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JUSTICE COMMITTEE

AGENDA

3rd Meeting, 2008 (Session 3)

Tuesday 29 January 2008

The Committee will meet at 10.15 am in Committee Room 2.

1. Subordinate legislation: The Committee will consider the following negative instrument—

the Bankruptcy Fees (Scotland) Amendment Regulations 2008 (SSI 2008/5).

2. Justice and home affairs in Europe: The Committee will consider a paper by the Clerk.

Douglas Wands Clerk to the Justice Committee

Room T3.60 Email: douglas.wands@scottish.parliament.uk

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The papers for this meeting are as follows: Agenda Item 1 Note by the Clerk on the Bankruptcy Fees (Scotland) Amendment Regulations 2008 (SSI 2008/5). Agenda Item 2 Paper by the Clerk

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1

SSI Cover Note for Committee Meeting SSI title and number:

The Bankruptcy Fees (Scotland Amendment Regulations 2008, (SSI 2008/5)

Type of Instrument:

Negative

Meeting:

3rd Meeting, 29 January

Date circulated to members:

24 January 2008

Justice Committee deadline to consider SSI:

25 February 2008

Motion for annulment lodged: No

SSI drawn to Parliament’s attention by Sub Leg Committee:

No

Purpose of Instrument: The purpose of this instrument is to amend the Bankruptcy Fees (Scotland) Regulations 1993 which came into force on 1 April 1993.

If members have any queries or points of clarification on the instrument which they wish to have raised with the Scottish Government in advance of the meeting, please could these be passed to the Clerk to the Committee as soon as possible, to allow sufficient time for a response to be received in advance of the Committee meeting.

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JUSTICE COMMITTEE

Subject: European Scrutiny

Meeting No: 3rd Meeting, 2008 Meeting Date: 29th January 2008 Author: The Clerk Purpose 1. This is an update paper for members of the Committee to consider in the context of the work programme. The paper summarises the main issues being taken forward at EU level relevant to the Justice Committee and presents options for Committee follow-up / scrutiny including a familiarisation visit to Brussels. 2. As agreed at the Committee awayday, Scottish Government officials have provided a detailed update on activities and priorities following the concluding meeting of the Justice and Home Affairs (JHA) Council of EU Ministers during the Portuguese presidency. The post council report of this meeting is attached at Annex A, together with a short note at Annex B on JHA priorities and prospects for the current Slovene Presidency of the EU (January to June 2008) and at Annex C the updated tables on current JHA initiatives. 3. On the basis of these papers, the Committee is invited to discuss which EU dossiers it is specifically interested in and what issues it wishes to take forward and by what means, bearing in mind other likely work programme commitments and the work being undertaken by the Scottish Government. Background 4. The European Commission published its legislative and work programme1 in October 2007 detailing the work it intends to progress during 2008 and beyond. The Commission is the executive body of the European Union consisting of an appointed member from each state headed by the President. The Commission is a politically independent institution that aims to uphold the interests of the EU as a whole. It is responsible for proposing legislation to the Council of the EU and implementing decisions of the European Parliament and the Council of the EU. 5. The Commission’s work programme covers all policy areas and its overarching priorities for 2008 are growth and jobs, sustainable Europe, an integrated approach to migration, putting the citizen first and Europe as a

1 http://ec.europa.eu/atwork/programmes/docs/clwp2008_en.pdf

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world partner. So far as Justice and Home Affairs are concerned, the Commission intends to press ahead with completion of the Hague programme for freedom, security and justice2 and to undertake work to combat smuggling and the consumption of illicit drugs. Specifically, the Commission states it will present a communication on the next multi-annual strategy to establish an area of freedom justice and security (this is expected some time before summer recess), present a legislative proposal on strengthening Eurojust, publish a communication on e-justice (May / June 2008) and bring forward a legislative instrument in the field of succession and wills. Scottish Government European Priorities 6. At the meeting of the European and External Relations Committee (EERC) on 18 September 2007, the Minister for Europe, External Affairs and Culture presented the Scottish Government’s five European strategic objectives. The one of direct relevance to the Justice Committee is “a safer stronger Scotland”. Under this heading the Scottish Government has three current EU priorities; EU family law proposals, Exchange of Information from Criminal Records and EU Institution Reform (EU Reform Treaty). Each of these is dealt in more detail below. 7. In addition to these policy priorities, the Scottish Government has set out its six longer term EU political objectives.3 There are two of relevance to the Justice Committee—

