluation. As the Committee will be well aware, this has been a matter of complaint by the European Parliament. Until there is a thorough and independent examination of what the Stockholm Programme has actually achieved, it surely makes less sense to start formulating another programme to follow it.

Professor Elspeth Guild: I would add, in respect of border controls, that the various programmes have not added a tremendous amount to the position of the European Union, which was formulated between 1985 and 1987 as being characterised by the objective of the abolition of internal border controls among the Member States and common external border measures. Thus the programmes had little to add in setting the objectives. In the field of immigration, the matter is quite different. When the powers were granted to the

European Union to adopt legislation in the field of immigration in 1999, they were written as powers. There were no directly effective rights. The Tampere programme was particularly important for all the legislative actors to know what the political will was towards the development of a common European immigration policy. That was particularly important in the beginning, and it gave body and a direction to the legislative programme that then followed. Now that we have a legislative programme, we have adopted all the main lines of a common European immigration policy. It is less clear what purpose there is in these programmes.

On asylum, I agree very much with Steve Peers. The position of the programmes is somewhat more ambiguous because the common European asylum system was stated from

246 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) the beginning as being intended to give full effect to the international obligations of Member

States in respect of the UN Convention relating to the Status of Refugees and its protocol, the UN Convention against Torture and of course the Council of Europe obligations under the European Convention on Human Rights. Asylum is a field in which the Member States are engaged at the international level in a variety of domains. Thus the objectives set out in such programmes are slightly more limited because the scope for action is indeed more limited.

Q5 The Chairman: None of you has mentioned either Europol or Eurojust which—I think there is common ground on this—are an extremely important development of recent years. That is reflected in the Government’s decision to wish to rejoin both those organisations. To what extent were they given impulse or momentum by these various programmes? Can any of you cast any light on that?

Professor Steve Peers: The genesis of Eurojust was in the Tampere programme, if I recall correctly. Europol goes back earlier. There was an agreement back in 1991 for an informal programme on justice and home affairs that was adopted at the Maastricht European Council at the same time as the Treaty that talks about Europol, and of course it was referred to in the Treaty. Now they are both referred to in the Treaties. But I do not think too much subsequent development of those measures has found its way into the programmes. There was a bit in the Stockholm Programme about new measures which the Commission has proposed that develop those agencies, but I do not think that there is too much in the way of detail about how they should develop in the Stockholm Programme. It is a little political impetus to use the powers to advise these agencies, but nothing much more than that. The principal importance was those initial conclusions, which defined the idea of Eurojust as a kind of central feature of judicial co-operation in criminal matters within the European

Union.

247 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) Professor John Spencer: I was looking at the Hague Programme in preparation for this evidence giving, and I see that there is a bit in there about the importance of bolstering

Eurojust and furthering mutual recognition. I suppose the Hague Programme helped to consolidate the position of Eurojust.

Q6 Lord Wasserman: Looking forward rather than back, although I very much take

Professor Spencer’s point about the programme never having been evaluated—it is difficult to learn lessons unless one has actually tried to evaluate a programme objectively afterwards—what lessons from the application of these previous programmes could or should be reflected in any new programme? I also take Professor Peers’ point that we may not need one, but if we are going to have one, what lessons can we learn about the application and usefulness of these programmes, and what they ought to contain to ensure that we can say that they are useful?

Professor Steve Peers: I suppose it is partly about checking to see whether what the programme says is being accomplished is actually being accomplished in terms of which legislative and non-legislative Acts have been passed that were planned to be. It is also partly about seeing the effect of those measures once they have been adopted, which is a much bigger undertaking and has to be done on a case by case basis—to see what FRONTEX is doing, for example. There are a whole series of evaluations of EU agencies and information systems, and assessments of legislation planned at different times, depending on when the legislation was adopted. I suppose you could somehow try to bring that all together in some kind of linked synthesis as part of your assessment of what the next programme should do.

It is useful to have a kind of ongoing assessment, which used to happen with Tampere. Every six months, the Commission produced a scoreboard to see what was actually happening.

That kind of approach to monitoring output seems to have been dropped entirely. It might be useful to have at least some modest version of that built in, as well as a broader

248 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) evaluation of how much of the Stockholm Programme was accomplished, were there good reasons, or not so good reasons, why parts of it were not accomplished and how that leads into what we want to accomplish in the future. Those are the sorts of things that should be taken into consideration.

Lord Wasserman: That is one lesson. What other lessons are there for future programmes? There is no point in writing an enormous number of papers for the sake of writing papers, although having been a civil servant I understand the value of writing enormous documents—it is fun and interesting. At the end of the day, what do we want to see in this programme? If we had a programme that was really useful, what would it look like?

Professor Elspeth Guild: I will answer that. The key to any effective and influential programme will be coherence and consistency. If there are two things that have been lacking as the programmes have developed from Tampere to The Hague to Stockholm, they are illustrated by the tendency to be blown off course by political events that then get written into these documents, which are clearly unhelpful to the consistency and coherence of the programmes. That of course leads us to where we are with the Stockholm Programme, the refusal of the Commission to carry out an evaluation, the production of two separate work programmes and the Council’s refusal to validate the Commission’s work programme. Does that not mean that the Stockholm was actually irrelevant? Part of the problem is the lack of consistency and coherence.

Q7 Lord Judd: As the exchanges have been going so far, one question seems to me fundamental. Do you agree that the issues with which we are dealing simply demand as essential an international approach? Would you say that on the experience so far, the EU has proved itself a sensible and relevant institution for tackling this, or do you believe that there should be some other arrangement?

249 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) Professor John Spencer: I find very helpful an evaluation of the Stockholm programme carried out by my French academic colleague Professor Labayle for the European Parliament.

He and his co-author have criticised the Stockholm programme for being too big and too windy in certain respects, saying sarcastically at the beginning that it was, “Davantage guidé par des considérations de marketing administratif et politique que par un souci d’efficacité”.

More constructively, this study looks at the pluses and the minuses, the things that have been a success and the things that have been less of a success. I commend this report to the

Committee because there is a lot of detailed examination of the different initiatives that have been useful and things that have been lacking.

The Chairman: That is very valuable. Thank you very much for that advice. We will certainly have a more detailed look at that report. I am sure that it is entirely capable of being used in our own findings. Rounding off this discussion about evaluation, am I right in getting the feeling that all three of you believe that there ought to be a proper evaluation of each of these programmes at some point in them before moving on to the next one?

Secondly, are you saying that that should come in the last year of the existing programme, or should it be a kind of mid-course one, in the middle of the four-year period? It would help if you could give a view on those two points.

Professor Steve Peers: I think it might be useful to have both a mid-term review to say what is going right and wrong so far and to ask whether the priorities need changing or adding to, and to have an end of programme review to draw the lessons that might be useful for drawing up the next one. Those two stages of review would serve quite different purposes.

The Chairman: You are getting very close to the painting the Forth Bridge syndrome, are you not?

250 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) Professor Steve Peers: I guess so. If you have these reports several years apart and they are clearly focused on different sorts of things, I do not think that they are being written for the sake of it. They in each case provide a useful contribution.

Lord Sharkey: In the business world, any such long-term proposal would contain in itself a method of evaluation right from the start. Would you think that this would be a good idea?

Professor Elspeth Guild: There is a counterposition on this. I have a certain sympathy with the reluctance of the European Commission at these times of very tight resources, when its budget has been cut, to being requested or required to a substantial amount of time and energy evaluating a programme that does not appear to be having a substantial impact in the development of EU policy.

Lord Sharkey: I think that was rather my point.

Lord Blencathra: I understand how one can evaluate a strategic plan, or a detailed programme, but if this, as a Member of the Committee has said, is more like a ministerial wish list, I do not know how one could evaluate that, even if it were to be implemented.

Professor John Spencer: I think the lesson surely is that you need a more concrete programme that is capable of evaluation. Then you need to build the mechanism of evaluating it into the programme, and to do the evaluation at two levels. You need to evaluate what the European Union has done to produce any necessary instruments to achieve the objects. Secondly, you also need to evaluate how far the member states have actually carried out their obligations under those instruments.

Q8 Viscount Bridgeman: In the light of that very interesting reply, particularly the last point about the behaviour of Members States under the future programme, what balance should be struck between encouraging practical co-operation and bringing forward new legislative proposals in the future programme? Own Government’s approach suggests that the Council should replace the Stockholm Programme with a set of strategic guidelines that

251 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) set out the overriding principles governing JHA co-operation, rather than with a new programme of potential legislation. What are you views? I link that with question 6: is there likely to be a tension between the Commission and the Council Member States on the development of the new programme?

Professor John Spencer: I am suspicious of encouraging practical co-operation as an alternative to providing a legal basis for doing things, if the things that are to be done are going to affect the civil rights of individuals. When I saw question 4,10 I thought back to what used to happen years ago in the days of extradition. We had an extremely garantiste law of extradition which nobody could use. It was evaded wholesale by networks of practical co- operation between the Metropolitan Police and police forces in other countries, under which they used to just phone each other up and say, “Would you mind arresting X please and putting him on a plane with a one-way ticket to Heathrow?”, where, surprise surprise, the Metropolitan Police would be waiting with handcuffs. It was frankly a shocking abuse and the House of Lords in its judicial capacity condemned it in ex parte Bennett, and quite right, too. From that point onwards we had to refashion a workable extradition law. It is because of things like that that I feel that we need a proper legal basis on which to undertake measures that are likely to affect the rights of individuals.

Professor Steve Peers: Data protection is another example of that, where the processing of personal data has to be prescribed by law. A very strong version of that principle has been developed by the European Court of Human Rights. We could not be exchanging personal data unless we have a legal basis for that. If we are going to have an information system at

European Union level, or a system of exchanging specific types of personal data such as fingerprints or DNA profiles on certain groups of people, you need a legal basis in place. It would make sense for it to be EU-wide basis if it is going to be some sort of EU-wide

10 Witnesses received a list of likely questions in advance.

252 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) process or system. If we are going to have more of those systems, which we do not necessarily have to have—it might be better not to have any more for a while—they have to have a legal basis, there has to be legislation.

I do agree, although perhaps this is not what the Government mean, that it might be useful to have a programme that, like Tampere, is largely a 10-page statement of principle that says not very much about specific legislation but leaves it to the EU institutions to work out what legislation might be needed. That might be less legislation than we have had in the previous programmes, but legislation would still be likely to be needed. A lot of it would be amending existing legislation. Tampere was before the EU had done almost anything in this field. There have been conventions such as Dublin, Brussels and Europol, but very little else. There was no European Arrest Warrant. There was no legislation on legal migration. There was nothing on asylum besides the Dublin convention, and nothing much on civil law. Since then, of course, we have had a tremendous amount, some of which works quite well and some of which does not. A lot of the focus should be on seeing which of that legislation works well and perhaps has to be left alone, which of it has flaws and should therefore be amended either to encourage its use or in the case of the European Arrest Warrant to restrict its abuse, and what needs to be codified: some parts of the Stockholm Programme that were not implemented talk about codifying immigration law, a police code and the EU’s private international law measures. To what extent would that be useful? Do we really need three fast-track civil law systems of enforcing judgments now that the main jurisdiction regulation has simplified the mutual recognition process of civil law judgments? Some of that is happening already. There is a proposal that is very much focused on practical improvements to the EU’s insolvency regulation. There was a new one yesterday on small claims. We do not have enough of that. There are a lot of obsolete measures and a lot of obscure bits of law floating around from the pre-Lisbon era. The Schengen convention is like a piece of

253 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) paper that has had shreds ripped out of it but is still vaguely hanging together, because there are bits of the convention and some of the measures implanted that are still in force, none of which necessarily holds together. In what the EU has done on firearms, there are bits of the

Schengen convention, bits of a directive that has been amended, and some separate international commitments, and the Commission wants to review it again. A lot of the focus ought to be on improving the legislative quality. You already have a paper on that from

Helen Xanthaki, with which I agree. I give you those as concrete examples of getting rid of obsolete text, bringing together in a codified and coherent way as much as you can the families of legislation, so that it is relatively easy to work out what the EU has regulated. It does not necessarily mean that the EU has to regulate much more than it is doing already in this area, because it is regulating quite a lot now, but it has to focus on doing it better and on legislation being improved not only in a technical sense, although that is important, but in a qualitative sense and reflecting what is happening on the ground, trying to avoid miscarriages of justice with the arrest warrant and issues like that.

The Chairman: Am I right that one of the things you are saying is that the European Union ought to get rid of some bits of defunct or improperly functioning measures, something that the European Union is extremely bad at doing and which the Government have certainly identified as one of the things that they would like to pursue? You are saying that that would be one sensible objective. Perhaps you can confirm that both of you are so far saying that this question of the juxtaposition of strengthening operational co-operation and new laws is a both/and, not an either/or. Have I got that right?

Professor Steve Peers: Of course.

Q9 Viscount Bridgeman: Following that, with your practical knowledge of the behaviour of the collective European animal, do you envisage tension between Member States and the

Commission?

254 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) Professor Elspeth Guild: In the field of border controls, the question for the European

Union at the moment is how to ensure the correct application of existing legislation rather than the introduction of new legislation, and perhaps the most important challenge is to ensure the correct application of the Charter of Fundamental Rights in the application of EU border controls. This is an issue we will probably come back to towards the end. In the field of migration, my colleagues who have submitted evidence to this Committee and also to the

Commission’s Meijers committee have indicated that they are in favour, I think with good reason, of the idea of consolidating the EU immigration measures into an immigration code.

There are too many different measures in too many different areas that should be consolidated into one so that a common set of rules applies. Of course this is not of particular interest to the UK, nor is the UK’s view likely to be particularly important in that context, as the UK has not participated in that process at all. On asylum, we have just adopted the second-stage common European asylum system. The UK has of course remained outside all the measures except Dublin III and Eurodac, so at this point it would probably be counterproductive to commence a whole new legislative process.

Professor John Spencer: To answer the question, at a high level of abstraction, of whether there is likely to be tension between the Commission and the Council on the development of a programme, well, yes. It has happened before and it is likely to happen again. However, does it really matter? Is that a reason for not trying to have a programme? No, because it is inevitable in any body that attempts to be democratic that different bits will occasionally disagree with other bits and that robust discussions will take place. So, yes, probably, but it is something that has to be faced and may not be altogether harmful.

Lord Morris of Handsworth: Please forgive me, but listening to the responses I detected a degree of mild dissidence about how the issues have been dealt with over the period. On a sector by sector basis, are there additions or omissions from the previous programme that

255 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) in your view the United Kingdom should see? Would a mid-term review be desirable, in your view?

Professor John Spencer: Yes. My shopping list of things that I would l like to see attended includes a new look at the European Arrest Warrant. It is a most important and valuable instrument, and it is a good thing that we have it. It would be a bad thing to lose it. At the same time and in certain ways, it can act unsatisfactorily. There should be a review of it at a

European level to see whether some of the more troublesome features of it can be cured.

Secondly, there should be action of some sort to try to create, or if it already exists actually to make work, a mechanism for the enforcement of criminal law across borders in minor cases. The European Arrest Warrant was designed to deal, I suppose, with organised crime, but we have the smaller problem of disorganised crime. On the one hand, of course it is not acceptable if somebody has committed a shoplifting offence in Warsaw that they end up removed by a European Arrest Warrant, which is a very drastic mechanism. On the other hand, it is not satisfactory if somebody who committed a shoplifting offence in Warsaw then escapes justice by coming to England and staying here. Underneath the European Arrest

Warrant, we need a better mechanism for dealing with less important cases by a more informal method, by enforcement across borders of fines between the Member States, on which there is a framework decision, although I understand that it is very rarely used. Third on my shopping list, and in this I am pushed forward by a number of people with whom I have spoken in preparation for giving evidence, the UK should push for further work in the area of EU defence rights. Part of the trouble with the European Arrest Warrant is the quality of justice in certain member states when people are surrendered there. That was really the problem with the Symeou case, which has been used as a stick to beat the

European Arrest Warrant. However, it was not unreasonable for the Greeks to want

Symeou back and try him. What was grossly unreasonable was for Greece to take two years

256 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) to try him when it got him back and to keep him in prison for one of them when he need not have been in prison at all. The UK most regrettably opposed EU defence rights in the mid-2000s. It then fortunately changed its position and went along with the road map of defence measures, although it has been a little reticent about it since. This is a shame, because if there is one part of English criminal procedure of which I am proud, it is the way in which we handle the pre-trial phase in criminal proceedings nowadays. We used not to do it well, but we cleaned it up with the Police and Criminal Evidence Act 1984, which put clear limits on the powers of what the police can do to individuals and on the length of time people can be detained for questioning, and above all gave the defendant the right to legal advice while he is being detained for questioning and imposed a duty on the police to tape record the interviews. When I see that package, it makes me proud to be British. Instead of being reticent in case our system gets contaminated by contact with Europe, we should be in the front, trying to persuade Europe to accept our values and our ways of doing it in this area. Pre-trial detention in particular is something else that we manage well on the whole in this country. Although we are always worried about the length of time it takes to bring people to trial and the length of time people sometimes spend in detention pending trial, we do it very well compared with many other countries. A Green Paper was published as part of the road map programme on pre-trial detention in the different Member States. The question was raised at to whether there should be some thought of EU legislation on the topic, and the UK Government’s official response was, “No, this is not an area for legislation.

This is an area for a sort of osmosis of good practice”. But I strongly feel that nothing is ever likely to happen in the countries that have bad practices of detaining people pre- trial for unnecessarily long periods unless there is some legislation. That is the shopping list of measures that I would like to see added to a programme.

257 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14)

Q10 The Chairman: To what extent is that last one dealt with by the European

Supervision Order which the Government are now, extremely belatedly, saying they wish to bring into effect?

Professor John Spencer: To some extent it is, but the European Supervision Order does not give the wanted person any right to come back to spend his time on remand in the relevant Member State. It is also disappointing how few Member States have actually implemented the European Supervision Order to date.

Professor Steve Peers: It is a fairly small number.

The Chairman: One other thing on the European Arrest Warrant. When we were taking evidence in the Protocol 36 inquiry, particularly in Brussels from the Commission, it drew a very clear distinction between attempting to improve the operation of the European Arrest

Warrant and, as it were, opening up the basic decision. Do you recognise that distinction as being valid, or do you have ambitions to go further than looking into the operation of it?

Professor John Spencer: I think we should do both. It is partly a question of education. I am pleased to remind the Committee that there is a study working on the European Arrest

Warrant, paid for by the European Union. The UK judiciary is one of the bodies that with others is running the study with a view to trying to disseminate better practice in relation to it. It is also a question of looking again at the instrument. It contains no overt peg upon which to hang the right of a Member State to refuse to hand somebody over in the case of possible infringement of human rights, and it would probably be desirable to include that.

There is also a question raised by Fair Trials International about the problem of successive

European Arrest Warrants issued by different Member States where there has been a refusal in one. There is also the thorny question of proportionality. These things probably require some consideration of the text of the instrument itself and not simply an attempt to try to make everybody behave sanely and rationally in the context of the existing instrument.

258 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) The Chairman: Do either of the other two members of the panel have any additions to

Professor Spencer’s shopping list?

Professor Steve Peers: Partly in response to a previous question, in which we were asked to do a shopping list of law reform and codification of existing laws, the sort of things which

I think should be added do not make a long list. I agree entirely that the regulation of pre- trial detention has to be addressed, along with reforming the European Arrest Warrant in particular, which I have mentioned already. In terms of legal migration, the EU has already picked out various areas. Apart from codifying the law, it would be useful to have some sort of measure regulating the encouragement of migration from people who are likely to come and make job-creating investments in the European Union. There should be something to try to restrain the more tawdry things that some Member States are doing, such as selling their citizenship. It would make more sense to regulate that in a way that requires someone to prove that they are going to invest a certain amount of money and create a certain number of jobs before they get a fast-track admission to the territory. Something like that that is very much focused on the EU’s economic problems—many of its Member States have very high unemployment—would be particularly useful to address. As I said, however, there is no need for an enormous list of new things that the EU should do. It has done a lot of the things that it probably should be doing already. The focus should be largely on trying to do them better.

The Chairman: But presumably the British Government would not be well placed to press for the one you have just mentioned, since it is almost inconceivable that they would actually opt into it.

Professor Steve Peers: Well, the British Government are in a particularly awkward position on justice and home affairs because they have opted out of so much and are in the midst of this process of opting back into some key measures, which, as I said, they have not

259 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) completed. They are in a particularly weak position on things like the European Arrest

Warrant, having not yet completed the process of being bound by it after 1 December. It would seem odd to be talking about reforming it. However, to the extent that we can have some influence it would be useful, although I sometimes wonder whether any idea put forward by the United Kingdom might even be toxic. It might be better coming from somebody else. Perhaps we should be encouraging our friends in Ireland, or the Netherlands or whichever Member States are on a wavelength with the UK to be putting forward ideas that we have, and not claiming authorship of them ourselves, because the mere fact that we are authors or even co-authors of a suggestion might generate a negative reaction. If another member state has an idea and we want to join them, they might say, “Please do not join us, you are going to damage our credibility”. It might come to that during negotiations in this area. Subject to this awkwardness of the UK’s position in the process, those are all objectives that we should put forward.

Professor Elspeth Guild: I put forward a perhaps slightly dissonant view. In the field with which I am concerned, borders, immigration and asylum, we do not need another programme. We need to spend our time and resources, which are limited at the European level, on ensuring that there is implementation of the legislation that has already been adopted, and that it is applied in a fully consistent manner with the Charter of Fundamental

Rights. That is where the nub is, not in spending the Commission’s time on drafting, revising, implementing and reviewing new programmes.

Q11 Lord Blencathra: Coming back to Viscount Bridgeman’s point to Professor

Spencer, one of the British Government’s criticisms is that the Stockholm programme was a shopping list, and the Commission picked its favourite items and ignored the rest. If we present it with a new shopping list, again its members may just run with their pet subjects.

260 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) That is where the Government seem to be keen on some general guiding principles. How would you answer that point?

Professor John Spencer: The shopping list was too long. If it had fewer items on it, it would have been harder to pick and choose.

The Chairman: The Government’s main criticism, if I understood it rightly, about how the

Commission had implemented Stockholm was that it had come forward with a proposal for the European public prosecutor, which was not called for in the Stockholm Programme. But since they have actually precipitated a yellow-card procedure—the full yellow-card procedure has now come into effect, and we do not know yet what the reaction to that will be and what the next stages are—I would have thought that that was more a lesson to the

Commission not to step outside these broad strategic guidelines, rather than saying that mentioning specifics in the programmes is necessarily a bad thing. We will have to take evidence from a number of people, including the Government, and they have already given us written evidence on that.

Q12 Lord Judd: Looking at some of the most significant security and humanitarian issues facing Ministers and Governments in the community, do you think that the revelations about

US surveillance of communications in the European Union, or the death of migrants trying to reach the EU, are likely to influence the development of the strategy? Indeed, should they?

Professor Steve Peers: I tend to think that they should, but I have my doubts as to whether they will. Already, even in the midst of the furore over the spying issue, one of the issues at the last summit meeting of the European Council was an attempt to delay discussions on EU data protection legislation for another year. At least, that is how the Government suggested its position has been agreed. It is not quite clear whether it was. So rather than seeing this as a chance to address this as a matter of urgency, given that we have had proposals on the table since January 2012, exactly the opposite conclusion was come to: that we needed to

261 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) defer it. Equally, on the tragedies of the loss of migrants’ lives at sea, the immediate response from the member states in the Mediterranean was to say, as a red line, that they would refuse to negotiate on the parts of a proposal already on the table that dealt with maritime interception and search and rescue and that were most directly concerned with saving lives, or with disembarkation and what happens to the people you do save and where they go afterwards. Instead, the Italian Government have set forward this idea that there should be a military operation, even as an EU measure somehow. From a legal point of view it is obviously rather suspect that the EU could adopt a military act in the field of migration just outside its external borders. That is questionable. Of course it would also, if you take this approach, avoid the application of that legislation I mentioned, even if it is adopted, because it only deals with operations co-ordinated through FRONTEX. A purely military operation would probably not be co-ordinated by FRONTEX. I am a little cynical about the effectiveness of the EU’s response to these sorts of issues so far. I wish that I could say something more positive, but I do not think that is possible. I would hope that there is a more positive response to these issues in the next programme, but the immediate reaction does not suggest that there will be.

Q13 Lord Judd: Do you have any specific suggestions on how, if it were to respond, it should respond?

Professor Steve Peers: On maritime interception, you already have that proposal on the table, which tries to go into some detail about search and rescue issues and about disembarkation. That could be improved upon, but a lot of the details there are already quite sensible and could simply be taken more or less as they are, like expanding the scope of that proposal so that it covers all maritime interceptions, not just those applied by FRONTEX.

There are issues about what members states do in preventing people leaving the territorial waters of third countries and issues like that, which perhaps ought to be addressed as well,

262 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) because that may contribute to these sorts of tragedies. Perhaps the EU should be more engaged in the sources of these problems, in trying to deal with the Syrian refugees in

Turkey and Lebanon, for instance, trying to develop more resources for the situation there and to help the people who are there to have a better life for the duration of that conflict, and resettling a much more significant number of them into the European Union in a coherent way. Those are the sorts of solutions there.

The situation with the United States is a slightly more awkward question, because purely national security issues are not directly within the EU’s competence, so we would have to look at it in some detail to see exactly where there is an impact upon EU law and exactly how EU law could address these issues. One power the EU does have is to adopt a foreign policy measure dealing with data protection issues. That is not part of the package of the two proposals that the Commission made in 2012. One of them is about data protection in the civilian context of websites, search engines and so on, and the other is about law enforcement agencies and data protection. It is not technically a justice and home affairs matter to have a measure dealing with foreign policy and data protection that would perhaps try to address some of the issues about spying, although I have a certain amount of cynicism about what you can do with a third country, especially one as powerful as the United States rather than a small country trying to join the EU and dependent on it for money. There is a certain limit to what we can expect and demand of the United States. How can you really stop the United States from spying on people if it really wants to? Even if it agrees not to do so, do you really think that it will not? I have a certain amount of fatalism, I am afraid, on that point. However, at least something could be attempted in the area of foreign policy measures on data protection.

Professor Elspeth Guild: Can I add to that? Dr Hein de Haas at Oxford University has undertaken extensive research on loss of life in the Mediterranean. He notes that before

263 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) 1991 and the introduction of mandatory visas on the countries of the southern shores of the

Mediterranean, there was no problem of loss of life in the Mediterranean. It was the accession of the southern Mediterranean countries—Spain, Portugal and Greece—and the application to them and the sub-Saharan countries of the Schengen rules on visa requirements that led to the transformation of the Mediterranean from a place of people moving back and forth in a fairly free manner to one where you have people dying.

The second aspect which he notes in respect of death in the Mediterranean is the passing of the Bossi-Fini law in Italy, where a presumption is created that any captain of a boat—fishing boats, et cetera—that recues people at sea and brings them to Italian harbours are traffickers or smugglers in human beings. Their boats are confiscated and charges are brought against them. They may subsequently be dropped because the captain is able to show that he or she was acting for humanitarian reasons to save people from drowning, but the consequence of this kind of legislation is to exclude the private sector, in practice, from saving people at sea. There is a tremendous amount of boat traffic in the Mediterranean, and tremendous commercial activities that take place by boat. If those boats were encouraged to assist people who are risk of drowning at sea and were not punished for complying with their state obligations in respect of the law of the sea, we would not have people dying in the Mediterranean. The state authorities have taken a monopoly for rescuing people at sea, and the result is that there are not enough Guardia di Finanza boats to rescue everyone.

The Parliamentary Assembly of the Council of Europe carried out a detailed inquiry called

Death at Sea in respect of the failure of NATO military ships, just before the Libya campaign, to rescue a boat of people, the majority of whom subsequently died due to lack of water and starvation, in the Mediterranean. The Parliamentary Assembly in its report came to the conclusion that, yes, the military warships were aware of the people in the boat but their job was other than rescuing people at sea. I do not think that a military solution will result in

264 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) fewer deaths at sea. We know what the answers are. We know in the European Union how we put into place the legislation that has resulted in the deaths at sea. Now, rather than to repeal that legislation and go back to a situation where people do not drown in the

Mediterranean, we are seeking a technological fix through EUROSUR, the military and whatever, somehow to find some other kind of solution. I would put this in a context of scale. According to the FRONTEX risk analysis 2013, just fewer than 25,000 persons entered the EU by sea irregularly in the preceding 12 months. According to a data collection operation carried out by the Council over the first week of September 2009, over 500,000 persons enter and leave the EU by sea per week. We have a problem of scale in which we are able to deal with 500,000 people entering and leaving the European Union by sea per week, and yet somehow we cannot deal with 25,000 arriving irregularly by sea. We have a very serious problem of scale in which fundamental rights are not being taken into account.

Q14 The Chairman: I think Lord Blencathra’s question has been answered by Professor

Peers already, but I want to ask Professor Spencer and Professor Guild whether they have anything to add to what Professor Peers said about whether the UK’s decision to exercise the block opt-out was likely to affect its negotiating influence in the context of this new justice and home affairs programme.

Professor John Spencer: It will adversely affect its position. Before saying that, I took thought as to what evidence I had for that. I am an academic, and I spend my life in a university where I never have to negotiate anything with anybody, happily. However, I know some people in this country and other countries who either are likely to be involved in negotiations or who were involved in negotiations in the past. I also have academic colleagues who have spoken to other people in other countries, who have spoken to similar people in other countries. The impression I have is that people who know about this in the other Member States have reacted with surprise and irritation at our exercising this block

265 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) opt-out, because they cannot see any intelligible reason for our doing so, a view that will not surprise this Committee because that was its view in its report on whether the UK should exercise the opt-out. So they think that in the process of our trying to opt back in again, we are wasting a lot of people’s time on something that need not be done, and that means time that cannot be spent on other things. There is also a feeling that it shows a position whereby we do not really want to join this or that in the end anyway, so why make concessions to us in the hope that we will? It is also a question of the perceived attitude of the UK in relation to Europe at the moment. We chose to join these measures we have block opted-out of, and that includes the ones into which we do not propose to opt back in. Our European partners often think, “You had the choice to join these measures, and now you are trying to get out of it. What game are you playing?”. Previously, we have been a leader in the justice and home affairs area, or certain parts of it, and I am afraid that in consequence of this ill advised decision we are no longer in a position to be so.

Professor Elspeth Guild: I would only add that as regards EU border control policy, the UK has not had any influence since its decision not to join the Schengen area. As regards immigration policy, its capacity to have any influence has diminished dramatically since the decision in 2000 not to join the EU measures on a common European immigration policy. As regards EU asylum policy, the UK had a fair degree of influence up until about 2005-06. In the second-phase common European asylum system negotiations, however, the UK’s influence diminished dramatically as it announced that it would not opt into the new measures.

The Chairman: Thank you very much for that full and comprehensive run around the course, if I may describe it that way. That will be very valuable to the Committee. Thank you for coming and sparing your time for us, and bringing us your huge experience and wisdom.

Thank you very much.

266 of 485 Professor Elspeth Guild, Professor Steve Peers, Professor John Spencer—Oral evidence (QQ1-14) Professor John Spencer: Thank you, Lord Chairman. Thank you, my Lords. We are very pleased to be able to help you.

267 of 485 Matthew Heenan—Written evidence

Matthew Heenan—Written evidence

JHA to consider; An addition to the Schengen Agreement that non-signatory European Countries (the UK) can sign agreeing Schengen signatory citizens carrying prescribed medicinal cannabis, to transit UK with their medicine. Enabling UK citizens access to medicinal cannabis Bedrocan11 prescribed in a Schengen signatory Country and return to the UK with that medicine.

Why? Permitting transit of medicinal cannabis into UK will harmonise the legal status of medicinal cannabis across Europe and enable UK citizens access to quality controlled medicinal cannabis.

This submission is relevant to JHA Programme in the following policy areas: • Schengen area, borders and visas • Internal security • Police cooperation • Criminal justice • Civil justice • Drug control policy • Relations with third countries on JHA matters

Declared Interests The respondent uses cannabis for medicine reason and would likely meet criteria to be prescribed Bedrocan12 in a Schengen Signatory State. Access to quality controlled medicinal grade cannabis is impossible under current prohibited status of medicinal cannabis in UK. Therefore, it is in the respondents own interests for medical cannabis to be legally obtainable to avoid persecution. The respondent is submitting this evidence on his own behalf.

26 August 2013

11 Bedrocan - Since the first of March 2005 Bedrocan BV is the only company contracted by the Ministry of Health, Welfare and Sport for the growth and production of medicinal Cannabis. Cannabis Flos Bedrocan®, Bedrobinol®, Bediol® and Bedica® can be prescribed by doctors for both humans and animals. Web: www.bedrocan.nl 12 Netherlands Office for Medicinal Cannabis: The Healthcare Inspectorate can issue a Schengen Certificate enabling transit carrying medicinal cannabis. Web: www.cannabisbureau.nl

268 of 485 Immigration Law Practitioners’ Association—Written evidence

Immigration Law Practitioners’ Association—Written evidence

1. The Immigration Law Practitioners’ Association (ILPA) is a professional membership association the majority of whose members are barristers, solicitors and advocates practising in all aspects of immigration, asylum and nationality law. Academics, non- governmental organisations and individuals with an interest in the law are also members. Established over 25 years ago, ILPA exists to promote and improve advice and representation in immigration, asylum and nationality law through an extensive programme of training and disseminating information and by providing evidence- based research and opinion. ILPA is represented on numerous government, including Home Office, and other consultative and advisory groups.

2. ILPA welcomes the opportunity to submit some considerations in respect of this inquiry of the House of Lords Select Committee into the EU’s forthcoming agenda for the area of freedom, security and justice.

3. As the Committee rightly points out, assuming that there will indeed be a fourth multi-annual programme for the development of the EU area of freedom, security and justice, work will begin shortly or has in some cases already begun on what that programme should look like.

4. There are two main issues which we will develop in this submission: firstly, is there a need for a new five-year agenda for the development of the area? Secondly, is there a role for the UK in the development of the EU area of freedom, security or justice?

5. Regarding the first question, our comments are limited to the area of border controls, immigration and asylum within the EU’s area of freedom security and justice. As our expertise is in this field we will not comment on cooperation in criminal or civil justice.

6. The purpose of multiannual programmes for the development of the area of freedom, security and justice is to highlight the policy priorities of the Council in the field. The first of these programmes, the Tampere Conclusions13 in 1999, were particularly important because of the way in which competence for the area was passed to the EU, with many powers to adopt legislation but little guidance on where to start14.

7. The EU Member States transferred powers to the EU in the Amsterdam Treaty15, which entered into force in 1999, regarding the adoption of common measures on border controls immigration and asylum. However, those powers lack clear definition and certainly are not able to carry direct effect. The result was the need for political impetus to give definition to the initial area of freedom security and justice.

13 The Tampere European Council, 15-16 October 1999, conclusions 16/10/1999 - Nr: 200/1/99. 14 See Whose freedom, security and justice? EU immigration and Asylum Law and Policy, Guild, E., A Baldaccini and H Toner, Hart Publishing , June 2007. 15 The Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts, Amsterdam, 2 October 1997.

269 of 485 Immigration Law Practitioners’ Association—Written evidence

8. In 1999, as the Select Committee is well aware through its inquiries, the UK negotiated the inclusion of a protocol16 which permits it to remain outside the EU common system of border controls (the Schengen acquis17) and to choose whether to participate or not in measures in the fields of immigration and asylum.

9. The choice of the UK government of the time and subsequent governments to remain outside the Schengen border control free system has resulted in the UK being excluded also from measures regarding border security even in circumstances where the UK authorities have sought to participate.18 The maintenance of UK border controls with other EU Member States and indeed, the UK’s application of additional border controls on persons travelling by train from Brussels to London has shown the UK authorities’ determination to remain outside of the Schengen common travel area.

10. The first Schengen agreement was signed in 1985 followed by a second in 1990 and the abolition of border controls on the movement of persons among the Schengen states from 25 March 1995 (with some exceptions as regards France). The EUROSTAT statistical series, Crime and Criminal Justice19, commenced in 2007. The reports show that since the abolition of border controls among most EU states in 1995 there has been a stagnation of total crime reported by the police from 1995 with a small peak in some countries in 2002. Thereafter there are continuing substantial drops in total crime rates up to and including 2009. In the years following the big enlargements of the EU, 2005 and 2008, the EUROSTAT statistics show a continuing drop in total crime and a dramatic drop in motor vehicle theft.20 These statistics appear to indicate that crime rates do not rise when border controls on persons are abandoned.

11. Nonetheless, the UK authorities appear committed to maintaining border controls on persons arriving in the UK from a destination other than the Republic of Ireland.

12. A one-off data collection effort by the Council in 2009 which only measured movement of people into and out of the EU as a whole during one week (31 August – 6 September 2009) revealed that there were 2,130,256 entries and exits by non- visa third country nationals and 1,464,660 entries and exits by visa nationals.21 This indicates that there are probably more than 182 million entries and exits by third country nationals into and out of the EU annually. According to the latest published FRONTEX data, in the first quarter of 2013, EU border guards refused admission to 27,911 persons at the external borders.22 This information appears to indicate that EU borders guards are not overwhelmed by numbers of third country nationals seeking to enter the EU in circumstances where they do not fulfil the criteria. The

16 12008M/PRO/19 Consolidated version of the Treaty on European Union Protocol (No 19) on the Schengen Official Journal 115 , 09/05/2008 P. 0290 – 0292. See Council Decision 2000/365/EC. 17 See Council Decisions 1999/435/EC and 1999/436/EC of 20 May 1999. 18 See for instance the Court of Justice decision C-137/05 UK v Council judgment 18 December 2007 on biometric information in passports or C-77/05 UK v Council judgment 18 December 2007 on participation in the EU external border agency, FRONTEX. 19 See http://epp.eurostat.ec.europa.eu/portal/page/portal/crime/introduction (accessed 2 October 2013). 20 EUROSTAT, Statistics in Focus, Crime and Criminal Justice 15/2007, 58, 2010 and 6/2012. 21 Council Document 13267/09, 22 September 2009. 22 FRONTEX FRAN Quarterly, Quarter 1, January – March 2013.

270 of 485 Immigration Law Practitioners’ Association—Written evidence

FRONTEX data indicates that over the same quarter only 9,717 persons were apprehended irregularly crossing an external EU border. This data does not reveal a picture of urgent problems in the control of the EU’s external borders.

13. In respect of the EU’s development of law on the control of its external frontiers, the key measures have now been adopted, the Schengen Borders Code23 and the Visa Code24. It is not clear that there is any evidence based need for a substantial political impetus to the law on the control of the EU’s external borders. The main challenges to the control practices at the EU’s external borders have come in the form of allegations of human rights abuses and decisions of the European Court of Human Rights finding human rights abuses in some practices such as the push backs of little boats to Libya.25 The amendment of the FRONTEX regulation to include a fundamental rights competence was adopted in 201126. The implementation of the new competence is at issue but this is a matter of consistency with the EU Charter of Fundamental Rights.

14. In respect of the adoption of EU legislation in the field of immigration – this is proceeding in accordance with the initial programme set out in the Tampere Conclusions. As regards asylum, the second generation Common European Asylum System measures were adopted in June 201327. It is now a matter of implementing the new legislation correctly.

15. In sum, the need for a new multi-annual programme in the field of border controls, immigration or asylum has not been made out, in our opinion. The field has been subject to substantial legislative measures over the past ten years and it is now time to ensure their correct application, allow the courts to interpret their provisions and enable all institutions to incorporate their fundamental rights obligations fully in the field.

16. Regarding our second question, is there a role for the UK in the development of the area of freedom security and justice, as we have noted above, the UK chose not to participate at all in the development of the Schengen area of common border controls. As measures were put forward by the Commission (and initially also the Member States) in the area of immigration, the UK chose to opt into to very few of them28. It has remained outside all measures since 2004. In the field of asylum, while the UK opted into the Common European Asylum System measures in their first phase, in the negotiations towards the second phase instruments it has chosen to

23 Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code). 24 Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code). 25 Hirsi Jamaa v Italy (Application no. 27765/09) 23 February 2012. 26 Regulation (EU) No 1168/2011 of the European Parliament and of the Council of 25 October 2011amending Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union. 27 See European Commission - MEMO/13/532 12/06/2013. 28 See most recently Cm 8541, Third Annual Report to Parliament on the Application of Protocols 19 and 21 to the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) (“the Treaties”) in Relation to EU Justice and Home Affairs (JHA) matters (1 December 2011 – 30 November 2012) April 2013.

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remain outside all measures except the Dublin III Regulation29 on the division of responsibility for asylum applicants.

17. In light of the UK’s increasingly distant relationship with the area of freedom security and justice as regards border controls, immigration and asylum, even if the EU decides to adopt a new programme, there is no role for the UK in determining the priorities of the area.

2 October 2013

29 Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast).

272 of 485 Sajjad Karim MEP and Timothy Kirkhope MEP—Oral evidence (QQ136-144)

Sajjad Karim MEP and Timothy Kirkhope MEP—Oral evidence (QQ136-144)

Evidence Session No. 10 Heard in Public Questions 136 - 144

TUESDAY 28 JANUARY 2014

Members present

Lord Hannay of Chiswick (Chairman) Lord Sharkey ______

Examination of Witnesses

Sajjad Karim, Member of the European Parliament, and Timothy Kirkhope, Member of the European Parliament

Q136 The Chairman: Thank you very much for coming along today to give us some evidence on our inquiry, which is about the future Justice and Home Affairs programme of the European Union from 2015 onwards. It is probably but not certainly going to be set in terms of strategic objectives by the European Council meeting at the end of June, with the

Commission coming forward with a communication in a few weeks’ time. We are conducting this inquiry now in the hope that we can set a trend towards more upstream involvement in European Union policy by national parliaments so that we play a role in shaping the policy rather than reacting to it once it is pretty well set in concrete.

We have been taking evidence from a large number of people in the private sector. We are seeing the LIBE Committee later this afternoon. We have talked to NGOs and government officials and we will be talking to government Ministers next week—James Brokenshire and his colleague from the Department of Justice, and a lot of practitioners like Rob Wainwright and others. We have tried to cover the whole waterfront of the JHA activity in the period ahead.

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What would be very helpful to us would be if you could say a little bit about your views on where this programme should go, what direction it should go in, how it should be structured. We know that you, in the European Parliament, are following this very closely.

There is a European Parliament draft resolution around that we have seen on the future JHA programme, which we have had a look at. I must say, I brightened up quite a bit when I saw that paragraph 7, I think it was, praised the role of national parliaments, which is not something the European Parliament frequently does. It pointed out, which I think is self- evident, that in an area of shared competence like this, if there is to be proper parliamentary scrutiny it has to be done by both the European Parliament and the national parliaments, otherwise you simply do not cover the waterfront.

The usual rules for this, if I may put it that way, is that your evidence will be typed up and available to you to amend if you so wish, but it will go straight on to our website and then the amended version will be substituted after you have commented on it. We will draw on it in our report, which should be out about the end of March.

Could we begin by asking you a little bit about your feeling, as a European parliamentarian, about the future direction of the JHA programme?

Sajjad Karim: Good afternoon. As always, it is a real pleasure to appear before you. I will try to assist as much as I possibly can. I think the House of Lords Committee, of which you are both representatives, is extremely well informed as to where we are on this particular debate so far. In terms of future planning, I think that it is fair to say that there is recognition within the European Parliament among the current members—and of course that situation could well change drastically a few weeks from now—that there is a need to take a much more detailed look at how we can ensure that there is a much closer working relationship between this House and our national parliaments. Along with that, there is certainly from the centre right of the House onwards, including my own political party, the British

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Conservatives, and my group, the ECR, a feeling that a part of the debate should be an analysis of whether any future measures are integrationalist in their approach or constitute a much more co-operation-based approach. These tend to be the two policy-wide objectives that are coming into the frame.

In terms of where we are at this stage, we have had a number of reports go through the

House that have tried to bridge the gap between ourselves and national parliaments. My own work on the smart regulations agenda in the Legal Affairs Committee has done a number of things to try to address that. We introduced a timeframe for national parliaments to make known their views on any European Commission initiatives right from the outset, which we believe was the right way to do things.

All too often the biggest criticism I get in the UK is that our national Parliament is allowed to get involved only right at the very end of a particular measure, so I took the view that we needed to do something to address that. I am now currently extending that work, and one thing that I will be seeking to do is to extend the timeframe for those representations, possibly up to 12 weeks. That is my aim. Whether I get that or not is another issue but that is something that I will be trying to do.

I am also trying to develop the yellow card principle that we put forward last time round.

There is going to be a considerable amount of resistance to that and I think it comes down to a possible feeling among many MEPs that we should give more time to what we have done so far before we move on to any further stage. “Let us see if this is sufficient”. My argument is that if one looks at the record since the introduction of the yellow card, we are not in a particularly healthy place. Therefore, we should try to develop that further, but there is a very powerful argument on the other side as well.

Along with that, at some risk I think I should mention—because this will go back to

London—that when our national parliamentarians are engaging on this issue they should be

275 of 485 Sajjad Karim MEP and Timothy Kirkhope MEP—Oral evidence (QQ136-144) clear about the ideas that they are presenting on the national stage if those ideas have emanated from a European platform. When they are presented in the alternative, that becomes quite unhelpful here in terms of gathering the much broader basis of support that we need to attain. I will not develop on that particular aspect any further.

By way of introduction, I hope these remarks are sufficient. I am quite happy for you to probe me further on any of them.

Q137 The Chairman: Funnily enough, you have addressed an issue that is before the main House of Lords EU Select Committee at the moment, which is the role of national parliaments. If I may be forgiven for doing so, I would like to respond to what you said because the report of the EU Select Committee on the role of national parliaments, which will be coming out in April, among other things is likely to say something along the lines that you have spoken.

First, it is quite clear to us from all our contacts with other national parliaments that the eight-week time limit for putting in a Reasoned Opinion is absurdly short, and this has two consequences. One is that parliaments are hard-pressed to get through their own procedures in time to table a Reasoned Opinion. Every parliament has its procedures. In our case, the committee concerned has to draft a report and a Reasoned Opinion. It has to go through the main EU Select Committee. Then it has to be approved by the House. That all takes time and eight weeks is not very long.

It is hard enough to do that, but above all what the eight-week limit does is to inhibit, virtually to nothingness, the ability to network with other national parliaments, and yet the whole system of yellow card demands intercommunication between different national parliaments. You are not going to get a third of national parliaments to agree on a particular proposition being outside the scope of subsidiarity just by magic or by snapping your fingers

276 of 485 Sajjad Karim MEP and Timothy Kirkhope MEP—Oral evidence (QQ136-144) and telling everyone to stand in line. You are going to get there by telling other parliaments why we think it is like that and them responding and telling us why they do as well.

So we would strongly applaud—and I am certain we are going to put forward as our own—a proposal to get the Commission, without changing the Treaty, to extend the period that it will accept a Reasoned Opinion as being valid to at least 12 weeks; it could even be 16.

When you look at the timescale for most Commission proposals starting off in a pre- legislative consultative phase and going through the co-decision work with the Parliament, eight weeks is a blink of an eye, frankly. So why do national parliaments have to operate in a shorter timeframe than anyone else—than the European Parliament, than the Commission itself? We are the ones who are completely constrained.

We also do think that the Commission has yet understood how the yellow card really ought to work. In our view, the yellow card ought to mean, if it is triggered—that is to say, accepted by one-third of parliamentary assemblies—that at the very least the Commission either withdraws the proposal or amends it in a substantial way. But to do as it did over the

European Public Prosecutor’s Office recently, to simply send back a letter to 19 parliamentary assemblies saying that they had not understood the law properly and would they please go and jump in the lake, will not do. That is a change that could be made without treaty change. It could be made by the new Commission recognising that when a yellow card is triggered, it is a serious event in the European Union’s legislative process and has to be treated seriously.

I am very delighted that you are pursuing that line. It is not strictly germane to our inquiry now, which is about the future Justice and Home Affairs programme. Perhaps we could move back on to that. Lord Sharkey might like to put a question or two on justice and home affairs to get a dialogue going.

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Sajjad Karim: If I may just for the record say that I have managed to get a copy of the communication from your House to the Commission following that rather unfortunate episode, which was quite an embarrassment from an EU institution perspective. I am not the only MEP who has taken that view, but I think there is a certain element within that of the

European Commission still trying to come to terms with the fact that its competences may not be as wide as they always were in the past. Anything that national parliaments can do in order to help the European Commission to move on to present realities is something that will be welcome by my House. Sorry, I just wanted to make sure that was on the record.

Q138 Lord Sharkey: That is very helpful. The Stockholm Programme was ambitious. It was certainly lengthy and quite detailed. What is your view about what of all that in there did lead to some kind of action and what bits—you touched on this earlier—still need to be completed coming out of the Stockholm Programme?

Sajjad Karim: I will certainly come on to it but the details of this will be dealt with by my colleague Timothy Kirkhope, who I think is coming to address you immediately after I am finished today.

Lord Sharkey: Perhaps taking that point, let me ask you another question if I may. It is true that Stockholm Programme was itself ambitious, lengthy and detailed. Do you think, in the current climate, given the things you have been saying, that it would be right to repeat that kind of lengthy, detailed and ambitious guidance, or are we looking for something that is a different approach this time around?

Sajjad Karim: There are two issues here.

The Chairman: Mr Kirkhope, we have just started on the new justice and home affairs programme. We have had a little discussion about the role of national parliaments and the yellow card up until now and we have just started on justice and home affairs.

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Sajjad Karim: I have not commented on areas that you will be addressing, but just on the specific question that has been put to me now, in terms of approach there is something to be said about not having the type of detail that we may have had previously to having something in documentational form that is much more succinct, possibly setting out the objectives that are to be achieved without necessarily being prescriptive.

From my view, speaking on behalf of my Committee, I see a certain amount of danger with that approach, as well as the benefits. The danger is that we could quite easily find ourselves in a situation that links into the comments I made earlier about the attitude of the

Commission in terms of the very wide way in which aspects of the Commission may interpret such a succinct document almost as a licence for them to use it as a blank canvas, to go away and take an approach that is much more integration-orientated as opposed to co-operational. I am putting it in very diplomatic terms, but that is a big danger from my perspective.

Lord Sharkey: Now that Mr Kirkhope is with us, perhaps I can go back to a question that is to do with the Stockholm Programme, which I characterised as ambitious, lengthy, and detailed. What of the Stockholm Programme did in fact lead to action and what areas are in progress and still need further development?

Timothy Kirkhope: I will just make a general point about the whole Stockholm Programme operation, what its intentions were and what it has achieved. First of all, of course, I acknowledge the fact that this needs—as far as the European Parliament is concerned— formal input, because clearly the Stockholm Programme is a matter that has come from elsewhere. In other words, it is a Commission matter. We are entitled to put our input into this and be involved in that way in it, but I am not totally sure that this particular programme has worked terribly well. That is the first thing.

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Secondly, there is supposed to be a mid-term review and here we are, four months from election and the end of the current Commission, and that is not exactly, in my view, very sensible either. I think that there has been a piecemeal and disjointed approach as far as the programme is concerned. It has become a repository for a whole lot of things that are outside a narrower approach, which we would rather like to have seen. It has gone down all kinds of avenues, which I am not very happy about. These are criticisms.

I was very happy about and very supportive of the whole package to do with procedural rights: the interests of children, which I think has been very important, children in criminal proceedings, and issues on the presumption of innocence. These sorts of things seem very fundamental and yet, in the case of the children proceedings, this has only just been taken up by the European Parliament rather late in the day. So those are things where I am being a little bit critical.

If you want me to go on and talk about other areas in terms of mechanisms or the areas of involvement, I will do so.

The Chairman: Yes, please do.

Timothy Kirkhope: Would you like me to do that?

The Chairman: Yes, it would be very helpful because you have very long experience.

Timothy Kirkhope: I have done some notes on some of the things.

The Chairman: Perhaps you could share your notes with us afterwards.

Timothy Kirkhope: I would be very happy to. Can I just express another area of disappointment? This is disappointment to our political group. It was this whole question of security. This is a hot topic. Security affects all of us and it is of rather wider interest than just, say, UK interest. I think there should have been a much more co-ordinated approach to police co-operation issues. There should have been a much better and more co-operative and co-ordinated approach to border management. This does not necessarily get me, I hope,

280 of 485 Sajjad Karim MEP and Timothy Kirkhope MEP—Oral evidence (QQ136-144) too much into freedom of movement, although that is something that maybe you will ask me about and perhaps I would like to comment on.

The Chairman: No.

Timothy Kirkhope: Certainly, border management—the issues of the security of the

European Union and thereby the security of the Member States—seems to me very important and I do not think we have quite grappled with that properly. We have not got to any coherent position.

There has been progress in relation to the prevention of attacks on information systems, the whole area of cyber threats. I think that is important and is going to be even more important in future, of course.

I would say—would I not?—that there was little progress made in the area of EU PNR, which was my report. This was purely political, based upon a general connection with data protection and the views that anything at all that dealt with the data of individuals should be held up until we have got the data protection measures through. As they are likely to be bogged down for a considerable period of time, it has meant that reports like mine on PNR have been unfairly prejudiced, because they are vital in relation to EU security or the security of European citizens. The establishment of an EU terrorist finance-tracking programme is fundamental and very important indeed. Also, we are still at the very beginning of our work on the registered travellers programme, for instance, the entry-exit systems and so on. So I do think that there was a lack of focus in relation to internal security as well.

I will say one more word on this general aspect. As I said a moment ago, this issue of tying into data protection is clearly going to be a massive issue for the next term. The other thing is burden sharing and solidarity between Member States. There is a question mark here in relation to asylum and migration and, of course, the overall position on co-operation

281 of 485 Sajjad Karim MEP and Timothy Kirkhope MEP—Oral evidence (QQ136-144) between the states on a whole lot of security issues. The frustrations are clearly there. This is not helped by individual governmental difficulties of one kind or another.

Q139 The Chairman: Thank you. On the PNR, since you are the author of the report I will just tell you that your dismay at the way it has been sidelined for the moment is entirely shared by our Committee, who have just conducted some correspondence with British

Ministers, who are also frustrated. We are following it very closely and I hope very much that you will be able to unblock this after the elections because the new element that, it seems to us, ought to be sharpening everyone’s mind is the threat from people returning from Syria—the so-called Syrian jihadis. To suggest that that is not a potential threat to all our countries is just foolish, in my view. There is plenty of evidence that it could be. There is not yet evidence that something horrible has happened but it could, and of course the PNR issue is highly relevant, because if one of these people gets into any European Union country and then starts moving around, there is no way of tracing them at all unless you have both extra- and intra-PNR.

Timothy Kirkhope: No one has joined with us, Lord Hannay, in the argument. There has been no real joining of the discussion or debate or dismissal of our points that we are putting on why PNR is so important. That is not the point. Our problem is that we have done everything we could. My staff and I have done everything to try to make the process as easy as possible, even for those who are concerned. We have reassured regarding the question of data protection and the backloading that will inevitably come once it goes through on to my measure, as well as in other ways. We have done that. We have shown evidence from some extremely professional people. We have had Europol. We have also had British expertise, and expertise from France and elsewhere, to tell people why PNR is important in terms of our security and the dangers that have been averted as a result of

PNR being used.

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We have done everything in that way. We have done everything administratively that we could. We provided extra time. We provided many meetings at which people were asked to help us to prepare compromise amendments. Having the other parties withdrawing their support is particularly disappointing. This is not a political discussion but it was very disappointing to see a major group such as the S&D in the Parliament here being so unhelpful to us. That has been very disappointing. All of these things are based upon a wish for this not to impinge on other people’s work, which is a fairly selfish approach if I may say so. We are not losing track. We are leaving this in a state that we hope is sufficient, first of all, for it to continue and, secondly, for us to be able to pick it up again.

The only other thing I wanted to add was that we heard rumours that there had been a decision that there would be a totally new proposal coming from the Commission in this field following the elections. I cannot get that confirmed. I would be very disappointed if that were the case because it would mean starting from scratch. It would also mean a great complication regarding the bilateral agreements, which, as you know, are the big danger here. I think it is 12 nations that are in the process of setting up or exploring the possibility of taking forward their own PNR arrangements. The idea that these should all end up as bilaterals would be very serious, and I hope that it does not happen.

The Chairman: Yes, absolutely. That must be right.

Sajjad Karim: Perhaps I could just add to that. By not taking the PNR agenda forward, we are flying right in the face of another Commission programme under the RAN, which is a network that has been established, in fact by Commissioner Cecilia Malmström herself, with a view to dealing with a number of issues, but in particular the point that your Lordship started off with in terms of export of people from Europe who are wanting to go elsewhere to carry out terrorist activities. So the right hand certainly does not know what the left hand

283 of 485 Sajjad Karim MEP and Timothy Kirkhope MEP—Oral evidence (QQ136-144) is doing in this particular scenario. We cannot have an effective RAN policy if we are not going to have an effective PNR policy.

The Chairman: Absolutely. I think we can all agree, basically, from this discussion that there is total agreement that one of the activities of the new JHA programme must be to complete unfinished business, which is a normal thing in the European Union. Look at the single market, for example. Unfinished business means both PNR and data protection. These are two huge bits of business that, in my view, have got undesirably closely linked but nevertheless, in the new period, instead of charging off looking for new laws to pass, I would have thought we need to get properly on to the statute book the ones that have already been put forward by the Commission. That is very much common ground between those of us conducting this inquiry and yourselves.

Timothy Kirkhope: It is quite interesting, on the Stockholm Programme generally, to look at the contrast between the ambitions, including the UK Government priorities, that were expressed and what we have actually achieved and the way in which the political atmosphere has moved on since those indications. There were quite a lot of things we were talking about. I have no doubt that Sajjad will have spoken to you about civil matters but certainly, as far as I am concerned, some of the areas in mutual recognition and also the issue of our attitudes beyond our borders, the actual third country support and returns, readmission and so on—all these things were strongly expressed by our own Government in the initial stages, and also exchanges of information and, as I said before, the position regarding children. They were priorities. I think it is quite disappointing that we seem to have been slightly distracted, shall I say.

Q140 The Chairman: We must not take our eye off the ball. There is a lot of unfinished business and it is highly desirable that it should be finished, like the criminal asset-freezing proposals that are currently on the table, PNR, data protection and so on. I think one of the

284 of 485 Sajjad Karim MEP and Timothy Kirkhope MEP—Oral evidence (QQ136-144) areas that we will want to remind the Government of is the need to bring these to fruition. I hope that will ring some bells and help you in your work, too, because clearly the European

Parliament is the co-decider in all these matters. I think there is a lot there for the new programme.

Could we have a look now, just for a minute or two, at the vexed issue of evaluation and assessment of existing programmes? We have been very struck by how unsuccessful that has been so far. The mid-term review of Stockholm, as you said, never properly took place. The

Commission said it was too busy to do it, and there are bits and pieces of evaluation going on all over the place. Sometimes the Commission evaluates itself, which is probably not usually a desirable feature. So the whole issue does arise in the context of the new programme. Do you have any thoughts on that?

Director-General Manservisi, giving us evidence yesterday, took the view that it might be sensible to focus the mid-term evaluation issue around something that has already been agreed, which is the need to evaluate the internal security funds, which have now been agreed under the multilateral framework, in about 2017. This did not seem to us an entirely stupid idea, although of course it works better on the home side than it does on the justice side because there is not very much expenditure on the justice side. I think his thought was that any such evaluation would only be a value-for-money one and would be based on the need that the Commission has already accepted to produce a lot of material on that at that point in time.

Perhaps you have some thoughts about evaluation and assessment. I think that is another of the areas where the European Union has not really been up to the mark so far.

Sajjad Karim: I think it may be better if Tim starts on that and I will come back in, but if I may, Lord Hannay, you finished off on what needs to be completed in the programme, but there is another side to this. There are aspects within our programme that actually should

285 of 485 Sajjad Karim MEP and Timothy Kirkhope MEP—Oral evidence (QQ136-144) not be completed and we should be doing what we can. For instance, we are now entirely reliant on Council kicking the common sales law off into the long grass. This is an initiative of

Commissioner Viviane Reding, very much a personal ambition of hers. It is a part of the overall programme but it certainly is not something that we as a political group would be wanting to push for completion on—or indeed as a Government, either.

I do not want to stray on to Timothy’s remit so I will allow him to come in and if there is anything left from my committee’s perspective I will build in with that.

Timothy Kirkhope: I want to add a remark or two here about this, looking ahead now. One of the things that we have found, apart from my complaints about individual items, is that in general—I mentioned the mid-term review business before, we all realise that—there seems to me to be a little bit of a difficulty in terms of Commissioners’ responsibilities. You just heard mentioned the Vice-President of the Commission, Viviane Reding, and Sajjad also mentioned Mrs Malmström. It seems to me that it should be delineated precisely what they do and what they do not do. That would appear, on paper, to be perfectly clear. We, of course, have a slightly different relationship, to be frank. I have very different relationships with Mrs Malmström and Mrs Reding. Mrs Malmström has been, to my mind, a very good facilitator in a lot of areas, I find it more difficult to deal with the other, but I am not here to make a gripe at all and I am sure she would not be too happy about that.

It seems also that there is an argument, although with comparatively little coherence, and also we mentioned this question of methodology in terms of the timing of presenting proposals and how they fit into this larger picture that we are looking at. I am trying to think of an example now. I cannot immediately think of an obvious one, but there have been a number of occasions when it does seem to me that there are thematic divisions between these two Commissioners. Dividing fundamental rights in migration, security measures and data protection does not seem, to me anyway, to make a lot of sense.

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Q141 The Chairman: Perhaps I can add one to your list. We did a review of the

European drugs strategy some two years ago. We concluded that the division between

Reding and Malmström was completely absurd. Malmström had responsibility for the

EMCDDA, which is the absolutely crucial tool in defining European policy on drugs, and

Reding had responsibility for legislative action and has indeed just come forward quite recently with a proposal on psychoactive substances on which we submitted a Reasoned

Opinion, because we thought that she was wrong in believing that action against psychoactive substances was best taken at EU level. Our own view is that it has to be nearly always taken at the national level because the first you know about a new substance is when somebody drops dead in east London. It is no good sitting around saying that the gentlemen in Brussels will sort all that out in about six weeks’ time.

Timothy Kirkhope: We may have been running a slightly different agenda here, but never mind, I agree with the issue. As far as the themes are concerned, though, there is this confusion.

I would add one more thing, and this is a broader sense, and that is that I am operating on a legislative committee. A lot of the things that go through my committee and take its time are vital, but they are essentially legislative things. I must be careful, but in my opinion the committee has wasted an enormous amount of time on non-legislative initiatives in the form of own-initiative reports, resolutions and something like an investigation into “the situation in Hungary”. Then we had this NSA inquiry and, whatever one thinks about that subject, this has eaten into an enormous amount of time and resources of the committee and that has not helped us to move forward on a number of quite important legislative measures, including the co-operation areas and so on.

As I say, a number of files were taken out because of the institutional disagreements about them, including my own PNR, but it just seems to me that we need to address again this

287 of 485 Sajjad Karim MEP and Timothy Kirkhope MEP—Oral evidence (QQ136-144) issue. If you have a legislative committee, that committee ought to be directed, as far as we can, to deal with legislative matters primarily, and not to spend as much of its time as it has done on areas that, in my opinion, are not really as worthy.

The Chairman: I have to say to you that, having given up long ago trying to introduce any reforms to the procedures of the House of Lords, I am certainly not going to start now trying to reform the procedures of the European Parliament.

Timothy Kirkhope: I think the procedures are written fairly clearly, but we have been ignoring them too much.

Sajjad Karim: In terms of my committee, within the Stockholm Programme there is quite a lot of reference to better law-making throughout it. However, the past few years would tend to suggest that we still have far too much policy-based evidence coming forward rather than the other way round. Therefore, on the whole issue of impact assessments, despite the fact that we within Parliament have now established an impact assessments board in order to have further transparency and independence in place, from a Commission perspective we are still finding far too much coming to the Parliament where they basically go and find the evidence to back up whatever policy they want to put in place.

The best example I can give you is the one I referred to before, the European common sales law initiative. We have seen that as a perfect demonstration of exactly that happening, and certainly in terms of review one would expect some light being shone on that in a review process.

Q142 Lord Sharkey: Perhaps I could add to that. When we looked at the mobility partnership arrangements, which are a key tool in the GAMM, we were surprised to see a very inadequate level of evidence that the Moldova partnership was achieving what it set out to do. This is not to say it was not, it is just to say that the evidence presented was flimsy, inadequate and really rather amateur. Hence the question earlier about the need for more

288 of 485 Sajjad Karim MEP and Timothy Kirkhope MEP—Oral evidence (QQ136-144) robust forms of measurement and also perhaps the need to not mark our own homework, as is currently the case.

Previous witnesses have talked to us about the need within the new JHA programme for consolidation, implementation and monitoring of the effectiveness of measures that are there or about to be there from the Stockholm programme. Are there policy areas that are not there that you would want to see in a new programme, either via legislation or via a change in the strategy or greater co-operation?

Timothy Kirkhope: I do not want to hark back at all here, but it does seem to me that the priorities we set out for the programme were sensible priorities, and the problem is that we have not achieved them. One could say, “What would be another programme, what would be our next set of objectives?” I would rather like to see us complete the objectives that we set out in the first place here before we move on to a lot more things. It was a very ambitious list but it was a list that was perfectly achievable and would have moved matters on quite well in terms of European co-operation. We have not done it.

Lord Sharkey: No, but does this mean that you do not see the need for a new JHA programme?

Timothy Kirkhope: My colleague will probably disagree with me totally here. I do not want to say anything completely out of hand, but my view would be that the new programme should be a programme that completes first the things that need completing.

Q143 The Chairman: We took evidence from the Commission yesterday and interestingly enough, considering they are always supposed to be desirous of putting endless new laws on to the statute book, they spoke quite firmly about the need for a period of consolidation and better implementation—and we have heard that from Government representatives too. I think that message is going to come through. It seems to me that in the past 10 years we have established some extremely important agencies: Europol, which is

289 of 485 Sajjad Karim MEP and Timothy Kirkhope MEP—Oral evidence (QQ136-144) still extending its powers, rightly so, for example with the setting up of the cybercrime centre this time last year; Frontex; the Asylum Support Office, which has only been in being for a very short time; and ENISA, which has a role to play.

We have to get better at giving these agencies the resources and the support that they need to carry out work that is, after all, going to be the absolute bread and butter of a successful

JHA programme. So it should find its place in the new programme; it should not just be forgotten about. Parliaments have an awful habit of treating laws like sausages—horrible business, you make them and then when you have finished them they just disappear out of the window and you do not ever think about them again.

Timothy Kirkhope: No, but the calendar is not really on our side in a number of ways and we do have coming up, of course, Protocol 36 issues and so on, which is another matter.

We are very keen on Europol. We think that its work is very important and I think that there are a number of issues around it. The argument about the separation of Europol and

CEPOL has been going on and so on. We are fairly firm in our views on that, and also on consolidation—I use the word “consolidation”; that is of course correct—to make sure that the things that have not been done are done, but we are not ambitious in finding new areas.

I think that also would sell very well, if I may put it in those terms, domestically. If we are arguing at the moment about what Europe does—and this is a constant argument in

Westminster—I do think that here is a situation where we can say that we are not going for ambitious new plans until we have completed the ones we already have in place.

Q144 The Chairman: As you know, in Britain—and you would know best because you have constituencies and so on—one successful breaking of a paedophile ring by Europol is worth any amount of legislation. It really means something to people if it turns out that a lot of people in the Netherlands have been arrested because their connections in the UK have been spotted, the prosecuting authorities have followed it up, and the next thing you know

290 of 485 Sajjad Karim MEP and Timothy Kirkhope MEP—Oral evidence (QQ136-144) they are going down for a good hefty prison sentence for horrible crimes. That is why I feel that the issue of consolidation and implementation is not just a sort of mark-time agenda. It is really an agenda to show people that the agencies that have been set up in the past few years are good news for them.

Timothy Kirkhope: I agree entirely with you.

The Chairman: That takes time. It does not just happen overnight.

Sajjad Karim: Despite what Timothy may have indicated about my attitude to this, I think there is a very strong case for some period of consolidation to take place here. We are in real danger here of having half-completed something, moving on to a completely new agenda and leaving that half-baked to the point that it becomes ineffective. One example I can give you is the patents reform that we have been able to put through. We are now at a stage where we have to invest a considerable amount of time in ensuring that we fully embed what we have done and allow the shoots of that to come through before we look at further movement from that. We can argue in those terms politically as well because, for instance, on the patents agenda we are ahead of places like India and China—in fact we are a benchmark for them in so many ways—so there really is no need to be pushing so far ahead.

I think possibly Timothy’s comments are more related to the many more years of experience that he has in dealing with such business than I have clocked up as yet.

The Chairman: We probably have to break now because some of your colleagues in the

LIBE Committee are coming in. Thank you very much indeed, I think that has been extremely useful and you have shone a little light into one corner of the JHA agenda, which will be very valuable to us. Thank you.

291 of 485 Mike Kennedy, Professor Estella Baker, Law Society of England and Wales—Oral evidence (QQ15-28) Mike Kennedy, Professor Estella Baker, Law Society of England and Wales—Oral evidence (QQ15-28) Transcript to be found under Professor Estella Baker

292 of 485 Timothy Kirkhope MEP and Sajjad Karim MEP—Oral evidence (QQ136-144)

Timothy Kirkhope MEP and Sajjad Karim MEP—Oral evidence (QQ136-144) Transcript to be found under Sajjad Karim MEP

293 of 485 Professor Douwe Korff, London Metropolitan University, European Union Agency for Network and Information Security (ENISA) and Charlie McMurdie—Oral evidence (QQ73- 85) Professor Douwe Korff, London Metropolitan University, European Union Agency for Network and Information Security (ENISA) and Charlie McMurdie—Oral evidence (QQ73-85) Transcript to be found under European Union Agency for Network and Information Security (ENISA)

294 of 485 Law Society of England and Wales—Written evidence

Law Society of England and Wales—Written evidence

1. The Law Society of England and Wales (the Law Society) is the independent professional body, established for solicitors in England and Wales in 1825, that works globally to support and represent its 166,000 members, promoting the highest professional standards and the rule of law.

2. The Law Society welcomes this opportunity to provide evidence to the Home Affairs, Health and Education Sub-Committee of the European Union Select Committee in relation to the EU's next five year agenda for justice and home affairs (JHA). This evidence reflects the Law Society’s initial views.

Question 1: Should there be a fourth JHA programme? If so what should its content, focus and purpose be, with reference to the previous programmes and evaluations thereof?

3. Yes - the Law Society believes that the previous JHA programmes have been valuable in setting a direction for the work of the European institutions and highlighting the priority fields of work that the Member States would support.

4. One example of the value of the current Stockholm Programme can be seen following the inclusion of references to the Roadmap for strengthening the procedural rights of suspected or accused persons in criminal proceedings, which invited the European Commission to put forward proposals in this field during its current mandate. The Law Society believes that the minimum standards so far agreed (the Directives on: the right to interpretation and translation; the right to information; and the right of access to a lawyer) could be of significant benefit to EU citizens suspected or accused of having committed a criminal offence, including British nationals in other Member States. While the Commission may have decided to issue proposals in this field in any case, the Stockholm Programme encouraged work on the Roadmap as a priority issue, indicating that such proposals from the Commission would be welcomed by the Council.

5. The Law Society would support a new Programme that provides for continued work on the remaining measures in the Roadmap to improve procedural rights in criminal proceedings. From a civil justice perspective, we would like to see more practical measures to improve the ease of service of documents. We would also like to see progress made towards the EU's ratification of the Hague Choice of Court Convention concerning international cases in which an exclusive choice of court agreement is applicable (see further our response to Question 9 below). From a practical perspective, we hope that progress can be made to appoint further judges to the General Court at the Court of Justice of the European Union (CJEU) and have commented further on possible changes to improve the functioning of the CJEU.30 Some practitioners would also favour the establishment of a specialist commercial bench at the CJEU to deal with references in commercial disputes. An approach of greater specialism at the CJEU may also be helpful in other areas.

30 See the Law Society's response to the House of Lords' EU Select Committee's follow up inquiry into the workload of the Court of Justice of the European Union, volume of evidence, pages 57-63: http://www.parliament.uk/documents/lords- committees/eu-sub-com-e/FollowupworkloadCJEU/CJEU-Follow-upWrittenOralevidence290413.pdf

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Question 2: What is the relevance of the political context? For example, how relevant will the debates and controversies surrounding the free movement of persons, privacy (the Prism programme in the US, as well as similar programmes in some Member States) and the negotiation of a US-EU free trade agreement be?

6. While the Law Society is not able to comment in detail on the political context, it is of course important. Part of the value of the JHA programmes, which last for 5 years, is to be able to take account of longer-term goals in the field of JHA. Where the political context is taken into account, it should be developments or likely developments that will shape policy-making in the longer-term that are considered.

7. The US-EU free trade agreement is unlikely to be of direct significance to the JHA Programme. Nevertheless, increasing the free movement of goods and services between the US and the EU may create ancillary legal issues or considerations at a more general level, for example, in relation to migration or data protection.

8. In addition, some practitioners have expressed the view that the system of free movement of persons should be given judicial support if there is any danger that it could gradually become compromised.

Question 3: What lessons from the application of the Stockholm Programme could usefully be reflected in the next JHA Programme? Did the Stockholm Programme involve too much or too little legislation and what were its tangible outputs? How successful have some of these outputs, such as the Standing Committee on Operational Cooperation on Internal Security (COSI), been and are they working as intended?

9. The Law Society has a particular interest in the justice elements of the Stockholm Programme.

Civil justice and private international law

10. From the Stockholm Programme, the Law Society has seen a number of helpful developments including:

• the conclusion of the negotiations on the recast of the Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ('Brussels I'), which have amended the lis pendens rules (reversing the 'first in time' rule where there is a jurisdiction clause), enhanced the arbitration exclusion and abolishing the use of exequatur;31 • consideration of how to improve the service of documents and also specific instruments including the European Small Claims Procedure; • in an international context, the Stockholm Programme promoted engagement with the Hague Conference on Private International Law. The Law Society understands that discussions are underway within the Hague Conference on the 'Judgments Project' concerning jurisdiction, recognition and enforcement in civil and commercial

31 For further information, please refer to the Law Society’s response to the Review of the Balance of Competences between the UK and the EU: Civil Judicial Co-operation, August 2013, page 2: http://www.lawsociety.org.uk/representation/policy-discussion/documents/balance-of-competences-review-civil-judicial- cooperation/

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matters. The Law Society has previously commented on the value that the EU will be able to add to the negotiations in this field, particularly following the conclusion of the negotiations on Brussels I.32 As noted above, the Law Society also sees ratification by the EU of the Hague Choice of Court Convention as something that would be a positive move. This measure remains important because the negotiations on Brussels I did not address the position in respect of jurisdiction clauses in favour of a non-EU (third) state court.

Criminal justice

11. In relation to criminal justice:

• the Law Society believes that the measures adopted from the procedural rights Roadmap for those suspected or accused of having committed a criminal offence (see above) will deliver real tangible benefits as they begin to be implemented. The Law Society has supported the introduction of these minimum procedural rules across the EU and further particularly supports work towards an instrument concerning pre-trial detention (also included in the Roadmap); • in relation to evidence-gathering, the Law Society has also followed the negotiations concerning the European Investigation Order and is pleased to see that a proportionality principle has been included in this instrument; • prosecutors are supportive of the role played by Eurojust as mentioned in the Programme.

Training

12. The Law Society is supportive of the efforts that have been made to improve the provision for the training of judges and also legal practitioners in relation to EU instruments. We explain in our response to Question 8 below why we believe that it is important for the UK to opt in to the EU Justice Programme.

13. As a general observation, by participating in pan-EU training events English lawyers/judges are often able to explain and present the common law perspective on issues, thereby developing a greater understanding and awareness of our system in continental (civil law) Europe.

Question 4: Should the EU’s focus be on consolidating existing JHA cooperation before embarking upon further EU legislative proposals and initiatives? The UK Government, in particular, has emphasised in the past that the EU should focus on practical cooperation, which does not necessarily require a legislative underpinning.

Criminal justice

14. The Law Society believes that in some fields further EU legislative proposals are justified. For example, we believe that there could be a particular value in taking forward further measures relating to minimum procedural rights in criminal proceedings listed in the Roadmap, for example, in the case of vulnerable suspects and for pre-trial detention.

32 Ibid, page 19.

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We think that these initiatives are important and should be taken forward, particularly given that they could assist in improving the procedural rights of those who are, for example, subject to a European Arrest Warrant. The Law Society regards a legislative underpinning for minimum rules relating to procedural rights as an important means of ensuring that such rights are respected.

15. In other areas of EU criminal justice, the Law Society is not always convinced that further EU initiatives are necessary at this stage. For example, we are not convinced of the need for a European Public Prosecutor’s Office. A period of consolidation of existing measures, at least until further minimum procedural rights have been introduced, could prove useful. In general, working within the existing framework and ensuring practical collaboration to make full use of existing powers should be the first step, before any further legislation is considered.

Civil justice and private international law

16. In the field of civil justice, the Law Society would like to see further legislative initiatives to improve the functioning of practical civil justice measures, for example, the European Small Claims Procedure.33 A period of consolidation could however prove useful in other areas. For example, we have seen recent changes in respect of a number of private international law instruments, such as the new Brussels I Regulation, which is due to be implemented by the start of 2015, Regulation 593/2008 on the law applicable to contractual obligations (Rome I) and Regulation 864/2007 on the law applicable to non- contractual obligations (Rome II) (though we understand that some changes are already being considered to the latter instrument in relation to limitations periods in cases involving a road traffic accident). The Commission is also currently pressing ahead with a new Regulation to introduce pan-European freezing orders. The radical changes to the patent world with the institution of the Unified Patent Court should be monitored closely.

Question 5: Should the Programme include a timeline for repealing and/or consolidating existing JHA legislation where necessary?

17. While a timeline for repealing and/or consolidating JHA legislation would be useful, the Law Society does not regard this as a priority issue for solicitors with experience of cross-border cases in the civil or criminal justice field.

Question 6: What should be the format of the next JHA Programme? For example, should it comprise a concise set of principles or contain a longer, and more detailed, set of initiatives as per the previous programmes?

18. The Law Society can see that either approach set out in the question could be useful. On the one hand, some general principles could have a general value in guiding the work of the other European institutions, without being too prescriptive. On the other hand, a tangible list of measures contained in a future programme could present a greater chance of them coming to fruition. One option might be to combine the approaches suggested

33 See the Law Society’s response to the European Commission’s consultation on the European Small Claims Procedure, June 2013: http://international.lawsociety.org.uk/files/LawSociety_response_Consultation_European_small_claims_procedure_June201 3.pdf

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in the question by agreeing a set of principles and a non-exhaustive list of some key initiatives to be taken forward in relation to each principle.

19. The Law Society would support a shorter document than the current Stockholm Programme.

Question 7: What role should the European Parliament and national parliaments play, if any, in defining the content of the next JHA Programme?

20. The Law Society believes that it is useful to receive input from different perspectives on the future programme. We believe that it is important that views from the different legal traditions and systems are taken into account. In this connection, involving national parliaments in the consultation process would be a positive step with a view to obtaining their commitment to the development of EU policy in this field, and ultimately to take responsibility for implementing at domestic level the legislative measures that they support.

Question 8: Is the funding allocated to JHA activity in the Multiannual Financial Framework for the period 2014-2020 sufficient to achieve existing aims?

21. The Law Society is not able to comment directly on this question. Nevertheless, we would add - as is highlighted in our response to the Review of the Balance of Competences between the UK and EU in relation to Civil Judicial Co-operation - that we believe that it is vitally important that UK opts in to the Regulation establishing for the period 2014 to 2020 the Justice Programme. As EU law develops, lawyers, judges and parties making use of EU law in the UK must have access to adequate training. This Regulation aims to encourage a more consistent application of EU legislation in the field of judicial cooperation in civil and criminal matters. We understand that the final text will provide for funding for training activities from which legal practitioners, as well as judges, will be able to benefit.

22. While a failure by the UK to opt in would not prevent legal professionals from the UK from taking part in co-financed training, they would be required to bear the costs themselves without any reimbursement. It is clear that these additional costs may be prohibitive for many practitioners and that all but a few legal professionals from the UK would be unable to attend such training courses on EU legislation. This could result in a position where specialist up-to-date EU law advice could only be obtained from firms that can afford to fund such training. It might also put UK litigants and those subject to criminal proceedings with a cross-border element at a disadvantage to their counterparts in other Member States as they may receive less advice on EU instruments that could assist them. Conceivably if our lawyers and judges are not properly trained it may also result in more references to the CJEU.

23. The Law Society further understands that, based on the funding of 2007-2012, 11.48% of the funded applications under the three programmes (Civil Justice, Criminal Justice and Drug Prevention and Information Programme) were granted to UK organisations (at a time when the UK was one out of 27 Member States). The current Justice Programme has therefore provided clear benefits to the UK. The new programme would provide

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significant benefits for legal professionals from the UK wishing to receive training on EU instruments and we urge the UK Government to opt in.

Question 9: What are the potential implications of further EU Treaty change for JHA cooperation, including the position of the UK?

24. The Law Society is not able to comment in detail on this question at this stage and is not aware of plans for changes to the Treaty in the near future; however, we hope that these initial comments assist. Title V of the Treaty on the Functioning of the European Union (TFEU) sets out provisions relating to the Area of Freedom, Security and Justice, including the measures in the field of judicial co-operation in civil and criminal matters. Protocol 21 enables the UK and Ireland to decide whether to opt in to new proposals. It may be that a future Treaty would envisage changes in this field.

Civil Justice

25. As the Law Society has highlighted,34 there are some advantages but also a number of significant disadvantages to the opt-in rights offered by Protocol 21. On the one hand, if measures are proposed under the Article 81, TFEU, legal basis (civil judicial cooperation), it can enable the UK to stand aside from EU measures which are not compatible with its law or traditions, such as in the case of the matrimonial property regime. However, the Law Society believes that decisions not to opt in should be made only where truly necessary and as sparingly as possible. The risk of having a 'default position' not to opt in at the beginning of negotiations is that, overall, the common law loses influence. The incentive to accommodate the common law in legislative proposals diminishes with the expectation that the UK is unlikely to opt in.

26. However, in the field of civil justice, Article 81, TFEU, seems to be becoming less important as a basis for legislation than it once was. The Law Society would like to highlight that the choice of legal basis for some legislative proposals can be controversial. As an example, the Law Society does not agree that Article 114, TFEU, is the appropriate legal basis for the Common European Sales Law. There is a risk that, were the UK (and Ireland) to decide regularly not to opt in to proposals under Article 81, TFEU, then this could lessen the attractiveness of using that legal basis for those preparing proposals as, without the UK (and Ireland), any gains from legislation across the EU are likely to be lessened.

Criminal justice

27. In the field of criminal justice, Article 82, TFEU, is still regularly used for new initiatives. While the Law Society accepts that the right to decide whether to opt in afforded by Protocol 21 may sometimes be useful and should be retained in any future Treaty negotiation if possible, we also have the same concerns expressed above about ensuring that common law principles are promoted and that the UK participates where it is able to. For example, the Law Society believes that the UK should participate in the Directive on the right of access to a lawyer (the third, recently-approved measure in the Roadmap).

34 The Law Society’s Response to Balance of Competences: Civil Judicial Co-operation, op. cit., pages 13-14.

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28. A further provision of the TFEU is Protocol 36, which enables the UK to opt out of EU criminal justice and police measures concluded prior to the Treaty of Lisbon. As the UK is widely expected to go ahead with the opt-out, this provision would be unlikely to feature in any future Treaty debate. (However, please see our response to Question 10 concerning the loss of influence in the JHA field due to the opt-out.)

Question 10: What form could or should the UK’s future participation in JHA matters take beyond the 2014 opt-out decision? What are the priority areas for potential cooperation in this respect, assuming that the UK will end up participating less in this area than it does at present? Will exercising the opt-out undermine the UK’s ability to influence the content of the next JHA Programme?

29. The Law Society refers the Committee to its previous responses to your initial and follow-up inquiries concerning the opt-out. We view the opt-out as unnecessary, potentially costly and do not regard any of the measures concerned as harmful. We believe that the UK should try to opt back into a broad range of the measures concerned (with the exception of those that are now obsolete).

30. We believe that the exercise of the opt-out will undermine the UK’s influence, at least to some extent, in this field. While the opt-out relates to EU criminal justice and police measures, the Law Society believes that the UK is gradually losing the goodwill of other EU policymakers through failing to opt in / opting out of significant measures in the field of JHA as a whole. This has a knock on effect on its influence on important future developments.

31. In the field of criminal justice, the effect is more acute. It is possible that the existing framework, based largely on mutual recognition and respect for different legal systems, will be gradually replaced by an approach where more EU proposals are made in relation to procedural and substantive law. While the Law Society is supportive of such an approach in some fields, for example, in establishing minimum procedural rights across the EU for those suspected or accused of having committed a criminal offence, we do not see a need for initiatives such as a European Public Prosecutor. Of course, these developments may have happened with or without the exercise of the opt-out, but the ability of the UK to influence the development of this field as it used to seems to be dissipating.

32. The Law Society believes that there are a number of areas where the UK must remain actively engaged in the JHA field. These include the measures in the fields of civil justice and private international law and, in the field of criminal justice:

• the continuing work on the Roadmap on procedural rights;

• the measures that we identified of particular value in the opt-out debate;35

35 See the Law Societies’ written evidence to the Committee’s follow-up inquiry, pages 55 to 58: http://www.parliament.uk/documents/lords-committees/eu-sub-com- f/Protocol36OptOut/p36followup/p36followupevidence.pdf

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• further measures aimed at training and improving contacts between judges and legal professionals in the Member States.

33. In the longer term, if the UK remains outside significant legislative developments, it will become more difficult to influence the future development of EU law in the JHA field, even if that would be of benefit to British nationals or the functioning of cross-border legal practice. The Law Society recommends that, while recognising the value of the common law, the UK Government should also consider how civil law jurisdictions, including the Scottish legal system, may offer different and potentially interesting approaches to civil and criminal justice to those used in the current system in place in England and Wales. By fully participating in the shaping of the future JHA agenda to improve civil and criminal justice in the EU, the UK's own legal systems could profit from the opportunities to improve civil and criminal procedure in ways that will improve access to justice for UK and EU citizens in a more efficient and cost-effective manner.

29 October 2013

302 of 485 Law Society of England and Wales, Mike Kennedy, Professor Estella Baker—Oral evidence (QQ15-28) Law Society of England and Wales, Mike Kennedy, Professor Estella Baker—Oral evidence (QQ15-28) Transcript to be found under Professor Estella Baker

303 of 485 Law Society of England and Wales—Supplementary written evidence

Law Society of England and Wales—Supplementary written evidence

Thank you very much for the opportunity to appear before the EU Sub-Committee on 27 November 2013 to give evidence on behalf of the Law Society of England and Wales (the Law Society) with regard to the EU Commission's future five-year programme. I apologise for the slight delay in sending this letter to you.

As requested by the sub-Committee, I summarise below certain areas where the Law Society believes it would be helpful for the Commission to do further work, now or in the course of the next five years. I also highlight certain areas where the Law Society would recommend a period of evaluation and consolidation by the Commission in the next five- year period. I would be happy to elaborate upon any of the issues raised below, or provide further clarification, as required. As with my evidence before the Sub-Committee, the issues summarised below focus on civil law matters, not criminal law.

Those areas where the Law Society considers that the Commission could usefully make progress in the next programme period include:

1. Service: In practice, it still takes too long to serve proceedings and other legal documents on defendants domiciled in other Member States. For example, it can take as long as five months to serve proceedings in Spain. The process can involve layers of bureaucracy. It would be helpful if the Commission could carry out an assessment of cross-border service in Member States to gather reliable data as to the time it takes to serve proceedings and documents upon parties in other Member States and identify any particular problems that arise in this process. Whilst it is obviously important to ensure due process is observed, proposals such as serving corporates by registered post (or equivalent) could be usefully explored. A more user-friendly official accompanying manual could be produced which provides clear guidance as to service in Member States. The Commission could also re-examine precisely which documents need to be translated as part of the service process. For example, is it necessary to translate entire contracts referred to in a claim form in circumstances where companies have contracted in English in the first place?

Happily, it appears the Commission is taking steps in this regard. Its recently published report on the application of the Service Regulation,36 gathers some data about the time- frame for service of documents via transmitting agencies in some (but not all) Member States. The report suggests that provision for electronic service may be considered, as well as other measures to improve the speed of service, including improvements within the transmitting agencies. The Law Society encourages this process of review and reform.

2. Court of Justice of the EU (CJEU) reform: Some practitioners would like to see the CJEU reformed further. The CJEU is comprised of several institutions: the most frequently utilised is the Court of Justice, but there is also the General Court (formerly the Court of First Instance), and other specialised bodies (tribunals). The case conclusion

36 Published 4/12/2013, available at http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0858:FIN:EN:PDF

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figures from the CJEU Annual Report for 201237 for the Court of Justice show that it takes more than 15 months for a reference for a preliminary ruling, more than 19 months for direct actions, and, again, more than 15 months for appeals against General Court rulings. The situation is worse in the General Court, with figures for the duration of proceedings ranging between 16.8 months for appeals to 48.4 months for competition matters. References to the CJEU will frequently be made by the highest courts in a Member State after several years of litigation before those courts. Delays before the CJEU can give rise to serious consequences for litigants who may have been seeking to resolve their disputes for years. These delays may also have an adverse impact more widely businesses and individuals may be awaiting a ruling on a particular point of EU law before proceeding with a transaction or exercising certain rights.

Further, given the recent progress towards a Banking Union and the strong emphasis on the regulation of the financial sector in many new European instruments, some practitioners suggest that it is increasingly important to promote justices to the CJEU who have background experience in commercial and financial law. Another suggestion is to explore the creation of a "commercial bench" within the CJEU.

3. Hague Choice of Court Convention: The Law Society strongly supports the EU in taking steps to progress the ratification of the Hague Convention on Choice of Court Agreements 2005 (the Hague Convention). Given the increase in cross-border trade globally, commercial parties will increasingly have to look to enforce their judgments against counterparties with assets outside the EU. Practitioners note that the lack of effective enforceability of judgments issued by the English (and other EU) courts in third (non-EU) states can cause difficulties. They may be left with a "paper judgment" with the defendant's assets out of reach.

The widespread acceptance of the Hague Convention could improve the efficient enforcement of court judgments worldwide. It could potentially create a worldwide framework for rules in respect of choice of court (jurisdiction) agreements in civil and commercial matters and for the recognition and for enforcement of judgments by the courts of contracting states pursuant to such jurisdiction agreements. It could create comparable enforceability options for court judgments made pursuant to choice-of-court agreements in contracting states such as those which exist for arbitral awards under the New York Convention 1958, which has almost 150 signatories.

The creation of such a regime may well encourage investment in contracting states and promote growth of UK businesses overseas. The ability to enforce judgments (or awards in the case of arbitration) in a country is often a threshold question for businesses contemplating an investment in that country.

The Hague Convention has so far been acceded to by Mexico and signed (but not yet ratified) by the U.S. and the EU. If the EU ratifies this Convention, it seems likely that this would provide an incentive to other jurisdictions to sign and ratify the Convention. This would undoubtedly be a beneficial development for commercial parties operating across borders. It will give commercial parties the certainty that any judgment they obtain in the

37 The report is available at: http://curia.europa.eu/jcms/upload/docs/application/pdf/2013- 04/192685_2012_6020_cdj_ra_2012_en_proof_01.pdf . In 2012, the figures show that a reference for a preliminary ruling takes on average 15.7 months; direct actions 19.7 months; and appeals 15.3 months to reach a conclusion.

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chosen court will be enforceable in the jurisdiction in which a counterparty has assets. As noted above, this may boost trade. Such a development may also provide a further incentive for parties to negotiate jurisdiction clauses in favour of the English courts (and select English law to govern their contracts) because it will mean English judgments made pursuant to English jurisdiction clauses will be enforceable in contracting states. It may also reduce the legal costs of transactions, as the parties would be less likely to need local law advice about enforcement risks in contracting states. For all of these reasons, the Law Society suggests that this initiative should be prioritised.

4. Hague Judgments Project: The Law Society would encourage the EU to engage positively in discussions on the "Judgments Project". This project is tasked with considering common jurisdiction and enforcement principles which, in a global economy, may be a beneficial development for businesses and individuals operating across borders. It is hoped that the EU will take an active lead in these discussions.

5. Immunity: While eight Member States have ratified the European Convention on State Immunity,38 many Member States have not.39 Without seeking to expand areas of competence, the Commission may wish to explore whether other Member States may wish to sign up to the Convention so that the position with regard to the immunity of foreign states is broadly consistent across the EU. Immunity issues are becoming more important in the commercial sphere as sovereigns engage in more commercial activities, including, for example, through sovereign wealth funds.

6. Lugano Convention: The Law Society would encourage the EU to explore whether there might be further signatories to this Convention. This may help promote trade with third States as businesses will have greater legal certainty that their jurisdiction agreements will be respected and any resulting judgments enforced in contracting states. It would also be helpful if the EU looked to update the existing Convention as per the recast Brussels Regulation, in particular in relation to its lis pendens rules so as to address concerns about tactical litigation.

7. Amendments to the European Small Claims Regulation: Broadly, the Law Society supports this measure and the Commission's attempts to encourage litigants to use this procedure to resolve applicable disputes.

8. The "recast" Brussels Regulation: Overall, the reforms introduced to this key European instrument on jurisdiction and enforcement of judgments by this recast were helpful. In particular, the Law Society was pleased the Commission sought to tackle "the Italian torpedo" and amend the lis pendens rules (reversing the "first in time" rule where there is a jurisdiction clause). Unfortunately, the recast Brussels Regulation does not address the position in respect of jurisdiction clauses in favour of non-EU (third) state courts (but the Law Society recognises that progress on the Hague Convention may assist in this context – see above). Nor does it deal adequately with the thorny issue of what discretion (if any) a Member State court should have when proceedings are started before that court but the matter should properly be brought in a third state court. The Law Society would support further consideration of this important issue by the Commission.

38 Signed at Basel on 16 May 1972. 39 Ratifications: Austria, Belgium, Cyprus, Germany, Luxembourg, the Netherlands, Switzerland, the United Kingdom. Portugal has signed the Convention, but not yet ratified it.

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9. Database of decisions on EU law given by CJEU and Member State courts: The Law Society would encourage the Commission to take steps to improve free access to decisions on EU law given by the CJEU and Member State courts. Bailli provides free access to English court judgments and is a wonderful resource for litigants, lawyers and judges. To keep costs down, the Commission could consider options whereby only the ratio decidendi of certain judgments was translated into English.

As noted above, there are others areas where the Law Society considers that a period of consolidation, reflection or review would be appropriate before further initiatives are introduced. These areas include:

10. European Account Preservation Orders: The UK has currently opted out of this Regulation and, depending on the final version of that text, may well remain outside its scope. However, given the potential impact this legislation may have on UK-based organisations operating across Member States and any UK litigants before Member State courts, the terms of this Regulation and its practical impact should be closely monitored. The Law Society had concerns about the initial draft text (July 2011), which it considered was too "pro-claimant" and did not sufficiently protect prospective defendants. The Law Society was concerned that a claimant might be able to secure such a draconian order in circumstances where there had been only a limited review of the claimant's papers by a Member State court and where there was no real risk of a dissipation of a defendant's assets. Given the risk that such an order might have a severe impact on a defendant's business and livelihood, the Society felt the correct balance had not been achieved. Related to this, the Law Society was also concerned that setting aside or varying such an order might be difficult for a defendant – giving rise to the potential for injustice. There are also concerns about the impact and costs of this instrument upon third parties, for example banks.

11. A Common European Sales Law (CESL): The Law Society is aware that the Commission has focussed much effort and resource on this measure, however, it remains unconvinced that this is a necessary or desirable initiative. One concern is the legal basis. The Commission relies on Article 114 of the Treaty on the Functioning of the European Union, claiming a CESL is necessary "for the approximation of the provisions laid down by law … which have as their object the establishment and functioning of the internal market". The Law Society does not accept that this test has been met. The legal footing matters because measures under Article 114 do not require unanimity and progress by way of qualified majority vote. 40 Further, there are concerns about the evidence that the Commission relies on in support of its reliance on Article 114. Separately in December 2011, the House of Commons submitted a formal reasoned opinion to the European Parliament, Council and Commission that it did not consider a CESL to comply with the principles of subsidiarity and proportionality. Finally, the Law Society has a technical concern in relation to the interaction between CESL and the Rome I Regulation41 (the EU instrument which concerns the governing law of contracts). The point is nuanced but the question is whether CESL requires (or effects) an

40 It has been suggested that the proper legal basis for this measure is either Article 81 (which deals with civil justice measures) or Article 352 (which is a "fall back" provision if no other legal basis is appropriate). Unlike measures brought in under Article 114, the UK is entitled to 'opt in' to measures proposed under Article 81 and Article 352 requires unanimity (rather than qualified majority voting). 41 EC No 598/2008.

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amendment to Rome I. The Commission says it does not. The Law Society (and others) disagree.

12. European Insurance Contract Law: The Commission is now examining whether there should be a European Insurance Contract Law which would fit under or draw from a CESL. It is important that the UK keeps a watching brief on this initiative, not least because of the importance of the London insurance market. The proposal throws up many complex issues and the Law Society does not currently consider that this is an initiative that the Commission should prioritise.

13. Unified Patent Court: This initiative represents a significant "once-in-a-lifetime" change in the resolution of patent disputes. In moving from a country-by-country to a unified litigation system the Unified Patent Court aims to increase the efficiency and certainty of patent protection and enforcement in Europe, as well as the competitiveness of the European legal market with the U.S. and Asia. The Law Society suggests that the performance of this new system should be closely monitored, as well as the impact it has on existing national patent courts.

Sarah Garvey 20 December 2013

308 of 485 Law Society of Northern Ireland—Written evidence

Law Society of Northern Ireland—Written evidence

Issues of Particular Interest to the Society

1.1 The Society would state at the outset that it would not be appropriate for us to comment on the political dimensions of co-operation on the Justice and Home Affairs Programme, in particular its relationship to wider integration issues. Despite this caution, whatever form the input of the UK jurisdiction takes into this process, we do consider that there are certain fundamental issues that any such programme should seek to discuss.

2.1 As a Society we increasingly observe the difficulty of securing access to justice in a tightened fiscal environment. In particular, the preservation of the rights of the most vulnerable in our societies must assume the highest priority when it comes to safeguarding the rule of law. It is in this vein that the Society would stress that the procedural rights of legally aided clients to effective representation and choice of lawyer should form a core part of any discussions moving forward as they have in the EU procedural rights roadmap.

3.1 In particular, the Society would emphasise that rights have to be effective and enforceable in order to be meaningful. This should be seen in the context of emerging European jurisprudence on the importance of rights being substantive and adequately resourced. The Society looks to the importance of a properly funded legal aid system as an embodiment of this commitment and would see this as an important priority for the JHA Programme.

4.1 This would provide a platform for policymakers across the EU to discuss different methods of safeguarding the rights of vulnerable citizens in a context of scarce resources; this kind of information-sharing can only benefit the cause of access to justice across the EU. In particular, regard must be had to the principle of proportionality in decision making and the ability of enforceable and substantive rights to counter the temptations for governments to roll back entitlements in times of stress.

5.1 In particular, the economic circumstances that Member States find themselves in may be putting pressure on some of the shared values of public law that are applicable across the EU. It is this high level strategic view that such programmes of discussion and co-operation can encourage in terms of improving the policymaking process across the EU.

6.1 Looking at minimum procedural safeguards for those suspected of a crime is another priority area, given the increasingly mobile nature of many economic and other

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crimes across borders. The Society is of the view that it is to progress co-operation and agreement on areas such as these which makes the JHA Programme a worthwhile endeavour. The Society would emphasise that whilst the precise form of such co-operation is entirely a matter for negotiation between Member States, the continued existence of a forum for debate and discussion is a positive development.

7.1 The Society would also highlight the importance of Data Protection provisions across jurisdictions for clients and the importance of the agreement of Minimum Standards across the EU. Finding a mechanism to agree commonly observed in this field would be productive, as this is an area of law only likely to become more complex with the advent of social media and increasingly subtle means of obtaining personal information on citizens without informed consent.

Shape of the Programme

8.1 The Society would stress that the shape of the JHA Programme should start from first principles, identifying what the core interests and rights of citizens across the EU it wishes to protect and enhance. From there, a set of topical areas could be identified as case studies in terms of developing those identified themes. This approach would give the Programme a structured and integrated focus to focus the attention of Member States on high level principles and avoid a top-heavy programme reducing incentives to participate.

9.1 In that regard, the Society is of the view that the selection of a number of themes might help to direct minds towards the detail of discussions in specific policy areas. This would have the added virtue of allowing Member States and other organisations the opportunity to target any representations they have made into one of these broad categories. The final Programme must strike a balance between demonstrable outcomes and avoiding an excessively technical and detailed focus in order to maximise its traction.

Legal Training and Information Sharing

10.1 In addition to this, the Society considers that the potential for training for legal practitioners across the EU for any new measures emerging from this Programme is paramount. Irrespective of the depth of involvement particular Member States take, there should be an informed discussion on the opportunities for lawyers to acquire skills across jurisdictions in order to allow Member States to take decisions on opt- ins and opt-outs with the most information possible. Crucially, such an approach ensures the individual right of Member States to determine their own depth of participation is respected whilst ensuring that the cross-border effects of new requirements are clearly highlighted.

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11.1 With that regard the Society would submit that any new measures being introduced or discussed should be accompanied by an evaluation of their impact on the needs of legal practitioners for training and development and allow this information to be considered directly by Member States. This should follow a graduated form, stating the implications of differing tiers of participation and non-participation and offering a range of options.

Conclusion

12.1 Whilst the Society has not considered it appropriate to comment on the politics of forms of co-operation and possible Treaty changes, we support the core principles of the JHA Programme and are keen to ensure that it re-commences in a focused and beneficial manner. There are opportunities for all Member States to come together and discuss issues of vital importance to citizens of the EU including their personal security and rights. We trust that our contribution has been constructive and are happy to engage further in any way the Committee considers appropriate.

16 January 2014

311 of 485 Law Society of Scotland—Written evidence

Law Society of Scotland—Written evidence

The Law Society of Scotland’s Criminal Law Committee (the Committee), welcomes the opportunity to respond to the above call for evidence and has the following comments to make.

The Committee confines itself to the criminal justice aspects of the EU’s 5 Year Agenda for EU Justice and Home Affairs activity (2015 – 2019) but believes that there should be a fourth JHA programme.

In particular, the Committee welcomes the progress made by the EU procedural rights roadmap which aims to introduce minimum procedural rights across the EU Member States which have now been approved, namely, the right to interpretation and translation, the right to information in criminal proceedings and the right to access to a lawyer and to communicate upon arrest.

The Committee notes that the next measures due to be proposed will relate to legal aid and the rights of vulnerable suspects.

The Committee recognises that the consolidation of existing JHA co-operation should be considered but does welcome further EU legislative proposals and initiatives in this area.

With regard to the format of the next JHA programme, the Committee believes that the format should comprise a concise set of principles as opposed to a longer and more detailed set of initiatives as per the previous programme as it is better to consider in some detail what principles underpin any detailed set of initiatives.

Regarding the JHA activity in the multi-annual financial framework, the Committee believes that the UK should opt-in to the Justice Programme (2014 – 2020), currently being negotiated.

The Committee should like to take this opportunity to refer to its previous response to the House of Lords Select Committee on the European Union with regard to the UK Government’s 2014 Opt-out decision (Protocol 36) at which the Committee expressed concerns regarding inter alia the European Arrest Warrant. The Committee remains concerned that this disengagement from JHA matters rather than attempts to reform difficulties which exist at present with European Arrest Warrant procedure will result in harming the interests of UK citizens living elsewhere in Europe. The Committee remains concerned that exercising the opt-out will undermine the UK’s ability to influence the content of the next JHA Programme. The Committee also remains concerned that exercising the opt-out is likely to create tensions with other Member States where law enforcement agencies will be hampered in assisting them.

I trust that these comments are of some assistance to the Sub- Committee.

11 October 2013

312 of 485 Lincolnshire County Council, European Commission, British Red Cross—Oral evidence (QQ85-101)

Lincolnshire County Council, European Commission, British Red Cross—Oral evidence (QQ85-101) Transcript to be found under British Red Cross

313 of 485 Claudio Matera, Asser Institute—Written evidence

Claudio Matera, Asser Institute—Written evidence

1. Should there be a fourth JHA programme? If so what should its content, focus and purpose be, with reference to the previous programmes and evaluations thereof?

1. With the entry into force of the Lisbon treaty, the role of the European Council in shaping EU policies and their agendas has gained importance. Indeed, Article 15 Treaty on the European Union (hereinafter TEU) affirms “The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof ”; moreover, this provision must be read in conjunction with Article 68 Treaty on the Functioning of the European Union (hereinafter TFEU). Article 68 TFEU affirms the following: “The European Council shall define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice”(emphasis added). It appears from the foregoing that since the entry into force of the Lisbon treaty the convention according to which the European Council sets the policy agenda for the area of freedom, security an justice (hereinafter AFSJ) has been codified with the effect of imposing to this institution an obligation to provide the Union with an agenda for the development of the EU as an AFSJ.

2. The treaties do not provide guidance concerning the temporal framework in which the European Council’s strategic guidelines must be implemented. However, in this respect the praxis seems to link -albeit informally- the AFSJ agenda with the term in office of the Commission and the European Parliament. It should be emphasized that the JHA field is the only one in which the European Council sets a clear operational agenda whereby objectives and means are clearly enumerated so as to guide action by the Commission and the Council. At the same time, the primacy of the European Council in setting the JHA programme has provoked tensions between the European Council, the Council and the Commission when the Commission presented its implementing action plan in 2010: an action plan that was deemed not to comply with what was asked by the European Council and written down in the Stockholm programme.42

3. The Stockholm Programme was a comprehensive document that built upon the experiences gained by the institutions during the implementation of the previous programme (the so-called Hague programme). Therefore the Stockholm Programme called upon the Commission to develop instruments (and pay attention) to monitoring the implementation of AFSJ instruments. It is submitted by the present author that that last issue is still relevant, especially if one considers that to this date, no mid-term evaluation has been provided by

42 See “Draft Council Conclusions on the Commission Communication "Delivering an area of freedom, security and justice for Europe's citizens - Action Plan Implementing the Stockholm Programme" (COM (2010) 171 final)” of 19 May 2010, Council doc. 9935/10. Especially at page 3: “Emphasizes strongly that the Stockholm Programme is the only guiding frame of reference for the political and operational agenda of the European Union in the Area of Justice, Security and Freedom. Takes note of the Commission’s Communication "Delivering an area of freedom, security and justice for Europe's citizens - Action Plan Implementing the Stockholm Programme" (doc. 8995/10), presenting the initiatives that Commission is intending to take with a view to contributing to the implementation of the Stockholm Programme. Notes however that some of the actions proposed by the Commission are not in line with the Stockholm Programme and that others, being included in the Stockholm Programme, are not reflected in the Communication of the Commission.

314 of 485 Claudio Matera, Asser Institute—Written evidence either of the directorates of the Commission in charge for JHA, i.e. DG Justice and DG Home Affairs.43

4. For the first time the Stockholm Programme provided a comprehensive programme pertaining to the so-called external dimension of the AFSJ, the new policy programme should build on the experience gained and develop new means to combine the consolidation of the EU as a global security actor in the JHA fields with other foreign policy objectives. Moreover it should consider ways to avoid inter-institutional litigation pertaining to the external dimension of the JHA whenever the latter is related to actions adopted under the Common Foreign Policy and Common Security and Defence Policy of the EU, i.e. the so-called second pillar. However, the new phrasing of Article 40 TEU has repealed the pre-existing “non- affectation clause’ of Article 47 TEU (pre-Lisbon) and has created a legal imbroglio whereby it is almost impossible to choose between a CFSP-based action or a external AFSJ one without being capable of arguing against it: the issue is currently pending in front of the Court of Justice in relation to the surrender of suspected pirates arrested in the framework of operation Atalanta to a third country.44

2. What is the relevance of the political context? For example, how relevant will the debates and controversies surrounding the free movement of persons, privacy (the Prism programme in the US, as well as similar programmes in some Member States) and the negotiation of a US-EU free trade agreement be?

1. Because the policies that compose the AFSJ belong to the heart of State sovereignty, the political context in which the JHA policy programme is elaborated has an important impact on the actual JHA agenda. In The Hague programme of 2004 the reaction to international terrorism and organized crime were two strong push factors in this respect. Possibly, the Stockholm programme was particularly ambitious in relation to the finalization of the Common Asylum System.

2. As far as the new JHA policy programme is concerned, it is very likely that the data protection and privacy issues will play an important role. However, while that European Council and the Council in the past were keen to accommodate the positions advanced by the US (first PNR agreement, SWIFT), after the PRISM and NSA Surveillance scandals the position of many EU governments has changed. In this respect it is likely that the Prism programme will lead the new JHA programme to demand legislative instruments aiming to securitize personal data and protect the privacy of citizens against uncontrolled external use.

3. In any case, it should be borne in mind that the dossiers related to the EU–US trade agreement were decided before the Prism affair; therefore, it is unlikely that security/privacy dossiers will directly affect the content of the trade deal. Indeed the EU would not be able, by virtue of its strict constitutional rules on conferral of competences and choice of the appropriate legal basis to include topics that do not relate to trade while negotiating under the Common Commercial Policy.

4. Parallel to those observations, it is further submitted by the present author that an element capable of influencing the end result of the JHA policy programme is linked to the

43 On this issue 44 Case C-658/11 pending

315 of 485 Claudio Matera, Asser Institute—Written evidence

Italian presidency of the Council at the time of the finalization of the document. In this respect, and in the light of the tragedies occurred near the coasts of Italy with migrants/asylum seekers losing their life at sea, it is likely that the new programme will call upon for a recast of the Dublin II Regulation and/or for a recast of the powers conferred to Frontex, the EU agency on borders control. Lastly, the external dimension of the JHA policy programme will inevitably be influenced by the on-going turmoil of the EU’s neighbours. In relation to north African countries two priorities can be identified: one is border controls and the second is establishing police and judicial cooperation mechanisms so as to finally have instruments to fight emergencies such as the threat posed by foreign fighters travelling from the EU and north African states towards Syria. In the east neighbourhood of the EU the focus will still be on border controls measures on the one side and the fight against organised crime on the other.

5. Lastly, while the implementation of the Stockholm Programme has been marked by the difficulties linked with the entry into force of the Lisbon treaty, it should be emphasised that the development of the EU as an AFSJ has also been affected by a number of initiatives an instruments that have raised inter-institutional disputes (e.g. PNR case) as well as challenges by individuals claiming that the application of EU measures was in breach of human rights (smart sanctions against individuals suspected of financing terrorism). All in all it emerged that the development of the EU AFSJ agenda has raised a number of conflicts essentially pertaining to the respect of the rule of law. The new policy document should make an effort in providing guidelines so as to avoid the amount of litigations connected to the implementing instruments of the Stockholm Programme.

3. What lessons from the application of the Stockholm Programme could usefully be reflected in the next JHA Programme? Did the Stockholm Programme involve too much or too little legislation and what were its tangible outputs? How successful have some of these outputs, such as the Standing Committee on Operational Cooperation on Internal Security (COSI), been and are they working as intended?

1. The Stockholm Programme was an ambitious programme. However, in this respect it should be borne in mind that the new programme ought to emphasize more on the need to develop accurate tools to monitor and evaluate the transposition and the application of EU norms in the Member States. Between 2010 and 2011 the Commission has initiated a number of infringement proceedings against some member states, but it will be only after December 2014 that JHA legislation adopted before the entry into force of Lisbon treaty will fall under the full scope of powers of the Commission and the Court of Justice in relation to infringements. The overall results in monitoring the impact, the implementation and application of EU measures in the JHA field are disappointing and the new policy programme should make an effort in finding a solution to these problems either by attributing tasks to agencies such as Eurojust, or by developing systems such as the SOLVIT system operating in the context of the internal market.45 A solution n these matters should be developed in line with the specific mandate provided by the treaties in Article 70TFEU.

2. The Stockholm Programme was the first JHA programme to operate under the new treaties. The inter-institutional cooperation is of pivotal importance for an effective and efficient implementation of the programme as well as to guarantee the coherence and

45 http://ec.europa.eu/solvit/site/about/index_en.htm

316 of 485 Claudio Matera, Asser Institute—Written evidence consistency of JHA instruments with the policy programme and with the treaties. However, not only the implementation of the Stockholm programme has led to tensions between the Council and the Commission, but also the introduction of COSI cannot be assessed as entirely positive. Indeed the functioning of this committee lacks transparency and accountability and as a consequence it is difficult to assess its (negative or positive) impact on the implementation of the Stockholm Programme since it only publishes some reports and is responsible only to the Council; with the latter having the duty to keep in formed the European parliament.46 The reports published thus far47 suggest that the committee operates more as an intelligence tool and operational support service rather than as a body that can contribute to the implementation of the programme in the strict sense.

4. Should the EU’s focus be on consolidating existing JHA cooperation before embarking upon further EU legislative proposals and initiatives? The UK Government, in particular, has emphasised in the past that the EU should focus on practical cooperation, which does not necessarily require a legislative underpinning.

1. In this regard it should be emphasized that nothing in the treaties suggests that the role of the European Council ex Article 68 TFEU concerning the development of the legislative planning for the AFSJ and, as a consequence, the new policy programme that will succeed the Stockholm one, must solely concern new legislative proposals. Indeed according to the Article 68 TFEU action of the European Council must also define guidelines for operational planning and legislation; this formulation clearly places the monitoring and consolidation of legislation at the same level of legislative proposals.

2. However, legislative proposals and initiatives may be necessary so as to enhance and facilitate operational cooperation. Practical cooperation, operational cooperation at the JHA level often requires legislative approximation: this may be the case because of the field in which cooperation is to take place (e.g. criminal law, investigations and procedural issues), or simply because national authorities would not manage to cooperate with the existing normative setting. Therefore, notwithstanding the scope of Article 73 TFEU on administrative cooperation, legislative intervention by the EU may emerge as necessary in order to bridge the 28 national legal systems and make practical cooperation possible under the same conditions for the whole of the EU, thus avoiding any discriminatory outcome.

3. In relation to the external dimension of the AFSJ it should be borne in mind that many agreements concluded at bilateral level by the EU find their basis on other instruments of EU external relations such as Association Agreements. However, some of the Association Agreements that the EU uses as a catalyst to conclude AFSJ-related agreements are old -and predate not only the entry into force of the Lisbon treaty, but also The Hague programme. As a result of this, these old agreements do not always provide sufficient leverage for the EU to conclude bilateral agreements on JHA matters. The new policy programme should consider this. Lastly, the part dedicated to the external dimension of JHA should provide guidelines and a road map so as to reconcile the necessity to insert AFSJ-related clauses in agreements with third countries and international organisations that are not solely concerned with AFSJ objectives; this is particularly important in relation to CFSP actions

46 Article 6 of the COSI decision, OJ L 52 3.03.2010 47 E.g. Standing Committee on operational cooperation on internal security (COSI) - Summary of discussions held on 2 October 2012, Council doc. 15584/1/12 of 31.10.2012

317 of 485 Claudio Matera, Asser Institute—Written evidence linked to AFSJ objectives because this has proved to be a context in which many inter- institutional disputes have raised.

5.Should the Programme include a timeline for repealing and/or consolidating existing JHA legislation where necessary?

1. This could be a welcome innovation to the new programme. Such innovation could be inserted in the programme and probably should be introduced as a parcel of a broader normative instrument aiming to implement Article 70 TFEU.48 Moreover, taking into consideration that some of the existing legislative instruments have been adopted before the entry into force of the Lisbon and will require amendments by the end of 2014 or immediately after, such innovation should be welcome. Lastly, there are instruments that have been repeatedly changed over the past years (e.g. Frontex founding regulation) that lack an official consolidated version and that should be considered as negatively affecting legal certainty.

6. What should be the format of the next JHA Programme? For example, should it comprise a concise set of principles or contain a longer, and more detailed, set of initiatives as per the previous programmes?

1. The new JHA programme should be adopted following the same format of the Stockholm one, but preferably more concise. As a policy manifesto of the European Council with a view to cover roughly 4 years & ½ this programme the document cannot be expected to be exhaustive. Parallel to these observations, it should also be borne in mind that the document must respect the horizontal distribution of competences between institutions and that it should not affect the discretion and prerogatives of the Commission, of Member States (when they operate at Council level) and of the European parliament.

7.What role should the European Parliament and national parliaments play, if any, in defining the content of the next JHA Programme?

1. This question largely depends on the definition of the relationship between the JHA policy programme and Article 68 TFEU. If one interprets the JHA policy programme as an act adopted on the basis of the Article 68 TFEU, then neither the European parliament nor national parliaments need to have a role on the adoption of the programme. However, taking into consideration that the European Parliament is a co-legislator in the JHA fields and that the JHA policy programme are usually adopted shortly after the entry into force of a newly elected parliament, the principle of loyal cooperation between institutions should impose the establishment of means of cooperation between the EP and the European Council. In relation to national parliaments, nothing in the treaties suggests that their cooperation should be sought at the time of adopting the JHA policy programme; possibly, having to engage in dialogue with 28 parliaments would also negatively the efficiency of the decision making process at this stage and is probably better to maintain their role related to the scrutiny of legislative proposals.

48 Article 70 TEFU: Without prejudice to Articles 258, 259 and 260, the Council may, on a proposal from the Commission, adopt measures laying down the arrangements whereby Member States, in collaboration with the Commission, conduct objective and impartial evaluation of the implementation of the Union policies referred to in this Title by Member States' authorities, in particular in order to facilitate full application of the principle of mutual recognition. The European Parliament and national Parliaments shall be informed of the content and results of the evaluation.

318 of 485 Claudio Matera, Asser Institute—Written evidence

8.Is the funding allocated to JHA activity in the Multiannual Financial Framework for the period 2014-2020 sufficient to achieve existing aims? 9.What are the potential implications of further EU Treaty change for JHA cooperation, including the position of the UK?

10.What form could or should the UK’s future participation in JHA matters take beyond the 2014 opt-out decision? What are the priority areas for potential cooperation in this respect, assuming that the UK will end up participating less in this area than it does at present? Will exercising the opt-out undermine the UK’s ability to influence the content of the next JHA Programme?

1. As a fully fledged Member States, the UK participates to the works of the European Council and the adoption of the JHA policy programme ex article 68 TFEU: nothing in the treaties and in Protocol 21 on the position of the UK in respect of the AFSJ suggests that the opt-out regime also covers the adoption of the policy programme. Articles 1 and 3 of Protocol 21 seem to exclusively refer to binding instruments adopted pursuant to Title V Part Three of the TFEU.

2. The opt-out decision of the UK (see Article 10 (4) Protocol 36 on Transitional provisions) will necessarily come into play in the JHA policy programme because the latter will have to be adopted after the UK is supposed to declare whether it wishes to make use of its total opt-out. As a result of this, the policy programme will have to take this into consideration and eventually demand the institutions to adopt the necessary amendments to give effect to the UK’s position.

3. Assuming that the UK will participate less in the JHA domains than it does at present, the main focus will have to be in the police and criminal cooperation fields. The UK has directly benefitted from EU–based instruments such as the European Arrest Warrant in the aftermath of the London bombings of 2005 when one of the then suspects was swiftly surrendered from Italy to the UK without having to go through the traditional extradition proceedings. Should the UK opt-out of these instruments the JHA policy programme will have to include instructions pertaining to the conclusions of EU-UK framework agreements so as to re-introduce mechanisms of cooperation, possibly making use of the numerous Council of Europe conventions existing on these matters. Another field in which, potentially, the exercise of the opt-out prerogative of the UK would demand the adoption of new measures pertains to the fields of private international law (conflict of laws). Inevitably, opting-out from the AFSJ in the terms of Protocol 36 will undermine the ability of the UK to influence the content of the different measures and the decision–making process at the Council level, but not at the European Parliament one: here the MEPs from the UK will continue to participate in the adoption of any of the JHA measure.

4. In relation to he external dimension of the AFSJ and the position of the UK it should be borne in mind that AFSJ-based agreements with third countries references to the UK opt- out regime are inconsistent and will have to be amended where appropriate so as to take into consideration the total opt-out on a case-by-case basis. Also in relation to other types of agreements (e.g. Association agreements) with AFSJ clauses the praxis is not coherent and because these agreements have been concluded at different times -including before the entry into force of the Lisbon treaty- the effects and procedures connected to the UK’s opt-out decision of 2014 will have to be assed on a case-by-case basis. However, in this respect one last observation can be made: AFSJ clauses inserted in broad external action instruments are

319 of 485 Claudio Matera, Asser Institute—Written evidence mostly ‘habilitating clauses’ and not executive provisions; therefore, AFSJ clauses in these types of instruments should be interpreted as the first step prior to the conclusion of sector-specific agreements. As a consequence of this, the UK could consider whether it is really necessary to revisit AFSJ-related clauses that merely call upon the parties to cooperate and eventually conclude ad-hoc agreements.49

1 December 2013

49 E.g. Article 84 of the Euromed Association Agreement with Algeria on readmission of illegal migrants, Euromed Agreement Algeria OJ 10.10.2005 L265, p. 2 See C. Matera, Much ado about “opt-outs”? The impact of ‘Variable geometry’ in the AFSJ on the EU as a Global Security Actor, in S Blockmans and B van Vooren (eds.) How to legally accommodate variable geometry in EU External action, forthcoming 2014 CEPS Publications, Brussels.

320 of 485 Charlie McMurdie, Professor Douwe Korff, London Metropolitan University and European Union Agency for Network and Information Security (ENISA)—Oral evidence (QQ73-85)

Charlie McMurdie, Professor Douwe Korff, London Metropolitan University and European Union Agency for Network and Information Security (ENISA)—Oral evidence (QQ73-85) Transcript to be found under European Union Agency for Network and Information Security (ENISA)

321 of 485 Meijers Committee—Written evidence

Meijers Committee—Written evidence

1. Fundamental Rights The Meijers Committee urges the Council as well as the European Union in general to continue to develop a coherent human rights policy. Important steps have been taken over the last years, for instance in the Area of Freedom, Security and Justice (AFSJ), with respect to guaranteeing European citizens an equivalent level of human rights protection throughout the EU. Those efforts will facilitate the goals set out in Article 3(2) TEU.

As EU policies are mostly implemented and enforced through the legal orders of the Member States, loyal cooperation between the Member States amongst each other, and cooperation with the EU is vital. The Meijers Committee invites the Council, the other EU institutions and national governments to develop legislative initiatives that ensure the implementation of human rights standards into the framework of transnational cooperation between national authorities. The articles concerning ne bis in idem (54-58) of the Convention Implementing the Schengen Agreement are a fine example of how legislative initiatives foster the protection of fundamental right standards, also in transnational cases. The Meijers Committee invites the Council and other stakeholders to develop further initiatives in the area of transnational cooperation and cooperation between national and European authorities (for instance, the European public prosecutor). In particular, it considers the matter of access to justice on the European territory – and a system of European forum choice, guaranteeing a proper administration of justice – to be a very important issue, particularly in the area of migration law and criminal law.

The Meijers Committee suggests to develop a system of monitoring the follow-up actions of Member States on critical observations in the reports of UN and Council of Europe supervisory treaty bodies to the extent those observations pertain to areas covered by Union law.

In order to allow the Union to act in case of serious or systematic human rights violation in a Member State, the Meijers Committee proposes to consider: - extending the mandate of the European Union Agency for Fundamental Rights (FRA) or involving the Council of Europe Commissioner of Human Rights in fact finding in cases of serious human rights violations in a Member State in order to provide the European Commission with the necessary information before it decides on a possible infraction procedure, and - granting individuals, in the case of systematic human rights violations in a Member State (in a purely internal situation), the possibility to seek redress on the basis of EU law before both national courts and the European Court of Justice.

The latter proposal would require amending the TFEU at a next Intergovernmental Conference, the former proposal already can be realized within the framework of the current Treaties.

2. Evaluation and implementation The Meijers Committee notes with concern that various proposals for new Union law have been made without proper evaluation and implementation of existing instruments. For example, the Smart Borders proposals were published at a time when the Visa Information

322 of 485 Meijers Committee—Written evidence

System (VIS) was not yet fully implemented and the Schengen Information System (SIS II) just had become operational. The Meijers Committee believes that the next multiannual programme should focus on full and effective implementation, enforcement and evaluation of existing instruments. Accordingly, new initiatives for monitoring and implementation should be proposed. The Meijers Committee invites the European Council to consider adopting the following measures: - new tools in order to stimulate the enforcement of the EU Charter of fundamental rights in Member States should be developed; - the use of Article 70 TFEU to conduct objective and impartial evaluations of the implementation of Union instruments in the field of asylum and immigration, similar to the Schengen evaluation mechanism. - new centralised European databases should only be created on the basis of studies that have shown their added value, as previously stated in the Hague Programme.

3. Institutional affairs The conclusions of the European Council of 27 and 28 June 2013 do not mention a role for the European Parliament in the decision making process on the next multiannual programme. Both the EP and the national parliaments should have an explicit role in the adoption of the programme.

The working practices of the Committee of Internal Security (COSI) should allow for: - a greater degree of transparency of its work as coordinator of operational cooperation in the AFJS; - greater scrutiny of the European Parliament and national parliaments by handing them more tools thereto; - consultation of EU bodies and agencies such as the FRA and the European Data Protection Supervisor (EDPS), to avoid a focus on security and negligence of human rights issues.

The adoption of priorities in the framework of the EU’s Internal Security Strategy and the multi-annual policy cycle requires the input and consultation of all institutional actors, most importantly the European Parliament.

The activities of independent agencies in the field of Justice and Home Affairs should take place in full compliance with fundamental rights and should be subject to democratic scrutiny and the possibility of judicial review.

4. Judicial criminal cooperation and strengthening of procedural rights The Meijers Committee believes that the Council should focus on implementing the “Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings”, taking into account the costs for the Member States in the implementation of these rights. Particularly in cooperation cases, certain rights may carry a high financial burden (e.g. translation and interpretation) and a subsequent unwillingness on part of the executing Member States to afford these rights to individuals. To counter this incentive, the Meijers Committee would welcome legislation that provides for a fair distribution of costs between issuing and executing Member States.

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In line with the Report of the LIBE Committee of the European Parliament on an EU Approach on criminal law,50 the Meijers Committee underscores that substantive criminal law provisions should only be developed when there is added value in a common EU approach. The next multiannual programme should initiate the development of a checklist on the criminalisation of conduct on EU level, assessing subsidiarity and proportionality, added value, compliance with fundamental rights and enforcement possibilities.

The Meijers Committee supports the proposal of the United Kingdom to limit the application of the European Arrest Warrant to serious crime only. The next multiannual programme should contain a proposal to limit the definition of crimes covered by the European Arrest Warrant.

5. Data protection Before adopting new proposals on data processing and exchange, including the Smart Borders proposals, the next multiannual programme should call upon a systematic EU wide evaluation of: - the discriminatory effects of the use of large-scale migration databases (Eurodac, VIS, SIS II) for law enforcement purposes and the added value of this use for the prosecution of crimes; - the quality of the collection and processing of fingerprints and other biometric data in databases and the added value of the use of these data for identification- and verification purposes; - compliance with the principle of purpose limitation by national and EU authorities, including an assessment of national rules and decisions, effectively prohibiting and sanctioning the use of EU databases by Member States for other purposes than for which they were established.51

6. Non-discrimination The new multiannual programme should address the increased use of profiling by public and private authorities and its possible discriminatory consequences for ethnic and religious minorities, specifically for the Roma community.

The Meijers Committee notes an increase of hate speech and incitement to discrimination and hatred in the Member States. It advises the Commission to evaluate the Framework Decision 2008/913/JHA of 28 November 2008 on combating racism and xenophobia, with special attention to discrimination of Roma.

The Meijers Committee is also concerned with the position of nationals of Member States that acceded to the Union in 2004 or 2007 and who reside or intend to reside in another Member State. There is a tendency among certain Member States to restrict the access to their labour market for nationals from the new Member States. The principle of free movement of workers should be guaranteed for citizens of all Member States and discrimination on grounds of nationality should effectively be banned.

7. Immigration

50 Committee on Civil Liberties, Justice and Home Affairs, Report on an EU approach on criminal law, 24 April 2012, (2010/2310(INI)). 51 See, for example, the judgment of VG Wiesbaden, 4 April 2013, prohibiting the use of VIS information for the rejection of an asylum application and ordering the deletion of this data.

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The Meijers Committee invites the Council to pay particular attention to the existing inconsistencies in EU immigration legislation. Rather than making proposals for further harmonisation, the next multiannual programme should initiate the streamlining of EU immigration legislation, for example by proposing an EU Immigration Code. Particular attention should be paid to inconsistencies such as between the SIS-alert (SIS II) and the Entry Ban (Returns Directive) and the grounds for and conditions of detention in various directives and to make explicit the right of third country nationals to enter and stay in the EU when the conditions are met, as this is insufficiently guaranteed in current Schengen Borders Code (Regulation (EC) No. 562/2006).

The Meijers Committee considers that harmonisation of national legislation in the field of labour migration has been difficult. Directives that have been adopted so far are hardly functioning. The next multiannual programme should ensure that EU labour migration is only proposed or adopted when it does not lead to fragmented, inefficient legislation.

8. Asylum The full implementation of the recently adopted second phase of the Common European Asylum System in accordance with international law and the general principles of community law, and the effective monitoring thereof should be a key priority in the field of asylum. In this context, the new “early warning, preparedness and management of asylum crisis” system (EWS) could be used as an important source of information, since it should provide information on the quality of decision making, reception conditions and asylum procedures. The EWS should function as a transparent 'permanent health and quality check' on the basis on periodic country reports as well as information from civil society and asylum experts.

The Meijers Committee also invites the Council to pursue the implementation of some highly relevant proposals which were included in the Stockholm Programme but are not yet executed and/or finalised: - creating a framework for the transfer of protection of beneficiaries of international protection when exercising their acquired residence rights under Union law should be considered; - publication of the EC study on the feasibility and legal and practical implications to establish joint processing of asylum applications and introduction of new proposals on the basis thereof; - consideration of the accession of the European Union to the 1951 Refugee Convention.

9. External Dimension The programme should emphasise that the external dimension of the AFJS cannot adversely impact the level of human rights protection in third countries. To this effect the EU should, in the adoption of internal instruments, such as the amendment to the Visa Regulation, assess the possible consequences for the level of protection of fundamental rights in non- Member States.

Similarly, the possible consequences for the level of protection of fundamental rights in non- Member States should be carefully assessed prior to any form of cooperation or the conclusion of formal relations with third countries in Justice and Home Affairs matters. The protection of fundamental rights should be a central element in the relations with third countries on these matters and compliance should be continuously monitored.

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The external dimension of the AFSJ should focus on the strengthening of the rule of law in third countries. It should aim to enhance capacities for border, migration and asylum management in those countries as an addition and not substitute for the EU’s efforts in these fields.

The cooperation between agencies in the field of Justice and Home Affairs and the relevant administrative authorities of third countries should take place in full compliance with fundamental rights and should be subject to democratic scrutiny and the possibility of judicial review.

5 November 2013

326 of 485 Morten Messerschmidt MEP—Oral evidence (QQ152-160)

Morten Messerschmidt MEP—Oral evidence (QQ152-160)

Evidence Session No. 12 Heard in Public Questions 152 - 160

TUESDAY 28 JANUARY 2014

Members present

Lord Hannay of Chiswick (Chairman) Lord Sharkey ______

Examination of Witness

Morten Messerschmidt, Member of the European Parliament

Q152 The Chairman: Welcome. We are at the moment rather heavily involved in a Bill called the EU Referendum Bill, which is designed to create the legal base for an “in or out” referendum in 2017.

Morten Messerschmidt: Excellent.

The Chairman: That is not what all of us think.

Morten Messerschmidt: That is more or less what I am campaigning on in Denmark, I must admit.

Lord Sharkey: The same thing?

Morten Messerschmidt: We are saying that we might not come up with the desire for the same deal as you would propose to your voters, but the method is what we want as well.

We want a renegotiation and we want the Danish voters to deal with all the chapters of the present Treaty, the Lisbon Treaty, and then say yes or no, where we want to be in and where we want to be out—transport, social affairs, migrant issues, foreign affairs—so that

327 of 485 Morten Messerschmidt MEP—Oral evidence (QQ152-160) we have a flexible union, as your Prime Minister has called it, where there is a precise amount of sovereignty passed through the Union according to what the voters want.

The Chairman: But you are not offering them the option of leaving the European Union altogether?

Morten Messerschmidt: No.

The Chairman: That is the difference. It is a fairly substantial difference.

Morten Messerschmidt: Indeed, but even though we joined the Union on the same day, there is a difference between Denmark and the United Kingdom, so it is fair that we have a less bold approach, if I may say so. Politically the achievable thing is to persuade the population about less involvement.

The Chairman: Yes. I would say yours is a more sensible approach.

Morten Messerschmidt: I do not know. I am not in favour of leaving, privately. It is always difficult to define what you really want, because everything is hypothetical right now. It is either in or out. That is how it has been for everybody since Maastricht. Now, with the

British initiative, that has moved, and that is what makes it quite interesting. Of course, we have a great many other issues when discussing this, but for the future of the European

Union that has been extremely helpful for us because it is not now for us any more just a hypothetical thing of, “We want to have this, we do not want to have that”. Now it is politically much easier to say that we are in the same line as the British Prime Minister, whatever line that might be.

The Chairman: Yes. I should be a bit careful about the “whatever” line he might take. The

British could surprise you by asking for things that you would not.

Morten Messerschmidt: Indeed, but that is why I am very precise in saying that there might be areas where the UK wants to get out but Denmark wants to stay in. For me the

328 of 485 Morten Messerschmidt MEP—Oral evidence (QQ152-160) important thing is that the voters have the say and not the unanimous political elite as it is now. That is where we are moving.

Q153 The Chairman: That is unfortunately not what we are here to talk about today, because it would be very agreeable to continue that conversation with you. We are going to have to spend the whole of our Friday talking about it, too.

You have played an important role as shadow rapporteur on the Stockholm programme and therefore you have a close acquaintanceship with it and everything it has stood for and what it has meant. We are at the moment nearly at the end of an inquiry that will lead to a published report at about the end of March, about the possible content of the next phase of the justice and home affairs activity of the European Union—that is to say, for the sake of ease of reference, the period 2015 to 2019. That may, and probably will, be given strategic guidance by the heads of government when they meet at the end of June. That appears to be the objective at the moment—although as Chairman Aguilar told us just now, the objective is not shared by the European Parliament, which has an uncomfortable feeling that that timing will not give it an opportunity to make a proper input. I know that you are going to consider a resolution or resolutions on that in the next plenary, or the one after that.

What we are doing is taking evidence from as wide a range of people as we can: law enforcement agencies, prosecutors, police, NGOs, think tanks, the British Government— obviously we always take that—members of the Commission. We saw Manservisi and Le

Bail yesterday, Members of the European Parliament. We have seen you and some of your colleagues on the LIBE Committee. Out of that we hope to distil a report that will point the way ahead and make a contribution to shaping this new period of activity on justice and home affairs. As you know, this is on the record. We will send you the transcript. If you wish to correct it, that is fine, but it will go up on the website and we will draw on it in our report.

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It would be very helpful to us, if you could just say a little bit about your own experience with the Stockholm programme, where you think it has succeeded, where it has failed, has it worked as intended, are there bits of that have got left behind and so on? Then we can look at the future programme.

Morten Messerschmidt: First I think it is fair to stress one issue, which is that is that my objectives might not be the same as the ones of those who formulated the Stockholm programme, because on a great deal I am in opposition to the majority of the House. That is why I emphasise that I am the shadow rapporteur; the report would certainly have looked different if I were the rapporteur. As things turned out, in the past 10 years they culminated in the Lisbon Treaty, where pillar 2 and 3 were moved into the super-national part of the

Treaty, thereby embodying the Commission, the Court and the Parliament—and this I greatly dislike. I think it would have been appropriate if these matters, which are within the very core of the state of the individual rights of the citizens, had been dealt with in the

Council where the Member States have the initiative and implement decisive power.

But that has been changed, firstly by the Court in the past 10 years in various cases, where they began moving various issues into the first pillar, and then implemented by the Member

States afterwards—I must say to my great surprise, because many of the same states argued against these cases at the Court in 2004, 2005, 2006 and 2007 when they were there. That is just the premise for whatever I am going to say.

I think it is the impression in general that due to all these institutional disputes that primarily are between the Council on the one side and the federal institutions on the other—Court,

Parliament and Commission—the implementation of the Stockholm programme has not been very successful. Yet on the other hand nothing much here in these institutions for the past 10 years has been very successful, so in that platform it does not look as much of a failure. Therefore, of course, the Commission—that is, the outgoing Commission now

330 of 485 Morten Messerschmidt MEP—Oral evidence (QQ152-160) wanting to have an influence also in future—has introduced a step 2, as you might call it. As I see it, it is more or less an attempt to do what was not successful in the first programme and the first five years.

I remember when coming here—I was first elected in 2009—the attempt was to move everything that had been in the second pillar, the framework agreements—is that what they are called?

The Chairman: Yes, the third pillar.

Morten Messerschmidt: The third pillar, yes; the attempt was to move that into directives.

But that has failed—to a large extent, I think, because of resistance within the Council, which

I see as a very good thing, because it needs to be implemented by Member States as such.

But the intention obviously now is, as we have seen, to move on when it comes to migration issues, when it comes to the common asylum definition, distribution and things like that.

Also, especially, that is being pushed from Parliament when it comes to common criminal codes. We have worked on that several times and there is a great desire to harmonise the criminal code.

We also know when it comes to the battle against racism and so on, the hate-speech regulation, they have tried to move that into directives. It is my feeling that that will be the focus for the coming years: taking these framework agreements and enforcing them into directives. I think they will try to pass that as just a formality, which it is definitely not. It is another quite strong loss of sovereignty when you are moving it from what used to be the third pillar into something now only interpreted by the Court and by the Parliament here, which has as its influence. But that is how it is being presented. People here know very well that the EU, as such, is in crisis and does not have the support of the population in all these matters. Also, with the experience of what happened in the past, the arrest warrant and all these issues, they will try to pass these changes in different technicalities.

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The question will then be how the House will react afterwards. When I say “House” I refer to the European Parliament. It might be quite different in its approach to this after the

European election. In order not to control that but at least to approach it in due time, the

Commission has come out with this proposal now.

It is important to see all these factors. The Commission has this long motivation to turn everything into federal legislation, directives and so on, and they know very well the scepticism of the population and that they might have a much more sceptical Parliament after the end of May. That is why they want to make as much now—which goes back to what you said. They will push for as much agreement as possible now, whereas at least my side will argue that so close to an election it is unfair and it makes no sense, and anyway we will have to make new decisions in June and July when we get back after the election, so these will be more or less invalid.

That is the political battle right now. I do not know whether that responds to your question.

The Chairman: Yes, it is very helpful, because it completely contrasts with most of the evidence that we have taken.

Morten Messerschmidt: I warned you about that.

Q154 The Chairman: Absolutely. You explained it in a very clear and very interesting way. There are traces of what you have said in what British Government Ministers have said to us in the context of the Protocol 36 opt-out. On the other hand, what has puzzled us as we have moved through the Protocol 36 experience is the fact that some of the rhetoric that the British Government uses about dislike of the extension of the jurisdiction of the

Court of Justice and the enforcement powers of the Commission to this area of justice and home affairs is not very often reflected in what they do in terms of post-Lisbon legislation, where, as I am sure you know, the British Government has opted in to 49 measures since

Lisbon, which is only three years ago. Their practice is sometimes rather different, and they

332 of 485 Morten Messerschmidt MEP—Oral evidence (QQ152-160) did not do that because of deep love of the European Union. They did it, as far as we can see, because they considered that it was in Britain’s national interest to be in, let us say, the

PNR agreement with the United States or with Australia or with Canada, to be in the human-trafficking regulation, to be in the readmission agreement with Turkey.

That is by way of simply saying that although some of what we hear from our British

Government interlocutors is similar to what you have said, there are odd inconsistencies in their approach. The British, of course, are not known for being a logical race, so perhaps that is what we should expect.

It would be good if we could move on now, and I will ask Lord Sharkey if he could go into a little bit more detail about your views on the way ahead and where the emphasis might usefully be.

Morten Messerschmidt: Gladly. Can I just say one thing on what you have just mentioned?

That is my favourite topic of all, the European Court of Justice, or European Court of

Political Arbitrariness I would rather say. I just released, in Danish sadly, a book on that, analysing the political role of the Court since 1957 until now.

The gravest error ever to make would be to underestimate the Court. It has the will and the power to act politically much more actively and decisively than any politicians whatever— and they do so. So the greatest danger ahead when it comes to individual freedoms—I am aware I am speaking to the fathers of Magna Carta here—is to hand over the power of interpretation of these fundamental rights to these judges, because they will undoubtedly take the legislation in ways we have never imagined or envisaged.

The Chairman: That is summed up in our jargon as being an activist court. It is always described as an activist court. I have to tell you that in the reams of evidence that we took on Protocol 36, we did not find very many people who supported that interpretation in the justice and home affairs area, where the Court is required under the Treaty to have respect

333 of 485 Morten Messerschmidt MEP—Oral evidence (QQ152-160) for national jurisdictions, which is not the case, for example, on the single market or trade policy or whatever it is. Most of our interlocutors—the barristers, the solicitors, the law enforcement agencies—came forward and said, “No, so far they have had jurisdiction in a lot of Member States, because they voluntarily put themselves under it, and we cannot identify what would be called activist rulings”. That does not prove there will not be some in the future, but it was interesting.

