Level of Activity
8. The Home Office told
us that the frequency of meetings under the Third Pillar varied
from Presidency to Presidency. The Luxembourg Presidency, which
had been reasonably typical, had included two meetings of the
Council, six meetings of the K.4 Committee, eight meetings of
the Horizontal Drugs Group, two meetings of Steering groups and
70 Working Group meetings (p 1).
9. In general, the United
Kingdom is represented at the Council by "the Minister who
is best able to represent the United Kingdom on that day"
(Q 11). At other meetings, the United Kingdom is represented by
senior civil servants and by management grade representatives
of the United Kingdom law enforcement agencies (p 31). The Home
Office thought that since the Treaty on European Union had entered
into force there had been a significant increase in activity in
areas of police, immigration, customs and judicial co-operation
(p 1). HM Customs and Excise confirmed that activity had increased
over the past five years, and reported that "officials who
were working on EU business at that time [i.e. five years ago]
estimate that the work has at least doubled" (p 48). The
overall proportion of Home Office staff time devoted to co-operation
in the Justice and Home Affairs field had "grown markedly
in the last few years"; there were now 68 Home Office staff
engaged principally on EU-related business (p 1). The level of
staffing was now kept "under careful review" (Q 13).
10. This description
was corroborated by the memorandum from the Lord Chancellor's
Department and the Scottish Courts Administration, which stated
that in the area of civil judicial co-operation the coming into
force of the Treaty on European Union had "undoubtedly increased
the volume of activity" (p 21). These Departments noted a
concomitant increase in the travel and subsistence costs of officers
attending meetings in Brussels and other Member States. Similarly,
the National Criminal Intelligence Service (NCIS) had also found
that the level of work, particularly in relation to the formation
of Europol, had increased over the past few years (p 31). They
drew attention to the fact that a two-man Europol Policy Unit
had been created within NCIS to keep abreast of developments in
11. Activity under the
Third Pillar now constitutes a substantial proportion of all meetings
and operations which take place within the EU framework, and from
the evidence we have received it seems apparent that activity
is still increasing (Q 85). For example, the Customs Co-operation
Working Group organises a programme of Joint Surveillance Exercises
which have enabled customs officers to build up a network of personal
contacts throughout Member States (p 51). Many Member States have
developed their own National Criminal Intelligence Service in
order to meet the requirements of the Europol Convention (Q 85).
NCIS have found it necessary to post an increasing number of liaison
officers to European countries, such is the level of international
co-operation now (Q 85).
12. Because proposals
on Third Pillar matters may come from the Commission, or from
a Member State, it is particularly important to have clear procedures
for keeping Ministers informed of developments. The Home Office
explained (Q 27) that on receipt of a proposal either from the
Commission or from a Member State, they (the Home Office) analyse
the proposal and brief the Minister. The Minister will then give
them a negotiating brief. By that stage there may be a new version
of the document, which would be submitted to Parliament for scrutiny.
Numerous new versions of the document may then be produced. When
the Presidency decides to bring the matter to a conclusion, the
document comes before the Council, where the Minister is then
able to make decisions on the spot, based on the advice of his
officials and taking into account comments arising from Parliamentary
13. By 13 November 1997
250 texts had been adopted under Title VI of the Treaty. Twenty-five
were conventions; four were joint positions; 27 were joint actions;
27 were resolutions; 20 were recommendations; five were declarations;
23 were Conclusions; 19 were decisions; and 100 were other documents
such as reports of activity and observations. A breakdown by subject
is printed on page 15.
Efficacy of Action
14. The Home Office
confirmed that in several areas action plans had indeed formed
the basis for subsequent more detailed work (p 2). For example,
in the field of judicial co-operation, the action plan on organised
crime currently dominated all other Third Pillar work. Other examples
could be given: but the Home Office stressed that such action
plans had not precluded attention being given to other issues
where circumstances so required. HM Customs and Excise said that
"In the Customs area work has been based on Action Plans
to a large extent" (p 49). They went on to list the four
main action plans which had shaped work in Customs since 1992.
NCIS and ACPO drew attention to the fact that the foundation of
Europol was based upon an action plan (p 31). They also told us
that, in relation to the joint actions and resolutions which were
relevant to their own sphere of operations, implementation was
well under way (p 32). In the field of civil judicial co-operation
no action plans had been adopted.
15. The Home Office
told us that overall, the domestic legislative agenda had not
been heavily determined by commitments given as a result of Third
Pillar co-operation (p 4). This was partly because Third Pillar
texts generally reflected the existing position. An example of
this was found in the field of immigration, where the Home Office
said they had "generally been successful in negotiating Third
Pillar texts which reflect existing legislation, policy and practice".
HM Customs and Excise confirmed this overall view, saying "The
domestic legislative agenda has as yet been unaffected to date
by commitments entered into by the Government in the Customs Co-operation
area of the Third Pillar framework" (p 51).
16. Yet many Third Pillar
instruments had been implemented, with the result that
in a few cases changes to domestic legislation would be
required. NCIS and ACPO provided a list of Third Pillar measures
which had, or were about to be, implemented in the United Kingdom
(p 32). HM Customs and Excise pointed out that the United
Kingdom was one of only two Member States which had ratified the
Customs Information System Convention (p 50). The United Kingdom
had also set up its own national programme to implement the Joint
Action on Memoranda of Understanding between Customs administrations
and their business partners. No Third Pillar measures in the civil
judicial field had yet been implemented in the United Kingdom
because no such measures had yet been adopted (p 51).
17. The Home Office
took the view that the more structured legal framework which the
Treaty on European Union had brought was "undoubtedly a significant
improvement on the ad hoc mechanisms for co-operation which
previously existed" (p 4). They admitted that Third Pillar
structures could be "cumbersome" (p 5), but stressed
that "third pillar co-operation is not necessarily slow ...
and can produce quick results when the political will is strong".
NCIS and ACPO drew attention to the fact that the structure had
necessitated an inter-agency approach (p 33). As a result, the
United Kingdom now had excellent co-operation between ACPO, NCIS,
Customs and Excise, the Immigration Service, the British Security
Service and the Civil Service.
18. The Home Office
accepted (Q 11) that in the field of Justice and Home Affairs
there would always be issues which affected more than one department.
They confirmed that in those cases an attempt was made to co-ordinate
policy both at official and ministerial level. All the departments
with an interest in a particular subject would provide briefing
for the Minister or official representing the United Kingdom.
19. HM Customs and Excise,
while welcoming the improvements which the Third Pillar had brought,
suggested that the weaknesses of the Third Pillar were the length
of time negotiations can take, the bureaucracy and the lack of
continuity between Presidencies (p 52). They told us that "The
day-to-day co-operation that our investigating officers rely on
in tackling international crime takes place outside the formal
structures established by the Third Pillar" (p 51) but went
on to say that "The Third Pillar has provided structures
and systems which have supplemented the existing co-operation
we were already involved in".
20. The Lord Chancellor's
Department and the Scottish Courts Administration echoed the positive
evaluation made by the Home Office (see para 17 above), but also
drew attention to two disadvantages of the Third Pillar structures,
namely the poor continuity which resulted from the handover of
Presidencies every six months and the tendency in the Working
Group to place excessive importance on the political, as opposed
to the technical, merits of a particular issue (p 23). For example,
a decision had been made to extend the Brussels II exercise to
cover custody orders made on divorce (p 24). The United Kingdom
had acquiesced in this for political reasons. The result might
be to create another agreement, and to increase confusion, in
a field where there were already several international agreements.
21. NCIS and ACPO were
critical of the fact that sometimes there was overlap and cross-function
between policy makers and practitioners (QQ 82-83). They complained
that negotiations were very often carried out by officials who
seemed to lack any comprehension of how enforcement activity actually
happened. This problem did not arise in relation to the United
Kingdom's negotiating team, but other countries did not always
follow this good example of having a senior police or law enforcement
or customs officer as part of their delegation.
22. The Home Office
pointed out in their written evidence that it was "in the
nature of such co-operation that it can advertise itself only
through the adoption of high profile agreements, while much of
the exchange of information and ideas on practical issues goes
unseen and unremarked. The result can be a perception of a lack
of results which may fail to do the Third Pillar full justice"
(p 5). In oral evidence, they followed this up saying "we
do not believe the utility of the Third Pillar should only be
measured by the number of legal texts that have been produced.