Justice and Home Affairs (JHA) issues JHA has been a highly significant growth area in EU business over the last decade, and a large amount of that business has implications for Scotland’s distinct and separate legal system. This is expected to increase under the new arrangements for decision-making on JHA matters proposed for the new Reform Treaty. Securing recognition of Scottish interests in JHA matters both on specific issues and more generally, at both UK and EU levels is therefore a high priority. Actions to secure this include the target of a Scottish Minister or Law Officer attending at least one JHA Council of Ministers meeting in each six-month Presidency, and securing inclusion of Scottish Ministers in formulation of the UK Government’s negotiating position on specific and general JHA issues. EU Treaty Reform and Institutional Structure In the short run, the Government’s line on the likely outcome of the current Inter-Governmental Conference envisages support for the Reform Treaty, but not if the Government’s ‘red line’ concerning exclusive competence over marine biological resources under the CFP is ignored. That apart, the Government acknowledges the value of institutional reforms that will make the Union more efficient and yet also more transparent and democratic in its decision-making. If the Treaty that emerges is in due course ratified, the Government will continue to seek positive engagement with the Institutions, as they will function under these reforms.

2 The Hague programme resulted from the adoption of a series of political and policy statements by the European Council in 2004 and established a plan of action in the area of JHA during the period 2005 - 2010 3 http://www.scotland.gov.uk/library2/memorandum/

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EU Family Law Proposals 8. A number of dossiers fall under this heading. Annex C provides an update as of January 2008 from Scottish Government officials and details four current initiatives under this heading as follows:

Green Paper on Succession and Wills, Proposed Council Regulation on jurisdiction and applicable law in matrimonial matters (Rome III), Proposed Council Regulation on jurisdiction, applicable law recognition and enforcement of decisions relating to maintenance obligations, and Green Paper on Matrimonial Property Regimes.

9. As stated in Annex C, the Scottish Government intends to provide input to additional papers being presented to the Commission by the UK Government on the Green Papers on Succession and Wills and Matrimonial Property Regimes. 10. The former Justice 1 Committee wrote to the Commission in 2005 expressing concerns at that time about the Green Papers on Succession and Wills and about what was then the Green Paper on jurisdiction and applicable law in matrimonial matters. In relation to the Green Paper on Succession and Wills the Committee was concerned that no clear case had been made for the adoption of harmonised European rules and that previous attempts to harmonise choice of law in this area had not been well supported. In relation to jurisdiction and applicable law in matrimonial matters the Committee was concerned that Scottish courts would face the prospect of being required to apply foreign law in divorce cases, a requirement to which they were not accustomed and that the added complexity of such cases would inevitably lead to delays and increased costs for parties. 11. The Committee went further in its communication with the Commission and stated that it was opposed in principle to the development of any further Community instruments in the area of family law as it did not feel that any compelling evidence or significant need or demand from EU citizens existed to support action in this area. Following a Committee debate in the Parliament in March 20064, the Parliament agreed to urge the UK Government not to opt in to any draft European Community instruments which might emerge following the conclusion of the consultation. The UK Government (supported by the Scottish Government) has not opted in to either of these initiatives. 12. In November 2007, as part of its ongoing consideration, the House of Lords Select Committee on the European Union published a report5 on the 4 http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-06/sor0316-02.htm#Col24138 5 http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/12/1202.htm