The other thing is that we did find a conceptual difference when we took evidence from the

Minister of Justice, the Lord Chancellor, who criticised the Court of Justice as being unpredictable. When we asked him to explain he said, “If our Supreme Court in London does something we do not like, we can go to Parliament and change the law”. I have to say that at that point some Members of our Committee were rather shocked by that, because we do not really think that that is what one means by the rule of law—just because your courts take a decision you do not much like, you do not just go and change the law.

I do not want to get into a theoretical discussion, but that is just to show you the parameters of this debate.

Q155 Lord Sharkey: An English translation of your book might be very useful!

Thank you for giving a very clear exposition of what you thought about how we got here and what you thought is currently going on. I would like to turn away from that for a moment and look at the actual programme, or parts of the Stockholm programme. Leaving aside the meta-political situation you described, what lessons do you think we can learn in practical terms from the application of the programmes in the Stockholm programme and what lessons can we learn for the future? How do we do this better or differently?

Morten Messerschmidt: Perhaps I may do so by comparing what we used to have and then saying where we are now and where we are going to take this. In topics we know what the

Commission will propose for the future, but earlier on when a new initiative was in the

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Council we knew fairly well where it would end. We knew where the obstacles were and what had to be negotiated.

The thing is that the way that European institutions work is that the Parliament always, almost by nature, I would say, insists on bringing in issues that have not originally been intended by the Commission, and the Parliament has the authority to do so. Even though the

Commission might come forward with, say, the fight against trafficking, with limited attempt to co-ordinate police efforts and the exchange of information and whatever it might be, the

Parliament here, at least in its present composition, will, without any doubt, take it to the level of harmonising the penalties, which I would regard as a good step, or in other ways to move the proposal to a more ambitious or a more European level or whatever you call it.

They will normally then, even though it has not been reflected in the original proposal by the

Commission, gain the support of the Commission, and thereby the Council as such will be in a two-to-one position.

That I think will happen not only when it comes to the efforts to fight international crime, but also—this is where my primary concern is—when it comes to individual rights. So far we have not seen that many countries’ legislative measures in the European Bill of Rights, the

Charter of Fundamental Rights. The status of the charter is still undecided. The court uses it very creatively yet it has not been implemented in directives. I think that that is what will come.

I know your Government has been very active in discussion with the Human Rights Court in

Strasburg about the way that they also politically use the convention. That is only the beginning of what you will see from the Charter of Fundamental Rights. There we do not necessarily talk about the right of property and things like that. We talk about the issues of the expulsion of third-country citizens; we talk about the definition of free speech, about the right to protest. All these issues will be interpreted into a common European legislation. It

335 of 485 Morten Messerschmidt MEP—Oral evidence (QQ152-160) has already begun. That is what I meant before; I can send you a list of cases, because the

Court has for some years used the Human Rights Convention and also now the charter.

What will happen is that all these cases will be summed up and then the Commission will come out and say, “We cannot have this area unregulated”. The Court, with reference to this very ambiguous and vague charter, has stated various things on the right to protest and the right to freedom of expression and things like that. But we need to make order here and that will create suggestions about directives on the matter.

Q156 Lord Sharkey: You started off by saying right at the beginning that essentially you would prefer it if these were matters for the Council rather than for the Commission or the

Parliament. Given what you have just been saying, let us pretend for a moment they are the exclusive competence of the Council and let us talk about the future JHA measures in that sense. If the Council had exclusive competence here, what do you think they should be doing next in terms of JHA? Are there are a list of things that you think they should be addressing?

Morten Messerschmidt: I would say that they should focus on what has already been agreed, and try to make it work. There are so many problems. I mentioned the arrest warrant. We have had cases of people being delivered for the attempted stealing of pigs and stuff. That was never the intention of these agreements. So instead of focusing on numerous years of European legislation, let us focus on this and find out what has worked. I am sorry if

I am not using the correct words, because I have them in Danish in my head, so I am trying to translate.

The collection of data on the internet for protecting against terrorism and stuff like that is a logging directive. That has led to a huge amount of problems with collecting data, which has nothing whatever to do with the fight against terror and is for many countries just creating

336 of 485 Morten Messerschmidt MEP—Oral evidence (QQ152-160) problems rather than solutions. Let us try to focus on that and make sure that our original intent is reached instead of trying to go for even more laws. That would be my advice.

The most important thing I think with the system we used to have—I do not want to sound paranoid but that was my impression—was that it was up to the supreme courts of the

Member States to interpret these framework agreements, unless Article 35 was used and therefore it was given to the ECJ. But as politicians it is sometimes very difficult to make a theoretical point and know how it will be implemented in the real world—and that is basically what you do when you make legislation. You have an idea of what will happen, you try to frame it and word it in a way so that it will cover our political ambition, but sometimes it just turns out differently.

That is why I consented to what you said before, that if a piece of legislation appears to work differently in the real world than we intended, we can change it. I think that is a good thing. Of course we should not change it for the individual or for the individual case, but we live now in a different world than we lived in 100 years ago or even 20 years ago, so of course we should change legislation. That is part of being a law-maker. But how do you do that if you need to have consensus not only with your colleagues in the Council but also persuade the Commission to initiate the process, because you cannot even do that any more?

The institutional issue is extremely important and now we have so much legislation on our hands. I think since I was elected to this House, we have voted 20,000 times in the plenary, so maybe it is time to stop and check whether the acquis communautaire is in accordance with our original intention.

Q157 Lord Sharkey: As part of all that, it seems to me implicit in what you are saying that there needs to be a quasi-objective way of making an assessment of how these things are in fact working. I know that in your review of the Stockholm programme you have been

337 of 485 Morten Messerschmidt MEP—Oral evidence (QQ152-160) looking at assessment and so on, and how well it has gone. To what extent do you think the mechanisms for assessment that we currently have are adequate?

Morten Messerschmidt: The problem of the assessment on a European level is that we do not agree on what were the goals. That makes it very difficult to assess. For instance, with the Commission the goal itself would be to have a 100% accurate and correct and timely co- operation on the directives by Member States. That will be their ambition. I think for the

Council it will very primitive: just to get some of the criminals behind bars.

I do not see the past five years as a period where Europe really struck back against international crime. I do not really see that. Especially after the open borders—I know that you are not privileged with such a blessing—we have created a fifth freedom of movement, namely for the criminals. It is in that light that I see the past five years.

My argument would be—again, I am in the minority in the Parliament here—that we, as

Member States, passed over huge amounts in the belief that we would have less trafficking, less drug dealing, better border control and stuff like that but it did not happen. Now you tell us that we need to pass over just a little bit more in order to solve these issues, and it is not going to happen. That is how I would assess the past five years.

Q158 The Chairman: We took a lot of evidence, in the context of the British

Government’s opt-out, from our law enforcement agencies—the police, the prosecutors and all that sort of thing—about Eurojust and Europol and all their activities, and indeed the phenomenon that you have described of the internationalisation of serious organised crime, which I think nobody disputes. They unanimously said that Europol and Eurojust were a major and important step towards enabling them to cope with these problems. They said that before that we had a crazy-paving network of bilateral contacts, which sometimes worked if the people at both ends knew each other well, and sometimes did not work at all if they did not, and which were completely haphazard and extremely expensive to operate,

338 of 485 Morten Messerschmidt MEP—Oral evidence (QQ152-160) because you had to have people all over Europe in the capitals talking to two, three, four police and law enforcement agencies. All that, they say, is now working a lot better, with

Joint Investigation Teams, with the Eurojust representatives sitting in the Hague and just walking down the corridor and saying, “We have had a Brit murdered near Annecy in

France. What are the procedures?”

They were unanimous in that. The Director of Public Prosecutions, the Head of the National

Crime Agency, all said this is good, cost-effective work the agencies are doing. Is that not how it looks to Danish law enforcement agencies?

Morten Messerschmidt: Yes, when it comes to Eurojust and Europol. It is always difficult to say how things would have been if something had not happened, obviously. I do not have any complaints about the way that Europol has worked, and we get the same assessment of it from the Danish authorities.

The Chairman: So part of the challenge, it seems to me, is to make these agencies,

Frontex as well, work better, to be more cost-effective, to iron out difficulties. That is clearly one of the components of a forward programme for justice and home affairs—not to be continually creating new things but to make the existing ones work better.

Morten Messerschmidt: Of course that is correct. I would love to have a well functioning

Frontex and an efficient border control and so on. I just think it would have been a good idea to maintain the national border controls before you are sure that Frontex works. What they did now was to create something that seemed to be quite inefficient and still they told

Member States to hand over powers.

The Chairman: Coming from a country that still has its national border controls, we are not absolutely overwhelmed by the evidence that they are protecting us very effectively.

Morten Messerschmidt: No. That is going to be a huge topic also.

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The Chairman: Yes. One of the things that has interested us is that the British

Government, which is not a member of Frontex, because we are not in Schengen, nevertheless provides quite a lot of funds for Frontex and considers that the strengthening of Frontex is part of our national security. You might think that is all a bit contradictory but I do not think it is when you think about it.

Morten Messerschmidt: No, it makes sense. If people get into Italy, they can move freely.

Q159 The Chairman: Part of the forward JHA programme, it seems to me, is going to be making the agencies work better, be more transparent and accountable, and completing some of the legislation that is in the pipeline, whether it is to do with personal data or to do with PNR or to do with putting Europol on a Lisbon footing and all that sort of thing. Often that gets overlooked but it is quite a long agenda of incomplete work, much of which seems to have the basic support of all the Member States in the Council.

Morten Messerschmidt: I think that there have been great initiatives; you mentioned some of them there. I voted in favour of them here and so did my party in Denmark. But there are just, as I tried to say before, so many things that are still not efficient. Europol is still not even up and running at the speed and efficiency that was expected. So let us focus on that instead of trying to create a European Bill of Rights or whatever will be on the Commission table for the coming five years. That is my argument. Then in that process and that assessment let us also find out which of the directives and frameworks turned out to be either harmful or useless and let us agree to solve them.

The Chairman: Presumably you would think, as I think we will tend to think, that the new programme, the new five-year programme, should focus very firmly on those things—not to the exclusion of everything else, but they should have their feet on the ground about it?

Morten Messerschmidt: Yes, that would be a good thing to start with, I agree. We all have the same ambition, I think. We want to be efficient against crime, irrespective of where we

340 of 485 Morten Messerschmidt MEP—Oral evidence (QQ152-160) stand politically, but the question is whether the way of doing things has been efficient or not. As I said, some measures have. For instance, I and my party are entirely in favour of the

Dublin Convention and the agreement that the place where the asylum seeker reaches the ground for the first time, that is where you deal with them. But I strongly argue against what they call the fair distribution of migrants, so that when 100,000 people come to Greece,

Denmark needs to take a portion of that. I do not think that makes sense, because it takes the responsibility away from the Member State of dealing with—

The Chairman: There is fortunately no power in the Treaty to compel people to do that.

Morten Messerschmidt: Well, I think they will argue that there will be. You have an opt-in, we have the opt-out, so we might be safe. But I think they will definitely, from the

Commission side, argue—

The Chairman: I have heard Director-General Manservisi give evidence on the record that they have no ambition to take control of the migration policy of Member States.

Morten Messerschmidt: Do not underestimate the majority of the Parliament. As I said before, the Commission might come with a less ambitious proposal, but they will be forced to be more ambitious before closing the deal.

The Chairman: Yes, I understand that. About evaluation and assessment, do you think that under the new five-year period or so, something rather better than the existing haphazard approach could be and should be introduced, so that, for example, the assessment of the value of mobility partnerships with countries like Moldova or Morocco or Tunisia or what have you can be properly assessed for value for money but also value in terms of the objectives they were set up to pursue?

Morten Messerschmidt: No, it is extremely difficult. One of the goals of doing these measures is more evident if we speak about Ukraine, for instance. That is not only in commerce or in fiscal matters but also politically trying to drag the eastern part of Europe

341 of 485 Morten Messerschmidt MEP—Oral evidence (QQ152-160) towards the west rather than towards Moscow. These things obviously are very difficult to assess. You can calculate easily the development of commerce and trade and stuff like that, but that might not be the only goal. I think that that is difficult. But when it comes to more internal affairs, an approach that has not yet been used very well but could be there, and that is also legally founded in the Lisbon Treaty, would be to have the national parliaments much more engaged. As you know, now they have been given the authority to scrutinise the principal subsidiarity in this process of eight weeks after the last language version, which is very shortly, I think—but that is another question.

I think the national parliaments need to get closer into the evaluation because national parliamentarians, I must say, are in much more direct contact with the real world than

European parliamentarians are. You have your constituencies; you probably meet your voters every day. Here if I am lucky—I am sarcastic now—I can go an entire week without speaking Danish. Of course, that is a lie. The thing is that you get out of touch with the people you represent, being here. Therefore, the national parliaments, for that evident level of transparency and democracy, I think need to be much closer than they have been.

The Chairman: Our EU Select Committee—not this Sub-Committee you are meeting now—is nearly at the end of an inquiry into the role of national parliaments, which we will be publishing in late March or early April and on which we have consulted all national parliaments, including the Folketing. We have had some very useful testimony from them, and I hope that we will come forward with a menu of ways in which, within the existing treaties, national parliaments could make better use of the role that they have been given.

Our findings are quite simple on the yellow card, which is that the eight-week limit is ridiculous. It is ridiculous because even the more efficient parliaments—we, I suppose, would pat ourselves on the back and say we were one of them—find it pretty difficult to get

342 of 485 Morten Messerschmidt MEP—Oral evidence (QQ152-160) around the course of producing a Reasoned Opinion in eight weeks. It is not as simple as all that. You have to pass through a lot of committees and have a vote at the plenary and so on.

That is one part of it, but far worse, since you take out all except five minutes of the eight weeks doing that, you have no time whatever to concert with other national parliaments so as to achieve the one-third of Reasoned Opinions that constitute a yellow card. Certainly this study—not this Sub-Committee but the main Committee on which I serve—will certainly be recommending that the new Commission should be pressed very hard by the

Member States to simply state unilaterally that they will accept reasoned opinions up to 12 or 16 weeks.

Morten Messerschmidt: Yes. And since when did the European institution ever pass any piece of legislation within two months?

Q160 The Chairman: Exactly. One of our arguments is that the only people who are constrained in a ridiculous time area is national parliaments. The European Parliament is not; they can take anything up to a year or so. The Council is not; they can take two or three years. The Commission is not; they can take as long as they like in pre-legislative action. But we are stuck in a tiny little window and that needs to change. We would also like to see a situation in which the Commission accepts that when a yellow card has been used properly, and one-third of assemblies have endorsed it, they would either withdraw or substantially change their proposal, which of course at the moment they do not do, as we have seen over the European Public Prosecutor’s Office, in which they just said that 19 national parliamentary assemblies have it all wrong and do not understand what the law is and have made a mistake about subsidiarity and would they please get lost. That will not do.

I think that you will find—I hope that you will find—our report on the role of national parliaments useful to you when it comes out.

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Morten Messerschmidt: I would be very glad if you would pass it on to me. That would be helpful.

The Chairman: Absolutely. We will have that in about two months’ time.

Morten Messerschmidt: Excellent. You must understand that this is, for the European

Parliament, a crucial question of identity. I am in the Constitutional Affairs Committee and I remember we had, a year ago, the discussion on COSAC, where the majority of the House here argued that distributing seats within COSAC needs to be done so that the European

Parliament had 50% and the national parliaments had 50%, because then they just had to persuade and find one federalist in all the national parliaments. But that is how they see it.

Luckily in the negotiations we won so that the European Parliament is one parliament now out of 29. At least with this composition of Parliament that is how they see it. Hopefully things will be different after the election.

The Chairman: Obviously one area that we will look at is the way COSAC could be strengthened as well and could be made to work better.

Morten Messerschmidt: Yes, it needs to be formalised.

The Chairman: There are many things that are wrong with it at the moment. It does not have enough resources, among other things. Why on earth the European Parliament has hundreds of millions of euros and COSAC has nothing—these things are remediable within the existing treaties. We will set out what I call a menu, and I hope that some of you will decide to eat from it.

Morten Messerschmidt: I will make sure that happens. I hope this has been helpful.

The Chairman: Indeed.

Lord Sharkey: Very useful.

Morten Messerschmidt: I am glad.

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Lord Sharkey: Do not forget that when the book is translated into English, we look forward to reading it.

Morten Messerschmidt: I must say writing a book on ECJ practice is not a big seller, so I will have to do some persuading to get it translated into English—but I will make an attempt.

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Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51)

Evidence Session No. 3 Heard in Public Questions 29 - 51

WEDNESDAY 11 DECEMBER 2013

Members present

Lord Hannay of Chiswick (Chairman) Lord Blencathra Viscount Bridgeman Baroness Eccles of Moulton Viscount Bridgeman Viscount Eccles Lord Hodgson of Astley Abbotts Lord Judd Baroness Prashar Lord Sharkey Lord Wasserman ______

Examination of Witnesses

Dr Philippe De Bruycker, Deputy Director of the Migration Policy Centre, European University Institute and former adviser at the European Commission in the Home Affairs Directorate General, in charge of drafting proposals for Directives on immigration, and Elizabeth Collett, Director of Migration Policy Institute Europe and Senior Adviser to MPI’s Transatlantic Council on Migration

Q29 The Chairman: I think you may have heard that due to the climatic conditions, your co-panellist who was coming to share the witness session has not yet got here. He may, or he may not arrive during the course of the session, but we are just going to work our way through the subject matter and questions, and we will have to be a bit flexible if and when he arrives, which very possibly he may not. It is uncertain, I am afraid. Anyway, thank you very much for coming along.

As you know, we are conducting an inquiry into the European Union’s Future Justice and

Home Affairs programme, the one that will almost certainly be adopted towards the end of

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2014, to cover the period 2015 to 2019. We are working our way through evidence sessions, through the various main parts of any past programmes—Tampere, Hague,

Stockholm—and looking at and taking evidence on what witnesses feel the future programme should contain. In the case of this session this morning we are hoping to concentrate particularly on migration from outside the European Union, I hasten to say, not inside the European Union; this Sub-Committee is not the primary Committee that deals with free movement within the European Union—that is Sub-Committee B, which does single market—but from outside, and also questions on asylum, and so on. Without more ado, can I welcome you and explain that the session is in public and being broadcast? A transcript will be taken and a copy of the transcript will be sent to you, to give you an opportunity to make any minor corrections to it, although it will be published online in an uncorrected form first. At the end of the evidence session, if you had any additional thoughts you wanted to put into writing that would be extremely welcome. As to the start, if you would like to introduce yourself and say a little about your responsibilities and expertise in this field, and if you wanted to make an opening statement that would be very welcome to the Committee, but if you decided you did not want to we will go straight into questions.

Elizabeth Collett: First, thank you very much for inviting me here today; it is a pleasure and an honour. I am the Director of the Migration Policy Institute Europe, which is the European

Office of a think-thank that is headquartered in the United States called the Migration Policy

Institute. MPI is a bipartisan, independent think-thank, dedicated to the study of migration and migration policy worldwide. We focus on looking at how policy works in light of the evidence and what we understand about migration and migration flows, and seek to improve immigration policies in Europe, the US, and increasingly now Latin America and Asia. My responsibility as the Director of the MPI Europe Office is to look at policies and how they function in Europe. Part of our work is comparative national policy, so seeing how policies

347 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) work for the integration of migrants in terms of asylum, looking at border management, looking at labour and legal migration in different national countries. A certain part of my work in particular is focused on analysis of EU policymaking and its effects. I have worked in

Brussels for eight years—which feels longer than it actually is, I can tell you—and I focus a great deal on the programmatic policy development and its effects, and I have quite a few views on what is working, what is not working and what might happen next. I welcome your questions, rather than offering a reiteration of the written statement that I submitted last week.

Q30 The Chairman: Thank you very much, that is very clear. Clearly you have been following these previous programmes pretty closely and that is very welcome, because we are talking about a continuum and it is important to see what has worked in the past and what has not worked and try to draw lessons from it. Could we start with the first question, which is what you thought about the asylum and migration priorities set out in the

Stockholm Programme—that is the one coming to its end now—and did these lead to any action of any sort? Was the action effective? Are there gaps in that Stockholm Programme, either in terms of legislative proposals or in terms of the follow-up implementation on existing laws, which were referred to in that programme?

Elizabeth Collett: I would say, quite bluntly, that the Stockholm Programme was quite modest in its ambitions when it was put together, which is a reflection of a number of different factors. When the European Union embarked on creating their area of justice and home affairs they created the Tampere Programme, which was seen as visionary. It was also part and parcel of an effort to embed justice and home affairs policy, to prove the point there was value in having EU justice and home affairs policy, so it was in that sense visionary.

It was also to a certain extent naïve; none of the Member States understood the realities of negotiating some of these policies, what it takes when you get down to the details of these

348 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) policies. The Stockholm Programme, in effect, reflects those 10 years of very hard work to develop common policies in this area—the political realities, as well as policy, technical and legal details. The baseline policies had been put in place by 2009, the overall, the basic

Directives that formed the Common European Asylum System, the basic tenets of border management and some of the key aspects of legal migration policies had all been put in place.

Many of the integration, collaboration structures were in places.

The Stockholm Programme was charged with doing a much more complex task, which was building upon this, filling in some of the details, and adding that next layer. That then was negotiated in a context of economic crisis and hardening political opinion towards immigration, and a limitation in terms of political will from many Member States. While the

Swedish Government had enormous ambitions for the Stockholm Programme, and wanted to include much loftier ambitions—such as trying to find an agenda for rights for migrants that would be as near to, or equal to, European citizens—they did not find it into the final version of the Stockholm Agreement, because for other Member States that was a step too far. There is a certain amount of modesty that goes with the Stockholm Programme. You can also see that many of the things contained in the Stockholm Programme were already underway. It was also a catalogue of things being undertaken, as well as the logical next steps, rather than thinking in a long-term fashion.

There have been a number of accomplishments; the renegotiation of the recast Asylum

Directives is one bundle and package the EU has managed to accomplish. The value of those

Directives is another question, but the law is there and the law has been agreed. There is a difference sometimes between completing the process and achieving the goal. There are still a number of gaps, not least the ambition to create an immigration code to consolidate the legislation and try to keep it in one place. One of the challenges of Stockholm is that there was not an enormous amount to achieve that was not already envisaged by many of the

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Member States and the European Commission itself. The second challenge for the

Stockholm Programme was that it was, in some ways, overtaken by events: the Arab Spring several years ago, the Syrian crisis has really thrown some elements of EU policy into relief, particularly the functioning of the asylum system but also the means to which Member States collaborate on border management, and the commitment and dedication to the external dimension of migration, working with third countries. One can encapsulate all of these problems by looking at Greece. However, if we look at the collaboration across the EU, you can see the external events have impacted the Stockholm Programme, often distracted from the core work of the Stockholm Programme, and led the Commission to embark on new aspects that were not originally envisaged, such as the governance of the Schengen system itself, and additional work to try to consider how to take the asylum system forward.

Q31 The Chairman: Would you therefore take the view that probably, given that we are in a period of considerable instability, both to the East of the European Union, where you see what is going on in the Ukraine, and in the Middle East and a whole swathe of countries in the Arab world, the likelihood is that in these next four years, the JHA Council and the

Commission will need probably to spend more time handling the consequences of unexpected events than they are in devising new legal instruments, or new laws, although the two are not completely dissociated. How would you respond to that?

Elizabeth Collett: Many of the issues they might experience over the next five years have already emerged onto the agenda: the protracted crisis in Syria and the number of people who have been displaced as a result of that crisis is already something the EU will have to take into account. The idea that instability could occur at the borders of the European Union is now one known to the Member States, which I am not sure was really thought about in any great depth before. In terms of events in the future, there is a greater understanding that these things will occur, and they will become part of the normal legislative and policy agenda

350 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) for the next five to 10 years. There needs to be a certain amount of flexibility to be able to accommodate events that we did not expect, but also the political aspects of that. The situation in Lampedusa in October was not new—Member States had been discussing and considering this for a number of years—but the very public nature of the tragedy, the media coverage of the tragedy and the point of view of a number of southern Member States who wanted to bring this to the attention of the Commission meant it became a political issue that required action. There is also that aspect that an event may be important, but until it becomes politically important it may not be covered by the European Commission. The political salience of some of these events will lead much of the work of the next few years.

Q32 Viscount Bridgeman: This Committee has spent a lot of time examining the problems of Schengen and then identifying the weakness of the Greek-Turkish border. Has the big refugee problem in Turkey affected that particular problem with the European

Union?

Elizabeth Collett: It has added a certain urgency in terms of addressing the borders. If you look at the Greek border, the idea that anyone thought it would be possible to manage a border as geographically situated as Greece is, with such a large number of islands—the challenges still remain enormous in Greece. One of the interesting things about the fact that

Turkey has taken a significant proportion of the refugees from Syria is that Turkey itself is realising its responsibilities as a country of immigration for the first time, and we have seen that over the last couple of years. Earlier this year they passed their first comprehensive piece of legislation on immigration. Despite the fact that Turkey has not signed the Refugee

Convention, they have really extended themselves extraordinarily in terms of managing migration, and are far more aware of the existence of smugglers and traffickers, particularly closer to the borders of the EU. We cannot underestimate the continuing challenge on the

Greek-Turkish border, but if I can be optimistic, the recognition by both Turkey and Greece

351 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) that this is a challenge and that they need to take action to resolve it will be helpful in the longer term.

Q33 Lord Hodgson of Astley Abbotts: My question—you have been dancing round it a bit in your discussion so far—is really to drill down a bit in this area and ask whether there are instruments that you think should be reviewed for their efficacy and or implementation: an overview from your point of view of how effectively the asylum package is being implemented. Is it providing the right level of fair, efficient and effective protection for asylum seekers? If not, why not? Issues about the inconsistencies in EU immigration and whether those need be streamlined; in the papers we have got I see quite a bit of confusion, at least confusion for me, between harmonising and streamlining. I would benefit from your view as to whether harmonising equals streamlining, or if they are different concepts.

Elizabeth Collett: Those are enormous questions; let me take a minute to try to answer them in a logical manner. The asylum packages are a first start in terms of creating a baseline for what asylum systems should do and how they should function within the EU. One of the main challenges is still around the Dublin Convention, even in its third iteration. While the reforms do help the functioning of the Dublin Regulation and the system overall, the unintended, or rather unanticipated consequences that lead some countries to receive more asylum applications than others, and the pressures particularly at the border that are created in Greece, Italy and Malta mean that we are seeing some tension with respect to how Dublin functions in the long-term.

In terms of inconsistencies, it is not just about the legislation but the way legislation is transposed, interpreted, and, finally, the capacities of Member States to respond to the asylum seekers that they have. This entire system functions on the basis of mutual trust: that

I trust that the next country will consider asylum applications, if not identically to me then similarly enough that I feel comfortable we are all in the same game, as it were. This has

352 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) been put under strain in the last few years, realising that Greece, for example, had not transposed, implemented and interpreted the legislation as other Member States had assumed. The interpretations are coming under strain. The European Court of Justice might ameliorate this in the very long term. It will start making decisions on the interpretation of asylum law, and smoothing out some of the rougher edges of the asylum acquis, but there will still be a great deal of disparity, both in terms of the law, but also credibility assessments, what information is available, the quality of the system itself, from everything from reception, detention, to the process of determination itself and what happens afterwards. Also, what is offered by Member States in terms of the status? We have seen that Sweden has offered

Syrian refugees permanent residence if they arrive in Sweden. That has put the onus on other Member States: do we offer the same? Do we not offer the same? What is the most appropriate thing for us to do? That is quite a significant difference between Member States.

Finally, in terms of capacity, I cannot emphasise enough that many Member States are in different stages of developing their asylum system. If you speak to Government officials from

Central and Eastern Europe they express the hope that they can do well in terms of asylum, but also the fact they are inexperienced and still building their asylum systems to some degree. This is exemplified best by Bulgaria right now. A note of information put out by

UNHCR just yesterday highlighted that so far this year Bulgaria has received 8,800 applications, 5,000 of which are from Syria, which is far in excess of anything it has ever experienced. They may have had a decent asylum system for several hundred applications, but when they are faced with 8,800 applications, they no longer know how to respond.

Regardless of how well the acquis is functioning, these exogenous factors have an impact on each Member State, and then how asylum seekers themselves make choices within the

European Union. I still feel I am skipping around a little, because these are such enormous questions, so feel free to ask additional.

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Lord Hodgson of Astley Abbotts: I was interested yesterday reading—and obviously single cases make quite poor law—about the chap who interrupted the boat race by swimming into the path of one of the crews. He was going to be sent back to Australia and was able to get asylum on the grounds that his wife would be badly treated there, she being—I am not quite sure where she came from, but not from within the EU. When you talk about even-handed application on immigration and asylum and I think about people looking at that case and seeing it superficially as I did, I wonder whether one is ever going to get to reach the sort of nirvana that you described with everybody trusting everybody to apply these rules.

Elizabeth Collett: There are two ways of looking at this. One is that this is a very, very long-term process of very, very slow convergence between asylum systems, and a hands-off approach that we will slowly get to the point where we all pretty much agree on who is in need of protection, on what grounds and how our legal systems work. That process I think will take decades; our systems are very different and influenced by our own histories and our own experiences within the asylum system, particularly previous judgments within the

UK. That is an extraordinarily long-term view. The more dramatic and drastic view, which is something the MPI will start working on next year—so I do not have all the answers—is to say if we are really going to embark on a Common European Asylum System, the only way to do it is to create one system and one set of adjudicators, whether they operate at a national level, or EU level. What would that joint process look like? How can you create those similarities? That is such an enormous task that most Member States, and certainly most officials I speak to, look at me with shock, horror and then hilarity. It would be such an enormous undertaking.

Looking at the future programming for the EU a question needs to be posed to Member

States right now, which is, “Which direction do you want to go in? Do you want to go with

354 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) a laissez-faire slow convergence, on the assumption that we would converge and that capacity would slowly be built over time and we would find ourselves in the same place, or do you want to set a vision for a Common European Asylum System that is fundamentally different and is a single European asylum system?” Most people would say, “That is not possible, no, we cannot do it”, but as you say, these tensions, the lack of mutual trust and these exogenous factors buffeting the Common Asylum System as it stands will continue until you reach either that state of convergence or a decision to create a single system. We are between a rock and a hard place in that respect.

Q34 The Chairman: Presumably the case that Lord Hodgson raised was a case where the Australian was being threatened with expulsion under British law, not under European

Union Law; I think I am right in saying. Quite separately, do you have any figures yourself on what different Member States have done to respond to the UN High Commissioner for

Refugees’ request to take Syrian asylum seekers?

Elizabeth Collett: In terms of resettlement of Syrian refugees around the edges, in terms of spontaneous applications the number is around 80,000 applications within the EU from

January until now, so far this year, compared with several million on the borders of Syria, so still a very small number. When it comes to resettlement the figures are very low overall for the EU. The UK is in one of the top three in the list of the numbers taken for resettlement.

What is interesting here is it is not just a question of the numbers for resettlement, but the capacity to resettle. I have had conversations with officials from newer Member States who say, “We would love to resettle. We face two challenges: one, no one really wants to come to our country, and two, we do not know how to integrate, we do not know how to settle.

We need advice and help.” This is a role the UK could play quite effectively, which is how you do resettlement on a larger scale for Syrian refugees. At the moment the numbers are minuscule compared to the size of the crisis on the borders of Syria.

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Q35 Lord Wasserman: That is a very good segue to the question I was going to ask about the future, looking ahead to the strategic priorities for the next programme. In migration and asylum, do you see any main themes, or something we should be urging as a strategic priority instead of getting bogged down in the details about how particular institutions work? Should they not focus on two or three strategic themes?

Elizabeth Collett: I would agree with that assessment that this policy area has now become a little more mature. There are certainly guiding reasons, and there is a certain amount of exhaustion and frustration when people start talking about the Common European Asylum

System. When the final Directive in the package had been renegotiated, everyone sat back and said, “We do not have to touch this for a few years; let us see how it is implemented, we do not have to do anything.” The events of the last six to 12 months have said that is just not going to be possible. One of the strategic policies is better understanding and setting goals for those interlinked challenges of border management, asylum and Schengen governance—really understanding how to shore that up and make it more effective over the long term and minimising some of these tensions that we see with respect to the Dublin regulation, the capacities of Member States to address asylum etc.

The second area that has also been raised in recent months is the global approach to migration and mobility, and shoring up relationships with third countries, both neighbouring third countries and those countries with which we have a strategic interest as a continent. I could go more into detail with that, but I do think the global approach to migration and the concept of mobility partnerships, and all these different tools the JHA policy area has created to deal with third countries will reach a natural end fairly soon in terms of how far you can go without talking about other policy portfolios as well—not least trade, agriculture, development. How do you integrate these altogether so that a dialogue with a third country is really about all of the key issues between Europe and that third country? That needs to be

356 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) a strategic priority, and my sense is that a broader co-ordination issue for the EU in the future is how they will integrate immigration priorities, which are a whole of Government endeavour—I think that is something the UK understands fairly well—and think about it in all policy areas as opposed to just thinking about it narrowly from a home affairs and interior ministry perspective.

In areas such as legal migration and integration, I do not think in the next five years there is an enormous amount for the EU to do in this area. The information exchange and co- ordination mechanisms and funding with respect to migrant integration are moving along quite nicely. It is helping Member States think about integration, but I do not think there is an enormous amount more to do. We have seen the difficulties in negotiating even the most marginal of Directives for intra-corporate transferees, for example, and seasonal workers, which have taken years to negotiate and will offer very little value over the long term for the

European Union. There is a natural end to thinking about harmonisation for Member States from that point of view, but there is something to be said here about supporting policies, policies that facilitate mobility, particularly of skilled workers; so recognition of qualifications, thinking about long-term portability of social security contributions and other contributions, trying to improve mobility, rather than thinking in the traditional elevation of national policy to the EU level and harmonising it; thinking about where the EU adds value in those areas.

Broadly I would leave it there.

Viscount Bridgeman: You did not mention settlement at all in this question.

Elizabeth Collett: Settlement?

Viscount Bridgeman: In the last question you kept talking about the settlement of asylum seekers, and so on.

Elizabeth Collett: It is a capacity issue for Member States. I am not sure how the EU, aside from supporting it financially and helping them with training and experience, can create

357 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) resettlement policies for Member States. There has been some discussion about forced relocation of asylum seekers within the EU, there has been discussion of voluntary relocation of asylum seekers within the EU, there has been discussion of creating much larger quotas for resettlement. Currently, politically, Member States are not interested in that at all, except for a chosen few, the southern borders of Europe. There was some discussion of joint processing that came up in a communication last week from the European

Union. Those are a whole extra set of questions that are worth investigating; they are extraordinarily, legally, and technically difficult to think about. I would not say it is a strategic priority to put that on the table right now. I would say it would be a priority to think very hard about how that would work in the future, once some decisions about the future direction of EU policy overall have been taken. At the moment there is a sense that there is incremental policy development moving here, moving there, with no real sense of what the endgame would be. That is one of the major challenges right now for the European Union: to decide some of those end goals and work backwards from that for what we need in the future.

Q36 The Chairman: This Committee took the view on seasonal workers—you referred to the Seasonal Workers Directive—which has taken an awful long time to negotiate and does not add very much to what was there already. We took the view, which was not shared by a sufficient number of other parliaments, that in fact subsidiary criteria were not properly applied as far as seasonal workers were concerned: that it was much more sensible to leave individual Member States to handle that on their own. Do you think the

Commission is sufficiently sensitive to the genuine subsidiarity arguments, or do they just play lip service to it?

Elizabeth Collett: There is a bigger question there about impact assessments and the ambitions of individual commissioners and officials. I do think in the broader ambition to

358 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) create and embed a common immigration and asylum policy, the actual value of some of the individual initiatives is overlooked.

The Chairman: Overstated or overlooked?

Elizabeth Collett: Overstated. Yes, sorry. My personal opinion is the ambition to create common economic migration policies by category of worker was a flawed way to go to begin with in terms of the functioning of those Directives. Indeed, we have seen how hard it is to come up with a definition of a seasonal worker for Member States. For some Member

States it means 10 months a year, effectively, in one country; for other Member States it means very much the season of agricultural work. Also what it underestimates is the disparity that exists still between both labour markets within the EU, wage levels within the

EU and also the functioning of social security systems within the EU. These disparities mean we do not really have a single labour market in the way we would need in order to have common immigration policies. Overlaying that is the fact that Member States have different needs in terms of skills, in terms of sectors; finding common economic migration policies is something you would find easier in 20 or 30 years assuming there was a convergence of those markets over time. Yes, I think the analysis was probably correct that this was not necessarily something that had to be done by the European Union, and you do see that ambition manifesting itself in a number of ways. A lot of actors would argue that integration of migrants is a local process, so what is the value of the EU? Over the next five to 10 years if the EU wants to continue to work on these issues, and be most effective, the critical question to ask those taking impact assessments is not “how can we best do this”, but “how might we add value?” If we cannot add value then we should not undertake this at all.

Q37 Baroness Prashar: That leads on to my question. Do you think that the programme should focus on objectives and principles, rather than just setting out a shopping list of new

359 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) initiatives? What balance do you think should be struck between new legislative proposals and improving co-operation?

Elizabeth Collett: I think, as I hinted before, one of the big challenges for the EU is going to be articulating a vision that stems out 20 years, and not one that just looks at the policies we have and the next steps: one that actually looks at the likely migration policies Europe will face over the next 20 years. That looks at demographic changes; it looks at Europe’s place in the world as other regions become loci for migration; and also the socioeconomic situation within Europe and its own future growth. These migration challenges will change over time, and that needs to be incorporated into a long term assessment of what EU policies can provide value on, and what that endgame would be for those policies. I would suggest that that be the core discussion for next year, and then you can work backwards. A shopping list is only useful if you know what recipe you are going to apply that shopping list to. Thinking in those terms is not really helpful. Thinking long term and working backwards you can then think, “If we need to get here, then we need to create all of these things in between.” From that perspective, I am much more towards objective principles than the shopping list.

In terms of new legislative proposals versus improving co-operation, there is a moment— and it has been said not just by me, but by many people—for consolidation and implementation to take a breath, to see how things are functioning in practice, to assess how well things are working, and look again at what might be needed to reform. It is also true that, with an increasingly numerous and dissonant chorus of actors, both between the EU institutions and numbers of Member States, finding legislative agreement is becoming increasingly difficult. If you want to create more legislation, it really has to be necessary, because it is going to take a lot of man hours, a lot of pain and a lot of heartache from everyone to do that. There is an enormous amount to be said for operational co-operation, not just in terms of implementation and capacity building but support for particular Member

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States, particularly to the South of Europe; the role of the European Asylum Support Office, thinking through training, thinking through how these things are working in practice are all very useful endeavours. I would say yes to legislative proposals if they really have a solid goal and a solid value for the EU, but there is a moment here to also think about that consolidation and operationalisation of the work.

Baroness Prashar: Any views on current co-operation? How is that working now?

Elizabeth Collett: Between Member States?

Baroness Prashar: Yes.

Elizabeth Collett: It also depends on the issue. There is a regionalisation of these policies that has emerged over the last few years. You see it in the run-up to justice and home affairs councils: there is a group of the likeminded, primarily Northern European Member States; there is a group towards the Mediterranean who co-ordinate their positions; and a group of usually quieter Member States towards the Central and Eastern part of Europe, so you do see a regional solidarity. In terms of co-operation across those regions, one of the tensions there is the co-operation and burden sharing means different things to different states. For

Northern European Member States, that kind of co-operation is about technical and financial support. For Southern European Member States it is about the relocation, and in the asylum dimension, the relocation of asylum seekers and more in-depth mechanisms for sharing burdens. There are some challenges to be worked out there. It may be useful to think about this in a regional way, in terms of testing ideas on a regional basis, particularly with respect of joint processing: is it useful to look at that in a regional basis first, look at the problems and challenges and opportunities and then move it out to a European level? Overall there is co-operation in some senses, and not in others.

Q38 Lord Judd: Would you agree that one of the reasons Baroness Prashar’s question is so crucial is that it is not just how it is all operating, but it is what the prevailing culture

361 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) within which it is operating is? When everything is stripped away, is it about saying that asylum, for all sorts of reasons, has to be something that is refused unless a very special case can be made for a person to have asylum, or is the prevailing culture—which was very much in the spirit of how it all started—to recognise the huge significance of asylum for the people concerned and that the operation is about establishing whether the person has a valid case for asylum? They are not the same reality at all, and we have to ask ourselves what we are really doing.

Elizabeth Collett: That is a very interesting analysis, and one that is, unfortunately, quite correct for a number of Member States. Asylum has not become about the validity of the claim as much as it is about the numbers of people arriving and reducing those numbers for particular Member States. Certainly in recent discussions about the situation in the

Mediterranean, when proposals were put on the table to talk about search and rescue and going out and finding people who were taking these dangerous journeys and were in a dangerous situation, one of the objections was, “Well no, because that means we will then have to assess them. We will have to put them through our system and we will have to give them an asylum adjudication, and we do not want to do that for more people. We are already doing that for enough people.” So many of these discussions are about the numbers and who takes what; it is quite challenging to see the underlying premise.

There is also a growing debate, which we will see in future years and which may be a useful one, about the concept of asylum itself and the concept of spontaneous asylum seeking within the European Union as opposed to regional protection in the area. This is brought to bear by the numbers disparity between those being protected around the borders of Syria and those who are arriving in the European Union. Are the EU’s resources and management of asylum seeking best put to protecting the smaller number of people who arrive at the shores of the European Union? Should they be thinking much more about the large numbers

362 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) of people who are in need of protection on the edges of Syria? How do we think about asylum in a vastly different environment from when the Refugee Convention was first put together 50 years ago? There is a deeper conversation about the role of asylum and the role of the EU, and whether there is a stronger role the EU can play globally that would take the focus off specifically numbers and give protection to people who are most in need, wherever they may be.

Q39 Viscount Bridgeman: This may reveal my ignorance about the relationship of a visa to asylum, but should the Schengen visa be a part of the ongoing consideration by the Union of this whole problem?

Elizabeth Collett: This is a discussion that has been raised in the last few weeks: the idea that you could create a humanitarian visa, or some form of protected entry procedures. A number of different Member States have done this over the last few years. Interestingly, in most cases they are quite short-lived, because they find that offering protection at an embassy leads to enormous numbers of people arriving at that embassy, as you might imagine. It is one of the discussions on the table. The earliest stage is determining what a humanitarian visa might look like, how you would issue it, and on what basis you would issue it: would you issue it for a particular country? Would you issue it for the Schengen area? If you issue it for the Schengen area, who is responsible for the application once they arrive?

There are a number of staged issues about how you would offer that. Would you do a credibility assessment before you offered that visa? Would you just give the visa for access to the EU, do the assessment on the territory of the EU, and then be responsible for either settling that refugee or returning them home? Who would do that? There are a number of issues there.

One of the other proposals that was floated 10 years ago by the UK and Spain and vociferously turned down, at that point, was the idea of external joint processing of asylum

363 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) claims, so putting people through the entire asylum process before they reach the borders of the EU. Again, the European Commission has said, “We are going to look at the feasibility of this.” It suffers from some of the same challenges: which third country would you ask to do that joint process in? Which country would be willing to take on what would be a large number of people? What would that process look like? What standards would that process adhere to? Would they adhere to Swedish, British or Maltese rules on asylum? Can we genuinely say there is a common asylum standard? We cannot at this point. If that person were accepted and found to be in need of protection, which country would they go to? That then brings in the whole idea of some form of relocation of refugees within the European

Union. On what basis: GDP, population, capacity, volition—where a refugee would like to go? Then the return part of it is particularly difficult: are those people whose claims are not accepted then the responsibility of the third country? Is it the responsibility of the European

Union to send them home? No Member States within the European Union are particularly good at return. The UK is one of the better ones at return, but it is still a small proportion of the total. These are some of the ideas that have been floated. As I said before, there are so many different legal and technical decisions to be thought through that it would be something to consider in the very long term, if we were going to do this at all. Otherwise, if it were done without thinking through some of these issues, we would see a lot of problems arise, and not necessarily an improved level of protection.

Q40 Viscount Eccles: What is your view about being able to draw a convincing line between asylum seeking and economic migration?

Elizabeth Collett: A convincing line?

Viscount Eccles: We like to think that somebody is an economic migrant or an asylum seeker. Is the line between the two convincing, or should it be redrawn? What is the position?

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Elizabeth Collett: If you look at the Convention terms, asylum is protection from persecution. That definition has been expanded in some ways. Protection from persecution on the basis of sexuality, for example, was not initially envisaged in the Refugee Convention but some states have interpreted it to include that. Statelessness is increasingly part and parcel of these considerations: is your state capable of protecting you? It has expanded over time as a definition, but the Refugee Convention remains the basic way of drawing a convincing line between asylum seekers and economic migrants. One of the biggest challenges—and this is a debate that I think is being had internally in the UNHCR and amongst Member States—is whether this is still fit for purpose and what the future needs of people will be over time. One of the big debates involves talking about climate change and people displaced on the basis of changes in their environment locally. There are a lot of different views on that. Some people are sceptical; some people believe there will be a large number of people who will be in need of protection on the basis of climate change. Thinking about internal displacement, how do you deal with people who have not left their countries but are in need of protection? Can we talk about those and incorporate them into a Refugee

Convention definition? It is a constantly changing line that is being drawn based on the considerations outside. As we have seen, the assessments made by different Member States and the lines drawn by different Member States can be different, but, broadly speaking, for every state there is a line that they do draw between economic migrants and asylum seekers. Leaving to find a better life abroad is, in itself, not sufficient reason to gain asylum, but there are a large number of people still doing that.

Q41 Lord Blencathra: Following on from Viscount Bridgeman’s question on visas, we had a witness a couple of weeks ago who suggested that it was the visa system that was really responsible for all the drownings in the Mediterranean, and that if we did not have a visa system then these people would not have to set out in ships and have those unfortunate

365 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) accidents. It seemed to me a bit like those who say, “We could reduce crime by scrapping some things being crimes in the first place.” Do you share the view that if we get rid of the visa system and let people in there would be fewer people drowning and they would not have to sail across the Mediterranean in little ships? Where is the solution there? Is she right or wrong?

Elizabeth Collett: There is often this discussion that increasing the legal channels for entry to the European Union would reduce the need for people to cross the Mediterranean.

Unless we talked about free movement and open borders in a complete sense, which I think is—

Lord Blencathra: Barking.

Elizabeth Collett: And infeasible, then I am not convinced that the way in which we would increase legal channels for entry would necessarily match the profiles of the people who are taking dangerous journeys across the Mediterranean. A good example is that in 2008 the EU created an information centre in Mali that was designed to provide information for potential migrants on the opportunities for legal migration to the European Union. Of those who enquired, the vast majority did not have secondary education or tertiary education, and if we look at the European Union’s policies overall, the focus is very much on skilled migration. It is much easier to arrive as an economic migrant if you are a skilled migrant. This does not speak to your visas idea, because the idea of not having visas at all is effectively saying that we do not then have border controls; we are talking about open migration. Yes, that probably would reduce the dangerous journeys—people would come by other means—but I do not think it is a feasible option in the current political climate that we have. Another thing to consider is the influence and role that smuggling networks play—the information they provide to asylum seekers and economic migrants about the journey itself, the viability of the journey, the price of the journey, and all of these sorts of things. We see this already in

366 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) some countries. It is so difficult to get hold of a visa to the European Union that even those people who are eligible to get a visa often choose the black market and smuggling routes because it is just simpler and more efficient. There is a question there also: if your visa rules are not working very well, people will use smuggling. Perhaps simple, clear and efficient processes in terms of visa rules might reduce the number, but not necessarily having no visas whatsoever.

