Select Committee on European Communities Fifteenth Report


FIFTEENTH REPORT

17 February 1998

  By the Select Committee appointed to consider Community proposals, whether in draft or otherwise, to obtain all necessary information about them, and to make reports on those which, in the opinion of the Committee, raise important questions of policy or principle, and on other questions to which the Committee considers that the special attention of the House should be drawn.

ORDERED TO REPORT

DEALING WITH THE THIRD PILLAR: THE GOVERNMENT'S PERSPECTIVE

INTRODUCTION

  1.    The level and extent of co-operation between Governments in relation to justice and home affairs has grown considerably throughout the last 25 years. Work in fora such as the Council of Europe, the G7/G8 and the Hague Conference on Private International Law, has become well established and indeed continues. In the 1990s the growth in co-operation between Community Member States made it increasingly necessary to put on a more formal footing the Community co-operation procedures which existed. The most notable step towards formalisation was the conclusion of the Treaty on European Union (the Maastricht Treaty), title VI of which established the "Third Pillar" of the European Union, co-operation in Justice and Home Affairs.

  2.    In July 1997 this Committee reported on Parliamentary Scrutiny of the Third Pillar[1]. That Report contained an explanation of the way in which co-operation under the Third Pillar now works. In particular, we explained that whilst the Maastricht Treaty had placed co-operation in the fields of justice and home affairs on a more formal basis, nevertheless co-operation under the Third Pillar takes place outside the European Community procedures and the resulting decisions and acts do not form part of Community law. Furthermore, co-operation under the Third Pillar is advanced by groups operating at as many as five main levels: the Council; COREPER (the Committee of Permanent Representatives); the so-called K.4 Committee (established under Article K.4, as a co-ordinating committee); the three steering groups; and numerous permanent and ad hoc working groups.

  3.    Each Member State has the right to initiate proposals under the Third Pillar. In certain cases, the Commission also has a right to initiate proposals. More formal co-operation under the Third Pillar may take any of three forms: first, the adoption of joint positions and the promotion of any co-operation contributing to the pursuit of the objectives of the Union; second, the adoption of joint actions and decisions on measures implementing joint actions; and third, the drawing up of conventions. The legal force of joint actions and joint positions is unclear. Practical co-operation also takes place at many other levels, with discussions taking place between officials and in working groups.

  4.    Inter-governmental co-operation in the fields of justice and home affairs had grown up, of course, before the ratification of the Maastricht Treaty; and whilst the Treaty put much of this co-operation onto a more formal footing, the structures which the Treaty imposed were, rightly, not overly prescriptive. The extent and nature of inter-Governmental co-operation remained largely a matter for the Governments themselves to decide.

  5.    This very flexibility makes it difficult to keep track of business transacted under the Third Pillar. With proposals coming from many different quarters and meetings being held at many different levels, the Committee is not aware of any published description or evaluation of work done under the Third Pillar. The Committee therefore decided simply to gather information from Government Departments to answer the following broad questions:

    (i)  During the course of a Presidency term, how many meetings take place under the Third Pillar structure and with what frequency?

    (ii)  At what level are Government Departments represented at such meetings?

    (iii)  How useful has the Third Pillar structure proved in practice compared with the informal arrangements which had existed previously?

    (iv)  How many Third Pillar measures have been implemented in the United Kingdom?

    (v)  How many Third Pillar instruments have been adopted since the Treaty on European Union entered into force?

  6.    The Committee took evidence from the Home Office, the Lord Chancellor's Department and the Scottish Courts Administration, the National Criminal Intelligence Service, the Association of Chief Police Officers, HM Customs and Excise and from the Right Honourable Michael Howard MP, who was Home Secretary when the Treaty on European Union was ratified.

  7.    The evidence we received speaks for itself, and the main purpose of this Report is simply to publish the evidence so that members of the House may read it for themselves. For the convenience of the House, however, the main points raised by witnesses are summarised below.

SUMMARY OF EVIDENCE

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 this field.

  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).

Working procedures

  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 scrutiny.

Texts adopted

  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 Plans

  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.

Implementation

  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).

Evaluation

  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.

Relations with other organisations

  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).

Amsterdam

  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".

CONCLUSION

  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.


1   Sixth Report, Session 1997-98 (HL Paper 25). Back




 
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