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Green Paper on Succession and Wills. In its report, the Committee noted the Commission’s intention to bring forward a legislative proposal on succession and wills as a key action for 2008. It further noted that the UK Government was urgently seeking to prepare an update paper for the Commission highlighting again matters of great concern to the UK. 13. The House of Lords Committee intends to monitor carefully the progress of this dossier and to scrutinise the Commission’s proposal when it emerges. It is suggested that the Committee might wish to request that it is copied into the Scottish Government’s submission to the UK Government on this matter. 14. In relation to what are now proposed Council Regulations on jurisdiction and applicable law in matrimonial matters (Rome III) and the jurisdiction, applicable law recognition and enforcement of decisions relating to maintenance obligations, the UK Government (supported by the Scottish Government) has not opted in. Negotiations continue however and Scottish Government officials intend to work closely with their UK counterparts to monitor the situation. It is suggested that the Committee continues to receive updates from Scottish Government officials in this regard. Exchange of Information from Criminal Records 15. Under this heading, Annex C again details four dossiers as follows:

Framework Decision on the Recognition and Enforcement in the European Union of prohibitions arising from convictions for sexual offences committed against children,

Framework Decision on the Transmission to and Keeping by the Member State of Nationality of Information on Criminal Convictions, Proposal for a Council Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters provided for by Title IV of the TEU, and Prüm Convention (The Convention, originally entered into by 7 Member States, now adopted as an EU Council Decision, makes provision for closer co-operation in areas such as DNA data and fingerprint exchanges, joint police operations, terrorism etc.).

16. The two framework decisions are now being taken forward together. As Scotland has its own criminal record system, Scottish Criminal Record Office officials have been involved in the work on these dossiers. It is suggested that the Committee maintains a watching brief on these framework decisions and continues to receive regular updates from officials.

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17. The Prüm Convention clearly has implications for Scotland in terms of exchange of information and co-operation and has been accorded high priority on an ongoing basis. The group of member states responsible for this Convention have stated that they wish to make further progress on co-operation. A plan is being drawn up which is likely to be adopted and progressed during the French Presidency (June to December 2008). Scotland has its own DNA and fingerprint legislation and Scottish officials and experts will be involved in the implementation process across the UK in respect of the devolved interests. The Committee may wish to request a written update on how this is being taken forward and specifically on how Scottish interests and procedures are being taken account of. EU Institution Reform (EU Reform Treaty) 18. At its meeting on 2 October 2007, the European and External Relations Committee (EERC) agreed to focus its attention on two of the six political objectives, namely the EU Treaty Reform and the EU Budget Review. The House of Commons European Scrutiny Committee (ESC) published a report in October 2007 in which it raised a number of concerns in relation to “the effectiveness of the safeguards for the UK position on those questions identified by the Government as ‘red-line’ issues” and in particular raised a number of concerns about the safeguards on Justice and Home Affairs issues. The Reform Treaty covers a number of devolved matters including Justice and Home Affairs but neither the UK Government’s white paper on the Reform Treaty nor the Explanatory Memorandum made reference to consultation with the devolved administrations, ministerial responsibility for those devolved matters covered by the Treaty or Scotland’s separate legal system. 19. The Reform Treaty (otherwise known as The Treaty of Lisbon) extends qualified majority voting and co-decision as the general rule to Justice and Home Affairs but the UK Government has secured three ‘red-lines’6 in relation to Justice and Home Affairs. The Scottish Government has advised the EERC that its officials have been in regular contact with UK counterparts and contributed fully to discussions but that it was unaware of why no specific references to the devolved administrations were made in the White Paper. 20. In a letter7 to the Convener of the EERC, the Minister for Europe, External Affairs and Culture stated, in relation to the Reform Treaty, that “the Scottish legal system’s interests substantially coincide with those of the other 6 The three ‘red lines’ are (1) extension of the UK’s existing opt-in on asylum, immigration and civil justice matters to include all aspects of JHA co-operation; (2) an “emergency brake” procedure whereby any Member State will be able to refer a criminal justice proposal to the European Council for decision where it believes that the proposal would affect fundamental aspects of its criminal justice system; and (3) a new legally binding Protocol which puts beyond doubt that the European Charter of Fundamental Rights – which anyway only applies to EU institutions, or to Member States in respect of their implementation of EU law - provides no greater rights than are already provided by EU law and that nothing in the Charter extends the ability of any court, European or domestic, to strike down UK law. 7 Letter of 26 November 2006 from Linda Fabiani, Minister for Europe, External Affairs and Culture to Malcolm Chisholm, Convener of the European and External Affairs Committee