Viscount Bridgeman: The Meijers Committee, which I gather is a Benelux initiative, has said that the recommendation “creating a framework for the transfer of protection of beneficiaries of international protection when exercising their acquired residence rights under Union law” should be implemented. Do you agree?

Elizabeth Collett: This comes back to the questions about differences between countries and how they adjudicate the definitions that they apply and the status that they offer. If there are significant disparities between Member States in the way they apply and offer refugee status and process applications, then effectively you would have to have an extraordinarily high level of mutual trust between Member States to be able to put that into practice functionally speaking. As an ambition and as a logical conclusion of what we mean by a

Common European Asylum System, it makes sense. If we really do believe that, on paper at least, Member States agree certain basic definitions of asylum and asylum adjudication, then transfer of protection should be no big issue. In reality, it still is a very big issue. Their recommendation makes a lot of sense, but the practical implementation of that and the political implications of that probably make it quite difficult to do in practice.

Q42 Lord Blencathra: Should the programme simply recommend the accession of the

EU to the 1951 Refugee Convention?

Elizabeth Collett: I have to admit I do not know if I have an answer on that one. I would say if it helped the European Court of Justice with their judgments, then why not? However,

367 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) each Member State is already a member, so it would be a question of whether it would help in terms of the application of existing international law at European level.

Lord Blencathra: Would it possibly just be seen as some gesture—the EU signing up to something all the Member States have done already?

Elizabeth Collett: Possibly.

The Chairman: There is another element to it, is there not? The EU already is operating policies that have an impact on refugees and asylum seekers, but is not itself bound legally by the 1951 Convention. The fact that all its Member States are bound by it does not answer all the questions, really. That would be the case for it. Let us leave that there for the moment; it is at a less advanced stage than the idea that the European Union as such should accede to the European Convention on Human Rights, which is enshrined in the Lisbon Treaty. Do you have anything more to say about that aspect, or shall we pass on to the next question?

Elizabeth Collett: I do not, except to note that Turkey’s relationship with the Refugee

Convention is a complicated one and yet they are currently host to an extraordinarily large number of Syrian refugees, so your ability to protect refugees and your accession to the

Convention are not necessarily one and the same thing in the modern day. There may be cases where EU law is more expansive than the Convention itself. Resolving conflicts between international, European and national levels is important, but I would not say it has to be a priority.

Q43 Lord Judd: The European Asylum Support Office has called for specialist training for judges for asylum appeal cases. Do you think that this is appropriate and needed? Would it be the best solution? Would asylum practitioners benefit from further training and/or accreditation?

Elizabeth Collett: The short answer is yes, very much so. I am not so familiar with the workings of the UK asylum system. My understanding is the UK itself has quite a high level of

368 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) training and expertise, but certainly across the EU the processes differ enormously, and the amount of training and knowledge and the quality of decision making differ enormously. I am not sure if you are familiar, but earlier this year the UNHCR produced a report looking at credibility assessment and really went into extraordinary depth—it is about 290 pages and it covers three countries, including the UK—on the difficulties in making an asylum adjudication and the various factors you have to take into account: the background of the person making the decision themselves; the unconscious application of prejudice; and the absorption of extraordinary amounts of information. All of these issues mean that training can only help in terms of those decisions. I would not just say asylum appeal; I would say frontline decision makers, and also perhaps lawyers themselves. This is less the case in the

UK, but in many countries lawyers themselves are under extreme pressure; they are not paid very much for each case; they certainly do not have time to prepare; they are not necessarily presenting the most effective case they could for their client; and they do not necessarily have access to the country of origin information that they would need to present the best case for their client. There are a number of issues here about how you create a quality assessment, and that requires training across the board but also thinking about some of those subsidiary factors, like whether the information and time are available to do these sorts of things and whether the process allows for the best possible case to be put forward.

As I say, I am not so familiar with the UK situation, but I know that in a number of other countries there are quite a lot of pressures on both the person presenting the case and the decision maker.

Lord Judd: The psychological and political pressures operating on these judges are quite considerable. Referring to my previous question, are they basically in a context of, “Our job is to keep people out” or, “Our job is to examine the case for asylum”? It is not just about

369 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) training, is it? Training is important, but there is also this other issue about what is really the job they think they are being expected to do—the underlying reality of that.

Elizabeth Collett: A line needs to be drawn there between the political and policy approaches to creating asylum systems and the adjudicators within the asylum system.

Adjudicators within the system should not give any notice to the political pressures that surround. The case in front of you is the case in front of you; if it meets the standards, it meets the standards. I am not sure about the number of pressures that adjudicators come under when they are making decisions, but there has to be a very strong line put between the process itself and the rigour of the process itself, and the political parameters, even though there is quite a lot of interplay between the impact of policies, once decided, on those adjudicators and the amount of information they can take into account, etc.

Lord Judd: Is EASO properly resourced? Is there a case for reviewing the operations of

EASO?

Elizabeth Collett: In my opinion it is a little too early to review the operation of an organisation that, though it was set up a number of years ago, has really only started functioning in the last couple of years. People have welcomed the work of EASO, so there is room to expand their work, particularly in terms of training and support for less experienced Member States. In terms of a comprehensive review, it might be too early, but a superficial review to see where they might add additional value would be warranted.

Q44 Lord Sharkey: Do you think that co-operation with third countries—for example, the mobility partnerships—should form part of the migration priorities of the future programme? I think I heard you say earlier that instruments such as the mobility partnerships may be coming to the end of their useful lives. If I did hear you say that, would you care to expand on it?

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Elizabeth Collett: Sure. Mobility partnerships have been a fascinating innovation at

European level—this idea that the European Union can create a declaration of partnership on immigration with a particular country and then the annexe is filled with practical projects that each Member State can volunteer to join. It is a new type of partnership. It depends enormously on both the EU and that third country having similar aims. Moldova is the country that has benefited the most from mobility partnerships over the last few years— indeed, it was the first country to have one—because their primary interest was in returning

Moldovan emigrants to Moldova, which, interestingly enough, was the same priority that the

EU had. Other countries have found it harder to gain value from the mobility partnerships because their prime focus is to have better access for their nationals to the European Union, particularly through economic migration. Senegal turned down a partnership with the

European Union because it understood that its bilateral partnerships with Spain and France had more value than the dilution of those partnerships at European level. There are a number of different factors playing into the value of those partnerships for third countries.

We are really only seeing now a country of deep strategic significance signing up to a mobility partnership, and that is Morocco. It is too early to say how well that is functioning, but one of the interesting things is that Morocco itself is undergoing a period of transition. In the last couple of months alone, the King of Morocco has really stated, “It is important for us to think about migration and integration. We need help from the European Union.” That declaration itself makes the functioning of the mobility partnership overall quite important.

However, it has also been criticised as a vehicle for getting what the European Union really wants, which is readmission and offering a carrot of visa facilitation, and I think that is also true. There is also room for decoupling that slightly and thinking about mobility partnerships as a broader engagement.

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They have come as far as they can inasmuch as they are a first step in terms of a dialogue with third countries on migration. It opens a channel of dialogue; it finds out what the priorities are of the EU, of the Member States and of that third country. It is a way of developing relationships across government that may not have been there before and that may not be possible within a regional dialogue process. However, given the complexity of immigration trends, the way immigration plays into economic growth and development and socioeconomic development, the way we think about integration and the way we think about all sorts of aspects of migration policy, in order to be of most value to the EU, the

Member States and the third country, they need to be embedded in a much broader dialogue. That is a dialogue that has much stronger development, trade and agriculture components, and talks about infrastructure, developing labour markets, skills development and workforce development within those third countries. That so far has not taken place.

This is very much a siloed piece of work that is done by DG Home and does not necessarily interplay that much with the external ambitions of other DGs. That is one of the big challenges for the future: how you can make the mobility partnerships fit together with all of these other priorities, rather than conflict with them.

Q45 The Chairman: That rather leads on to the question I would like to ask you. Do you think the European External Action Service should play some role in implementing the justice and home affairs programme? Indeed, is there any sign of it having had a role so far?

Elizabeth Collett: My experience is that the External Action Service is still learning, particularly on migration. It has not been focused on migration to a great extent to date and

I do not sense that, within the vast portfolio it could potentially have, migration is playing a large role. That is not to say it will not in the future. You do see much more engagement from other parts of the European Commission. The Directorate-General for Development, for example, now has a unit dedicated to migration and is thinking hard about various issues,

372 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) from climate change through to the various topics that are put forward by this nexus between migration and development—the dialogue that is occurring at the international level. DG Trade is now thinking very much about how to insert mobility clauses and, alongside that, skills recognition into international trade negotiations to improve mobility in the long term. It has been part and parcel of the debate between the EU and Canada on the agreement. Skills recognition may well be part of the debate in the transatlantic trade negotiations. You are starting to see an increased interest from other parts of the

Commission.

There is a role that the External Action Service can play, in terms of delegations on the ground in various countries, lobbying for certain things, applying pressure and building those dialogues with third countries, but it is still currently very siloed. One thing that was notable about the taskforce that was set up in the wake of the tragedy in Lampedusa was the number of DGs that expressed an interest in participating in that taskforce. I think a dozen

Directorates-General—a dozen different policy areas—saw themselves as implicated by the issues of immigration to the south of Europe, which suggests that the External Action

Service could play a role in co-ordinating that, and DG Home could play a role in co- ordinating that, but there is a need to bring all these various aspects together and integrate them much more effectively at the EU level. Who is in the lead on that process is still up in the air. It should be DG Home, but so far they have shown no real inclination to collaborate on a broader base with other Directorates-General.

The Chairman: Yes. If you were talking in terms of a national diplomatic service, you would immediately reach the conclusion that a national diplomatic service is there to serve the policy objectives of the whole government, not just the policy objectives of the foreign ministry. This unwillingness to break out of these silos seems to me to be a great failing, if, indeed, it is sustained.

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Elizabeth Collett: It is difficult to know whether it is an explicit unwillingness or part of the growing pains of an organisation that is still finding its feet. If there is a vision statement next

June for the future of immigration policy, making the statement that the External Action

Service has a role to play here may help them find their feet in this particular regard. The

External Action Service is still very inward-looking in terms of its constitution and how it is going to function, and has not really given much thought to that kind of collaboration. There is also an enormous amount of learning going on. When I speak to people in the External

Action Service, I sense that they are still finding their role on immigration, but they are also learning about the phenomenon itself.

Q46 Lord Sharkey: When we looked at the EU’s assessment of the Moldova mobility partnership, we were struck by the fragility of the evidence database in the assessment. I wanted to ask you in a more general sense if you think there is adequate monitoring of data collection in relation to asylum and migration issues in general.

Elizabeth Collett: There are a number of aspects. Let us take it three ways: data collection and analysis; monitoring; and evaluation. In terms of data collection and analysis, we have started to pull together data on immigrants across the EU, but we have not really dug down to the next layer of information—the much more detailed longitudinal information about how immigrants are doing once they arrive, how long they stay, how they access the labour market, and these sorts of issues. I work for an organisation headquartered in the US and I am jealous on a daily basis of the data they have access to in the US and in Canada—the kind of information they have pulled together to really have an understanding of the heartbeat of the migrant population in each country and how well that works.

Secondly, we do have a challenge in terms of monitoring the implementation and also the functioning of policy in practice. I would defer to Philippe on this question; I know he has looked at it a great deal. As we have seen with respect to the negotiations over Schengen

374 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) governance and how to improve the monitoring of each Member State’s implementation of the Schengen acquis, it really was anathema to Member States to be assessed by the

Commission. Peer review is okay, but the Commission leading on that role was an extremely sensitive issue that they were very much against. There is that challenge of, “It is okay for everyone else to be assessed, but I am not sure I want to be assessed. I do not want to be held to this standard. I am fine; do not look at me.” That continues to be a challenge in terms of monitoring: what kinds of standards you are held to and who holds you to those standards. Peer review tended to be a soft approach; we are moving to a tougher approach. What will that look like in the future? Can we think about delegations of people going to a particular country and standing monitoring systems?

Finally, in terms of policy evaluation, that has been very weak to date, particularly with respect to EU funding. I can draw your attention to a report by the European Court of

Auditors that was published last year on a review of the European Integration Fund and the

European Refugee Fund. One of their findings was: “We cannot tell whether it is working or not because we do not have enough information to know whether it is working. We cannot even make an assessment.” That is really where we are with evaluation. A number of the projects undergo formal evaluation procedures—i.e. the number of people who participated in a particular programme and the amount of money that was spent on different things—but no real deep evaluation. That makes it very challenging to understand the benefits to migrants themselves. There is a sense that, “This is a good thing to do, but we do not really understand how and why and the consequences of that”. On all three counts there is a need to strengthen this. As the policy area comes to maturity, these are the moments to start putting in place those mechanisms and really realise the value of the policies that have been put in place to date.

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Q47 The Chairman: Thank you. Dr De Bruycker, can I say that we are extremely grateful to you for coming here this morning and very sorry that you have had such a tiresome journey to get here, through no fault of anyone? We are in a bit of a predicament now because time has marched on. Perhaps if you have any general remarks to make you could give the Committee the benefit of those now, and then we will complete the questions we have been going through. If you do not mind, what we would do is to ask that you perhaps let us have in writing the responses to the questions that you have unfortunately missed, and then we will be able to use that in our evidence without delaying the duration of this meeting to a point that will become intolerable to the members of the Committee and probably to you too. Would you like to make any general remarks about the subject matter we are looking at today before we complete the last two questions?

Dr De Bruycker: Thank you very much, Lord Chairman. Let me also apologise on behalf of the Belgian railways for my delay. I think we will have in Belgium a debate about privatisation of our railways one of these days. I will indeed go quickly to the main points. In terms of failure, from my point of view the biggest failure is certainly the delay on the development of the policy regarding legal migration, and especially, for the moment, almost the absence of effective rules on intra-EU mobility for third-country nationals. I would say that there could be some advantages to the idea of a code of immigration, but I would be sorry if it was used just to hide the fact that immigration policy is not developed.

In terms of priorities for the next programme, immigration policy should be one, but we should finally try to understand what we mean by a common immigration policy. What does

“common” mean? From my point of view, it should not rely that much on legislation, but we should try to develop co-operation and co-ordination between Member States on the basis of the Commission communication of 2001 that, at that time, proposed to implement the open method of co-ordination. Maybe we do not need to go that far, as is the case in

376 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) employment policy, but if we want to do anything that makes sense, this is a model that could be used in immigration policy.

Regarding two other policies, borders and asylum, the debate regarding solidarity must be opened seriously. For the moment, the problem is that it is not based on data; it is just based on requests made by some states and refused by the others. Elizabeth was speaking about evaluation of policies, and she is perfectly right to underline the fact that we have made progress on ex-ante impact assessment, but we are really not far in terms of ex-post evaluation policies. The best example is the Dublin Regulation, which has been functioning for 16 years and has not yet been assessed regarding its efficiency, and even the Commission dared to say it was impossible to assess its efficiency. You had a question linked to the

Meijers Committee. Indeed, there should be the possibility for refugees to transfer their protection. It is even mandatory, when you read the treaty. Should the programme recommend accession to the 1951 Refugee Convention? I have some doubts about that. It is a political discussion about advantages and disadvantages, but when you see the heavy procedure that it will imply and the limited advantages that you will get from that, I am personally not convinced. I am afraid that it would, from a legal point of view, be more than looking like a gadget, even if it could politically and symbolically have a certain value. It is quite well known that the Dublin Regulation is not effective at all, because more than 95% of asylum applications are examined in the country where they are lodged. We should try to look for another system. With colleagues from the Odysseus Network, which I co-ordinate, we made in another report for the European Parliament a concrete suggestion about the

EASO. This may be an important point. The power of the EASO should be reinforced and that office should be given the possibility to adopt guidelines that could be binding for

Member States to a certain extent, meaning that Member States would have the possibility to derogate from those guidelines, but by giving explanations.

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Co-operation with third countries is a long story, but I have to say that I was badly surprised by the absence, once again, of evaluation by the Commission. The Commission decided to go forward in that policy at the moment it was supposed to make an evaluation. We should be aware that bilateral relations between Member States and third countries remain extremely important in that field. I hope that I have not been too long. I tried to cover, really in a very quick way, most of the questions on the list.

The Chairman: You certainly have not been too long. Thank you very much for what I would say was a tour de force in catching up with some of the main questions that we have been discussing this morning. Thank you very much; that will be of great value to us.

Q48 Lord Judd: It is becoming established now that human trafficking is one of the most abominable dimensions of international crime. Do you think there should be further EU action in pursuing this whole disturbing issue?

Dr De Bruycker: We have new legislation that has been adopted at European level and that

Member States have now to transpose. I would say that, when we speak about human trafficking, we first of all think of the immigration policy and third-country nationals, but one of my colleagues, Henri Labayle, who drafted with me the report that we did for the

European Parliament on the evaluation of the Stockholm Programme, knows that field quite well, and he drew my attention to the fact that victims are also European citizens—women from eastern countries—and that criminals are not only third-country nationals but also

Europeans, the European mafia being active in many Member States. We have to be aware that here we are not speaking of something that is only linked to immigration policy, and, by nature, it is something that should be taken into consideration in police co-operation and in judicial co-operation, and certainly that we should do more. You know as I do how strong mafias can be in certain countries and the big difficulties that such a fight would lead to, without even speaking of the fact that we should not only think of trafficking but also of

378 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) smuggling. We often forget smuggling, because there is no exploitation and the victim, if you can speak about a victim—even that is a question; I am not sure—is not subject to exploitation, but if we want to fight illegal immigration, the dimension of the fight against smuggling should also be taken into consideration.

Q49 The Chairman: If I understood your answer right, you do not believe that the

European legislation that has just come into force and that has not yet been transposed in

Member States has any obvious gaps in it that require to be filled by further legislation, but you feel that there is a major challenge to transpose that into national law and to implement it in a sensible and effective way. Is that broadly the response?

Dr De Bruycker: Yes, certainly, Lord Chairman. I am in favour of European integration in that field, but I do not believe that European legislation is a magic solution. We often have, in some Member States, the rules that are adopted at European level, and this does not change anything from one day to another when transposition occurs. We should in general—and that is the message also about the lesson that we draw from the Stockholm Programme— take care of implementation and then, afterwards, evaluation.

The Chairman: Thank you. Ms Collett, do you have anything to add on that question?

Elizabeth Collett: No. That covers everything I was going to say. The thing to understand, particularly if we are linking this to human smuggling, is that some of these networks, regardless of how they are directed within the EU, can be extremely localised and dilute in terms of groups of two or three people working. It is not a particularly good analogy, but if you think about used-car salesmen and the networks they work in—very localised, very disparate and very hard to regulate—those are the kinds of networks we are using. It is an appalling analogy, but in terms of the structures it makes some sense. It is extremely hard to think about in terms of combating the criminal activities and how the EU itself can work with third countries, which has been a priority over the last few weeks for the European

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Commission. We must work with third countries on smuggling, but, particularly in a country like Libya where rule of law and stable governance are particular challenges, how do you work through those networks from source to destination? It is much easier to talk about destination and how we manage things than thinking about the journey itself.

The Chairman: Presumably Europol has a major role in this, and perhaps in the future a greater role in this, given that so much of the criminal activity, whether it is trafficking or smuggling, is international, not just national.

Elizabeth Collett: It is, but many of the operators operate on a national level. What they are doing is an international phenomenon, but they are operating on a national level. There is not an enormous amount of research on smuggling activities, for obvious reasons, but what research there is suggests that these are people who often have legitimate day jobs; this is just a little extra money on the side. They are not career criminals, but they see an opportunity and they work with that within very small networks, which makes it very difficult to think about, because you are talking about local police activity, not just the

Europol aspect.

Q50 Lord Hodgson: This is the last question, which is a bit of a sweep-up. What role do you see for the EU’s Global Approach to Migration and Mobility in the next programme?

Perhaps I could ask you to give a bit of edge to it. What do you say to people who say, “If we are not careful, we shall be on the one hand selfish and on the other hand short-sighted?

We will be selfish because we deprive less developed countries of very expensively educated skilled and semi-skilled people, whereas in a rich environment like the EU we should be training up our own people. Secondly, in the longer term, we need to have those sorts of people if these countries are to retain their stability, and instability is not to the EU’s long- term advantage. We are in danger of causing ourselves long-term problems and short-term problems with our own native populations”?

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Dr De Bruycker: If I understand your question, it is about the issue of brain drain in relation to third countries. First I would say that we should not consider brain drain as a general problem, because this occurs when you have a lack of skills in a specific country. I take the example nowadays of Tunisia. I would say they have too much brains, so taking brains from

Tunisia is not as such, in that case, a bad phenomenon. One should really identify the cases when one can speak about brain drain, and the UK is certainly one of the countries most advanced in specific brain-drain policy.

In general, we should take into consideration the policy of education in the framework of the Global Approach to Migration. This is also in line with the report of the World Bank entitled “Shaping the Future” that was published a few years ago. The idea is that we will need skills and competences in the future; where are we going to find them? We are not going to find them only in the European Union. If we want to find them in the future, we should think of investing in the education systems of certain third countries in order to ensure that later on, when we will need migrants, they will have the right skills and competences. I am perfectly aware that there is a budget issue behind that idea, because we are in a financial crisis, and it is very easy to say that we must invest in the education systems of certain countries, but it will be very difficult to do. We really have to be aware, and we should be worried when we see that the system of primary education is collapsing in certain sub-Saharan countries, because that means that in the future there will be migratory pressure from those countries but that we will not be willing to accept those migrants, even if we could also have a discussion about the fact that we do not need only highly skilled workers but different types of migrants. That would be my idea for the future: to try to link education policy and include it under the Global Approach to Migration.

Elizabeth Collett: It is very easy to try to count brains and turn this into a zero-sum game, but it is not that simple. People who leave their country and move to another country still

381 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) can contribute back home, through remittances—about which we talk a great deal, and there is some scepticism about their value overall—and returning after having gained some career experience in Europe and applying that learning back in the home country. I am not sure that brain drain itself is really the challenge; it is about realising the potential of individuals. There are opportunities here to think laterally. This is something the Global

Approach, if integrated with other policy areas, can really think about. I completely agree with developing education systems and developing labour markets. If Europe is in desperate need of engineers, why not train up 200 engineers in Morocco and bring 100 of them to

Europe, so you have the engineers you need but Morocco also gets the engineers it needs?

Everyone wins. You train a surplus of a certain skill need and then you allow that surplus to move where it needs to go. There are ways of thinking about this that might be more focused and that might also be to the benefit of the partner country. That is something that could be incorporated in mobility partnerships, for example, but would need that buy-in from employment, social affairs and development funding and those sorts of things.

However, if I am right, you are also speaking about future skills shortages in Europe and how we manage those. One thing I am conscious of, particularly here in the UK but also in other countries, is that workforce development and immigration policy are seen as two issues that are at loggerheads: you cannot do workforce development and bring immigrants in; you are doing one or the other. People who work in skills development areas in particular really worry that immigration is undermining their position. That is the wrong attitude to take. It is really talking about realising potential of nationals and non-nationals, and thinking of workforce development and immigration as an integrated problematic for countries in the future. One issue here, which I think is often underrated, is we are increasingly a continent of diversity—which we always talk about—but we are also a continent of migrants, children of migrants and grandchildren of migrants. The data is still poor across Europe, but it is very

382 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) clear that we are failing the children of migrants and the grandchildren of migrants with our education and our skills systems. The question may not be, “Are we committing brain drain with respect to the countries of origin?”, but we are brain-squandering when it comes to the migrant population in Europe. In certain urban areas, immigrant children make up 50% of the classroom, and they are habitually doing worse when it comes to educational outcomes and access to employment. We need to start thinking about those things and maximising skills and looking at particular challenges that are related to the disadvantage that many of those children often start school with, which are not being rectified through the system. It is not just a case of importing the skills we need; we have to think about that in the context of workforce development and ensuring that if we are going to bring an immigrant and his family to a particular country, we are going to serve the needs of the whole family in terms of their potential for themselves and their potential for the country as a whole.

Q51 The Chairman: Dr de Bruycker, perhaps I may recall that you yourself said just a little time back that one of the things that all our Member States were facing in these matters was the financial constraints and the politics of austerity; but there is another political challenge of an even more obvious kind, which is that the rather sophisticated approach that you are both taking to the questions we have just been dealing with is up against a tidal wave of resistance to any form of immigration at all at the moment, from a large number of fringe political parties but also public opinion. If that rather more complex approach that you have both been talking about—and that I am sure many of us will find much sympathy with—is to gain any kind of traction in the European Union, its benefits, both to third countries and to the Member States of the European Union, are going to have to be explained a lot better than they have been in the past. We are up against a tide of public opinion that is running rather strongly in the opposite direction.

Lord Hodgson: Can I just say one thing?

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The Chairman: Yes, absolutely. I thought Lord Hodgson would approve of what I just said.

Lord Hodgson: I do approve of what you say. A recent example I have had has depressed me deeply. An acquaintance of mine did his voluntary service overseas in Malawi, and he has become a doctor and he has inherited some money. He found there were no orthopaedic surgeons in Malawi at all. He set up a programme at Lilongwe Medical School to train three orthopaedic surgeons a year. He goes every year to meet the graduates. I said to him,

“What is it like?” He said, “It is deeply depressing. They have only one question: ‘How do I get to Europe?’” He said, “There are now 300 nurses in Malawi for a 12-million population.

The rest have all gone to South Africa and, from South Africa, to Europe.” You may have all the answers, and I understand about training 100 engineers in Morocco and they will all do beautifully, but the reality is in sub-Saharan Africa we are draining people’s skills and we are leaving people in a very difficult position. I cannot believe that the mother of a Malawian child dying because they do not have enough nurses thinks sympathetically about Europe.

Elizabeth Collett: I do not disagree. The health sector is a particularly challenging area where there is a global shortage of skills. It is not a case of moving one person here and moving one there and we will all be fine. The investments in those kinds of training are enormous, and Europe does need to take a responsibility in terms of increasing training and investment in those countries. It also speaks to the sector itself—how much it is valued in a particular country, the pay in a particular country, and the conditions of work. The more people who leave and the more overworked doctors you have, the more the overworked doctors want to leave. It is a vicious cycle in some senses. To date, the types of policies that have been put in place have not been enormously effective. In India, there have been policies in place to try to prevent doctors from leaving until at least they have done some years of practice in India, and also limitations if they go to work in the Middle East that it is only on a temporary contract and they must come back. Those tend to be circumvented fairly easily

384 of 485 Migration Policy Centre, Migration Policy Institute Europe—Oral evidence (QQ29-51) by various means. It really speaks to one of the deeper issues surrounding migration and some of the choices for the future: how far is there an individual right to mobility, and how far does a collective society get to place limits on that individual right? It is not just an issue of the economics of the situation and the systemic things; it really speaks to how far we are willing to make that balance between your right to move and the collective needs of a society.

Lord Hodgson: Absolutely. Brilliantly put.

The Chairman: On that note, may I conclude this session, thanking both of our witnesses very warmly? Ms Collett, you have, due to happenstance, had to spend a lot more of the time talking than you would have otherwise—

Elizabeth Collett: It felt like a viva.

The Chairman: And answering all the questions, which you have done with great panache and skill, if I may say so. Dr De Bruycker has had an extremely tiresome morning, but you have helped catch up very well. I just repeat that if, when you look at the transcript, you feel that it does not do full justice to your answers to the questions, it would be very welcome to us if you would write to us filling in those gaps, but there is no need to do that if you feel that everything has been covered; that is fine. It is entirely up to you and we would welcome it if you did decide to fill in any gaps. Thank you both very much for coming along and helping us in our inquiry.

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Migration Policy Institute Europe—Written evidence

I. Overview

The march toward a common, EU-level immigration and asylum policy has been nothing less than remarkable. Since the 1999 Tampere European Council, the establishment and continuous expansion of the Schengen area and the Common European Asylum System have been signal achievements, but they are not the only important accomplishments. Equally central, if less well known, has been the corpus of shared goals and milestones agreed to and achieved during each of the five-year Justice and Home Affairs (JHA) programmes since Tampere. Among them are the development of a series of policy frameworks that have propelled the migration and asylum portfolios forward, the establishment of a common policy ‘language’ within EU institutions, and a stronger, if uneven, sense of mutual trust and understanding between the Member States themselves.

The current five-year programme, however, is widely considered to have been less effective than its predecessors. This is only partly the result of its content and design; a number of internal (within the EU) and external factors have also interfered with achieving the Stockholm Programme’s policy ambitions. The global recession (and the fiscal and labour market crises that it spawned), the Arab Spring, the Lisbon Treaty’s effect on EU decision- making, and shifting national priorities have all called into question whether the format and scope of the JHA five-year programme is still the most appropriate and effective tool to manage today’s challenges. This submission sets out some initial thoughts on these issues and puts forward a set of considerations for a fruitful post-Stockholm process, with specific reference to the areas of immigration, asylum and border management.

II. Lessons Learned from Tampere

Among the most important things to understand about previous JHA programmes is the context in which each was developed and implemented. The origin of the Tampere Programme is the right starting point of this exercise and the source of several lessons.

Tampere occurred at a unique moment and for an exceptional purpose. First, it was intended to support the embedding of a brand new policy area, Justice and Home Affairs (JHA), in the EU context. As such, Tampere had to articulate a bold vision of what could be possible within the EU framework. Second, national policymakers found themselves building common policy from a vast range of perspectives and experiences. Some of the core goals in fact meant different things to those signing up to them: a single concept had to be adapted to 15 different contexts and, as a result, interpreted in 15 different ways. And as a third-pillar policy area, the nature of collaboration was markedly different than it is today, not least the need for unanimous agreement between Member States. As such, Tampere needed to set broad and ambitious goals that would spur the development of policy measures to achieve them, while steering clear of sensitive areas of sovereignty.

Fourteen years later, certain elements of the Tampere blueprint may appear dated but the appeal of a grand vision remains as attractive as ever. The first lesson is that it is far easier to agree on broad goals—and then flesh out the processes for achieving them—than to hone in

386 of 485 Migration Policy Institute Europe—Written evidence directly on the details.52 Concepts developed during the in the Hague Programme, such as ‘circular migration’ and the belief that integration is a ‘two-way process’, begin to crumble in the face of serious scrutiny. In fact, the messy realities of policymaking in immigration and asylum areas have taken their toll on the ambitions of both protagonists and supporting actors alike. Finding common ground, and the common denominator that would allow for policy agreement, has proved very difficult. It has taken more than three years to agree legislation to harmonise rules for immigrant seasonal workers between the EU institutions (it has been eight years since the idea was originally set down), whilst negotiations on rules for intra-corporate transferees still continue. This may appear to be somewhat paradoxical given that immigration policies across Europe bear striking overall similarities. The devil is always in the details (which reflect the varying sensitivities and priorities of Member States) and particularly in implementation. Over the past couple of years, concerns about implementation of EU legislation – notably the asylum acquis – has led policy-makers and observers alike to question the value of the overall process.

Second, the first decade of common policy development in the area of immigration and asylum focused on establishing baseline policy; because such policy tends to be more general, perhaps even abstract, there are often fewer political obstacles to overcome. Now, however, the EU institutions are looking toward more sophisticated, and thus more difficult, initiatives, which at times amend and/or build upon first-generation policies. For example, the usefulness of informational databases such as the Schengen and Visa Information Systems hinge not only on the consistent application of the Schengen Visa Code by each visa-issuing Member State, but also on the interoperability of national information systems. If it was hard to establish general principles in an era of near collegial common ownership of the European project, and very energetic leadership, today the European Commission is involved in pursuing more complex policy in an environment that is more hostile to certain types and forms of immigration, with a greater number of diverging opinions.

Third, the number of actors involved has proliferated. The enlargements of 2004 and 2007 have almost doubled the number of governments who must both agree and then effectively implement policy, and has broadened the overall range of experience at the negotiating table. For some of the newer Member States, implementing EU immigration policies in countries with relatively few actual immigrants is an abstract process, and the development of strong national positions on these policies has been slow. Indeed, EU policy has heavily influenced the development of national systems in these countries, even in non-legislative areas such as migrant integration policy. Meanwhile, the new role of the European Parliament has lengthened the policy process. Considering the intermittent friction with the European Parliament, reinvigorating the sense of constructive collaboration between EU institutions must be an implicit, yet critical, element of any new programme. Finally, the development of EU agencies focused on aspects of the immigration portfolio, from the Fundamental Rights Agency to Frontex and the European Asylum Support Office, means that new voices are joining an increasingly dissonant chorus.

It should also be noted that, outside the EU institutional framework, developing national governance of immigration has both helped and hindered the progress of EU policy in this area. At the time of Tampere, unlike today, only a few European governments (such as France, the Netherlands, and in some important ways the United Kingdom), had in place

52 For an in-depth review of policy development up to 2010, see E.Collett, Beyond Stockholm, overcoming the inconsistencies of immigration policy, European Policy Centre, December 2009. http://www.epc.eu/documents/uploads/954588169_EPC%20Working%20Paper%2032%20Beyond%20Stockholm.pdf

387 of 485 Migration Policy Institute Europe—Written evidence anything approaching a comprehensive immigration system. As each Member State has developed a national policy framework post-Tampere, there has been an attendant effect on—even tension with—their approach toward the development of a European-level system. And perhaps more importantly, the experience of pursuing the expansion of EU immigration policy has revealed that, while policies may be “easy” to transfer, developing the institutional infrastructure needed to apply and administer policy effectively, and as intended, is a much more complex matter.

III. Context Matters...A Lot

The current five-year JHA Programme, which will come to an end in 2014, has been also handicapped to various degrees by the changing environment within which it has had to operate. As a result, the Stockholm Programme has had far less impact than its predecessors. Less ambitious from the outset, the current programme has also been hampered by shifting economic and political priorities, and from the new, more complicated decision-making process ushered in by the Lisbon Treaty. This environment will also affect future policy development, dealt with in the next section.

Much of the work of the Stockholm Programme has focused on reviewing and reforming existing legislation, rather than on developing new policy frameworks. Efforts to recast directives within the Common European Asylum System highlight both the modest ambitions of the Programme and sense of fatigue that is becoming more commonplace as g to, the implementation of first-generation policies by some Member States, and a more noticeable gap between the form of legislation and its function in practice. The interpretation of agreed legislation is not always consistent with either the letter or, more important, the spirit of such legislation. As a result, some argue that rather than pursue further policy development, the Commission should focus on working with Member States toward the successful transfer and execution of existing policies.

Against this point of view is the argument that, as EU common policies are in mid- construction, a prolonged hiatus might lead to policy atrophy, and even regression. Indeed, the European Union has spent much of the past several years preventing backsliding in policy areas as varied as visa facilitation, the Schengen system, and the full use of the Dublin Convention. External events, such as the Arab Spring, had unexpected subsidiary effects within the European Union, precipitating a crisis in confidence in the Schengen System, exposing the fragility of intra-EU cooperation (even in areas long-considered settled), and revealing fundamental weaknesses in the ability of the Union to respond effectively to a crisis in its own immediate neighbourhood. In the absence of a complete, and robust, EU immigration and asylum policy—a longer-term objective that must also be put under the rigors of a full and perhaps independent review—EU policymakers would best serve the interests of the Union and be true to their specific portfolios by shoring up the implementation of existing policy while continuing to pursue more sustainable policy that is capable of reinforcing the interests and priorities of Member States. This will be no easy task. The recent tragedy in the Mediterranean, including hundreds of deaths in the Mediterranean, revealed both the high stakes of EU policy, and the deep entrenchment of the various national and EU institutional policy positions.

The impact of external factors on policy is not new for the European Union. The terrorist attacks in New York, Madrid, and London had a profound effect on the Tampere and Hague agendas. More recent events affecting immigration and asylum policy development have been

388 of 485 Migration Policy Institute Europe—Written evidence perhaps even more consequential. First, the global economic crisis that began in 2008 did not just affect the design of the Stockholm Programme; it was also very consequential for the (lack of) realisation of the Programme’s content. Policymakers at both the national and EU levels have been distracted by the serious disruption to the European economy and society, aggravated further by the fiscal and euro crises and the resulting relentless growth in unemployment and underemployment. Moreover, governments no longer have the fiscal flexibility to implement broad-ranging initiatives at the national level. While this is seen most clearly in Ireland and all along the southern part of the Union, virtually all Member States are under pressure to reduce spending while still living up to their EU commitments. Even if the economic crisis lifts over the next few years, its effects will linger for a considerably longer period of time. Immigration policy development is also affected by failures in other policy domains. For example, the lacklustre EU response to the Arab Spring weakened the role that DG Home could play in promoting the Global Approach to Migration and Mobility. Weaknesses in the design and implementation of employment and training, education, foreign affairs and trade policy, among other policy domains, could negatively affect the future development of immigration policy.

A second, subtler shift has also gained momentum over the past few years, that of populist politics and a more sceptical stance by many toward immigration in several Member States. Whether positively disposed toward immigrants or not, a significant proportion of voters across Europe believes their governments have lost control of the immigration portfolio, and are no longer able to manage immigration flows effectively. Populist parties, from the Netherlands to Greece, have capitalised on this uncertainty and have influenced national policy primarily by forcing government to address some of their concerns in an effort to deny populists the political space on which they thrive. The European Union’s position in this debate is complicated in many instances by negative public opinion toward its own role, which is further fuelled by the ever-present Eurosceptic narratives. As a result, many national governments have retreated from pan-European collaborative positions on immigration at the negotiating table, which has, in turn, negatively affected the possibility of further policy development in this domain.

Thus, future policy planning in the JHA area will not only have to set out realistic goals that take into account European economic constraints, but will have to push harder to connect with citizens and weave a common immigration narrative. At the same time, future programming will have to include measures to reasonably ‘insulate’ common policy development from internal and external geopolitical events—be they pressures at Europe’s Southern external border, or political upheavals in the Maghreb. But before this, there is a need to rebuild consensus between constituencies in three directions through the careful construction of mutual trust: between the EU institutions, between the institutions and the citizenry, and between Member States with sharply divergent interests in immigration. This is a slow, painstaking process that requires consummate political skill and will need to begin as soon as possible.

IV. Establishing a Broader and Longer Policy Horizon

Many of the more ambitious areas of EU collaboration, such as the Common European Asylum System, have come to the end of their planned policy cycles, and the Stockholm Programme offers few pointers for policymakers responsible for developing the next tranche of policy initiatives. In order to construct a programme that advances new ideas, it is necessary to understand and show greater appreciation for the challenges Member States

389 of 485 Migration Policy Institute Europe—Written evidence face—and think actively of the opportunities that may exist to resolve them. But even before this, it is important to reflect upon whether the format and scope of the JHA five-year programme is still the most appropriate and effective timeframe. There are two aspects to this point.

First, programming in five-year increments sets its sights primarily on the near term and turns its back to the opportunity to frame a long-term vision for common EU policy. One of the key advantages of Tampere was the fact that it was able to articulate a long-term vision and then combine it with a set of shorter-term goals designed to make progress toward that vision. This aspect of JHA programming has been lost in the flurry of primarily instrumental goals and reflexive reactions to internal and external challenges. A case in point: The Stockholm Programme set out a series of action points without even articulating the Programme’s ambitions. Such instrumentalism may be understandable in that finding common ground on an ambitious agenda would have been very difficult; hence the choice to focus on smaller, more incremental, steps. Yet, such choices merely postpone the more important conversations that must be had on such critical issues as ‘burden-sharing’ and ‘solidarity’—concepts whose meaning has degraded to the point of near empty rhetoric—or establishing the ‘end-game’ for common immigration policy and the Common European Asylum System.

Shifting instead to a programme with a slightly longer time horizon may not resolve all problems. However, there is significant value in reflecting upon what the expectations are within the EU institutions for policy outcomes in the next 12-15 years. What would success look like in 2025, and what architecture will need to be put in place to achieve it? This thought-project would not only lay the groundwork for the next five-year programme—by forcing all protagonists to work backwards from 2025 and asking what the European Commission needs to put in place first. It would also clarify where the commonalities and differences in vision exist without requiring immediate political commitment. And as the Stockholm Programme approaches the end of its policy cycle, this may be the perfect moment to conduct a candid audit of successes and failures, alongside a deep exploration with the Member States as to desirable, and feasible, long-term goals.

A host of ideas and initiatives must be considered before they are narrowed down into a workable programme to guide the EU institutions starting in 2015. The proposed ‘strategic guidelines’, expected as part of the June 2014 European Council, will be concise and, as such, unable to incorporate much detail. Thus, the work to flesh out a plan of action is likely to fall to the European Commission during second half of the year. But this does not mean the guidelines are not critical to the process. While content is key, without a strong political framework to which all Member States and institutions can commit, little of it may be effectively realised. This requires intense collaboration between Member States to identify common ground, and shared goals. The dynamic nature of immigration policy at the national level, and the enduring political sensitivities it gives rise to, suggest that the process to develop the next programme will need to be transparent, honest (in terms of both the assumptions on which the proposals rest and its implications for Europe’s future), respectful of Member State sensibilities, collaborative, and creative in order to agree on a programme that will build a solid foundation for the next generation of EU immigration policy.

Second, it is worth considering how much further a common immigration policy can be successfully developed within a broader JHA framework, and whether the policy area is now mature enough to deserve its own, more cross-cutting, programme. Managing human

390 of 485 Migration Policy Institute Europe—Written evidence mobility has become a whole-of-government matter. Whilst interior ministries are responsible for border controls and the regulation of entries and stays, there are a multitude of other policies to consider that deal with the international and local effects of immigration, from employment and education policies, through trade policy and all economic policy portfolios, to foreign affairs. In fact, in several countries, both within and outside the European Union, the initiative on immigration policy is shared increasingly with labour ministries, while immigration is increasingly a feature of trade and foreign policy discussions. Indeed, the development of an external dimension to the Home Affairs portfolio – the Global Approach to Migration and Mobility – exemplifies this spill over into other, critical policy areas, including development aid and even maritime policy.

In such an evolving policy framework, the role of JHA is also likely to move more in the direction of becoming a policy coordinator as much as that of policy initiator, taking on the much more important, and difficult, task of assuring that the policies pursued within any one portfolio are consistent with the broader policy’s overall goals—and thus moving the entire policy domain toward the agreed-upon common purpose. Increasingly, the fact that non- directly-JHA concerns can be incorporated into other DGs’ programmes in only a limited way (highlighted by the sometimes awkward positioning of the external dimension of both JHA and immigration within the Stockholm Programme), is restricting how far JHA officials can effectively balance the broad range of concerns that must be considered when drafting proposals. Most European governments have experimented with different methods of governance and coordination of immigration over the past decade, including those who have created stand-alone immigration portfolios. Such stand-alone ministries may be politically premature within the European Commission, but establishing a separate programme for immigration may enable the European Commission to avoid carving up the portfolio by articulating a set of proposals that can more adequately incorporate the crosscutting aspects of the issue. The JHA programme has become particularly unwieldy, and few policymakers have the requisite comprehensive expertise and understanding of the whole portfolio. Splitting it into manageable themes may enable policymakers to focus better on the key concerns in each.

Finally, DG Home is in need of much greater human and financial resources if it is to achieve its many goals. Governments across the globe have learned that lesson and have increased the budgets of their migration agencies, often dramatically. And the issue of funds may in fact be partly ameliorated by the new budget cycle, and the creation of a larger amalgamated Asylum and Migration Fund, and the intention to allow more flexible and responsive spending. But while additional funds may build the DG’s capacity to perform a very complex and always growing portfolio better, it is also necessary to consider the skill-set of the DG’s professional classes, which may also need to diversify to meet expanding and constantly evolving demands. To date, much of the work has been legislative in nature, but this is slowly changing. Are new officials capable of undertaking the type of soft policy negotiation and diplomatic engagement that emerging policy areas such as the Global Approach to Migration and Mobility require? How far can legal experts address the socioeconomic and cultural dimensions of immigrant integration? And how can they incorporate into their proposals always changing economic and labour market realities while also understanding the nuances of demographic change?

While it is important to understand where opportunities exist in the current policymaking climate, it is also critical to incorporate new and emerging challenges that will confront the European Union and its Member States in the decades ahead. As global demographic,

391 of 485 Migration Policy Institute Europe—Written evidence political, and economic shifts occur in often unexpected ways over the next 20 years, how should EU perspectives and priorities adapt, and how might the EU and its Member States begin to prepare the groundwork for proving equal to the new challenges while being able to benefit from new opportunities?

For example, while demographic change is oft cited as a core rationale for opening up to immigration at the national level, the nuance and complexity of demographic change is typically ignored in most decision-making circles. This is not to argue for more or less immigration. Rather, it is intended as a statement in favour of deeper thinking—and better planning—about migration, population, and social and economic infrastructure needs of sub- national regions facing demographic decline, and harnessing the strategic analytical resources of JHA to use all the tools it, and other DGs, possess to understand better how they can incorporate new developments into their thinking, such as the far greater intra-EU mobility the economic crisis has unleashed, and to devise, together with Member States, incentives and disincentives that encourage certain types of migration toward underperforming, and less attractive, regions.53

Europe, at all levels of governance, will have different needs and vastly different capacities to target immigration toward where it is most needed—making the “one-size-fits-all” approach to immigration increasingly less responsive to needs and hence less effective. And as the European Union and Member States indeed move toward more a refined application of ‘selective’ migration, and its potential importance for regional development, the current understanding of ‘common’ immigration policy will also evolve, allowing the European Union to play a different, but still critical role. Effective common policy does not need to mean identical policy for all. This is all the more relevant at a time when economic and demographic forces playing out in other parts of the world will deeply affect Europe’s own experiences with in- and out-migration.

What is the policy lesson here? Understanding well, and modelling accurately, Europe’s evolving place in the mobility hierarchy at all times requires complex analyses and projections of changing demographics; internal, intra-European, and international migration trends; estimates of out-migration from the European Union (by immigrants, persons of immigrant origin, and EU citizens); the migration behaviour of emerging economies; the effects of policies adopted elsewhere; and not a little alchemy. This is very significant with respect to European policymaking. The assumption that the European Union is, and will remain, attractive to immigrants across the world affects the basis upon which policymakers at the European and Member State levels decide whether to promote or limit immigration to Europe.

V. The Future UK-EU Relationship on JHA Issues

The UK has always taken an ‘added value’ approach to EU policy on immigration and asylum. Over the past year, this position has hardened in a number of ways. First, across Europe, Member States are demonstrating greater reluctance to participate in immigration and asylum. Second, the UK coalition government’s decision to hold a referendum on the future of EU membership, means that there is a ‘freeze’ on any big decisions about UK participation until at least the end of the Balance of Competences Review. However, there are guiding

53 See E. Collett, Facing 2020: Developing a new European agenda for immigration and asylum policy, Migration Policy Institute Europe, February 2013, http://www.migrationpolicy.org/pubs/MPIEurope-Facing2020.pdf

392 of 485 Migration Policy Institute Europe—Written evidence reasons for the UK to engage more deeply in future policy development on immigration, asylum and border management.