We think that practical co-operation is as important, probably
more important" (Q 29). The Committee notes in this context
the assertion by NCIS and ACPO that the onus of work under the
Third Pillar is gradually changing from the formation of legislative
texts to discussions on operational matters (p 32).
23. HM Customs and Excise
took the view that "the split between legislative and operational
matters is about right" (p 49). They told us that, on the
operational side, advances had been made by means of joint surveillance
exercises, and through the Oisin programme (which facilitated
officer exchanges, best practice studies, operational exercises
and joint training) (p 50). On the legislative side, a Customs
Information System had been established, and instruments had been
put in place to improve links with businesses, to improve Police/Customs
co-operation and to establish the Naples II Convention.
24. In relation to administrative
rather than legislative co-operation, the Home Office described
the way in which attempts were made to make progress by means
of converging national approaches to particular matters, rather
than by imposing conventions and joint actions (Q 31). They cited
extradition as an example (Q 32), where some Member States were
not constitutionally permitted to extradite their own nationals.
"One tries to ... move towards an arrangement where the different
legal approaches in various countries do not prevent the kind
of co-operation that ministers wish to see", they said.
25. Michael Howard made
the point that most of the United Kingdom's efforts in international
co-operation in justice and home affairs were focused on Europe,
and that "That is a function of our geography and where we
are" (Q 103). Nevertheless, there are other international
organisations, such as the G8 group of industrialised nations,
or the Hague Conference on Private International Law, which also
seek to improve co-operation in these areas.
26. The Lord Chancellor's
Department and the Scottish Courts Administration drew attention
to the risk that activities under the Third Pillar might overlap
with work done at the Hague Conference (p 23). However, the risk
of inconsistency was being reduced by improved co-operation between
the organisations. The Home Office drew attention to the variety
of mechanisms which already existed to co-ordinate discussions
among groups such as the G8 and the EU (Q 19).
27. HM Customs and Excise
explained that the United Kingdom was an active participant in
the Council of Europe's Pompidou Group (on drugs), the World Customs
Organisation and the United Nations Commission on Narcotic Drugs.
Each organisation had a different, and useful, role (p 51).
28. Most witnesses said
it was too early to know what the impact would be of the ratification
of the Amsterdam Treaty. NCIS and ACPO drew attention to the difficulty
of splitting activities between pillars (p 34). They said "As
a police service we have as great a commitment to prevent crime
as to detect it. The two go hand in hand with most of our police
officers involved some way in both. However these two aspects
are, as you know, divided between the First and Third Pillars.
This arrangement does not sit easily with us and has the potential
to mar effectiveness. While recognising that there are many contributory
factors relating to the incidence of crime that belong rightfully
under the First Pillar, under the heading of social affairs, much
of crime prevention is police business .... More generally we
would like to share our mutual experience across a range of crime
prevention initiatives through Third Pillar structures".
29. The Home Office
suggested that there was no reason why the Justice and Home Affairs
Council should not consider First Pillar as well as Third Pillar
issues (Q 12). They took the view that "there will continue
to be an increased number of topics that are of concern to more
than one pillar ... there will always have to be means of co-ordinating
action in particular areas across the various pillars" (Q
18). Indeed, HM Customs and Excise told us that the links between
the First and Third Pillars which the formal structure imposed
were helpful, particularly in areas such as police co-operation,
customs and organised crime (Q 108-109). Witnesses were not so
clear, however, about the likely impact of the incorporation of
the Schengen acquis into the Maastricht Treaty. The Home Office,
for example, admitted that they did not yet know how the incorporation
of Schengen would work out in practice (QQ 16-17), and that much
detailed work remained to be done.
30. Michael Howard pointed
out that (Q 91) "the areas which have been shifted from the
Third Pillar to the First Pillar under the Treaty of Amsterdam
are areas from which the United Kingdom has opted out". He
went on to say that he was "unclear as to what is going to
happen in relation to some of those areas where we have fully
participated in Third Pillar arrangements which are now in the
First Pillar but from which we have opted out".
31. The purpose of this
Report is not to make recommendations to the House. Rather, the
Committee wishes to present this Report, together with its evidence,
to the House as a contribution to the House's consideration of
the European Communities (Amendment) Bill. The Report is, therefore,
made for information rather than for debate.
Sixth Report, Session 1997-98 (HL Paper 25). Back