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jurisdictions in the UK and there are no uniquely Scottish points of substance” and that “overall, the Scottish Government is content that the ‘red lines’ that the UK Government did specify were indeed in line with our position in those policy areas, including Justice.” 21. The European Scrutiny Committee at Westminster has been considering the Reform Treaty and has raised its concerns with the UK Government in relation to the impact of the Treaty on aspects of Justice and Home Affairs. In light of this, the EERC has written to the Minister for Europe, External Affairs and Culture asking her to set out in more detail the Scottish Government’s position on a number of matters including the implication of the Treaty on Justice and Home Affairs. At the time of writing a response had not been received. At the EERC meeting on 5 February 2008, the Committee will be considering the Reform Treaty and will take evidence from Andrew Duff MEP. 22. It is suggested that this Committee maintains a watching brief of the EERC’s inquiry into the Reform Treaty, as it relates to justice and home affairs. It may be that the Justice Committee would wish to mandate a member to attend this meeting, subject to the Committee’s own visit arrangements allowing. 23. More generally, the Scottish Government is due to publish an updated forward look detailing its EU priorities in February 2008. The Minister for Europe, External Affairs and Culture is due to give evidence to the EERC on 11 March 2008. The updated forward look so far as it relates to Justice matters will be brought to the Committee for consideration when available. Committee Familiarisation Visit to Brussels

24. The Committee has agreed that it would like to undertake a familiarisation visit to Brussels during May 2008. For the purposes of making the necessary arrangements for the visit it would be useful if members were able to advise on areas of particular interest to allow meetings and briefings to be co-ordinated with the visit. In addition to setting up meetings with officials, the Committee may find it of interest to meet with the Law Society of Scotland’s representative in Brussels. The Law Society of Scotland’s Brussels office publishes a monthly round-up of relevant developments in Europe by way of its Brussels Agenda8, it monitors developments in EU law to ensure that they are compatible with the Scottish legal system and promotes Scottish solicitors and Scots law.

Evidence Taking Session with the Cabinet Secretary for Justice

25. Periodically during the last Parliamentary session, the Justice Committees met jointly to take evidence from the Minister for Justice on areas of priority in the field of JHA in Europe. It is suggested that this is something 8 http://www.lawscot.org.uk/Members_Information/international/brussels_office/brussels_agenda.aspx

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that the Committee may wish to consider, after undertaking the familiarisation visit and perhaps to coincide with the next 6-monthly update report. For Decision 26. The Committee is asked to:

(a) agree which EU dossiers it is specifically interested in and what issues it wishes to take forward and by what means, bearing in mind other likely work programme commitments and the work being undertaken by the Scottish Government;

(b) request that it is copied into the Scottish Government’s submission to the UK Government on the Green Paper on Succession and Wills;

(c) request that the Scottish Government continues to provide regular updates on the Proposed Council Regulations on jurisdiction and applicable law in matrimonial matters (Rome III) and jurisdiction, applicable law recognition and enforcement of decisions relating to maintenance obligations;

(d) agree to maintain a watching brief on the Framework Decisions on the Recognition and Enforcement in the European Union of prohibitions arising from convictions for sexual offences committed against children and on the Transmission to and Keeping by the Member State of Nationality of Information on Criminal Convictions and to receive regular updates from officials;

(e) agree to request a more detailed update from officials on how the Prüm Convention is being progressed and specifically on how Scottish interests and procedures are being taken account of;

(f) agree to maintain a watching brief of the EERC’s inquiry into the Reform Treaty, as it relates to justice and home affairs and to decide whether to mandate a member to attend this meeting; and

(h) agree to hold an evidence taking session on JHA issues with the Cabinet Secretary for Justice in due course.

Annex A

POST COUNCIL REPORT ON THE JUSTICE AND HOME AFFAIRS COUNCIL OF EU MINISTERS, 6 AND 7 DECEMBER 2007

Main Outcomes of the Council The Council adopted a decision on the full application of the provisions of the Schengen acquis in the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia. The draft Regulation on Rome I, which deals with applicable law in contractual obligations, was agreed. The Council took stock taking of the EU Counter Terrorism Strategy implementation. The Council reached a general approach on a draft framework Decision on the recognition and supervision of suspended sentences, alternative sanctions and conditional sentences. Finally, the Council adopted a joint declaration establishing a European Day against the Death Penalty. The UK ministerial delegation comprised Jack Straw (MoJ), Meg Hillier (Home Office), Bridget Prentice (MoJ), and Frank Mulholland (Solicitor General, Scotland). AGENDA ITEMS POLICE & CRIMINAL JUDICIAL CO-OPERATION Schengen Enlargement The Presidency congratulated all concerned on the historic achievement of the extension of the Schengen acquis. The Commission emphasised that SIS II remained the ultimate goal. SIS II The Presidency informed Member States that there were two key issues, the overall timescale and the migration of data. The Slovenian Presidency would consider the migration issue at the 25-26 January informal Council following the result of the relevant study. The Council was asked to focus of the time-scale issue. The Commission emphasised that good progress was being made, and the December 2008 deadline was still technically possible. Member States would take a final decision on the migration issue in February to meet the deadline. [The United Kingdom participates selectively in Schengen arrangements. It is not included in the border relaxation elements, but does take part in the associated enhanced police and criminal co-operation procedures, of which the Schengen Information System (SIS) is part. The UK will not be connected to SISone4all, which is a temporary solution to enable the new Member States to join the full Schengen

Annex A

acquis, but will connect to SIS II when it comes on line. Scottish law enforcement agencies will have access through already established UK police computer links.] Implementation of the Counter Terrorism (CT) strategy The Presidency introduced Gilles de Kerchove (EU CT co-ordinator) and emphasised the importance of the CT strategy and the CT co-ordinator’s work. De Kerchove focussed on the exchange of information, emphasising the importance of Member States fulfilling the 2005 decision on sharing information with Europol and Eurojust. He outlined the reasons for Eurojust to have access to Europol CT files, making clear that this access should not be automatic, but should enable Eurojust to work on the team with Europol. This relationship should be set out legally in the new Europol Decision currently being negotiated in the Council. This work would continue under the Slovenian Presidency. Weapons Directive The Presidency welcomed the first reading agreement with the European Parliament on the Weapons Directive, and reported that it would be adopted under the Slovene Presidency. The Directive will tackle the criminal use of firearms without inconveniencing legal users of weapons. The text includes control of the sale of guns over the internet, reinforcement of the marking system, computerisation and extension of the period of the record keeping to twenty years. Europol Council Decision The Presidency aimed to conclude some chapters of the Europol Council Decision, subject to the outcome of discussions on budget neutrality, staffing and immunities. [On December 22 2006 the Commission submitted a proposal for the Council Decision establishing the European Police Office (EUROPOL). The Council Decision will replace the Europol Convention and seeks to put Europol arrangements onto the mainstream EU legal base. The Council Decision is expected to be finalised at the latest by June 2008.] Presentation by Slovenian interior Minister The incoming Slovenian Presidency congratulated the Portuguese Presidency for their achievements, particularly on SISOne4All. They would continue to take forward work on Europol, Prum, weapons, readmission and asylum. European Day Against Death Penalty The Presidency announced that the EU could now support the European Day Against the Death Penalty. It would be celebrated on 10th October every year.