The UK has long had an exceptional relationship with the EU, in that it is capable of choosing when, and how, to participate. Of most significance is the fact that the UK has chosen not to participate in the Schengen area of free movement (removal of internal borders), and concomitant external border management cooperation. As a result, the UK maintains separate border and visa policies, though it has opted in to some areas, notably police and judicial cooperation, and limited participation in operational border management initiatives, notably Frontex and Eurosur. In addition, the UK has opted out of the ‘recast’ versions of the asylum Directives, with the exception of the reformed Dublin Convention and Eurodac (as both are deemed core to minimizing fraud within the asylum system), though the UK remains bound by the other four directives in their original formulation. Finally, while the UK has opted out of all legislation related to the development of a common immigration policy, the government has signed up to EU readmission agreements, and participates in three of the four EU funds, the European Migration Network, the Network of National Contact Points for Integration, and the exploratory work falling under the umbrella of the Global Approach to Migration and Mobility.

To date, the UK’s relative expertise and sophisticated approach to migration management has helped the government maintain a consistent level of engagement in EU policy development despite frequent use of the opt-out, as it may be called upon for advice and support. But EU collaboration is changing in several ways that may affect the UK’s value calculation regarding EU policy, and the perception of the UK government within the EU institutions. The soft power of the UK is increasingly compromised by the spectre of the opt-out, and its use. This has been further compounded by the proposed referendum on UK membership, as other Member States see little long-term value in compromising their positions vis-à-vis UK interests when the UK government may be withdrawing from some, or all, of its EU obligations. Thus, the UK currently has far less traction with respect to setting future policy agendas, and EU Member States may be less willing to bow to the ‘expertise’ presented by the UK government.

Does this matter? Arguably, legislative harmonisation has reached a plateau in the area of immigration and asylum. Beyond those proposals currently under discussion, little more is envisaged. On the one hand, this means that the UK’s formal opt-out of legislation will have less intrinsic value in the future. On the other hand, greater focus and energy is being place on fostering practical operational cooperation, from integrating IT systems for the exchange of critical information, to joint operations in the Mediterranean and personnel training exercises. Regardless of whether the UK has an interest in joining the Schengen area, the UK government has an interest in a) ensuring strong borders are maintained throughout the EU area, and b) gaining all available information that might strengthen management of the UK’s own borders. However, the UK is currently unable to fully participate in the information sharing engendered by the Schengen Information System, or the Visa Information System, or any of the additional information exchange systems that have built out from this. This may, in the future, represent a substantial loss of value for the UK. Finding some path which allows the UK to remain outside Schengen, yet participate in the valuable supporting machinery would require both active diplomacy and no small amount of good will on the part of the other Member States (good will that is currently in short supply).

393 of 485 Migration Policy Institute Europe—Written evidence

The areas of policy in which the UK has an interest are those where EU collaboration offers added value, and where failure to collaborate across Europe has external reverberations. For example, with some of the fundamental imbalances between Northern and Southern Member States unresolved, and continuing humanitarian pressures to the South and Southeast, further asylum crises are likely. Some serious thought will have to be given to the UK’s role in resolving such crises, and future participation in common solutions. Other areas for the UK to consider its role include returns and border security. For example, returning unauthorised migrants is an enduring challenge for all Member States, with both numbers and procedures falling far short of political promises made across Europe. Setting aside legislative developments, it may behove the UK government to investigate future collaborative opportunities to improve return, beyond joint return flights and readmission agreements.

In 2013, the EU is coming to the end of the current Commission, Parliament, seven-year budget cycle, and JHA five-year programme (Stockholm). This confluence means there is both a vacuum of political influence in Brussels at a time of great deal of uncertainty regarding the future direction of the JHA portfolio, irrespective of the UK government’s own relationship with the EU. Thus, it is critical that the UK engage deeply in the development of strategic guidelines for future immigration and asylum policy, and consider the points of added value that European Union cooperation can provide. There are opportunities for a forward-looking, pro-European UK government to carve a deeper path of cooperation within the European Union, whilst retaining some of the exceptionalism that British publics have become familiar with.

3 December 2013

394 of 485 Migration Policy Institute Europe, Migration Policy Centre—Oral evidence (QQ29-51)

Migration Policy Institute Europe, Migration Policy Centre—Oral evidence (QQ29-51) Transcript to be found under Migration Policy Centre

395 of 485 National Crime Agency, Association of Chief Police Officers and Europol—Oral evidence (QQ52-72)

National Crime Agency, Association of Chief Police Officers and Europol—Oral evidence (QQ52-72) Transcript to be found under Association of Chief Police Officers

396 of 485 Northern Ireland Executive—Written evidence

Northern Ireland Executive—Written evidence

I welcome the opportunity to submit evidence to the Committee on its inquiry on the EU’s five-year agenda for EU Justice and Home Affairs activity (2015-2019). My Department has a committed interest in European Justice and Home Affairs (JHA) matters and is fully supportive of a fourth JHA programme. My officials continue to ensure the successful implementation of the devolved elements of the Stockholm Programme, however, it is fair to say there has been a heavy focus of late on negotiating and implementing European proposals, one can’t help but wonder if it would be more beneficial to direct resources to ensuring a consolidated approach to existing proposals, before embarking upon further legislative proposals.

Given the devolved nature of justice in Northern Ireland, my Department is mostly concerned with further developing policy areas such as: organised crime and human trafficking; police cooperation; and criminal and civil justice matters, to name a few. You have acknowledged these areas as likely topics to be covered in the next programme, however, I am also keen to further explore judicial co-operation (to enhance Eurojust proposals touched upon in the Stockholm Programme).

On the whole, I believe that a more strategic approach should be taken to Justice and Home Affairs priorities post-2014, to help direct focus towards areas which will be of most benefit to the UK as a whole.

I look forward to reading the ensuing report from this inquiry.

DAVID FORD MLA Minister of Justice

19 November 2013

397 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135)

Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135)

Evidence Session No. 9 Heard in Public Questions 122 - 135

TUESDAY 28 JANUARY 2014

Members present

Lord Hannay of Chiswick (Chairman) Lord Faulkner of Worcester Lord Sharkey ______

Examination of Witnesses

Dr Yves Pascouau, Senior Policy Analyst, European Policy Centre, Professor Peter van Krieken, Professor of International Law, Human Rights, Refugees and Migration, Hague University and Webster, and Dr Roderick Parkes, European Union Programme Co- ordinator, Polish Institute of International Affairs

Q122 The Chairman: Welcome and thank you for coming along to this session of the sub-committee of the House of Lords EU Select Committee. I am sorry that we are somewhat diminished in numbers but two of our members had to go back yesterday evening to a vote today. The EU Sub-Committee on Home Affairs, Health and Education. which I chair, is conducting an inquiry into the future justice and home affairs programme, which is likely, I understand now, not to be called the Rome Programme at all but to become miraculously the Athens Programme, because it is likely to be adopted by the European

Council in June. This is my understanding. The purpose of our inquiry is to get as many views as possible from Governments, from parliaments—we are seeing the European Parliament later today—from NGOs and practitioners, and so on, on what they think should be in this.

398 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) A wider point that we are pursuing is an attempt to get our national Parliament more involved upstream of European decisions: that is to say, to have our views out there to be seen, as you have put your views out there to be seen, before the process is set in concrete, which it tends to be once the Member States have firmed up their positions and the

Commission has made its position very clear. It is a general tendency, certainly in the House of Lords, to try to move more upstream, which is of course what the Commission has been inciting people to do. It has been saying that you can influence European legislation much more if you intervene upstream than if you wait until it is all set in concrete. That is the background to this.

We have taken a lot of evidence in the last two months or so and we are getting very close to the end of our evidence-taking. Next week will be our last session with British Ministers.

We will then produce our report hopefully by about the end of March. It will then be published at that point and, we would hope, will have some influence on the position of the

British Government, to which we principally address, but we would hope will also be some use to other Member States, other national parliaments, and so on. That is what we are pursuing. With your help we would like to go over the ground this morning.

If you would like to introduce yourselves and say briefly what your main focus and expertise is within the justice and home affairs sector, it would be very helpful to us. If you any of you would like to make an opening statement, that would be fine, but if you prefer just to move straight into questions and answers, that will be fine too. It is your choice. Can I give the floor to whichever of you would like to start?

Dr Yves Pascouau: Good morning. Thank you for the invitation. I am Dr Yves Pascouau from the European Policy Centre. I am in charge of the migration and diversity programme, which means that we are closely following EU policies in the fields of migration, asylum and integration, which means that we are more focused on migration-related issues rather than

399 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) justice or internal security, which are part of the big project on freedom, security and justice. I would rather give the floor to my colleagues, because if I start my statement I will not stop for 25 minutes.

Professor van Krieken: Thanks, Yves. Thank you for inviting us. My name is Peter van

Krieken. I am from the Netherlands. I just retired from my job as an adviser to the Minister for Migration and Asylum. I have a background with the UNHCR and the UNDP. I spent about 20 years with them. I also have a background in academia and as a neo-pensionado I am now active in projects in Malawi, where I was last week; in Kiev, where I will be going shortly; in Morocco, Georgia, Moldova; and I am doing a lot of lecturing at universities.

Dr Parkes: I am Roderick Parkes. I am from the Isle of Man but I am based at the moment in

Warsaw working for a think tank that is closely aligned with the Polish foreign ministry.

Before that I was based in Berlin doing something similar for a German think tank and then set up the Brussels office for them, and I still have a foot with them in Berlin.

My original expertise, I suppose, is in migration and the old first pillar, if you like, but at the moment it has spread to EU affairs generally, so I have been involved in other strategic processes going on in the EU.

Q123 The Chairman: I should have stated at the outset, but I failed to do so, that this is all on the record, that a transcript will be taken of it, and that you will get a copy of the transcript. If you could correct that rapidly, that would help, but it will already be up on our website. An amended version will come later on. If there is any written material you would like to give to us in addition to what you are saying, that would be very welcome. We have that report now and we will be able to make use of it, and will make use of it, in our own report. Shall we move on to some questions if we do not want your 25 minutes? I am sure it would be fascinating but time is a little of the essence on all that.

400 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) Let us start, if you do not mind, with an extremely general question about what in your view the strategic priorities to the next justice and home affairs programme should be. I am taking it as the background, of course, that the Lisbon Treaty introduced for the first time this concept of the European Council and the Heads of State and Government giving strategic guidance to the Commission—indeed, to all the European institutions in a way, although that is not specified; I imagine Parliament would not take kindly to being given strategic guidance, and the Commission perhaps not all that kindly either. But the Treaty is clear that it is for the European Council to give the Union strategic guidance on justice and home affairs, and that is a first because that legal base has not existed hitherto. It does now, and it will be applied this summer for the first time.

Given that background, could you give us your thoughts about the main strategic priorities, by which I mean the priorities to be established by the Heads of State and Government?

Dr Yves Pascouau: I think answering your question asks us to go back a little and to come back on this famous provision, Article 68. There is a clear discussion to have about its meaning, considering that it has already been included in the Stockholm Programme. It was included in the second programme for circumstantial reasons, because the Stockholm

Programme was adopted just after the Lisbon Treaty entered into force, so it was decided at the last minute to include a reference to Article 68. That means that a lot of people will say,

“Article 68 has already been used, so we should continue what we have already done”, which I think is not the case: first, because the Stockholm Programme has never been negotiated with Article 68 in mind; secondly, because Article 68 provides for a fundamentally new landscape.

As we have written in our report, we think that Article 68 entrusts the European Council with defining strategic guidelines, and we have to add to that legislative and operational planning, which means that it is clear to us from this provision that strategic guidance will set

401 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) the lines for the implementation programme that will be adopted by the European

Commission, creating a division of tasks between the European Council and the European

Commission, being entrusted to define the planning of the measures to be adopted in the next five to seven years. It will depend on whether they want to continue the five-year planning or whether they want to extend it up until 2020, which is the end of the financial framework, which by the way is going also to frame - to a certain extent - the margins of manoeuvre of the European Commission.

On this basis, what should the strategic guidelines be looking at? From our point of view, priorities should be the ones that are related to what the future of freedom, security and justice should be in the next 10 to 20 years. It is a long period of time, but if you look at the

Tampere conclusions you can clearly see that some of the objectives that were identified are still valid today. So there is no fear in saying that we can look forward 10 to 20 years, and we have to think ahead in a world that is in a tremendously changing mode. Population, economies, social problems, demography, values, the rise of middle class, urbanisation, and the ever increasing digitalisation of the world are issues that are going to have a major impact on how justice and home affairs policies will be driven and will look like in the next couple of years.

So our thoughts on the priorities that have to be defined by the European Council are that the Heads of State and Governments, plus the President of the European Council, plus the

President of the European Commission will have to take into account where we are going in this very different world of tomorrow, as that will have an impact on these policies and on citizens’ everyday lives. I must say that it is quite difficult today to say bluntly what the main priorities are because it requires us to have in mind what needs to be reflected on.

Professor van Krieken: On the strategic priorities, I published probably half a year ago an article in a leading Dutch newspaper on related issues, in which I coined the term

402 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) “dehumanrightisation”. Of course that is quite a provocative statement. What I meant is that much of what we are discussing is based on, dictated by and dominated by people with a legal background, not to mention a human rights background. What I would plead for, and that would be my strategic priority, would be to look upon the issues concerned from a broader context of pragmatism, the economy, sociology, political science, you name it— words that are often forgotten among Europeans. The order is freedom, security and justice, and we should probably stick to that order: freedom, security and justice. Too often we tend to look upon these issues from a legal point of view. Having a legal background myself I may or may not be entitled to make a statement like that.

In other words, when we look towards the Europe of tomorrow—and I do not want to go into the institutional political aspects here—we need to be prepared for a 2025 Europe where we are able to provide what we feel like providing to our fellow citizens of Europe.

Stockholm, Rome, Athens, whatever programme it would be, should have as a starting point the well-being of Europe. A major question is posed in the Mahbubani approach, the

Singaporean diplomat who in one of his books on the demise of Europe poses the question what Europe would look like after having stated that China is very much a closed society with open minds and India an open society with closed minds. The question we have to ask ourselves is: do we want to have a Europe with a closed society and closed minds or Europe with an open society and open minds? I would rather go for the latter, and the big challenge is: how can we reach that point in 2025 in the best of manners? That would be my strategic programme.

The Chairman: I have to say that my dealings with Kishore Mahbubani always left me with the view that I do not know whether he exaggerated more the decline of Europe or the rise of Asia.

403 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) Dr Parkes: I will pick up a little on that discussion. I have my Polish hat on, so maybe I can give you a flavour of the debate there, particularly in light of the spat between the UK and

Poland over the last couple of weeks. The first thing, I think, is a greater emphasis on sending countries when it comes to migration. That means an awareness of population and demography in the context of losing population and a revisiting of some of the more progressive western European policies such as immigrant integration, dual citizenship, et cetera, in the sense of, “The west is taking our population. We need to rethink that”.

We should also looked at migration more in terms of brain drain, the need for return migration, and trapped populations—i.e. immobile populations within the EU but also in other countries that are left to deal with national problems as more mobile people leave.

Also, perhaps, we need a re-look at western-style European and global institutions and the question of how they can be reformed so that they take better account of what is happening in sending countries. That is something that we are discussing quite hard in Warsaw.

Another thing is that rather in the wake of what has been happening in Ukraine, we need to emphasise EU values, particularly when it comes to justice, but we also need shift the debate about borders and migration from, “We need strong borders in order to keep people out”, to, “We need strong border capacities in order to allow people in in order to have cross- border mobility”, et cetera. I think there will be a shift there if the debate in Poland and eastern Europe is anything to go by.

In terms of how that plays out in the UK, I think there is a bit of frustration in central

Europe and Poland in the sense that British and Polish agendas on this are relatively congruent. When it comes to migration I think the UK would also say that it is important to think about return migration and mobility et cetera, and that we want a reform of these institutions. For that reason I think there has been frustration at the way the Government

404 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) have perhaps tried to line up coalitions of European receiving countries rather than talking to sending countries like Poland.

Equally, I think there is congruence on this emphasis on the EU’s values and on rights and so on. The UK and Poland are deeply aware of the EU’s need to compete, but again there is a difference in nuance in the British idea of a global race, where material wealth is the key goal, it seems, and in the wake of NSA spying and fly-bys and so on where people think, “Are we letting down our values to pursue material wealth?”, and a Polish idea of a global war of succession between western incumbents and rising powers. We put the emphasis on those values, not just on material wealth. So, again, there is a tension there that may pop up.

Very quickly on the style of the thing, I concur with what has been said about the sense that this programme needs to be more political than it was before, and that they should take the opportunity to break with the previous three programmes and say, “This is not about Treaty implementation, this is about a new phase”.

I would also say that this is not about the area of freedom, security and justice per se, this is about picking out key political messages and not having a comprehensive programme.

Perhaps we should also recognise the lesson from Stockholm, which is not to make this programme do everything. We have other strategic discussions. We have other tools for communication and for planning, so let us concentrate on a core problem.

Q124 The Chairman: Thank you. I will just respond to one point you made about the area of freedom, security and justice in order of priority. One of the fields that we have had dealings with in the last two or three years is the PNR Directive, and the question is not only whether there should be a PNR Directive in the European Union but whether it should also involve intra-flights as well as flights from outside. The European Parliament objected to that and at the moment it is stuck there. Hopefully it will come unstuck in some way or another after the elections and will resume negotiation. Looked at from the House of Lords’

405 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) point of view, we have supported the British Government’s position on this, which we do not always do, from the beginning. Indeed, we have supported the need for intra-PNR as well. It seems to us in that context that what are called the Syrian jihadists are a real threat to Europe over the years ahead, and anyone who denies that is probably going to end up wiser and sadder.

We have therefore in that context to give a lot of importance to the security dimension— not total or exclusive importance, but a lot. It seems fairly obvious to us that you are going to need a system by which all 28 of our Governments are able to know whether any of these people are coming back into our countries, and if they get into one of them if they are moving into another one under the free movement provisions and so on, which they will be able to do. You could have a development like the big surge in Syrian jihadists, which after all has been fairly recent and is obviously going to continue, because there is not going to be a solution and it is going to get worse—for a bit, at any rate. An event or a series of events like that comes along and you are then forced to give a lot of emphasis to the security side if you are not to be derelict in your duty, while not forgetting that you are invading people’s personal rights and so on, in order to achieve that security.

I just give you that example because it strikes me that as always, when you deal in generalities, Harold Macmillan’s, “Events, dear boy, events”, overtakes you and something happens that puts everything into a slightly different focus.

Professor van Krieken: I agree with you.

The Chairman: I just mention that because we are obviously actively engaged in scrutinising the PNR Directive and will continue to be so. We think that the European

Parliament took a wrong turning when it simply blocked the whole thing, and that it will have to come to a different view—I hope it will. Its action happened, of course, before the issue of Syrian jihadists have come into sharp focus. There are plenty of other issues of course,

406 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) but that one is peculiarly sharp, I think, and it is not rocket science to work out that it is going to give us all a lot of headaches. Does anybody else have any questions?

Q125 Lord Sharkey: For the sake of clarification, Mr Pascouau and Professor van

Krieken, were you saying that you think it is undesirable at present for the Council to give guidance on a future JHA programme?

Dr Yves Pascouau: No. We are saying that the letter of the Treaty is clear. The European

Council has the task of adopting guidelines, and we are convinced that this is the letter of the Treaty. We are saying that we think that guidelines should not be adopted in June 2014, but they should be adopted in June 2015 to allow for a clear, wide and deep debate. These issues have been put under high pressure because the October European Council decided to define the guidelines in June 2014, which has put enormous pressure on the European

Parliament. It has also put tremendous pressure on the European Commission, and as a result—I have experienced it myself—the question has never been framed and the answers have never been appropriately given, to put it very simply, which is not nice. I attended a series of meetings organised by DG Home in order to gather some information to see what should be put into the next step. Lots of NGOs that participated in these consultations were highly interested in their content, but it was pretty much, “My shoulder is sore. Will the strategy guidelines fix my shoulder?”. That is not the issue. For us the issue is what the directions are that we should take.

Coming back to what you said, it is pretty clear that once the European Council is able to define those guidelines it should not avoid any question, be it related to security, justice or mobility, which are the three bases—the three pillars—of our understanding with regard to freedom, security and justice. It will have to address them. We are saying that for the time being, you are perhaps one of the only parliamentary assemblies in Europe clearly scrutinising this issue. So far I have heard nothing of that kind in France. Are French MPs

407 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) inquiring into that? I am not sure, and I think that the time is now. Because the Treaty does not set any timing for the adoption of strategic guidelines, you could adopt them in

December 2014 or June 2015. There are no legal constraints regarding this, so give decision- makers, politicians, but also civil society time to take part in this debate within the framework of a set question: what are the main strategies that we have to take on board for the next 10 to 20 years in this changing world?

On that basis, we argue that the European Council, which is entrusted by the Treaty to adopt those guidelines, will be able to adopt guidelines on the basis of information and well- informed debate and take the political decision, which for us is extremely sensitive. We are dealing with issues that have a direct impact on the everyday life of our citizens. Migration, security, divorce, child custody—all those issues are important to our citizens, so we have to take a clear and highly political decision and to give the European Council the possibility to do it on the basis of this debate, which is not taking place today.

Lord Sharkey: Again, for clarification, the Commission is, however, running consultations, is it not, on these areas in preparation for a new programme? Does that not do some of what you are talking about?

Dr Yves Pascouau: Yes and no. Yes, because it is organising some consultations, but those consultations are organised in a really fast manner and under pressure and without setting the framework. Unfortunately we are on the record, so I will not be able to say what I would love to say, but the problem is who is entitled to attend these meetings. Now it is mainly organisations, institutions and people around the “Brussels bubble”, let us say—the people who know what is happening in the European process. But outside of Brussels very few people know what is happening with this so-called post-Stockholm phase.

The Chairman: Perhaps we had better move on because we want to get a little bit more specific.

408 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135)

Q126 Lord Sharkey: You may have answered to an extent, but I was wondering to what extent the Stockholm Programme governed the Commission’s approach to the areas of freedom, security and justice? Did the Stockholm Programme determine or influence what the Commission did?

Dr Yves Pascouau: I am going to answer this very quickly. First, one of the Commission’s first Communications adopted after the adoption of the Stockholm Programme to a certain extent did not follow the Stockholm Programme, so from the very beginning the

Commission clearly said, “We are not bound by this”. Secondly, we are still waiting for the half-term evaluation which the European Council requested from the Commission and the

Commission never delivered. So to a certain extent I do not know whether the Commission feels that it is bound by the Stockholm Programme, and I wish anyone good luck who tries to see which among the huge number of measures that have been listed in the Stockholm

Programme have been adopted, implemented or even discussed.

The Chairman: Any other views on that one?

Professor van Krieken: We live in Brussels and not in Moscow, but with five or 10-year programmes I always get this Moscow feeling: what do they really mean and can we not be flexible? To me these kind of programmes are not written in stone, yet the idea, the guidelines style of attitude, the direction we are going in, and at the same time being pragmatic is admirable and something we should do. I agree with Yves that we are still waiting for a proper evaluation. Nothing has come. There was a kind of mid-term review but it was not up to standard, as far as I am concerned. So the first thing to do, well before we go for an essence of Rome follow-up, is indeed a proper evaluation. That is definitely missing.

As a whole, I believe that it has governed the Commission’s approach and the interaction between the Council and the Commission, so to me most probably at the end of the day I dare say it has added value.

409 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) Dr Parkes: If I may, I will use that question to pick up on some of the other questions that have been asked. First, in general the Stockholm Programme was a weak document and that has badly damaged its effect subsequently. One of the problems was that it was overconsulted on and not steered by the Commission, so a lot of voices came in. Something like 80% of the responses came from just one Member State as well, so the way that consultation process worked was poor. That then fed into a sense that this was a damage limitation exercise, so this was not about setting strategic guidelines, this was about different institutions trying to get the upper hand or to prevent each other from getting the upper hand. When it was presented it was dealt with as, “Okay, we have got that out of the way.

That is just another dossier that we have completed, that is the basis for the next five years’ work”.

Finally, there are structural problems that you pick up on when you talk about the relationship between freedom, security and justice. The creation of an area of freedom, the creation of an area of justice, is different from dealing with security, which tends to be rather reactive and pop up as time goes on. So when putting those three elements into a strategic document you have that imbalance. When it comes to implementation it is difficult then to point back to a programme and say, “We are doing it on this basis”. That is just to pick up on some of the things that have been mentioned.

Q127 The Chairman: Presumably this institutional tension, which will continue to exist I am sure, ought to be better organised by now having an ab initio base in the Treaty article and the involvement of both the Parliament and the Commission in the formative stages. I am not being starry-eyed about it: I am sure that will not stop the tension running on through the programme, but it should at least be better organised tension than it was in the case of Stockholm. Is that not right?

410 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) Professor van Krieken: I agree in the sense that there is a paradox. Point number one is that the lobbies and academia tend to focus in the Stockholm Programme on asylum and migration, and such things. There is much more, but in the debate the elements are borders, illegality, whatever, and I think that will be one of the main issues at the forthcoming elections. I would like to refer to the Brighton declaration when it comes to the relationship between the capitals and Strasbourg, and the issue of subsidiarity, marginality and so on. The paradoxes are that on the one hand we tend to take some issues back to our respective capitals but not when we talk about asylum, migration and integration. Maybe those are the very subjects we should bring to Brussels. Asylum we have agreed. Migration is still very much our own prerogative—as is integration, remarkably. I am interested in how the

Italians do it. After five years the foreigners are allowed to get out of Italy and join my force, so to speak.

So there is a paradox, and that is the paradox you were referring to: the tension between the Council, the Commission and of course the Parliament itself. I do not have an answer there.

Dr Yves Pascouau: If I may just add something, coming back to the issue of defining the guidelines in June 2014 I think there is a risk of creating more frustrations and tensions because the European Council will be defining guidelines that will bind the incoming

European Commission and Parliament without those two institutions having been able to take part or even to provide some thought about that. The problem is that the European

Commission will adopt two communications in March 2014, but this is the Commission composed of Mrs Reding and Mrs Malmström. What will be the appetite of the new

Commissioners? Will the new European Commission be organised the way it is? Will the new Commission, if we have a new President of the Commission who is very forward looking create, for instance, a DG mobility that takes into account freedom of movement of

411 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) citizens, intra-EU mobility of third country nationals, admission of third country nationals?

The picture might be radically and fundamentally different.

The guidelines that will be adopted in June 2014 will set the framework for institutions, and the Commission and the European Parliament will be fully responsible in those fields without being able to contribute to the debate, and there is a source of tension. So the idea of postponing again is the idea of enabling those new institutions to reflect on those things and by the beginning of 2015, for instance, to contribute to the debate in order perhaps to decrease potential tensions.

The Chairman: I have to say to you with a slight air of cynicism bred of long experience of this great organisation—the European Union—that I do not think the June 2014 decision- taking rendezvous is likely to be reopened.

Dr Yves Pascouau: I think there is less than a 1% chance.

The Chairman: Quite. Basically, while respecting your views—and it is very useful to have that view—I think we need to focus as much as we can in the work we are doing, given all the imperfections of the timetable, which you have outlined extremely eloquently, on what the programme adopted in June 2014 should do and say. Frankly, there is a huge amount of flexibility, as we have seen before, and it is illusory to suppose that the European Council can literally tie the Parliament and the Commission hand and foot. That is not what Article

68 says anyway, but I think we are going to have to live with that.

Q128 Lord Faulkner of Worcester: Just staying with the Stockholm Programme once more, what aspects of it led to action and what areas require further action to achieve the programme’s goals? I think, Professor van Krieken, that you have answered that to some extent, but maybe you could just elaborate a little bit on that.

Professor van Krieken: Thank you. First of all, I repeat what I said: that we tend to forget that we start to talk about migrants and so on only in Chapter 5 of the Stockholm

412 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) Programme. First, we talk about an open Europe and the freedom, security and justice aspects for our own citizens. I am not well versed in those issues, but when it comes to the migration, asylum and integration aspects I think that some action has been taken. We have set up EASO on the asylum issues, we have FRONTEX, we have Europol, and other relevant institutions.

The problem again is that we create something, such as institutions’ line of thinking and directives that could in principle be pragmatic and make a difference, but at the end of the day the hurdles are enormous. We are stuck by a number of directives and an attitude that basically make effective policy impossible. Maybe I should put it even more strongly and call it mission impossible.

We basically have open borders. The Hirsi case from Strasbourg amounts to a big party for all the smugglers. We cannot stop the influx. We are unable to think outside of and live up to the external dimension of the Stockholm Programme. We are unable to follow up what

Blair once did and embark on external processing. We are unable to implement the return and readmission agreements that we have signed with neighbouring countries. Most fortunately the court in Luxemburg just the other day said that the individual has no right to determine where his application shall be dealt with, and we have to rethink this asylum migration aspect in a more pragmatic and global environment. The way we do it now is by dealing with the nitty-gritty per square millimetre, and that will not enable us to run a proper asylum, migration and integration policy.

Q129 The Chairman: I see the force of that argument, but one of the problems surely about the European Union invariably is that people set up organisations like FRONTEX or the asylum office in Malta, and then they either expect them to be instantly operational and effective within about half an hour, or alternatively, and much worse, they just set them up and then forget about them. In my view, not enough effort is put into saying, “Right, we now

413 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) have FRONTEX, we now have the asylum office, we have Europol. How can we make them more effective to achieve the broad strategic objectives, which the Council is going to set out in June?”. We have the machinery to operate it. It may need adjustment, it may need more resources and so on, but we do not need a lot more decisions. I have not heard a single person say that FRONTEX is a bad idea, that the asylum office in Malta is a bad idea,

Europol is a bad idea. Quite the contrary. Everyone comes along and says that these are the essence of finding a decent policy, but not nearly enough emphasis, I would suggest, is put on making these institutions less imperfect and more able to do their job. Is that a sensible view or not?

Professor van Krieken: I fully agree with you, but most unfortunately there is a tendency to turn them into lame ducks.

Dr Parkes: May I suggest a little British guilt on that in the sense that I think successive

British Governments have been good at using the strategic process as a sort of displacement exercise, shifting the emphasis from the difficult internal regulation of sensitive policy areas first by putting the emphasis on the external dimension, not as a good per se but rather to say, “Let us change the subject. Let us look at not the asylum system but the external dimension.”? Secondly, there is then the question of implementation and effectiveness, again to get away from regulation. Although Britain has championed these things and as champion setting up EASO, FRONTEX, et cetera, as a means of shifting the emphasis on to implementation, it has done so not because it believes it is necessary but rather because it is avoiding a worse evil, which is more interference from Brussels. In a sense, it is a British shift that needs to happen.

The Chairman: Possibly. I see what you are saying and I think it is always probably a little unwise to peer too deeply into a Government’s motivation for doing certain things. The question is whether what they are doing is sensible, reasonable and effective. Take an

414 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) example: presumably you would think that the work that FRONTEX has done to help the

Greeks handle the Greek/Turkish border was absolutely necessary because what was going on prior to that being undertaken was unconscionable, really, both in scale and in the way people were treated when they got across the frontier. You had to have a more effective

FRONTEX, and no doubt everyone has learnt quite a bit from that experience. FRONTEX seems itself to have come through it in a quite respectable way. I have not heard lots of accusations that it has behaved appallingly or fallen down on the job.

Now, we have just initialled, or signed, a Readmission Agreement with Turkey, which is going to be extremely important—far more important, I imagine, than any of the other readmission agreements that the European Union has signed up to now, and it has still not entered into force, although it will do. It comes back to this point that I have made, which I think you partially agree with at least, that a lot of the effort in the next few years is going to be to make these things work and work better. That is not just a British view of wanting to avoid the internal ones. It is because if you do not have some of these external factors properly under control, the internal debate will become completely unmanageable. So you cannot separate out the two. I agree that the British have a tendency to separate it out in the wrong way and say, “You do not need anything internally if you do that”, which is of course wrong.

I still think that grappling with these external manifestations is important, and to some extent in 10 years’ time we may look back and say, “Well, yes, actually FRONTEX came of age with this problem on the Greek/Turkish border”. The readmission agreement showed that you can work with a country, which is a transient country for huge numbers of refugees, so I do not know.

Dr Parkes: If I can put in a Polish perspective again, I would say that that is what we expect from the UK, or rather we expect two things, I think. First, we would probably like to hear

415 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) in Poland an emphasis on how the area of freedom, security and justice could boost the internal market, et cetera. The trouble with that is that was picked up by Barroso, it has been picked up by Reding, and that seems a little bit closed. Nevertheless, that is what we expect.

The other thing is precisely that we should focus on implementation and effectiveness, and above all revisit old decisions that were taken and old strategies and saying, “How do we re- use instruments that are there”, such as the directive on temporary influxes. Also, why do we not write off certain things such as external processing, reasonable protection or things that did not quite fly? Do they now make sense? Let us revisit old things. Again, there is frustration in Poland that that too may be closed off because of the opt-out decision, because of question marks over whether Britain is still on board and whether it can make that case. That is what we would like to hear, I think.

Q130 The Chairman: The British are systematically opting in to a large number of post-

Lisbon decisions. I think it was 49 at the last count. It is going to opt-in, for example, to the readmission agreement with Turkey. That is quite clear. The Government stated that they are going to do that. They are going to continue supporting FRONTEX. So I doubt whether it is a black or white situation. It is different shades of grey probably.

Perhaps we had better move on to the next question. It has, I think, been covered by a bit of this discussion, but you may have additional points to make on it. What lessons from the application of previous programmes could or should be reflected in the strategic objectives that are now being laid down, probably in June?

Dr Yves Pascouau: On the lessons learnt, I think that one clear lesson is to avoid lengthy documents such as the Stockholm Programme, which is a complete failure in the sense that it was aimed at citizens but no citizens have been aware of what has been done. One clear example is that it is pretty striking when you discuss DG Justice with people around and from the European Commission that European Union civil servants are spending their days

416 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) trying to make EU citizens’ lives better, but no one knows that. So avoid lengthy programmes that we usually call “Christmas tree” programmes, and be clear, short and forward looking.

The Tampere conclusions are a good example of that. This is a political document. Where are we going, how and what for? Full stop. There is no need to have an 80-page document, because no one is going to read it. Those policies have an impact and are a concern to all our citizens, and they need to know where we are going in those fields. So, be clear, short and forward looking.

The Chairman: Insofar as words can do it, you are expressing what seems to be a very broad consensus. Everybody we take evidence from—the Commission, some of the justice and home affairs national representatives who we met yesterday, and so on—are all saying precisely that: get away from the Christmas tree approach, no long laundry lists of new legislative measures, give a sense of strategic direction and above all this should be a period of consolidation and implementation and making things more effective. It sounds to me as if your message is getting across.

Dr Yves Pascouau: I must also be clear about one thing: the report that we have written is a result of a series of meetings that we have had with several stakeholders here in

Brussels—Member State representatives, European Parliament representatives, Commission representatives, so on and so forth. So we have been able to get the temperature from a long list of people who kindly attended our meeting and provided some discussion. There was clearly a general consensus that the next step should be far different from the previous one.

Q131 Lord Sharkey: If this guidance that comes out in June turns out to be short, clear and strategic, Member States will probably still have specific items that they would like to be

417 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) included in all this. How do you think that tension should be managed, and how should a balance be reached between those two apparently opposing objectives?

The Chairman: Indeed, are there any specific items that you think should be given priority despite your general remarks that on the whole this should be more strategic?

Dr Yves Pascouau: First, you have to concentrate on the scope of the area of freedom, security and justice, which means that issues related to the freedom of movement of EU citizens, based on Article 21 of the Treaty, are out of the scope. So let us focus on those elements. With respect to strategy and content, implementation clearly has to be emphasised first. We now have 15 years of active policy-making in these fields. There is a huge amount of regulations and directives, and there is now time to implement those elements, which relates to what you said: how do you co-ordinate the EU bodies in charge of implementing policies, such as FRONTEX, EASO and Europol?

The Chairman: And the European External Action Service.

Dr Yves Pascouau: I will come to that, because we also have to think about the implementation of the three main pillars, the first of which is migration. You have to think of at least three things with respect to migration. The demographic impact of the migration issue will increase, which means that we now have to start thinking about how we organise at EU level a legal channel of admission, which has not been addressed so far.

The second related issue is what is happening in Syria. How do we manage to grant proper international protection? We have a common European asylum system, which is set up but relates only to the applicable rules once an asylum seeker is in the European Union. The main problem regarding international protection does not appear at the EU’s physical borders but beyond. The situation in Syria is telling. More than 2.3 million Syrian people in

December 2013 left Syria; 97% of them were protected in the five neighbouring countries;

55,000 were in the European Union. It is absolutely clear that the question of international

418 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) protection is not an internal question. It is how we think about the role of the European

Union outside its borders in order to grant protection as soon as possible to people fleeing for their lives. This is also role for the EEAS: to see how we can use the EEAS as an extraordinarily strong asset to get information, to give back information and to help in practice.

Integration-related issues have to be thought about in the long term because unfortunately— or fortunately—the Treaty is clear: there is no harmonisation power to the European Union in the field of integration, which means that we will continue co-ordinating national policies but that this will have to be dealt with within the meaning, and bearing in mind that there is a question of value, which is at stake. What are the values the European Union wants to stick to, with different people coming in from different parts of the world: Asia, the Middle East and elsewhere? This part of migration is broad.

Then there are the internal security issues. The question is clearly how the European Union will be able to plan and to forecast fresh new policies in an even more digitalised world?

How will the European Union be able to co-ordinate its efforts with the action we want?

How will the European Union be able to sign agreements with different countries in the world given the question of data protection, for instance? These are mainly issues that have to be dealt with within the internal security field, which already has plenty of legislation.

Then there is justice, which is related to how we grant access to justice to our citizens, but how also justice can be used, as it has already been said, as a source of protection and economic growth, because this is also important and is also coming up more and more in the debate. All those issues have to be dealt with, bearing in mind that there are some transversal issues.

How do we manage external action along with human rights? Like it or not, this is a value of the European Union and something which the European Union has to stay strong on. How

419 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) do you deal with data protection and how do you evaluate policies—this also relates to the question of implementation—once they are decided and implemented? Are they appropriate or should they be changed or reoriented? You also have to include in those mindsets different mechanisms in order to evaluate and re-evaluate policies.

Professor van Krieken: Allow me, for the sake of argument, to disagree with my dear friend. I find this a very 20th century approach. We are now living in the 21st century. For the last 20, 25 years we have had 500,000 people coming to Europe each and every year either as migrants, with all the stay-overs, or asylum seekers, who, whether we recognise them as refugees or not, we did not send home. The population of Europe has increased, if I am not mistaken, from 480 million to 502 million over the last 20 years, and 85% of the difference of 22 million was due to migration, which may be a good thing or a bad thing.

We have to go back to the basics, to demographics, to the economic reality, to our economic future, to education, to unemployment and so on. Before we start talking about migrants, asylum seekers and refugees, we have to realise what we want Europe to look like in 2025 and 2050, and only then can we start talking about the migration policy and how to help the people in world. Of course I fully agree that we should assist Syrian asylum seekers, and they will come in droves. There may be 100,000 next year, and 250,000 in the year

2015. Are we ready for it? We are not. All we know, even if we apply the temporary protection directive, is that they will stay put. Can we handle it? Do we want to handle it? If not, what do we do? When we have talked about it, we have been perfectly incompetent and not able to deal with it. The directives are in place and we all talk legislation, but we forget to talk about the most important thing: procedures.

When we started with the European Convention on Human Rights, there was no right to appeal for an alien, a foreigner, whenever he wanted to continue his stay or enter a

European country. We only did that much, much later. By now, if you put the various

420 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) directives together, an alien can have seven, maybe even 12 different appeals, not to mention

Strasbourg, the human rights committees in Geneva or the rapporteurs who would like to play a role in all this. We made the whole legal guarantees policy beautiful but the implementation impossible. My urge would be: let us not talk legislation, let us talk procedures and combine the procedures and the legislation, and link them up to our long- term policy on what kind of Europe we want, where newcomers may be needed and may be welcome, or may not be needed or are not welcome. That is the context in which we have to think: the 21st century.

Dr Yves Pascouau: We will have a beer afterwards.

Q132 Lord Sharkey: I think again that Professor van Krieken has rather answered the question I am about to ask, because my question is about what the strategic priorities in the next programme should be. You are saying procedures?

Professor van Krieken: Yes, absolutely.

Lord Sharkey: Perhaps I can ask your two colleagues what they think.

Dr Parkes: Can I use you as an excuse to pick up on that question and maybe link them? I would get away from procedures. I think the UK would be well served by a political programme if it can exploit the sort of creative ambiguity that is usual in political programmes. If you start dealing with procedures or listing safeguards, I think the UK or

British Government would trigger a lot of the negative trends that we have seen in the last programmes that have caused problems, such as weasel words that voters pick up on more than they, funnily enough, pick up on grand strategic things.

Lord Sharkey: This is British voters you are talking about—

Dr Parkes: I think so.

Lord Sharkey: —or European voters?

421 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) Dr Parkes: Both, but I have my British hat on. If the UK Government start asking for a listing of measures and safeguards in this programme, British voters will pick up more on the weasel words that we sometimes get from Brussels than on the grander strategic ideas. You may disagree. You are looking sceptical.

Lord Sharkey: No, I am not at all. I am just interested in that point.

Dr Parkes: I think that is the case. I also think you would end with the sort of Christmas tree programme that Yves talked about, which I do not think is in anybody’s interests. It also slightly perverts what the European Council ought to be doing, and what from a British perspective it ought to be doing. It is an intergovernmental body where Heads of State and

Government come together, have dinner, chat and be friends. That is useful for Britain. If it becomes this legislative negotiating body à la crisis management eurozone, that is not what we want.

Governments do not understand one another any more. They come to Brussels, have a late night, adrenalin-fuelled sessions, dislike each other and go home. I think that undoes the whole sort of intergovernmental idea of the EU that Britain has been promoting. I would say: go with the flow and maybe exploit the creative ambiguity in a political programme, rather than going into this with an idea of, “What safeguards can we win? How can we prevent this getting out of control?”. It is slightly counterintuitive.

Q133 The Chairman: Let us get back to this issue of reviews, evaluations and so on, which I think you spoke about earlier on and which I think we are all agreed every bit of evidence we have heard agrees that it has not been done very well up to now. One case that we came across in our work that was pretty ghastly was the evaluation of the drugs action programme. The Commission did not wait for the evaluation to come in before proposing a lot of other measures. It totally discredits any process of evaluation, it seems to me, if you

422 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) do not even wait for them, let alone whether you pay any attention to them. It has not been very well done up until now.

One of you mentioned the complete failure of the Stockholm Programme mid-term evaluation, with the Commission simply saying that it was too busy to do it and the Council doing probably what was rather a box-ticking exercise.

Professor van Krieken: Allow me to say that in June the Council published a fourth annual report on immigration and asylum. I read that as partly as an evaluation, so at least that is one useful document. Sorry to interrupt.

The Chairman: Yes, but I think we would like to hear from you how you think the June

2014—if it is to be June 2014—strategic direction should deal with the issue of evaluation and mid-term review and so on. We heard yesterday from the Commission that it thought that the already accepted requirement to review the funds in the middle of the MFF period might be a useful focus, although not obviously a complete one, because you would have to take in the non-spending aspects, and the justice side does not have much spending in anyway. How do you think that should be handled, given the inadequacy of the European

Union’s ability to grasp the nettle of evaluation and mid-term review up to now?

Dr Yves Pascouau: I think that at least three types of evaluation could be taken on board, although this is not an exhaustive list. First, the old idea that existed in the temporary programme and was abandoned afterwards was that of a scoreboard to know who is in charge. Did the European Commission table the proposals? Did the European Parliament and the Council adopt the text, and has it been adopted? This is the legislative evaluation that proved at the very beginning of the policy in 1999 to be very useful for observers, and put some pressure on institutional players here. This is for the legislative level.

With respect to the implementation, we have a provision, Article 70 of the Treaty, which allows the Council to set up an appropriate mechanism in order to evaluate the

423 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) implementation of policies. It has been a huge drama between the Council of the EU and the

European Parliament regarding the Schengen evaluation system, but these instruments exist today and could be extended to other policies. After that there is the political evaluation.

One idea is that instead of having a mid-term review we could have a kind of political evaluation of what has been done, where we are standing and whether we should revise our orientations or not.

One interesting idea, which was discussed during the task force meetings, was to have an evaluation after each Trio Presidency and ask, “Are we on track, given unexpected events”—various crises, the Arab Spring, the 9/11 bombings are all unexpected events that have had a tremendous impact on policies—“or do we need to change direction politically immediately?” Every 18 months you could have a kind of cycle of evaluation, which helps the

Heads of State and Governments to say, “We are on track” or, “We should perhaps add one element or go in another direction”. These are three elements that we could have with respect to evaluation.

Dr Parkes: May I disagree only slightly? Two things worry me perhaps. The first is that by taking that path we are making evaluation separate and slightly synthetic. It is something that we deal with every two and a half years or something which the Commission will do at this stage via that tool. I think we need to concentrate on finding organic ways within the political process to deal with evaluation and to deal with it naturally. It may be that we deal with it at the highest level, or it may be simply that we make sure that immigrants and EU citizens are able to exercise their rights, have recourse to have things changed and so on, that we have a sort of bottom-up process of making sure that what we have promised is being properly implemented. But it may also mean that we have a constant conversation at the level of

Heads of State and Government and this is not something that we deal with once every blue moon but something that we are always aware of. I think that is the first thing. I would

424 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) worry about making this a synthetic process and put the emphasis on something more organic.

The second point is that the trouble with some of the mechanisms that we have in place at the moment is that they repeat the mistake of the actual programming process as an inter- institutional battle, so the programming process but also the implementation process becomes about the European Council trying to gain control of what the Commission is doing and the Commission fighting back, ignoring what has been set out and so on. We need to focus on that initial birth defect rather than prolonging it with new mechanisms that do not—

The Chairman: But presumably you would all agree that the Stockholm Programme approach, in which the Commission did not do any mid-term evaluation at all, cannot work.

The Commission is there and is both a proposer of policy and an implementer of policy. If it is to be a useful evaluation, the Commission must be directly involved, surely.

Professor van Krieken: Allow me to put forward the following, and I do consider this annual report on immigration as amounting to some sort of evaluation when it comes to the two or three chapters of the Stockholm Programme. To me, there is no need to go into the nitty-gritty as the Commission has done in its annual report, but when we talk evaluation, of true evaluation, we have to get out of the JHA parameters. It is not about justice and home affairs as such. At the end of the day, these issues are about education, the economy, social cohesion and such like. To me, the evaluation would be about getting the views of people from other disciplines and looking into the dynamism and what has been achieved and not achieved from that economic, educational, social cohesion point of view. That ought to be the case.

Q134 The Chairman: One weakness in evaluation that we discovered when we looked at the general GAMM was mobility partnerships. We found that the Commission had

425 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) virtually no idea how to evaluate whether the mobility partnership of Moldova or Armenia— or whatever it was—was delivering the objectives it was set up to deliver, and there was no rigorous process of evaluation. I think the 2015 onwards programme that is going to be adopted is going to have to say something about this. We are trying to gather thoughts as to what it could best say about this. Of course it does not mean that it will happen, but it makes it slightly more likely that it will happen if the Heads of Government say that it should. It will at least give a sense of direction, so are there any other thoughts on that before we move to our last question?

Dr Parkes: I will very briefly pick up on a difficulty within the mobility partnership approach, which, if we sat down and evaluated it, we would have to pretend was about increasing mobility, about remittances, about return migration—that sort of thing. In reality it is about the EU trying to make a breakthrough in legal migration, trying to bring the Member States together in a more constructive approach. It is about increasing the EU’s leverage over

Moldova or whatever country it may be, but we cannot put that into the evaluation process, because that would be to admit slightly that it is about something else.

