The EU Justice and Home Affairs Council of Ministers met on 7 and 8 December in Brussels. I represented the UK for Interior day. The Lord Chancellor and Secretary of State for Justice, the rt hon David Lidington MP represented the UK for Justice Day.
On Interior Day (07 December) a General Approach was agreed on the proposed EU-LISA regulation. The government has opted into the draft Regulation and is content with the text. I abstained on the vote due to a Parliamentary Scrutiny Reserve.
The next item was a progress report on improving interoperability of EU information systems, following the recommendations made by a High Level Expert Group in June. The Commission previewed legislation to be proposed next week, which will include the creation of a single “hit-no-hit” search interface. In general terms, the UK supports efforts to improve interoperability of EU systems, but we will scrutinise these proposals in further detail when they are released.
Ministers then exchanged views on the interim report and recommendations of the High-level Expert Group on Radicalisation (HLEG-R). I intervened to share UK learning following the 2017 attacks, including the importance of working with local communities as highlighted in the newly published Anderson report. I voiced support for proposed new Commission structures, suggesting benefit in a research function and an EU wide strategic communications network.
The non-EU Counter Terrorism Group (CTG) followed with a presentation to the Council, in which they covered their assessment of the terrorism threat in the EU, and set out in further detail their plans for future counter terrorism cooperation including with Europol. I intervened to support the ongoing CTG activities in this space.
This was followed by a discussion on cooperation between Common Security and Defence Policy (CSDP) operations and EU JHA agencies. This centred around lessons to be learned from existing cooperation between JHA agencies and EU security and defence missions in third countries, with Operation Sophia (tackling migrant traffickers in the Central Mediterranean) the focus. Work is continuing to implement the lessons learned and improve cooperation.
The Commission then gave an update on the state of play on transposition and implementation of the Directive on the use of Passenger Name Record (PNR) data. The Commission noted that not all Member States were on track to meet the implementation deadline. The UK has the most developed capacity for processing PNR data in Europe and will continue to offer advice and support to Member States in the development of their own capabilities.
This was followed by a short presentation from the Bulgarian delegation on the work programme for their upcoming Presidency. The overarching aim of their Presidency is to preserve unity and solidarity within the EU, noting that they will prioritise security-related issues, especially those relating to data, during their Presidency.
The Presidency then gave a progress update on negotiations of legislative proposals on the reform of the Common European Asylum System. The Commission noted their ambition to adopt EU Asylum Agency and Eurodac legislation by March 2018.
The working lunch discussed strengthening of the Schengen area. Ministers had a detailed discussion on how to improve Schengen border management, including through the proposed Schengen borders legislative package. The UK does not participate in the Schengen border free zone and I did not intervene in this discussion.
Following lunch, the Presidency presented views on restricted data retention and targeted data access. The discussion focused on the need for a common approach, whilst taking account of the importance of data retention to law enforcement agencies. I intervened to update the Council on the principles of the UK response to the Court of Justice of the European Union judgement in the TELE2 / Watson case from December 2016, as set out in our consultation, launched on 30 November, on new safeguards for the use of communications data.
The Commission also provided an update on its proposals for technical measures to help law enforcement address issues related to encrypted data, which was followed by a short discussion on best practice in this area. I intervened to encourage closer engagement with service providers, and the need to press industry to find technical solutions.
Interior day ended with the Council receiving updates on the outcomes of the EU Internet Forum meeting on 6 December, and the Presidency’s review of the JHA strategic guidelines. The Swiss delegation also gave an update on the third meeting of the Central Mediterranean Group, which took place in Bern on 13 November.
Justice day (08 December) began with agreement by Ministers to a General Approach on the European Criminal Records Information System (ECRIS) Directive and the Regulation regarding exchange of information on third country nationals (ECRIS-TCN). During a discussion on fingerprint thresholds, the Secretary of State for Justice intervened to indicate that the UK can accept the position reached, but also to express regret that the agreed text was not more ambitious, supporting the review clause in the text. While the UK can support the General Approach, as the proposals had not cleared Parliamentary Scrutiny, Secretary of State for Justice abstained on the vote.
A General Approach was then also agreed on the proposed Regulation on mutual recognition of freezing and confiscation orders. Despite some disagreement between Member States on whether this should take the form of a Regulation or a Directive, this was passed by a Qualified Majority. The proposal had not cleared Parliamentary Scrutiny.
This was followed by a discussion on the recast of the Brussels IIa Regulation, in which Ministers agreed to abolish exequatur for all decision in matters of parental responsibility, whilst retaining sufficient safeguards to ensure the best interests of the child and the right of defence were preserved. The Secretary of State for Justice highlighted the benefits for citizens and families that the change would bring in reducing time, cost and complexity for those in often difficult personal circumstances.
At lunch, there was a discussion about the next e-Justice Strategy and Action Plan.
The Presidency then introduced a paper on the Insolvency, restructuring and second chance Directive, setting out political guidelines on three issues; there was broad support for an optional viability test and general support for a mechanism to govern creditor voting rights. Member States were largely split on a proposed 3 year discharge period. The UK emphasised the potential benefit here for European economies and supported all three guidelines.
The Commission set out that it would continue to work towards an agreement for the EU to accede to the European Court of Human Rights, taking into account the concerns of the Court of Justice of the European Union, which had found the previous draft accession agreement contrary to the EU Treaties. The Commission gave no indication of a likely timescale, and noted that the issues raised by the Court were politically and legally complex to resolve.
This statement has also been made in the House of Lords: