Caroline Nokes – 2018 Statement on the Justice and Home Affairs Council

Below is the text of the statement made in the House of Commons by Caroline Nokes, the Minister for Immigration, on 17 December 2018.

The final meeting of EU Interior and Justice Ministers during the Austrian presidency took place on 6 and 7 December in Brussels. I represented the UK for Interior day. The Lord Chancellor and Secretary of State for Justice, my right hon. Friend the Member for South West Hertfordshire (Mr Gauke), represented the UK on Justice day. Scottish Government Minister for Communities, Ash Denham MSP, also attended.

Interior day began with the Council agreeing a partial general approach on the amendments to European border and coast guard regulation. The presidency concluded that further discussion was needed on the numbers of border guards in the European border and coast guard standing corps, as well as in relation to issues of national sovereignty related to deployments. Member states also expressed concerns over aligning capacity with finances. The Immigration Minister did not intervene as the UK does not participate in this Schengen-building measure.

The Council also discussed the returns directive. Member states expressed significant differences of opinion on detention while a claim was processed and on clarity as to the risk of absconding. The Commission encouraged member states to finalise this file by the end of the legislature. The UK does not participate in this measure.

The Council then discussed the regulation on preventing terrorist use of the internet. Several member states were not able to support the text due to the regulation’s conflict with their own national constitutions and concerns on the balance between the removal of content and fundamental rights. Some member states sought further consideration of the measure. However, the presidency concluded support for a general approach, judging the proposal to be a good and responsible compromise text. The Immigration Minister intervened to support the general approach, emphasising the importance of this legislation in tackling terrorist content online. The presidency stated that it would seek to address various points of concern in future trilogue negotiations.

The Commission urged member states to finalise those proposals of the common European asylum reform package where agreement was in reach. However, in discussion over lunch, member states remained split on the issue of solidarity and burden sharing. The Immigration ​Minister intervened to emphasise the importance of the comprehensive approach to migration, and specifically on the issue of developing more sustainable general solutions to tackle migratory flows, including tackling the drivers of migration.

After lunch, the Council approved an action plan to tackle migrant smuggling.

The Council then discussed JHA priorities for the 2021-27 MFF. The EU JHA agencies set out their priorities. The UK did not intervene as these programmes will commence after the UK’s exit from the EU and the end of the envisaged implementation period. The UK will, therefore, not be participating in any future programmes as a member state.

On Justice day, the Council reached a general approach on the sale of goods directive. There was a wide divergence of views on the value of maximum harmonisation of law to set common contractual requirements for consumer purchases by consumers. The UK and other member states argued for the maintenance of member states’ flexibility to guarantee higher levels of consumer rights. Member states expressed desire to continue the discussion on this issue during the trilogues with the European Parliament.

The Council also reached a general approach on the recast of Brussels IIa regulation on family matters and parental responsibility. The Justice Secretary welcomed the text, as well as the presidency’s work to accommodate UK concerns on the hearing of the child. He also noted UK ambition for civil law co-operation after our EU exit, which elicited positive statements from member states not just on family co-operation, but across civil law, and on future security co-operation.

The Commission and the presidency noted progress on the assignment of claims directive at working level, which deals inter alia with the third-party effects on assignments of claims. Member states cautioned that the directive should be careful not to disrupt existing and functioning market systems.

The presidency, supported by the Commission, sought to reach a general approach on e-evidence, about law enforcement access to data held by communications service providers. A number of member states voiced strong opposition to the text on the basis that it did not adequately protect member states’ fundamental interests nor the fundamental rights of citizens.

The presidency concluded there was enough support for a general approach and the measure would proceed to trilogues where further discussions would aim to resolved other member states’ concerns.

The Commission indicated that they will finalise the draft negotiating mandates for the second additional protocol to the Budapest convention and for discussions with the US.

On data retention, the presidency updated on continuing working level discussions on the preservation of law enforcement capabilities and other public authority tools that would also meet the requirements of recent, stricter CJEU case law. The Commission noted that it would be difficult to restrict data retention to certain persons or geographic areas but nonetheless proposed to undertake additional targeted consultation. Member states called on the Commission to ensure continued attention to data retention in the future, noting likely developments in CJEU case law expected in 2019.​

The Council adopted conclusions on mutual recognition, mutual trust and the principles underlying mutual recognition instruments such as the European arrest warrant. The Justice Secretary underlined UK commitment to future co-operation with the EU on this basis to enable continued joint working to tackle the challenges of transnational crime.

The Commission updated Ministers on significant progress made in answering points raised by the CJEU on EU accession to ECHR. It was agreed that amendments to the draft accession agreement would be strictly limited to what was required by the Court. The importance of accession was highlighted as a priority for the EU and its citizens and swift resolution encouraged.