Lord Sharkey: Is that not a way of saying that you cannot evaluate anything? It seems to me that if you look at programmes in the commercial world, every good programme that I have ever encountered has written into it a robust method of evaluation from the start, acknowledging what the true objectives are of the programme. I see no reason—but I invite your contribution—why that should not be the case for programmes under the JHA.

Professor van Krieken: In everything I am involved in for EU deliberation on key issues or the various programmes, it is always about objectives and deliverables, and that is wrong.

Lord Sharkey: Yes, but how are you going to measure it, and who measures it, because having the Commission mark its own homework is not always entirely satisfactory?

426 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) The Chairman: You are going to get now, very soon hopefully, some quite big mobility partnerships in countries of much greater significance than Moldova—countries like Tunisia and Morocco. It is surely going to be essential that they are properly evaluated in two or three years’ time.

Professor van Krieken: But the danger is that those mobility partnerships are to a great extent symbolic. It is a ritual.

The Chairman: Yes, but the evaluation may have to recognise that. It does not mean to say that they are not worth having at all.

Professor van Krieken: They are worth it, yes.

The Chairman: But it does mean that they are not as important an answer to the problem of mobility and migration as they were billed to be, but if we cannot face up to these things it seems to me that the European Union’s policies will get more and more discredited.

Dr Yves Pascouau: Just on this, I think that there is a legal and political problem. The legal problem is that mobility partnerships are instruments that involve the EU, EU Member

States and third countries. The legal part of mobility partnerships remains in the remit of national competence, so I think there is a legal problem here that gives the European

Commission the power to evaluate what Member States are doing. Does the European

Commission want to engage in this evaluation at the moment, when Member States are seeing this as their own competence and then on a political point of view the Commission says, “Okay, this is your competence, so you have to evaluate it.”?

The Chairman: Surely what they would evaluate is how effective their attempts to co- ordinate Member States’ individual policies have been, not challenge whether Member States should be handing the competence over to the Commission, because that is not in their remit. I have heard Manservisi, for example, giving quite frank accounts of successes and

427 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) failures in helping to co-ordinate. It would surely be valuable to have a view on that without trespassing into the increased competence area.

Dr Yves Pascouau: I do not deny that there is a need for evaluation in this regard, but I think there is a problem too. This is perhaps a question that you have to raise again with

Stefano Manservisi.

Lord Sharkey: It does raise the issue, going back to strategic priorities, of whether or not we should concern ourselves with programmes that we cannot evaluate. It would be hard justify running a programme that you could never evaluate or not evaluate.

The Chairman: They do cost money, these programmes.

Dr Yves Pascouau: Of course. Are these programmes that we cannot evaluate or programmes that we do not want to evaluate?

Lord Sharkey: I would have the same objection to either.

The Chairman: I think we have to be a bit more honest, do we not, a bit more transparent?

Professor van Krieken: Yes and no. I spent some time in Moldova and these are the kind of things that are intangible, and yet they have added value and have more value on the political level than on the ground, saying, “This has truly happened”.

The Chairman: No, but an evaluation can take into account intangible advantages as well as tangible ones. After all, a company dealing with this could take into account the reputational value of a particular approach that cannot be quantified, but it would have to find words to express why it thinks that improving its reputation is likely to improve its performance as a company. It is not rocket science. It is highly sensitive.

Professor van Krieken: Very sensitive.

Lord Faulkner of Worcester: You need to be sure of the integrity of the people who are doing the evaluation.

428 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) The Chairman: Yes, that is right, and that is the question: do you hand it over to somebody outside or to some part of the institution inside and some cases to the court auditors or someone like that or what? It just seems to me that up to now it is not being done very effectively and that it could be one of the elements of a new programme: to do it a bit more effectively.

Could we move on, Lord Sharkey, to the last question, because we are just running out of time.

Q135 Lord Sharkey: The last question was about the Stockholm review and the failure, or inadequacy, of any kind of review of the Stockholm Programme. Talking about review mechanisms, as we were a moment ago, in your view realistically what should be in place to make an assessment of the Rome Programme or the Athens Programme or whatever it turns out to be? What should we do so that there is a real chance of having a realistic assessment of what progress we are making in the new programme?

Professor van Krieken: I am repeating myself, but we should be getting out of the justice and home affairs parameters. At the end of the day, it is about education, it is about unemployment, it is about social cohesion. We do not often dare to link it up. We talk human rights, we talk about rights, we talk about well-being, but we are hesitant, if not reluctant, to touch upon the truly sensitive issues: the inner cities, the things happening in

Stockholm last summer. These are the issues.

This is not about ageing. I see some healthy 50-pluses here. We have to think along these lines and think about Europe 2050 and the fact that we are lacking a migration policy that is based on sociology, political science, demography, economy, economy and economy.

Lord Sharkey: In that, would you prioritise, for example, the contribution these things make to economic growth?

429 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) Professor van Krieken: We should dare at least to ask ourselves that question. We should dare to think and carefully study Martin Ruhs, whose recent book (The Price of Rights; regulating international labour migration) touches on some of the questions involved, and also

Paul Collier’s recent book, Exodus, a review of which was published in The Economist last

September. We should dare to ask not necessarily existential questions but whether Europe has an open mind, an open society, and what forum it would get. Let us get out from the nitty-gritty of rights and wrongs, acceptance, entry, sojourn and return, which is basically a non-issue, because we failed bitterly when it comes to it, and lift it up to the general

European 2050 issue.

The Chairman: But asking the European Council to be very adventurous in this matter one month after anti-immigration parties are likely to have had an extremely successful day out at the European elections is a little bit unlikely, is it not? It can set perhaps a sense of direction that will lead to some of these longer-term problems being examined, but to ask it to be very adventurous in June would, I would have thought, be extremely unlikely.

Realistically, what I imagine all our Governments are doing at the moment, if they are sensible, is trying to hold the line against this upsurge of anti-immigrant rhetoric and so on rather than advancing very far down a road to better policies.

Professor van Krieken: No. I recall The Economist’s cover of two or three weeks ago featuring one of my countrymen. I think we should be ahead of it. We should not wait, we should be proactive. I put this line of thinking on the agenda. When and where—that is a political issue and that is what I leave to you. I am not into politics.

Dr Parkes: There are two things perhaps. The first, if we are talking about evaluation, is that we are still stuck in the mindset of these Christmas tree programmes, rather than qualitative political programmes. If we are not dealing with quantitative things but rather qualitative goals, there may be greater willingness on the part of the Commission to evaluate and say,

430 of 485 Dr Roderick Parkes, Dr Yves Pascouau and Professor Peter van Krieken—Oral evidence (QQ122-135) “This is what we have proposed”, but it may also make it simply less of a box-ticking exercise and more qualitative. But that may shift.

The second thing is that when we think of 2025 we might automatically be thinking in terms of ageing populations, the need for more immigration and so on. I think the financial crisis has shifted the way we think about migration. You mentioned Exodus. I mention the perception of sending countries that is coming back or coming in, and if we embrace that, we should not talk in the old terms that antagonise voters such as, “We need immigration for this or that”, but should have a more subtle approach that is in line with voters’ concerns in some ways. That may shift this time around, but we need to take that step, I think.

The Chairman: Thank you very much, all of you, for coming along. We have had a very useful and interesting discussion of these various affairs, and I hope that you will feel when our report comes out that we have listened and taken into account some of the things you have said, and I hope that the report will be a contribution to a debate that is clearly not going to end in June 2014. Thanks very much.

431 of 485 Professor Steve Peers, Professor John Spencer, Professor Elspeth Guild—Oral evidence (QQ1-14) Professor Steve Peers, Professor John Spencer, Professor Elspeth Guild—Oral evidence (QQ1-14) Transcript to be found under Professor Elspeth Guild

432 of 485 Scottish Government—Written evidence

Scottish Government—Written evidence

I would like to thank the Committee for offering the Scottish Government the opportunity to respond to its inquiry into the EU’s next five year agenda in the area of Justice & Home Affairs. This agenda will set out the priorities for the EU and form the basis for future action, accordingly we think it is of the utmost importance. Much of the subject matter is within devolved competence and those areas within reserved competence also have a significant and sometimes distinct impact in Scotland. As a starting point, we would like to encourage the UK Government to engage fully in this process as a positive EU partner.

The past 15 years, under the Tampere, Hague and Stockholm Work Programmes respectively, have seen considerable progress in developing the area of ‘freedom, security and justice’ from a low base, mainly through mutual recognition initiatives and with a focus on legislative measures. These programmes have led to considerable benefit for our citizens across a range of areas, from closer cooperation in combating organised crime, to better recognition of judgements in civil and commercial law.

However, I generally agree with the view that it is perhaps timely for the EU to now pause and reflect on progress. Where these provisions can be improved then we should look to do so, including where necessary by further legislation; but after a period of intensive development, the Scottish Government is of the view that the EU should now place an emphasis on implementation, on quality and effectiveness of enforcement and on ways of consolidating the progress that has already been made.

The Stockholm Programme, at 134 pages covering 88 different themes, was an ambitious document. However, it did leave significant scope for the Commission to pick and choose which measures it wanted to focus on. There have been some notable successes from the Stockholm Programme, such as the Victims Package. By contrast there have also been some proposals which have caused concern, notably the recent proposal to establish a European Public Prosecutor and the related proposals to reform Eurojust.

I agree that it is appropriate for Member States to seek to exercise the powers envisaged by Article 68 TFEU. In that context I also reflect that Article 67, which sets the scene for Title V measures, provides that the Union, inter alia ‘shall respect the different legal systems and traditions of the Member States’. This is an interesting reflection point not only for us in the UK, with our different legal systems, but also in the specific EU context, where from time to time Commission proposals would benefit from taking full account of this stipulation.

I would welcome a new Programme which sets out a strategic approach to JHA. This might be achieved from a starting point of thorough assessment and mapping of both the current EU legislative and practical cooperation landscapes as they have developed over the past 15 years to determine, for example, whether there are in fact gaps, or duplication, or indeed provision which is now obsolete. This should not be restricted to an academic ‘at table’ exercise, but in concert with practitioners and Member States.

If further provision is thought necessary, it is however essential to assess first whether non- legislative measures can achieve the desired objectives. Where legislation is necessary it should be accompanied by comprehensive impact assessments.

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Particular areas of interest to the Scottish Government and where we would welcome future EU cooperation include improving the exchange of criminal records amongst Member States, taking practical steps to tackle serious organised crime, combatting trafficking of human beings, police cooperation, the general areas of criminal and civil justice and a focus on consolidating the already good work across the field of JHA.

You mention the potential impact of the UK ‘3rd Pillar’ opt out on future JHA cooperation in your list of questions. It would be unfortunate if this opt out decision indicates a possible future unwillingness or reluctance by the UK to participate in JHA measures. It would also be unfortunate if it undermined the UK’s ability to influence the next JHA programme. It is my understanding that the justice systems of the UK and Scotland are held in high regard by our Member State counterparts and accordingly our views are generally seen as being influential and authoritative. The Scottish Government is therefore of the view that constructive engagement on strategic priorities for the coming 5 years represents a welcome opportunity for the UK to project a positive future profile.

I would like to thank the Committee again for giving the Scottish Government the opportunity to contribute to their discussions. I look forward to having sight of the report produced in due course.

Kenny MacAskill MSP Cabinet Secretary for Justice

27 November 2013

434 of 485 Professor John Spencer, Professor Elspeth Guild, Professor Steve Peers—Oral evidence (QQ1-14) Professor John Spencer, Professor Elspeth Guild, Professor Steve Peers—Oral evidence (QQ1-14) Transcript to be found under Professor Elspeth Guild

435 of 485 UK Government—Written evidence

UK Government—Written evidence

Should there be a fourth JHA Programme? If so, what should its content, focus and purpose be, with reference to the previous programmes and evaluations thereof?

1. Article 68 of the Treaty on the Functioning of the European Union (TFEU) requires the European Council to “define the strategic guidelines for legislative and operational cooperation within the area of freedom, security and justice.” This was the legal basis for the Stockholm Programme itself.

2. The Commission has the sole right to initiate legislation in the great majority of JHA areas, but in the view of the Government, the effect of Article 68 is that this right should be exercised within the strategic framework that the European Council lays down. JHA cooperation affects core aspects of national sovereignty, such as immigration, border control and criminal law. It is therefore right that the Member States, working with the Commission in the European Council, set the overall strategic direction for this cooperation.

3. The Government’s position is, therefore, that the European Council should replace the Stockholm Programme with new strategic guidance. We are pleased that, at its meeting in June 2013, the European Council agreed that it would consider such guidelines next June. This provides the Member States with an important opportunity to set the agenda for JHA cooperation over the years to come.

4. However, in the Government’s view this guidance should not repeat the format of the Stockholm Programme, with its detailed list of proposed measures. While the European Council can agree the most important issues that that cooperation should address, it is very difficult for it to predict now the exact measures that might be needed to deal with a particular question in four or five years’ time. Trying to agree a precise set of measures is likely to distract the European Council from its main task of setting strategic direction.

5. A detailed programme may also reduce the practical impact of the European Council’s guidelines by allowing the Commission to pick and choose the measures that it wishes to implement. This has happened to an extent with the Stockholm Programme, where the Commission has pushed forward those items that suit its agenda, such as the recent proposal for a European Public Prosecutor’s Office, while doing little on other commitments such as reducing the abuse of free movement rights.

6. Rather than a detailed new programme, the Government therefore considers that the European Council should agree strategic guidelines that set out the overriding principles governing JHA cooperation. This should: a. set out the priority areas for action. In the Government’s view, the most important of these should be: i. preventing the abuse of free movement rights, ii. strengthening the EU’s external border, iii. action against human trafficking, iv. the more effective return of prisoners to their country of origin, and

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v. improved exchange of criminal records.

b. set out how we expect the Commission and Member States to work together to address these problems. The Government’s guiding principle here is that the EU should achieve its objectives wherever possible through practical cooperation rather than legislation. The guidelines should also explain where we do not expect the Commission to act; for example by recalling that national security remains a Member State competence and asserting the principles of subsidiarity and proportionality;

c. ensure that proposals that come from the Commission, in particular in the area of civil law, always take into account costs and burdens to both private sector organisations and public bodies;

d. give the Council responsibility for monitoring the way in which the guidance is applied in practice. This should include monitoring the extent to which Commission legislative proposals (where these are necessary) comply with it; and

e. start the process of tidying the European statute book; the UK’s Protocol 36 decision has highlighted a significant number of European measures in the JHA field which are defunct or obsolete, and repealing them would be a positive move.

What is the relevance of the political context? For example, how relevant will the debates and controversies surrounding the free movement of persons, privacy (the Prism programme in the US, as well as similar programmes in some Member States) and the negotiations of a US-EU free trade agreement be?

7. The Government’s approach is that the new guidelines should lay down the strategic priorities for JHA cooperation for several years to come. Current political controversies may influence aspects of the negotiations, but it is important that the European Council does not allow these to act as an impediment to long-term strategic thinking. The Government will continue to support and participate in the EU-US free trade agreement, but it must also not act as a distraction or impediment to sensible strategic thinking in the area of JHA. It is important that Member States are able to share personal data lawfully and proportionately both with each other and with appropriate third countries (including the United States) in order to deal with security threats including terrorism and serious crime.

8. Recent concerns about the ending of transitional controls for Bulgarian and Romanian workers have given Free Movement rights a higher profile. However, the abuse of these rights is a separate and much wider problem which the new guidance should address.

What lessons from the application of the Stockholm Programme could usefully be reflected in the next JHA Programme? Did the Stockholm Programme involve too much or too little legislation and what were its

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tangible outputs? How successful have some of these outputs, such as the Standing Committee on Operational Cooperation on Internal Security (COSI), been and are they working as intended?

9. As set out previously, the Government’s view is that the Stockholm Programme focused too closely on the specific legislative and practical measures to be delivered at the expense of defining the overall direction of EU cooperation in this area. This meant that it acted as a list of legislative measures for the Commission to choose from and did not lead to the outcomes most desired by Member States.

10. The Stockholm Programme was agreed under the previous Government, and we have always been clear that we do not support all the proposals in it. We did not agree, for example, with the creation of a common asylum system based on closer legislative harmonisation. Nor do we support the creation of the European Public Prosecutor’s Office (EPPO).

11. Along with many other Member States, the Government’s view is that the scope for further JHA legislation is limited. The EU’s priorities over the years to come should be implementing existing measures effectively and developing more effective practical cooperation to deal with shared threats and genuine common problems.

12. In this area, the Stockholm Programme does provide material on which we can build. It called on Member States and the Commission to take action against the abuse of free movement rights. The Government is disappointed that the Commission has not acted on this request with any urgency, but believes that the new guidelines should amplify this request and that the Council should monitor the Commission’s compliance with it rigorously. Similarly, Stockholm called for the EU to develop an Internal Security Strategy (ISS), and this has provided a generally effective strategic framework for Member States to work together on issues such as counter terrorism, organised crime and human trafficking. Successful measures that have flowed from the ISS include the creation of the new European Cybercrime Centre at Europol, the EU Strategy against Trafficking in Human Beings and the Radicalisation Awareness Network.

13. The Stockholm Programme did not establish COSI, which has its legal basis in Article 71 of the TFEU, but it did give it the task of monitoring and implementing the ISS. The Government considers that COSI has contributed positively to this work, especially in identifying the EU’s priorities for cooperation against organised crime under the Policy Cycle. However, we believe that COSI could supervise the implementation of other areas of the ISS more effectively, and should give a higher priority to monitoring the delivery of individual projects, holding Member States more accountable for the work they have undertaken to do.

Should the EU’s focus be on consolidating existing JHA cooperation before embarking upon further EU legislative proposals and initiatives? The UK Government, in particular, has emphasised in the past that the EU should focus on practical cooperation, which does not necessarily require a legislative underpinning.

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14. The Government remains of the view that practical cooperation on JHA issues is generally likely to be far more effective than legislation. The EU has adopted a great deal of legislation in the JHA field in recent years. Instead of adding more legislation, the EU should focus on the full and effective implementation of measures that have already been adopted, and deeper practical cooperation in priority areas such as abuse of free movement rights, illegal migration, people trafficking, prisoner transfers and the exchange of criminal records.

15. Where further legislation is considered necessary, it should only be introduced after the most rigorous impact assessment, including a full analysis of its costs and likely benefits.

Should the Programme include a timeline for repealing and/or consolidating existing JHA legislation where necessary?

16. The Government agrees that it is important to keep all legislation under review to ensure that it is meeting its objectives, and to repeal or amend it if it is not. A timeline could be an effective way of achieving this objective. The Government also supports the consolidation and simplification of legislation in the JHA field; for example the proposed merger of the six existing sources of JHA funding from the EU into two: the Asylum and Migration Fund and the Internal Security Fund.

17. The UK’s 2014 opt-out decision as laid out in Protocol 36 to the Treaties has identified a number of pieces of EU legislation that are defunct and should be considered for repeal. This is a necessary activity before continuing with new initiatives, in particular due to the upcoming extension of European Court of Justice (ECJ) jurisdiction over these measures. Having extant legislation over which Member States could be infracted, but which serves no useful purpose, is not a good practice.

What should be the format of the next JHA Programme? For example, should it comprise a concise set of principles or contain a longer, and more detailed, set of initiatives as per the previous programmes?

18. For the reasons set out above, the Government, along with many other Member States, considers that the European Council should set out high level strategic guidelines, including the priority areas for JHA cooperation in the period it covers. Areas where Member States do not feel that further EU action is necessary may also be set out.

19. It should also set out some of the broad steps that should be taken to address these issues, focusing on practical cooperation and the effective implementation of existing legislation. It should have a focus on better regulation, for instance more robust and independent impact assessments. Finally, the guidance should make the Council responsible for monitoring its implementation, for instance assessing legislative proposals against the strategic direction that has been set.

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What role should the European Parliament and national Parliaments play, if any, in defining the content of the next JHA Programme?

20. Article 68 of the TFEU makes the European Council responsible for drawing up the strategic guidelines. Nevertheless, we expect the European Parliament to make its views known through an “own initiative” report before the end of the year. The Government welcomes this, along with representations from other interested parties, but notes that the final decision on the guidelines rests with the European Council.

21. National Parliaments can also influence the guidelines through enquiries such as this one, and by scrutinising their own Governments’ negotiation of them. The Government strongly welcomes this inquiry. The guidelines will also be subject to Parliamentary Scrutiny in the normal way, and we will also deposit the Commission’s Communication on them, currently expected in March, with an Explanatory Memorandum.

Is the funding allocated to JHA activity in the Multiannual Financial Framework for the period 2014-2020 sufficient to achieve existing aims?

22. The Government believes the funding allocated to be sufficient, and considers that administrative savings can help make JHA funding more effective without the need to increase it further. Although JHA only amounts to approximately 1% of the EU’s total spending, the amount allocated to it under the 2014-2020 Multiannual Financial Framework (MFF) is higher than that available from 2007-2013.

23. Not all of this funding will be available to the UK. We are excluded from the Internal Security Fund (Borders) because it builds on those parts of the Schengen system in which we do not participate, and we have not opted in to the Internal Security Fund (Police) or the Justice Programme, though we do have the option of applying to participate once the Regulations establishing them have been adopted and have undertaken to review our participation at that time.

24. The Government is pleased that Member States will have more scope to spend JHA funding in accordance with national priorities than was the case previously, as both the ISF and Asylum and Migration Funds will include national allocations to participating Member States.

What are the potential implications of further EU Treaty change for JHA cooperation, including the position of the UK?

25. While there have been some recent calls for Treaty change in this area, the Government has not been made aware of any firm proposals. The new JHA guidelines will need to be drawn up under the current legal bases for that form of cooperation. Should those legal bases be amended by future Treaty change, the Government believes that the European Council would need to issue further strategic guidelines under Article 68 TFEU.

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26. The Government is strongly committed to the UK’s right to choose whether to participate in new and amended EU JHA proposals and would seek to safeguard these arrangements in any negotiations around future Treaty change.

What form could or should the UK’s future participation on JHA matters take beyond the 2014 opt-out decision? What are the priority areas for potential cooperation in this respect, assuming that the UK will end up participating less in this area than it does at present? Will exercising the opt-out undermine the UK’s ability to influence the content of the next JHA Programme?

27. It is important to make clear that the 2014 decision was granted to the UK by the Treaty of Lisbon and we are therefore obliged to make it. It is a specific decision about a specific set of measures and does not represent a change in policy by the Government towards the JHA area as a whole. In effect it enables the UK to apply the current opt-in arrangements to the pre-Lisbon instruments, which were agreed before ECJ jurisdiction and Commission infringement powers applied. Furthermore, the decision relates specifically to crime and policing measures; it does not apply to the whole JHA area such as civil justice measures or migration and asylum measures.

28. The Government’s future participation in JHA matters will continue to be on the terms set out in the Coalition agreement. All new proposals in this area will be assessed on a case-by-case basis. We put the national interest and the benefits to our citizens and businesses at the heart of our decision making. We consider each opt-in decision with a view to maximising our country’s security; protecting civil liberties; preserving the integrity of our criminal justice and common law systems and control of immigration. The Government will not opt in to a proposal concerning a European Public Prosecutor and has no intention of joining Schengen measures that involve the abolition of border controls. We will continue this approach and it will guide our approach to the forthcoming JHA programme.

29. The Government’s position on the 2014 decision is consistent with this general approach. After a careful assessment of the measures within scope we concluded that we should withdraw from them all and seek only to rejoin those that are in the national interest. The Government set out those 35 measures in Command Paper 8671 and considers that they include all the tools which are important to ensure we maintain operational EU police and judicial cooperation. Notably that package includes the European Arrest Warrant, Europol, the European Criminal Records Information Exchange, the European Supervision Order, the data protection framework decision and other measures that contribute significantly to our security and that of our EU partners as well as protecting the rights of citizens. Both Houses voted to agree with the Government’s approach here and the relevant Parliamentary Committees, including this one, are currently holding inquiries relating to the measures that we are seeking to rejoin. The Government looks forward to considering the outcome of these inquiries.

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30. Due to the consistency of our approach to JHA we do not believe the 2014 opt-out will seriously affect our ability to influence the new JHA guidelines. In terms of our approach to the forthcoming Programme, we favour a shorter, more strategic programme focussing on practical cooperation and the consolidation and implementation of existing legislation. Many other Member States agree with this approach and we are confident that we will be able to influence the new guidelines effectively, in partnership with like minded partners.

11 November 2013

442 of 485 UK Government—Oral evidence (QQ161-178)

UK Government—Oral evidence (QQ161-178)

Evidence Session No. 13 Heard in Public Questions 161 - 178

WEDNESDAY 5 FEBRUARY 2014

Members present

Lord Hannay of Chiswick (Chairman) Lord Boswell of Aynho Baroness Benjamin Viscount Bridgeman Lord Dykes Baroness Eccles of Moulton Viscount Eccles Lord Faulkner of Worcester Lord Judd Lord Morris of Handsworth Baroness Prashar Lord Rowlands Lord Sharkey Earl of Stair Lord Tomlinson Lord Wasserman ______

Examination of Witnesses

James Brokenshire MP, Security Minister, Home Office and Shailesh Vara MP, Parliamentary Under-Secretary of State, Ministry of Justice

Q161 The Chairman: Well, good morning, both of you. Thank you very much for coming along. As you know, we are at the final evidence-taking stage of our inquiry into the future justice and home affairs programme, which is likely to stretch from 2015 to 2019 and which, as I understand it from our visit to Brussels last week, is now quite likely to be adopted under the Greek presidency at the end of June, and not, as we had thought when we started this inquiry, under the Italian Presidency at the end of December. There is,

443 of 485 UK Government—Oral evidence (QQ161-178) however, some push-back on that from the European Parliament, which you might expect as it will not be in a position to contribute very fully to all this on the timetable that culminates in June because of the election and the subsequent toing and froing that always goes on as it chooses a new President, new Chairmen of Committees and so on.

Anyway, we have taken a great deal of evidence. I thank you very much for the non-evidence session that we had—the background briefing—which has proved extremely valuable to us as we have gone through the evidence sessions with the various stakeholders. It has proved to be really useful and very welcome to us. Your supplementary evidence and the letter of, I think, 30 January, have also been very helpful.

We can now go into this session with the usual reminder that the evidence is in public. It will be on our website. If you have any corrections to make, would you please let us have them?

Do either of you wish to make a statement, or do you want to go straight into questions?

James Brokenshire: I am quite happy, Lord Hannay, to go straight into questions. Obviously we have provided some formal evidence to the Committee and further background briefing.

Also, I hope that you found helpful my letter on some of the themes relating to the impact of the Stockholm Programme and how the Commission worked through on that. Certainly for my part, although I do not know about Shailesh, I am very happy to go straight into your questioning.

Shailesh Vara: Likewise.

Q162 The Chairman: Okay, that seems fine to me. We have, as you say, a very full account of your thinking on all this. Let us start with a straightforward question. To what extent did the Stockholm Programme govern the Commission’s approach to the development of the area of freedom, security and justice measures? How might the future strategic objectives be cast in such a way as to remedy any shortcomings in that respect in the previous Stockholm Programme? That is to say, how can the objectives be drawn up so

444 of 485 UK Government—Oral evidence (QQ161-178) as to avoid the Commission just going off and doing its own thing, either by omission or commission? That is not a pun. Perhaps you could say something on that.

James Brokenshire: Of course. It is interesting to note from the evidence that I have seen, and which you have received, that the Stockholm Programme was characterised as being much more detailed and longer than some of its predecessor programmes. That perhaps led to almost a listing of legislative requirements that we would see the Commission having, with the ability to select and prioritise those which it liked and not prioritise some other issues that Member States had factored into the Stockholm Programme as being of importance to them—with issues such as free movement being an important part of that.

Looking back on the five-year Stockholm Programme, my sense is that the Commission was able to pick and choose to a fair degree in terms of its prioritisation. Moving forward, the new guidelines need to focus on perhaps a more thematic approach or an approach that focuses on co-operation and on sensing that we are not providing a prescriptive list of legislation, which is how I think the Stockholm Programme became interpreted. It is not just the guidance itself; it is that whole process of ensuring that there is a robust assessment of how things are progressing during the five-year period and that the Council itself is able to assess how those guidelines are being applied and is able to have some detailed analysis of that.

Equally, there are the arguments on the import of the half-time review—if I can characterise it like that—which you will no doubt wish to ask about. It needs to be more of a continuous process rather than perhaps having a legislative list of requirements that simply need to be adopted by the Commission. It needs to be much more than that.

Q163 The Chairman: Thank you. I should say that we have had a lot of evidence that goes rather in the same direction as your preference there. However, I would like to put two questions to you arising out of that. One is: do you not think that there is at least some

445 of 485 UK Government—Oral evidence (QQ161-178) risk that, if you make the objectives adopted in June very general, you actually give the

Commission more scope for its own initiatives and not less? That is one question. I do not think it is capable of being answered in a definitive way, alas, but it needs to be borne in mind. The second one is quite specific. In the course of our evidence-taking, we have come across, I think, at least four important legislative proposals that will not have been completed by the time this new period begins, some of which I think the Government attach a lot of importance to. I am talking about Europol regulation; I am talking about the PNR, which got stuck because the Parliament rejected it, and it is hoped that it will become unstuck with the new Parliament; I am talking about Eurojust, not the EPPO; and of course I am talking about data protection, which is a hugely complex subject but a very important one.

We have not written our report yet but it strikes me that any strategic objectives will need to make it clear that that business which is still incomplete needs to be completed. That needs to be the priority. So I merely put that to you as a slight difference of emphasis from your “We need to keep this very general, not too specific, not a list” approach.

James Brokenshire: I suppose it is that concept of a strategy as contrasted with the tactical means to achieve the strategy. In the past, Stockholm perhaps fell into the latter rather than the former category in setting out some of the broader themes that underpin and underlie the purpose of Member States and the European institutions working together to fulfil certain objectives. Perhaps that is why I have tended to refer to it in the way I have.

Certainly we have outstanding dossiers on Eurojust and Europol. Clearly we will continue to negotiate those to seek to achieve the objectives that we have already set out to the House in terms of some of the shortcomings and issues that we see with regard to both those dossiers, as well as obviously some of the other issues that there are.

The question is whether you need to frame that within guidelines or a guidance document, because that is work that is already in train and will no doubt continue in any event. I

446 of 485 UK Government—Oral evidence (QQ161-178) suppose that the primary question that you asked relates to the balance of influence between the Council and the Commission, given that ultimately it is the Commission that now has the sole right of initiative in most JHA areas. I do not think that the Stockholm

Programme asserted the focus or the desires of Member States in Council as clearly as it could or should have done. There are opportunities here to set down strategic guidelines, which was the role clearly envisaged in the treaties—there may need to be some specifics; I am not saying that there may not be—rather than lose sight of those strategic objectives in drawing up the current guidelines.

The Chairman: No, absolutely. Let us not continue along those lines, except that I would just ask that you reflect a bit on that. Let us take PNR, for example. It seems to me that the

Committee and the Government are absolutely at one on this. We think it is a very useful tool against terrorism and that we need to cover intra-flights and so on, but the Parliament has put a spoke in the wheel. If the European Heads of Government say in June that PNR, data protection, Europol and Eurojust are high priorities for the next period, that could be very valuable in getting the Parliament to reconsider, which is what we have to do if it is to go ahead.

James Brokenshire: The point that you rightly make about PNR is one that we have discussed previously in similar evidence sessions. As a Government, we attach importance to this in providing security for Member States, knowing that the security situation is in constant flux. The continuing situation in Syria is a very relevant factor in this, with people travelling from different Member States to Syria potentially to become involved in jihad.

Therefore, that sense of information and intra-EU PNR becomes ever more important. It is something that I know the Committee and we certainly recognise, and we continue to focus our attention on the most effective way to take it forward, recognising the benefits for all

Member States as a consequence.

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Q164 Lord Tomlinson: Thank you, Lord Chairman, and good morning, Minister. Has there been support among other Member States and Members of the European Parliament for the letter sent by the United Kingdom and other Member States calling for a strategic approach—about which you have been talking—to the next set of guidelines? Secondly, has there been support for the UK Government’s priorities that were set out in written evidence to this Committee?

James Brokenshire: I think we have seen some positive indications at the JHA Council and in discussions with other Member States on the themes of co-operation and practical implementation of existing measures. There is a strong sense that a great deal of legislation has already been put in place but that we now need to focus on how it is implemented, ensuring that it is used effectively and that we have means of sharing good practice and good ideas between Member States. Indeed, some of the practical co-operation issues have struck a real chord and have been redolent in a number of the conversations that we have been aware of. There is still further work to do; we understand that.

Some of the themes that we have touched upon include combating modern slavery and human trafficking. It has been recognised by a number of Member States that working together we can be that much stronger in confronting and combating this appalling trade in human misery. So we have seen some positive responses. We obviously wait to see the

Commission’s formal response, which we anticipate in around March, but clearly our focus remains on securing the objectives.

Lord Tomlinson: Perhaps I can just pursue that slightly. There were seven signatories to the letter—it was written on behalf of seven Member States. Do you have any indications that others might be ready to come aboard?

James Brokenshire: I know that Austria, for example, has indicated that it has objectives very much aligned to our own. When the letter was issued, Germany, for example, had

448 of 485 UK Government—Oral evidence (QQ161-178) more of a caretaker Government following the elections and was forming its different ministries at that point. Support has very much been garnered from Germany as well. So I think that we are seeing progress on this side. We obviously have not—and the Chairman has alluded to this—had any direct response from the European Parliament to the letter but we would not necessarily expect it in those terms. I know that the Parliament has been conducting a separate process through the LIBE Committee and elsewhere in terms of informing the debate around the new programme. We are seeing progress but clearly our focus remains.

Q165 Lord Sharkey: In the letter that we have just been talking about, seven Member

States say that the future JHA policy framework should be based on actual needs and evaluation. I should like to talk about the evaluation part of that. What form should the evaluation take for the new set of guidelines? Who should undertake the evaluation, and do you think that the Council has the necessary resources to do this, bearing in mind the adequacy, or not, of the evaluation of the Stockholm Programme itself?

James Brokenshire: That, for me, is a really important part of this whole process, and there are different ways of achieving it. Obviously we have a legal basis—Article 68—that now underpins the new guidelines moving forward. It may be appropriate to have some form of committee reporting to Council that maintains that ongoing assessment—that could be one way of doing this. Equally, for example, a committee such as COSI could be structured to provide the ongoing assessment of whether the objectives are being met and achieved.

There are certainly different ways in which we would like to see this progress.

In terms of resourcing from the Council, it can be appropriately resourced but it depends on which route you choose and whether existing committee structures could be utilised to inform, and provide regular reporting to, the Council. One issue that was quite instructive to me in terms of, for example, the Stockholm Programme and the half-time report on it was

449 of 485 UK Government—Oral evidence (QQ161-178) that it almost felt that, if you were putting the report together at that stage, the ability to then influence what happened in the latter stages would be quite challenging. Therefore, while I think that there is relevance in having reporting, simply relying on a half-time report does not give you sufficient time to make changes in the latter half of the programme or, indeed, to be able to pick up on themes that may emerge. I think that it needs to be a more iterative-type process.

Lord Sharkey: Could I just follow that up by saying that there obviously exist various possible mechanisms for evaluation. Do the Government have a view on that and a recommendation on which of those we should pursue?

James Brokenshire: I think at this stage we are still examining what the optimal approach would be. We have set out our clear desire to see a continuing process rather than perhaps fixed periods, but that is being assessed and we would certainly be interested in views, from the evidence that you have seen, on what would produce an effective process. There are different options, as I have indicated, and we are still examining them to see which would be the most functional and which, in further discussions in the Council and with other Member

States, would receive the most support. However, there is a strong sense that we need to have a more continuous process of assessment.

Lord Sharkey: One thing that has been suggested to us is that a mid-term review might be tied to the mid-term review of home affairs funds, for example. Would you support that?

James Brokenshire: When we look at the mid-term review, as I said, there is a sense of the need to look at the resourcing and at whether there is some merit in having a review at the half-way point. There is still the question of what that gives you and how it may inform some of the thinking around some of the funding, and, at the same time, whether it gives you sufficient time to make changes for the latter half of the programme. We obviously saw the

Commission come up with its action plan, which related more to the Commission’s

450 of 485 UK Government—Oral evidence (QQ161-178) priorities. The Stockholm Programme previously had significant push-back from Member

States in Council, so there was a difference of view around the report that the Commission itself produced.

It is about ensuring that the Council itself is properly engaged in this process. That, for me, is what is important in ensuring that there is a sense of counterbalance between the

Commission and the Council. The Commission is, of course, a full member of the Council; it is not as though it is completely separate. Therefore, in the new guidelines that would be drawn up as part of the latest process, it clearly has a say in the context of this. It is about ensuring that the Council has that weight and influence as we continue to see how the programme is shaped up.

The Commission also needs to think about evidence itself. We had occasions when the

Stockholm Programme, for example, set out that evidence would be provided and assessments would be made in relation to Europol and Eurojust, yet the Commission, with the right to instigate new dossiers, put forward new dossiers in respect of both those bodies without allowing time for the assessments even to be included in a number of cases.

Therefore, there is a need to ensure that evidence is properly reflected upon so that it informs new measures, if it is decided that something is needed. Sadly, that was not the experience during the last five-year programme.

The Chairman: But surely you are going to need to sharpen up this point if it is not simply to be brushed aside. As you say, the past experience was not very good. Under the

Stockholm Programme, the Commission simply said that it was too busy to conduct the mid-term inquiry and the Council conducted a purely box-ticking operation. That was not very satisfactory. The idea that Lord Sharkey has referred to, which was put to us by

Director-General Manservisi, has, I think, one merit, which is that the Commission is required to participate fully in the evaluation of the funds, because that is part of the

451 of 485 UK Government—Oral evidence (QQ161-178) multiannual financial framework system. I think he was saying that you will get fuller

Commission involvement in the evaluation if you link it together with that obligation which already exists. I do not know how valid that is, frankly. I am not suggesting that the

Committee is saying that that is the right way to do it—we do not know enough about it— but I think that, if we are yet again to avoid falling into a situation in which the Council is not very well placed to do the evaluation, the Commission is perfectly well placed to do it but is not prepared to do it and the thing just slips between the cracks, it will be necessary to be very clear in whatever the European Council adopts as to who does what to whom and when.

James Brokenshire: I think that the review of the home affairs funds in 2017 provides an opportunity, among other things, to look at the consistency of approach in how the money has been spent and what the guidelines have set as a priority. So I agree, Lord Hannay, that there is an opportunity to use that 2017 review in that way, but I do not think that that replaces the need for continuous examination and some of the processes that I have touched upon. Tying things simply to a one-off review would not give you that sense of focus and attention that I certainly believe would be appropriate.

Lord Sharkey: But these are not alternatives.

James Brokenshire: No.

Q166 Lord Faulkner of Worcester: Do you think that the new guidelines should recommend a consolidation of any overlapping justice and home affairs legislation that is currently in place?

James Brokenshire: As I have indicated, there has been quite an extensive period of legislating over the past few years. It is time to implement and to take stock. We think there is a need for a process of review, focusing on whether measures work as intended and whether they have been implemented or, in some cases indeed, whether they are

452 of 485 UK Government—Oral evidence (QQ161-178) implementable at all, and therefore how the whole acquis has developed during this period.

We think that the Commission should set aside time and resources for this, rather than looking for something new. An important part of any such process would be repealing measures that are defunct or serve no useful purpose. This is something that we have highlighted previously. While I noted that Director-General Manservisi did not necessarily fully endorse some of the themes that we have been articulating, I think that even he recognised that there was a need for reflection on some of these themes and issues, and therefore on how we can consolidate in the sense of ensuring that what we have works and is effective, rather than constantly overlayering new pieces of legislation on top of it without necessarily properly assessing whether the foundations are solid and have been followed through to ensure a consistency of approach.

Lord Faulkner of Worcester: I get the sense that you are in favour of a review of the effectiveness of the instruments and the legislation. But how should this be evaluated? How would you evaluate future and current measures?

James Brokenshire: I think the starting point would be on implementation. There are a number of measures. For example, we highlighted as one of our priorities the ability to share criminal record data and the ECRIS measure, which has not been fully implemented by a number of countries. We would want to see the Commission, for example, providing resourcing and support to those countries that have not fully implemented that measure. An assessment of implementation would be a useful part of this process of analysis and assessment, as would examining those measures which are defunct and which serve no purpose, clearing them away so that the overall landscape is much clearer.

What I do not mean by this—and it is important to state this—is that this is a question of codifying in the sense of developing an EU civil law code. We support limited consolidation—in other words, bringing measures together where that would be helpful or

453 of 485 UK Government—Oral evidence (QQ161-178) useful and where it would enhance the coherence, effectiveness and ease of use of existing instruments and provide clarity. It is in that overall sense of codification that we would see this being a part of the process.

The Chairman: One of the areas that was suggested to us in Brussels as really needing to be looked at is help by the European Union for judicial training in a number of Member

States where this is really lacking and where they are therefore not very well placed to implement some of the laws being passed by the European Union. A lot more effort needs to be put into training programmes in that way. I do not know what your colleague thinks about that. That was put to us in Brussels as something that should be a priority, and it seems to me to come very much within the scope of what you were saying—not new legislation but making existing legislation work better.

Shailesh Vara: Certainly I think there is room for improvement in that area, and it was referred to at the Brighton conference that we had here last year. Another example would be in the area of civil law, where there is some uncertainty about serving documents. There needs to be clarity on the way forward for lawyers and indeed judges. That is all an existing process but we could do with consolidating it and seeing the way forward rather than creating new rules and legislation just for the sake of it. So I agree with you there, Lord

Hannay.

Q167 Lord Rowlands: In the evidence that Members of the Committee took last week in Brussels on the justice issues, the Director-General emphasised mutual trust in justice systems. How effective has the Stockholm Programme been so far in establishing mutual trust, and are there any areas where mutual trust can be reinforced?

James Brokenshire: I am sure that Shailesh will want to comment on the pure justice issues.

We have seen the Eurojust measure come forward. I know that this Committee has itself expressed strong and clear views on the EPPO aspect that sits alongside all of that. The

454 of 485 UK Government—Oral evidence (QQ161-178) practical work that I have seen at Eurojust, for example, has been very instructive, and the ability to allow prosecutors and the process of investigation to get together in a practical way has been positive.

The question, then, relates to the new Eurojust measure and the EPPO, which has very much complicated the whole assessment of how this moves forward. The Government have obviously set out their clear views on that, so there has been progress in getting use of mechanisms through Eurojust. The practical side of law enforcement that sits alongside that—for example, the use of joint investigation teams—is something that I know law enforcement has found extremely beneficial in the investigation of cross-border crime. We as a Government emphasised that with the publication of our new Serious and Organised

Crime Strategy in the autumn. The sense of serious crime crossing borders, the need for different jurisdictions to be able to work together and the utility of mechanisms such as JITs to facilitate investigations have all been used effectively and in a very practical way by our law enforcement agencies. Also, from the prosecutorial side, Eurojust has been harnessed.

I suppose that the big outstanding question from the Stockholm Programme is where the new measures in relation to Eurojust and the EPPO now progress. Clearly, the response of the Commission to the yellow card, seemingly not reflecting on the views of parliaments across the whole of the EU, has not been positive.

The Chairman: No. I think you can assume that the report we are going to produce is going to say some fairly unkind things about the Commission’s response to the yellow card.

Lord Rowlands: What about faith in justice systems?

Shailesh Vara: As far as faith is concerned, as I said earlier, we want to make sure that our existing laws are recognised where necessary and consolidated as appropriate but, where there are a lot of defunct laws, we get rid of them. As far as we are concerned, we are in the business of trying to make sure that what we have at the moment serves its purpose, rather

455 of 485 UK Government—Oral evidence (QQ161-178) than the objective being to legislate for the sake of it and simply having a Commission that, at the end of five years, says, “We introduce this, this and that measure”.

Lord Rowlands: So there is no legislative idea in the pipeline to strengthen mutual trust that you would support?

Shailesh Vara: I am not aware of any. The reason I am hesitating is that I took on this brief six weeks ago and you will appreciate that, as far as the Stockholm Programme is concerned,

James has been there more than I have.

James Brokenshire: We have sought to underline practical co-operation. There are differences in legal systems, as I am sure you well appreciate, Lord Rowlands. Our common law approach contrasts with some of the civil law codes adopted in a number of our partner nations. Therefore, the concern has always been to ensure that our approach to law and the common law approach are maintained against pressure from some quarters to adopt a more civil law style.

There is confidence, which is due to a number of different measures. The use of the

European Arrest Warrant, subject to some of the changes that we have identified on proportionality, for example, again shows how systems can work and how there can be confidence in the use of justice in a broad sense between Member States. But it is important that there is a continued focus on standards and a sense of proportionality. We have highlighted some of the themes in the changes that we have sought to implement domestically in relation to cases being trial ready.

Lord Tomlinson: You have made it quite clear that some things are working well and that you believe some are out of date and should be scrapped. How would you follow through that thought into the allocation of cash resources in the budgetary process?

James Brokenshire: I know, Lord Tomlinson, that, rightly, you have always sought to challenge on the issue of ensuring that finance is applied appropriately. As I think we have

456 of 485 UK Government—Oral evidence (QQ161-178) already discussed in this session, the 2017 review of funds, for example, provides a means of assessing whether funding and finance have been properly applied and properly set against the guidelines that will be set out in the new programme that is to be adopted. You are absolutely right to highlight that funding and financial decisions should be in step with the guidelines set by the Council through the Article 68 process. So I think that the measures and mechanisms are there. Indeed, the 2017 review provides an opportunity to assess whether that has been followed through practically and whether it reflects how the funding has been applied.

The Chairman: It works better on the home affairs side than the justice side, of course, because there is very little funding on the justice side. So there is a slight mismatch there but

I am sure that that is a detail.

Q168 Lord Boswell of Aynho: I want to raise a point about collaboration on technologies. Perhaps the Ministers could say a little more about the extent to which, with other countries that may have less well developed traditional expertise in this area, there is an opportunity or a readiness to look at harmonising systems and, if we are sharing best practice, using some of our better systems for scoring and managing cases, although such collaboration may well be incoming as well as outgoing. The second question related to that is that clearly, without necessarily drawing a distinction between civil and common law systems, there will be different approaches to the definition of, for example, crimes. Certain things will be under one heading in, say, the United Kingdom but not in another Member

State, or they may not be crimes at all in certain countries. Is the system beginning to work in an unclunky way to sort that out and harmonise it?

Shailesh Vara: Yes, there is certainly an intention to ensure that where we can work together and co-operate, that is the preferred option, rather than going down the legislative route. Certainly, in terms of the internet and the IT revolution and everything else,

457 of 485 UK Government—Oral evidence (QQ161-178) communications are a lot easier. Where you are dealing with criminal matters, it is certainly a lot easier to convey details between one country and another. That is something that we would want to explore much further and we would try to get other Member States on board for that.

In terms of the definitions that you referred to, that again is something that we need to work on because, while we can share the bigger, broader objectives, we would need to negotiate on the minutiae. In terms of harmonisation, I would use that word carefully.

Clearly we do not want to go to the level of harmonisation that some of the other Member

States would want to go to. So, yes, what you say is being pursued and actively looked at.

Q169 Lord Morris of Handsworth: Minister, it is very clear that the guidelines to which you have both made reference are a very important working tool, as you both acknowledge.

What approach should the guidelines recommend to ensure that the new legislation that is brought forward is based on evidence and responds to practical needs?

Shailesh Vara: What we would ideally want here is an indicative impact assessment to give at the outset an idea of the benefits and costs of measures so that that can be considered at the consultation stage. To be fair, the Commission is a little reluctant on this at the moment but it would be nice to have sight of that first and to discuss it with Member States rather than have a final form subsequently. Again, as was mentioned earlier, as far as the guidelines are concerned, we would want to have an ongoing mechanism to look at and review rather than having a one-off review mid-way so as to ensure that if things are not working out—

Lord Morris of Handsworth: Have you secured consensus among colleagues for this way of operating or is it just at the early stages?

Shailesh Vara: We are certainly talking with Member States and there is a feeling that we need to look at a way of making the present scenario work, rather than create new legislation. There seems to be a mood for that. There is a feeling that we ought to look at

458 of 485 UK Government—Oral evidence (QQ161-178) measures for practical co-operation where legislation simply is not necessary. As I said earlier, in terms of internet issues, people can co-operate on that basis. Likewise, as James said earlier, when there is a call for new legislation, we are particularly keen, and are urging our Member State colleagues, to have the right amount of evidence when asked whether it is really necessary. If it is not, perhaps we can get round it by looking at other ways of co- operating, or, on further reflection, it may simply not be necessary.

Q170 Baroness Benjamin: Minister, do you think that the new Council guidelines should recommend completion of unfinished business from the Stockholm Programme? If not all unfinished business, what important matters need to be dealt with and be included in the new guidelines?

James Brokenshire: I would not take a rigid approach to this for the reasons that I have already touched upon. The Stockholm Programme was far too detailed and it attempted almost to micromanage Member States’ co-operation through a long list of legislative and co- operation measures. I think that in some ways it rather missed the opportunity to set out the strategic goals around justice and home affairs work. We are conscious that there are outstanding measures relating to Europol and Eurojust, some of which we have touched upon, and the whole issue of passenger name records is something that we remain focused on. Certainly, consideration continues around the former two measures, and there will need to be a focus on how they continue to be taken forward.

Again, I suppose that it comes down to a strategic approach and what the high-level priorities are, rather than saying, “Well, we should have this measure”, or, “We should have that measure”. Rather, it is a case of emphasising how to further strengthen deep and practical co-operation. Where there is room for improvement, those measures should be taken forward. I suppose that it is a matter of coming at it from the top level and then perhaps looking at what I would describe as tactical ways of implementing or giving effect to

459 of 485 UK Government—Oral evidence (QQ161-178) the strategic priorities. Of course, examples of that may feature in the new programme, but I would want to see that they are properly set within the strategic guidelines so that you can see clearly how that is giving effect to the priorities that the Council is setting out.

Baroness Benjamin: So you think it is work in progress.

James Brokenshire: Well, negotiations obviously continue in relation to this. I suppose it is why I have sought to emphasise in this session the sense of the strategic priorities, which I think have gained traction among a number of Member States. Therefore, if there are specific issues where co-operation may be appropriate or where further implementation is needed in a particular measure but it has not happened thus far, there may be sense in specifying that so that you are achieving your overall goal and contextualising the way in which it will be furthered. I suppose that I do not want it to become an action points list; I would rather that it was an opportunity to set out a strategy.

The Chairman: On reflection, I hope you would agree that there is a big distinction between specifically referring to unfinished business, which we all have an interest in seeing finished, and the things that we mentioned—data protection, PNR, Eurojust and Europol falling into that category. In a way, if you specify those, that is another protection against a huge list of new legislation. You would be reminding the Commission that we still have a lot of unfinished business, but I do not necessarily want you to respond on that at this stage.

James Brokenshire: Briefly, Lord Hannay, I have touched on the theme of consolidation.

One part of the Europol and Eurojust measures is about consolidation. It is about drawing together a number of previous measures. I suppose I am saying that it is seeing it in that framework and seeing how that can be beneficial and can aid co-operation, rather than it being framed in terms of, “This is unfinished business. Let’s have a list of it”. It is properly showing what the benefit of that is so that we can see how the guidelines are being achieved.

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Q171 Viscount Eccles: This is slightly tangential, but arising out of a lot of the things that you have said, particularly on the strategic approach, do you see the relationship between the Council and the Commission as needing fine-tuning, or is there a more fundamental change in that relationship that we are looking for?

James Brokenshire: The Commission will no doubt have views on what should and should not be included. We wait to see its communication, which we are expecting probably in

March—I think it was indicated to this Committee that that was when it would be forthcoming. The Commission is obviously a member of the Council and is therefore able to telegraph its own views in relation to the strategic guidance, which no doubt will equally reflect the paper that it is publishing. We have the treaties that set the relative relationships.

From my perspective, I would like to see the Council ensuring that, while a first initiative may customarily or normally lie with the Commission, the guidelines properly provide the opportunity to be the counterbalance. Therefore, there is a sense of the Commission and the Council working together but with that counterbalance and the opportunity that the

Article 68 guidelines provide to us. Again, that is why I underscore the need for a review and assessment of how the guidelines are being implemented. That is an intrinsic part of ensuring that there is an appropriate counterbalance. If the Commission takes a different view or implements things in a slightly different way, we can take that back to the guidelines that the

Commission itself will have agreed to and ensure that there is a proper sense of direction.

Q172 Baroness Prashar: Can we just look at the timing for agreeing the new guidelines and the process of managing that agreement? Do you anticipate any difficulties, given that the

Council meets in June before the forthcoming European Parliament elections?

James Brokenshire: As I think Lord Hannay has indicated, the current timetable does differ from the timetable that we saw in previous programmes, where in essence things were agreed almost right at the last moment in December before the programme was able to

461 of 485 UK Government—Oral evidence (QQ161-178) commence. We think that it is possible to agree the new guidelines at the European Council meeting in June. That is the stated aim of the Council, of which the Commission is a full member. From the evidence provided to this Committee, the Commission is very much working towards that timetable and we have no reason to doubt that that will happen.

On the specifics of the ability to achieve that, given the European election, the Commission will still have a full mandate in June and will be able to sign up to the guidelines, like any other member of that group. If agreement is not possible and is delayed until December, there might be only a caretaker Commission in place at that point, depending on whether appointment hearings have been completed. I suppose you could say that there is greater assurance on the capabilities of the Commission to deliver in June, as contrasted with what the position may be in the latter half of that year. So I think that it is achievable but clearly focus remains on making sure that it happens within that timetable.

Baroness Prashar: You have already talked about the fine-tuning of the relationship between the Commission and the Council. How might the type of disagreement that occurred over Stockholm be avoided?

James Brokenshire: Again, the Commission was a member and agreed to the Stockholm

Programme. Disagreement then came up on the action plan that then emanated from the

Commission a few years into the programme. Where there was a difference, there was firm push-back from Member States, which said that this did not reflect the programme that had been agreed.

I think that there is a clear process and a desire to see that the programme is agreed to and achieved by the timeline that has been outlined. Clearly, we will see any issues that emerge once the Commission publishes its own documents in a few weeks’ time, and we will see whether there are issues that are being crystallised that highlight whether we are moving in the same direction on the strategic objectives on co-operation, consolidation and practical

462 of 485 UK Government—Oral evidence (QQ161-178) implementation. My sense is that the Commission seems to be acknowledging that there is a need for that, but that will become clearer once its communication is forthcoming.

Baroness Prashar: Are there any plans for effective consultation with the European

Parliament?

James Brokenshire: The European Parliament does not have a formal role as such in relation to the guidelines. They are the Council’s guidelines. I know that the LIBE

Committee, for example, is examining this. The LIBE chair attended the JHA informally and made it clear that he expected the Parliament to submit a report detailing its views, perhaps in March. That may mean that the Commission will publish its input, and the Parliament may give its sense of some of those issues as well. If they do that, obviously we will take their views into account, as I am sure the European Council would do. That is the timeline that we are working towards.

The Chairman: Have you given any thought at all to whether the programme to be adopted should be for a finite period, such as 2015 to 2019, as we had all rather assumed it would be, rather than an open-ended set of guidelines?

James Brokenshire: I think that there is merit in having a five-year period because in essence it sets the framework and the terms of reference for the five-year Parliament and the term of that particular Commission. It has been the custom to do this in a five-year cycle, and I think that there is merit in having that five-year period because circumstances change. The whole background may change. Politically across the EU circumstances and decisions may change. So having the certainty of a five-year period with the analysis that is conducted does seem to make sense. However, this is clearly a developing picture and, if we have that more constant review that we have touched upon of the role of the Council in examining whether the guidelines are being given effect to and whether the strategy remains appropriate, that may over time lead to a change in practice and custom as a consequence of

463 of 485 UK Government—Oral evidence (QQ161-178) the evolving picture. At this stage, having the five-year period certainly makes sense to me in that it aligns with the five-year term of the Commission.

Viscount Bridgeman: I want to go back to the European Parliament and your original answers to Lord Hannay’s and Lady Benjamin’s questions about the balance between shopping lists and more general principles. In a rather useful meeting that we had with the other reps, unscripted, they left us in no doubt that the European Parliament would be very much on the shopping list side. I expect that that is being factored into your considerations.

James Brokenshire: We will obviously wait to see whether it appears in that way. For the reasons that I have outlined, I think that it would be a missed opportunity to have almost a list of legislation. That would miss some of the possibilities that we have here of giving a sense of direction and strategy. Seeing that bigger picture would align Member States and bring about the co-operation of law enforcement agencies, as well as judicial co-operation, and they would see the positive and active benefits of so doing. We will obviously wait to see what thoughts the Parliament produces in relation to the programme, but the need to have those high-level objectives is important. However, as I think I have already indicated, there may be cases where it is appropriate for our emphasis to be very much on practical co-operation before doing anything from a legislative standpoint. There may be co-operation and there may be appropriate programmes to give effect to that.

Q173 Lord Judd: You have been very strong and persuasive on the need to have a clear understanding of the objectives and of the end goal before you start putting in place the bits and pieces. I find your arguments very persuasive and I hope that we can consider them very carefully in our report. But, as you apply this principle, how far do you think that reaching political consensus on the future shape of the area of freedom, security and justice is achievable in order to underpin the new strategic guidelines by June 2014? How feasible is

464 of 485 UK Government—Oral evidence (QQ161-178) that? Are there areas of future direction upon which there is clear agreement between

Member States, and what are the areas of disagreement?

Shailesh Vara: Perhaps I could start that one off. There certainly is a mood for consensus among the Member States for having guidelines with a broader objective, rather than going for the detailed restrictive measures. There is a feeling that consensus is better than more legislation, and there is common ground, for example, in terms of facilitating prisoner transfers. While there is disagreement on migration and asylum, there is common ground that they need to look at that and to resolve it because it is an ongoing issue. To that extent, there is common ground in saying, “Let’s get down and resolve it”. It is then for us to be in there to make sure that we influence the other Member States in relation to how we want the decisions to be taken.

As you will be aware, there is the debate on the European Union rule of law. We would like issues such as that to be kept out of the guidelines because we do not feel that that is the proper forum for that to be dealt with. So, at the moment there are still a lot of discussions going on. There are issues on which there is agreement and issues on which there is agreement but which have minutiae that need to be resolved.

Lord Judd: I hope that it will not all turn out as apple pie and that it will have some rigour and discipline about it. I wonder whether you could say a bit more about the areas of agreement and disagreement that you mentioned.

James Brokenshire: Perhaps it would be helpful for me to comment on, for example, migration and asylum. I think that there is broad consensus that, for example, the new strategic guidelines should focus on the implementation and consolidation of existing measures so that we have enhanced practical co-operation. The differences lie, for example, in the southern Member States’ focus on burden sharing, which has been a common theme and indeed was a theme that came up when the Stockholm Programme itself was being

465 of 485 UK Government—Oral evidence (QQ161-178) debated five years ago. So I think that there will be familiar centres around the burdens posed by illegal immigration, external border management and asylum pressures. That is where the focus may lie.

I emphasise that the negotiations are absolutely continuing. It is too early to say precisely when they will conclude because there is a lot of detail that still needs to be discussed, and certainly there will be further discussions at the JHA Councils in March and June and at official level at COREPER and elsewhere. Where there is not yet consensus, there are still many opportunities to resolve that as we head towards the Council meeting at the end of

June.

Lord Judd: Some of our witnesses have argued very powerfully that any future JHA programme should take a holistic and long-term view of the EU’s needs and reflect demographic trends in Europe, the likely demand from employers for skilled and unskilled labour, and the finances and structures of social welfare systems. Do you agree with that observation?

James Brokenshire: In terms of meeting the needs of the labour market, I do not agree that this should be a matter for a common EU policy as part of the future JHA programme or otherwise. The Government’s position is that the use of migration policy to meet economic needs is best determined at a national level, including, for example, in relation to future demographic changes. So we do not support a once-size-fits-all approach across the EU.

That would be a mistake because migration policies must be tailored to the needs of the labour market in different Member States. Member States should not be denied the flexibility of controlling in-flows and preventing abuse of legal migration routes. That is why here in the

UK we have not opted into EU legal migration measures—for example, those on seasonal workers and what are known as intra-corporate transfers. The UK continues to look to the expanded EU labour market to meet labour needs, including those at lower skill levels, as

466 of 485 UK Government—Oral evidence (QQ161-178) well as meeting labour market shortages by bringing unemployed UK workers back into the labour market. I think it would be wrong to try to manage this at that level. That would lead to greater tensions rather than lessening tensions. In our judgment, responsibility should sit at the Member State level.

Lord Judd: But all this is very central to a single market. If you really are in favour of a single market, how can you achieve that if you do not get some degree of co-ordination within the Community?

James Brokenshire: The single market relies on individual Member States trading with each other, but that does not mean that you have a centralised labour control in that sense. So, yes, we do support the single market but I do not think that that means that a JHA programme should take this view on demographic trends in seeking to shape it in that way.

That is quite an interventionist approach in what is supposed to be a market.

Q174 The Chairman: Perhaps I may come in here. You may be familiar with the report that we wrote on the general approach to migration and mobility, in which we noted that no one—neither the Commission nor the Parliament nor any Member State from which we took evidence—believed that the flows of legal migrants should be managed centrally by the

European Union. It was common ground that they would continue to be managed by

Member States. But, in a sense, the approach that you are suggesting for these strategic objectives does not preclude strategic objectives that cover things such as the future evolution of European demographic patterns and the need to recruit skills from outside the

European Union. That is compatible with still leaving the actual decisions on levels of migration to be taken by the Member States, is it not?

James Brokenshire: I would characterise it in that sense on the issue of free movement, to take that as one specific. I have argued very clearly that absolutely free movement of workers is an important part of the overall market. However, if you do not, for example,

467 of 485 UK Government—Oral evidence (QQ161-178) tackle issues of abuse, then you erode confidence in that fundamental pillar that allows the market to operate effectively. So when we set the JHA guidelines programme, it is important to see it in that sense and in the context of the steps that we take. That is why the abuse of free movement is one of the things that we emphasise in our approach in moving forward with the guidelines, underpinning and securing the value of some of these fundamental issues that allow the free market to operate. So, while of course we see changes in, for example, crime types in relation to international crime crossing borders, there has to be a flexibility and an assessment of risk that then underpins and informs the work that is undertaken. That is why I support COSI, for example, as a means of sharing that picture in relation to what we see around organised crime—sharing good practice and good ideas on how best to combat what may be an emerging picture.

With regard to the overall objectives, I see the issue in those terms rather than taking a different view and crossing over into other themes. Our JHA programme must ensure, for example, that free movement continues to operate effectively and therefore gives effect to the single market. I think that there is a clear desire and a clear process in relation to what that work can do, and it is why we argue this very clearly in the way that we do.

Q175 Baroness Eccles of Moulton: Minister, this is a rather general question arising out of a theme that ran through the discussion. Is there a general underlying wish to establish the guidelines so that they have a reduced effect of leading the Commission towards legislation? One gets the impression that bodies such as the Commission rather like legislation, but that might not necessarily be in the best interests of the Member States.

The Chairman: Like newly elected Governments.

James Brokenshire: Well, I shall focus my comments on the import of the guidelines. There is a serious point here. We have been through quite a frenetic period of legislation, with the sense that legislation is always the right way forward to solve a particular problem. We have

468 of 485 UK Government—Oral evidence (QQ161-178) had legislation brought into effect that has been intended, for example, to facilitate co- operation, but it just has not happened. That is why I think that practical co-operation and consolidation is an important factor in making sure that what we have actually works and, where there are benefits, that they can be seen to enhance our security, our liberty and our freedoms. There is a need to take stock in that way.

There is a constant churn of legislation. Sometimes it may be appropriate. It creates its own momentum, and I hope that the way in which the guidelines are framed will act as a check to that so that we can be more focused on what works and can see that, where measures have been introduced, they lead to some positive outcomes. Regarding the whole issue of, for example, analysis of the effect of legislation, in this country we always produce our impact assessments around the impact and effect of legislation. We have had a patchy response to that from the Commission, and that is something that should be developed further so that there is a sense of the outcomes, rather than legislating for legislation’s sake. I hope and believe that the guidelines can provide that check and that this ongoing analysis will ensure that they lead to positive outcomes for Member States and effective co-operation where it is needed.

Lord Sharkey: Perhaps I could follow that up. In order to avoid misunderstanding between the Council and the Commission on what the guidelines do and do not permit, would you like to see the guidelines lay down very clear language about what constitutes efficient conditions in new legislation?

James Brokenshire: I touched on this point in relation to, for example, impact assessments.

From a domestic standpoint, they can be more informative and more useful on some occasions than others. There is a need for a sense of discipline in analysing what the likely effect would be, in monetary or other terms, of legislation being introduced. Having that discipline in relation to new dossiers that emanate from the Commission is beneficial—it

469 of 485 UK Government—Oral evidence (QQ161-178) aids scrutiny—but it also aids the focus on why we are doing this and what we are trying to achieve. I hope that the guidelines themselves will contribute to that by setting out the

“What are we trying to achieve?” type of analysis. If we are able to show that evidence can underpin and support that, so much the better. However, based on our experience of

Stockholm, we should not necessarily assume that that will be the case. As I have already indicated, Stockholm itself set out that there should be assessment and analysis, but in fact that has not been the experience. Indeed, the Commission has legislated without that process even having been completed. Having ongoing analysis and a check and balance, and equally the Council ensuring that it pulls its weight on this, will be an important part of aiding the achievement of legislation being done well and effectively at an EU level.

The Chairman: Lord Bridgeman, I think we have covered the point about what period the guidelines should cover, so perhaps you could ask the second point.

Q176 Viscount Bridgeman: It concerns the flexibility that will be built into these guidelines. There are two examples: the Lampedusa disaster in October 2013 or a terrorist attack in one or more Member States. Will flexibility be built into the guidelines?

James Brokenshire: Taking the example of the Lampedusa tragedy in October last year, we supported the prompt establishment of Task Force Mediterranean to develop concrete actions to prevent further deaths at sea. Certainly, we played an active role in the task force discussions and we broadly support many of the proposed measures.

I suppose that, while there is a degree of flexibility in the new strategic guidelines and that is desirable, there are the tools and the capability to respond quickly and effectively to unexpected events. Lampedusa was, sadly, an example of how Member States and the

Commission could act promptly. But the main purpose of the guidelines, as I see it, is to define the general direction and tone for the EU’s work—what we are trying to achieve and how the institutions should go about achieving it. Obviously, there is some flexibility within

470 of 485 UK Government—Oral evidence (QQ161-178) that, but clearly, if circumstances change and there is a sudden event, it is important that the

EU has the ability to respond to such an extraordinary event in the JHA or any other field.

That must be regardless of the guidelines. If the analysis and assessment of implementation go forward in the way I would like, I hope that that of itself will allow there to be a constant challenge—asking whether what we are doing still fits the risk, the circumstances and the picture that we now see. Cleary there could be a sudden change—for example, with cyber issues—and we need to look at how the nature of the threat continues to develop, as well as looking at the potential opportunities and advantages that lie there. Clearly there needs to be that flexibility to be able to respond. I think that it is there already and, if we moved away from a very rigid legislative-type approach, I think that that could only assist and contribute to that flexibility.

Q177 The Chairman: That brings us on to the last question. In all the work that we have done in recent years, we have been very struck by how the agencies which have been set up in the past few years—Europol, Eurojust, FRONTEX, the EASO and, to some extent,

ENISA—are generally rather valuable, and valued by the Member States. They are at the heart of the co-operative approach which the Government seem to prefer over the legislative approach. Have you given any thought to how you could express that view in the strategic guidelines—how you can, as it were, demonstrate that these agencies really are at the heart of the battle against organised crime and illegal immigration and so on, and how they need to be nurtured and strengthened, and perhaps reviewed from time to time but not too often? Have you given some thought to that?

James Brokenshire: If we look at Europol and Eurojust, an evaluation was set out under the

Stockholm Programme, albeit that unfortunately it has not been followed through and pursued in the way that had been anticipated when the Stockholm Programme was drawn up. I suppose that it comes back to some of those practical examples that I have already

471 of 485 UK Government—Oral evidence (QQ161-178) touched upon—things such as joint investigation teams and how they can be highly beneficial in the investigation and pursuit of cross-border criminality. The guidelines themselves may not be the right way of doing that. In that particular example, it is perhaps a question of how we can use and enhance the use of committees such as COSI to strengthen and underpin the sharing of practical ideas and the practical utilisation of some of the bodies that have been established at EU level. It has to be seen in the context of how this facilitates and achieves greater security, and the greater prosecution of criminals, rather than there being a supranational body that seeks to define the parameters from that level.

The question is how, taking a collaborative and co-operative approach, those institutions can add value to the investigations that an individual Member State’s law enforcement agencies may be conducting. Certainly we have seen that in a number of cases. So I am sure that there is merit in underlining how practical co-operation means, at times, sharing information, including on what the mechanisms are for sharing that information, and using some of the existing structures in a more effective way. One programme that we are working on through to implementation is SIS II—Schengen Information System II. We are looking at how the alert system can be used more effectively between Member States to highlight risk, and how we can use existing measures such as ECRIS on the sharing of criminal records in other contexts. For example, we have our vetting and barring service to identify individuals who should not be working with vulnerable groups. We are looking at how to harness some of that information at an EU level. At the moment it is prescribed more in terms of the investigation of criminality, and we are looking at the potential to use it in other contexts to provide greater security. So I think that there is merit in underlining how some of the existing measures and existing institutions are able to advance and take forward a number of the strategic objectives that will be set down in the guidelines.

The Chairman: That sounds to me very much like a strategic objective.

472 of 485 UK Government—Oral evidence (QQ161-178)

James Brokenshire: Maybe it will become one on practical co-operation and giving effect to practical co-operation.

Q178 The Chairman: I very much sympathise, and I think that the Committee would be likely to sympathise very much, with the Government’s objective in this, but I think that that is in itself a strategic objective—that is, to make fuller use of the agencies that have been set up in the way you have described, not as a top-down approach, running the whole war against crime for 28 Member States, but co-operating between them and oiling the wheels of that co-operation.

James Brokenshire: I would perhaps view it the other way round and see it as part of implementation and practical co-operation and how it is a means of giving effect to implementation and practical co-operation. It is not that we disagree on how the institution can be utilised but I would frame it and characterise it as how that gives effect to the achievement of that top-level strategy.

The Chairman: Thank you both very much indeed for coming along and spending some time with us this morning. I think that we have covered a great deal of ground and I am sure that it has been very helpful to our deliberations to have had this discussion. You will not have to wait too long before you see the fruits of it all. We are aiming to get a report out at about the end of March so that it will be in time to influence the run-up to the Council deliberations and be another of the inputs into a process which seems to be coming together in a quite well organised way.

James Brokenshire: Lord Hannay, I thank the Committee for conducting this inquiry. It has certainly been helpful to me to read a number of the transcripts of the evidence that you have had. I know that you have taken evidence from a number of witnesses representing a range of interests. Certainly it has been instructive and it has shown how Parliament can contribute to this process. It is important that we look upstream on influencing policy, and

473 of 485 UK Government—Oral evidence (QQ161-178) therefore having the Committee’s evidence produced in this way, as well as your report, will add to our consideration of what is an important issue.

The Chairman: Lord Boswell is chairing the EU Select Committee at the moment, reporting on the role of national parliaments. The issue of upstream influence is undoubtedly also going to figure in that report, which will come out roughly in April. Thank you very much indeed for coming along and for spending this time with us.

474 of 485 UK Government—Supplementary written evidence

UK Government—Supplementary written evidence

This evidence has been submitted by the Cabinet Office, in lieu of providing oral evidence to the Committee on 15 January. The preparation of this evidence has involved officials from the Home Office, Ministry of Justice, Department for International Development, Department for Communities and Local Government, Her Majesty’s Treasury and Foreign and Commonwealth Office.

Question 1: How effectively do Member States engage with each other in tackling natural disasters, and how effectively is the EU working with other international actors on this issue?

As noted in the Stockholm Programme, Member States are primarily responsible for protecting their citizens from risks and threats. This is an important principle which underpins the new Union Civil Protection Mechanism agreed in December 2013. However, the Government recognises that action at EU level can add value by facilitating mutual aid between Member States in a disaster, and by supporting the sharing of good practice to ideally prevent, and if not, mitigate the consequences.

The Civil Protection Mechanism is a proven framework for Member States to support each other and third countries in the event of a disaster and has been activated many times since its creation in 2001. The various elements of the Mechanism support Member States in their activities, including the Emergency Response Coordination Centre (ERCC), formerly the Monitoring and Information Centre; and the web-based Common Emergency Communication and Information System (CECIS), which provides added transparency in requests and offers of assistance.

Good EU cooperation with the UN, NATO and other international actors helps to ensure a coherent, well coordinated, complementary response to disasters. The Union Civil Protection Mechanism covers requests for assistance made by an affected country or by the United Nations and its agencies, or a relevant international organisation.

Over recent years, greater cooperation between the EU and UN in the field has been evident, including more joint UN / civil protection team missions. There has also been more close working in prevention and preparedness activities, for example the UN, OECD and Commission providing the joint secretariat on the peer reviews of implementation of the Hyogo Framework for Action.

In the event of a disaster where both the EU Civil Protection Mechanism and the NATO Euro-Atlantic Disaster Response Coordination Centre (EADRCC) are active both organisations exchange situation reports and other information.

Question 2: What is your assessment of the civil protection and disaster management priorities set out in the Stockholm Programme? Did these lead to action?

The Government welcomed the integrated approach to disaster management that was called for under the Stockholm Programme and would encompass prevention, preparedness,

475 of 485 UK Government—Supplementary written evidence response and recovery and proposed a series of related initiatives, including guidelines for hazard and risk mapping, an overview of natural and man-made risks facing the Union, reinforcement of the Monitoring and Information Centre and a strengthened Civil Protection Mechanism. The Government considers that these initiatives have either been completed as a result of the Stockholm Programme or are now enabled by the new Union Civil Protection Mechanism, which applies from 1 January 2014 to 31 December 2020.

Risk management is pivotal to effective disaster management. The Government welcomes the EU-level work to support and encourage risk management across Member States and for Member States to share relevant non-sensitive information. This included the publication by the Commission of Risk Assessment and Mapping Guidelines in December 2010, and more recently the inclusion of a risk based approach to disaster management that underpins the new Union Civil Protection Mechanism. The Government looks forward in the coming months to receiving the Commission’s first overview of natural and man-made risks facing the Union.

The new Union Civil Protection Mechanism has strengthened the role of the Monitoring and Information Centre by turning it into the Emergency Response Coordination Centre (ERCC). The ERCC operates 24 hours a day, 7 days a week, and offers enhanced mapping and analytical products to support Member States.

The new Union Civil Protection Mechanism enables the creation of the voluntary pool of Member States’ assets, the European Emergency Response Capability (EERC), which once established is expected to improve the availability of response assets.

Since the concept of EU civil protection modules was established in the 2007 Civil Protection Mechanism, Member States have registered 150 modules across the 17 different pre-determined categories, thereby declaring the capability exists for potential international deployment, while retaining the right to decide on deployment on a case by case basis. Experience of modules deployment in response to disasters and in EU modules exercises has led to improved interoperability between modules. The UK’s two urban search and rescue modules have benefited from these EU training opportunities.

The EU civil protection training courses continue to be well attended and focused on the needs of the individuals who will deploy in small teams to the scenes of disasters to assess the needs or coordinate incoming assistance. The UK has an active pool of more than 30 civil protection experts, mainly from the emergency services, who are eligible for potential deployment. UK experts have been deployed on EU missions on a number of occasions, including most recently to the Philippines in the aftermath of Typhoon Haiyan.

Question 3: Did the Monitoring and Information Centre (MIC) succeed in its goal of achieving a high and effective level of disaster resilience within the European Union? Can you say whether, and how, you think the Emergency Response Coordination Centre (ERCC) will be an improvement?

The Monitoring and Information Centre (MIC) was set up on the basis of being able to react 24 hours a day to support states participating in the Civil Protection Mechanism. It contributed positively to disaster response through information-sharing, drawing on relevant expertise among Member States, and supporting missions and interventions. The sharing of information on requests made and responses offered by Member States has been effective,

476 of 485 UK Government—Supplementary written evidence and the daily communications have been generally helpful in creating a more transparent and clear picture of Member States’ responses to a disaster.

The enhanced technical capability of the ERCC should enable the Commission’s supporting roles to be carried out with greater ease and speed, assisted by its 24 hour system of operation.

The Government encourages the ERCC to continue to identify lessons from its activations, including from intervention missions, and use these to improve future activity, including coordination on site with other international organisations and humanitarian partners active in a response.

Question 4: Are the financial provisions in the Multiannual Financial Framework (2014-2020) sufficient to cover the EU’s requirements in this area?

During the negotiations of the Multiannual Financial Framework (MFF), the Government’s overall priority was to restrain the total size of the EU budget to, at most, a real-terms freeze, reflecting the difficult decisions being taken by Member States at home.

The original Commission proposal for the Union Civil Protection Mechanism sought a budget of €513m. However, following the MFF negotiations, this proposal was reduced to €368.428m. This still represents a very substantial increase to the budget when compared to the previous civil protection budget of €189.8m under the Civil Protection Financial Instrument (2007-2013), reflecting the additional areas which the new instrument covers and the importance attached to it by the Commission.

The Government believes that the financial provisions for civil protection are sufficient to address the range of EU requirements that are foreseen in the new legislation.

Question 5: Some Member States, including the UK, may choose not to participate in exercises organised by the ERCC, or to contribute resources to the EERC? How might this affect the EU’s operations in this area?

The European Commission issues annual calls for proposals for civil protection exercises and projects. Member States are invited to prepare joint bids, which are evaluated against predetermined criteria to enable the Commission to decide which proposals to award European co-funding for.

Along with the EU civil protection training courses, exercises provide a valuable opportunity for response teams to learn from each other. The Government supports UK involvement in such EU exercises.

The UK has been party to a number of successful bids for EU civil protection exercises. Between 2007 and 2013 this included organising two exercises (EU TORCH in 2008 and Exercise Orion in 2011), and participating in three exercises (EU FLOODEX 2009, organised by the Netherlands, EU EVROS in 2010 organised by Greece, and EU CREMEX in 2011 organised by Estonia). In addition many of the UK’s EU-trained experts have also been selected for the assessment and coordination teams in other civil protection exercises.

477 of 485 UK Government—Supplementary written evidence

The detailed implementing rules for the new voluntary pool of Member States’ response assets, the European Emergency Response Capacity (EERC), are currently under development as anticipated by the Union Civil Protection Mechanism decision. The Government supports the establishment of this voluntary pool to raise the predictability and quality of response to major disasters, and welcomes the clarity in the new Union Civil Protection Mechanism Decision about the truly voluntary nature of this pool, including the ultimate right of Member States to decide whether to deploy their assets.

The Government recognises the need for workable implementing rules to make the voluntary pool effective, and is working with the Commission and other Member States to develop these rules. It is premature at this stage to offer a view on whether or not the Government will decide to commit resources into the voluntary pool. We, like other Member States, will consider our potential involvement once the implementing rules have been finalised.

Question 6: How might increased public-private partnership and civil society engagement in addressing disaster resilience be facilitated and encouraged?

The Government recognises the valuable role of public-private partnerships and civil society. In order to provide a framework for engagement between Government, emergency services, local authorities and voluntary organisations, the Cabinet Office and the British Red Cross (BRC) established the Voluntary Sector Civil Protection Forum (VSCPF) as a cohesive platform for those national voluntary organisations that have a UK emergency planning and response role. The VSCPF is chaired by the BRC and provides an effective link across these voluntary organisations. It can assist in co-ordinating the contribution of the voluntary sector in UK and national emergencies and, where appropriate, support initiatives at a local level. By following this national cohesive approach, at a local level, the voluntary sector member of the Local Resilience Forum should be able to speak on behalf of other voluntary organisations operating in the area. Experience shows that active engagement of the Voluntary Sector and community organisations in emergency preparedness work such as planning, training and exercising will enable them to be more effective in the event of an emergency. The recent UN Peer Review report of the UK’s implementation of the Hyogo Framework for Action (a UN framework for Disaster Risk Reduction) stated that ‘the UK resilience approach shows state-of-the-art innovations, including....flexible institutional mechanisms and partnerships focused on delivery through voluntary approaches.’

The European Commission has begun to explore how it can work more closely with, and learn from, the voluntary sector, and recently held a workshop with the Red Cross Europe Office to which Member States were invited. There is a wealth of good practice among Member States, and the Commission could play a valuable role in providing opportunities to share this.

Question 7: Should the new JHA programme (2015-2019) seek to clarify the EU’s relationship with NATO, the UN, and other supranational bodies in these areas?

The Stockholm Programme stated that close cooperation with international organisations, in particular the UN, should continue to be a priority for the EU in the field of disaster management, both on the ground and in terms of preparedness. The Government continues to encourage active cooperation between the EU, NATO and UN in disaster management, and supports the clarification of the relationship between these bodies. Should the new JHA

478 of 485 UK Government—Supplementary written evidence programme address disaster management, the Government would welcome a statement of the need to establish clear roles and enhanced cooperation between these bodies.

Question 8: What further action at EU level, if any, should the future JHA programme recommend in relation to civil protection and disaster management? Is there a need for legislation, more strategy or greater cooperation in this area?

The Government recognises that considerable progress has been made in the field of civil protection and disaster management since the Stockholm Programme was published. The new Union Civil Protection Mechanism has been agreed, which provides an appropriate legislative framework and strategy to enable greater cooperation in the area of civil protection and disaster management. Furthermore, the implementing arrangements for the Solidarity Clause are now being negotiated and the Integrated Political and Crisis Response arrangements, which have replaced the EU Crisis Coordination Arrangements, have been adopted. The Government does not therefore believe that additional civil protection legislation is required.

Negotiations are currently underway to agree the EU’s future Justice and Home Affairs (JHA) Programme. The Government believes that the Programme should be shorter, and more strategic than the existing Stockholm Programme, and the focus should be on practical co-operation rather than legislation. The new EU JHA Programme should set out clear strategic objectives and priority areas for action such as; preventing the abuse of free movement rights, strengthening the EU’s external border, action against human trafficking, more effective return of prisoners to their country of origin, and improved exchange of criminal records.

Any future Justice and Home Affairs programme or strategic guidelines for the EU may not need to make civil protection and disaster management a priority given the progress that has been made in this area and would be better focused on setting core JHA objectives and how the EU should go about achieving them.

31 January 2014

479 of 485 Professor Peter van Krieken, Dr Roderick Parkes and Dr Yves Pascouau—Oral evidence (QQ122-135)

Professor Peter van Krieken, Dr Roderick Parkes and Dr Yves Pascouau—Oral evidence (QQ122-135) Transcript to be found under Dr Roderick Parkes

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Professor Helen Xanthaki—Written evidence

1. I am a Professor of Law and Legislative Studies, and the Academic Director of the Sir William Dale Centre for Legislative Studies at the Institute of Advanced Legal Studies of the University of London. My main area of research is legislative studies, with specific of focus on legislative quality at the national, international and EU levels. My field of substantive law research is the Area of Freedom Security and Justice, which I also use as a source of conceptual analysis for law reform project and legislative quality assessment.

2. I am delighted to respond to your call for evidence, as it offers an excellent opportunity to shed light to the AFSJ from a rather ignored focus, that of regulatory and legislative quality. The full analysis of the theoretical background for my assessment of the AFSJ can be found in the records of my Oral Evidence at the Public Hearing at the Legal Affairs Committee of the European Parliament, where I was asked to report on the EU’s Smart Regulation agenda. My evidence to you applies my conclusions from my evidence there to the area of AFSJ.

3. What the reasons behind the need to assess AFSJ from the point of view of regulatory and legislative quality? The evidence from the EU is that in the area of AFSJ implementation of the EU legislative texts by member states is problematic. Member states seems to be disengaged, possibly due to the subject matter of criminal law where willingness to integrate is at its weakest, but also because of the user unfriendly style of EU legislation produced in the field.

4. So far the European Union, with the European Commission at the lead, have focused on post legislative scrutiny of EU legislation in the AFSJ. But what about the legislative product itself? Before one proceeds with the post facto assessment of the effectiveness of EU legislation already produced by the EU, is it not wise to look at the regulatory framework of the policy as a whole in order to identify possible holistic weaknesses that may burden individual measures of the past and, more importantly, the future?

5. The idea of assessing the regulatory framework of each policy as a whole is not novel. The October 2010 Commission Communication on Smart Regulation constitutes the formal passing from the Better Regulation Agenda of the previous decade to the new Smart Regulation Agenda.

6. The Smart Regulation Agenda identifies the following five requirements for regulatory quality with reference to EU policies:

o Simplification of EU law via a reduction of administrative burdens; o Evaluation of law effectiveness + efficiency ex ante, via fitness checks on key areas and via strategic general policy evaluations;

o Selection of the “the best possible” legislation, through Impact Assessment; o Improvement of implementation record, via post legislative scrutiny, SOLVIT, and EU Pilot; and

o Achieving clearer and accessible legislation, via simple language, consolidation, recasting, and e-access

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7. I have expressed my grave concerns on the uninspired, flat content of Smart Regulation in the past. What is surprising, and rather concerning to me, is that even the minimum requirements of Smart Regulation have not been applied on the AFSJ: not formally by the EU, not even de facto as evidenced by the many analyses on the haphazardness of measures already produced by the EU within that policy area. Allow me to address each point, firstly on the basis of the minimum standards introduced by Smart Regulation and secondly on the basis of what I would expect and hope for as best practice.

8. Simplification has not touched the AFSJ. It is imperative to identify which are the “administrative burdens” imposed by EU legislation in the field, and how these can be curtailed. One example: the introduction of the framework for the exchange of criminal data between member states and the European Evidence Warrant proved to be such burdensome measures (administratively and financially) that both were later abandoned.

9. But, at the level of best practice, simplification may also extend to simple regulatory means [not necessarily law]; the use of simple language; straight forward enforcement methods; simple national implementing measures; and simple methods of pre- and post-legislative scrutiny?

10. Evaluation of law effectiveness + efficiency ex ante has not applied to the AFSJ. It is imperative that the policy is assessed as a whole. There is a pressing need for a holistic evaluation of the AFSJ. What is it that the EU are pursuing? And how can the aims be achieved?

a. In the near past the EU seemed to respond to a need for a robust response to terrorist threats, which touched cruelly our nation as well. Is this the main policy aim right now? If this what the member states want the AFSJ and pursue? Let us agree on this goal, or identify a different goal, but let us do so formally and expressly. Only then can member states, including the UK, assess the EU’s vision for the future of the AFSJ. Only then can member states consciously, knowingly, and legitimately decide whether they wish to offer the AFSJ clear legitimacy and support (which in my mind is currently either hesitant or non-existent).

b. Having agreed on the super goal of the AFSJ, the EU and member states can then assess each of the past and future measures for their fitness for purpose, as demanded by Smart Regulation. And this will finally promote:

i. regulation only when necessary, rather than when there happens to be agreement for a measure on a fragmented basis; and

ii. regulatory measures that contribute with synergy towards the super goal, and function harmoniously together within the same policy, rather than measures that compete with each other or disregard each other thus leading to the current well documented mal-interpretation and mal-implementation.

11. At the level of best practice,

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a. the EU need to define what is effectiveness in the AFSJ: what criteria can be used for each specific legislative text; are these included in purpose clauses; will these be used for post legislative scrutiny; how will ineffectiveness be addressed; and how will MS national implementation measures contribute to effectiveness;

b. the EU need to define what is efficiency in the AFSJ; does social impact count in the AFSJ; which disciplines of expertise are involved in ex ante evaluation in the AFSJ.

12. Applying the above to the AFSJ can lead to the improvement of the implementation record. Allowing member states to share the true, and clear super goal of the AFSJ can offer them the opportunity to decide whether they share the vision and wish to participate, or whether (and this is an equally legitimate option for the UK) they simply want out.

13. Applying the above to the AFSJ can then inform the EU to the selection of the “the best possible” legislation, as demanded by Smart Regulation. At the moment the AFSJ offers one of the strictest regimes of post-legislative monitoring of legislation. But the effort, commendable as it is on paper, seems to be wasted on an exercise that lacks a super goal against which the success of the legislative text can be achieved; lacks clear assessment criteria in the objectives clauses of the legislation (which at the moment are plagued by general wishes of political intent); lacks engagement between the EU and that national implementing measures; and lacks decisive enforcement mechanisms for non compliant member states.

14. Having offered my approach to a holistic regulatory focus for the AFSJ let me attempt to answer directly some of the questions in the current Call for Evidence.

15. “Should there be a fourth JHA programme? If so what should its content, focus and purpose be, with reference to the previous programmes and evaluations thereof?” I have no hesitation to respond positively to this question: as a committed Europhile, I firmly believe that there is a need for a fourth JHA programme. But it is difficult to answer the rest of the question, in view of the current lack of a vision, a super goal for the AFSJ. Its name seems to offer emphasis on the terrorist and security aspects of the policy. But, in view of the Lisbon Treaty and the constitutional shift from the single market to the establishment of a Union supporting democracy, peace, and human rights, I wonder whether the AFSJ is out of tune with the post-Lisbon EU identity. My personal preference would be for a parallel shift of focus from security and justice to freedom, and the creation of an environment where democracy, piece, and human rights share equal space with security and justice. And so I would suggest that the fourth programme would pause to take account of what areas have been regulated, whether regulation has been successful, and how it can be made successful. With specific emphasis on adding a human and humane dimension to the AFSJ. And example would come from my current work on the implementation of the Framework Decision on victims’ rights in criminal trials within the member states.

16. “Should the EU’s focus be on consolidating existing JHA cooperation before embarking upon further EU legislative proposals and initiatives? The UK Government, in particular, has emphasised in the past that the EU should focus on practical cooperation, which does not necessarily require a legislative underpinning.” I believe that the current state of regulation in the AFSJ is at a terrible state. Attempting to

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build further on such weak foundations can only lead to an ultimate collapse. The EU must repair the current state of regulation by, at least, applying the Smart Regulation principle on the AFSJ. After all, criminal law is the one policy that requires careful and stringent regulation and legislation. Part of Smart Regulation is about alternatives to legislation as a regulatory tool.

17. “Should the Programme include a timeline for repealing and/or consolidating existing JHA legislation where necessary?” The task of tidying up the statute book is a thankless one, especially for non lawyers. Any attempt to impose its undertaking, especially via a timeline, would be commendable.

18. “What should be the format of the next JHA Programme? For example, should it comprise a concise set of principles or contain a longer, and more detailed, set of initiatives as per the previous programmes?” In view of the well documented lack of trust between the legal systems of the member states, a combination of principles and precise measures would be ideal. Principles can finally reflect the super goal of the AFSJ, and demonstrate the objective and desired scope of the particular measures. It would make sense to use the particular measures in the list as case studies of the manner in which the EU intend to put the principles to effect. One suggestion: the necessity test for EU legislation would require that the undertaking to legislate a specific measure is introduced in the programme subject to the five Sutherland criteria for EU legislation.

19. “What role should the European Parliament and national parliaments play, if any, in defining the content of the next JHA Programme?” Parliaments represent the interests of the people. The EP and this House have, by their public hearings, shown evidence of concern over the regulatory goal and effectiveness of the policy and legislative measures at the EU level. Extending this to the AFSJ is of course a step in the right direction. Further informed guidance to the EU would serve the people no end. As the House know, the EU has established a multi-annual policy cycle54 with regard to serious international and organised crime in order to tackle the most important criminal threats in a coherent and methodological manner through optimum cooperation between the relevant services of the MS, EU Institutions and EU Agencies as well as relevant third countries and organisations. This EU policy cycle for serious international and organised crime was adopted by Council in December 2010. The starting point of this EU policy cycle is the SOCTA in which Europol will deliver analytical findings that can be translated into political priorities, strategic goals and operational action plans in order to implement EU policy. The link between the SOCTA conclusions and the definition of priorities is very important. Taking this step in an intelligence-led way ensures that analysis directly informs political decision-making, and that the most relevant threats in the EU are addressed. The EP and this House must follow very closely this very first attempt of the EU for evidence based regulation. If utilised appropriately, this evidence based method of regulation can provide adequate responses to all concerns expressed in my evidence.

20. “What form could or should the UK’s future participation in JHA matters take beyond the 2014 opt-out decision? What are the priority areas for potential

54Council Conclusions on the creation and implementation of an EU policy cycle for organised and serious international crime, doc. 15358/10 COSI 69 ENFOPOL 298 CRIMORG 185 ENFOCUSTOM 94.

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cooperation in this respect, assuming that the UK will end up participating less in this area than it does at present? Will exercising the opt-out undermine the UK’s ability to influence the content of the next JHA Programme?” This is a matter very close to my heart. On the basis of my thoughts already expressed here, it is evident that I can see why the UK would be reluctant to continue participating in the AFSJ. But opting- out seems to me to be a wasted opportunity. The UK have one of the most effective systems of regulation and legislation worldwide: policies are thoroughly considered by use of evidence based research; put into substantive law concepts by expert legal officers; and translated into legislative expression by highly trained legislative counsel. The UK have led most regulatory innovations in the EU: from the Sutherland report onwards most advances in the field of my expertise were led and supported by the UK and its Presidencies. I would be very sad to see this expertise leave the AFSJ. I view this time as a unique opportunity for the UK to take part from within the policy in order to rectify what has been done wrongly. I believe that the expertise of the UK civil service can act as a catalyst to a holistic, prioritised programme of cathartic purification in the AFSJ by leading the way to a re-assessment of effectiveness of EU instruments.

21. Please allow me some suggestions in brief: a. The AFSJ requires holistic reform. b. The EU need to identify a clear and agreed super goal on the basis of the EP’s Cornelius de Young Report. c. The EU’s statute book in the AFSJ needs to be tidied up as a matter of priority and extreme urgency, perhaps on the basis of the Model Guidelines for the EU in relation to standard provisions to Criminal Law issued a week before Lisbon. d. Criminal law requires clear, precise, and unambiguous legislation that simply cannot be produced at the EU level (due to the number of member states, the inherent differences in the legal systems, the procedures for passing legislation and the indirect continued tyranny of unanimity etc). e. Legislating by anything other than Directives in the AFSJ is a recipe for disaster. f. Member states need discretion in the manner in which implementation takes place.

22. I hope that my thought may be of assistance to the Committee and I remain at your disposal.

13 August 2013

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