Annex A

Terrorism Framework Decision The Presidency introduced the proposal to update the 2002 Framework Decision to bring it in line with the recent Council of Europe Convention. It was agreed that this was an important subject matter and there was a delicate balance to be achieved to ensure that fundamental rights were protected whilst terrorism was effectively tackled. The Commission introduced its proposal, emphasising the importance of responding to terrorist use of the internet. E-Justice The Presidency presented the work achieved so far, particularly the prototype portal and work on the networking of registers. The Commission noted its support for e-justice. The commission would increase the funding available in 2008, and produce a Communication in May/June 2008 setting an overall e-justice strategy. Scottish Court Service, Crown Office and the Accountant in Bankruptcy have recently bean involved in providing information on Scottish systems for this project. Eurojust The Council agreed in June 2007 that work should be carried out in the field of e-justice with a view to creating a decentralised EU e-justice system giving access to existing or future electronic systems at national or Community level. That Council defined certain priorities for such work. The Council Conclusions were adopted without debate. Slovenia would address the issues raised during its Presidency, when an amending Council Decision will be presented to replace the current version. Suspended Sentences The Council reached a general approach on a draft Framework Decision on the recognition and supervision of suspended sentences, alternative sanctions and conditional sentences. Based on the principle of mutual recognition, the draft Framework Decision aims at facilitating the social re-integration of sentenced persons, improving the protection of victims and of the general public and fostering the application of suitable probation measures and alternative sanctions in the case of offenders who do not live in the State of conviction. In Scottish terms this relates to community sentences, suspended sentences and post custody release on licence. European Supervision Order The Presidency confirmed that it was finalising the draft text in co-operation with the Commission and the incoming Slovenian and French Presidencies on the basis of the mandate provided from the September 2007 JHA Council.

Annex A

The European supervision order will allow the suspect to benefit from a non-custodial pre-trial supervision measure in another member state that where the criminal proceedings are taking place. In UK terms this means bail. CIVIL JUDICIAL COOPERATION Rome I The Council welcomed a first reading agreement reached with the European Parliament on a proposal for a Regulation on the law applicable to contractual obligations. The next step will be adoption by the EU of the Regulation around February (or possibly later). The purpose of the proposal is to replace the Rome Convention on the law applicable to contractual obligations with a regulation and at the same time modernise where appropriate. The Regulations will apply its rules to contractual obligations in civil and commercial matters in situations involving a conflict of laws. The UK did not initially opt into this measure because of concerns about certain aspects of the proposal. However, negotiations have led to a good outcome for the UK. The UK Government will be consulting stakeholders on whether or not to opt-in to the final Regulation, and the Scottish Government will be fully involved in that process. Hague Convention of Maintenance The Presidency noted the successful outcome of the Diplomatic Session on the Hague Convention on Maintenance, in particular the provisions on administration co-operation, enforcement and the disconnection clause. This text was a good basis for work on the Community’s draft regulation on the same topic. No Member State intervened. International and Human Rights Branch Civil Justice Law Reform and International Directorate Scottish Government 18 January 2008

Annex B

SLOVENE PRESIDENCY OF THE EU: JUSTICE AND HOME AFFAIRS (JHA) PRIORITIES AND PROSPECTS

Background 1. The Slovene Presidency of the Council of the EU, which completes the trio including Germany and Portugal, runs from 1 January to 30 June 2008. Slovenia will be the first country from the 2004 enlargement group of 10 Member States to hold the Presidency. It is also one of the smallest MSs, with a population of 2 million. The Slovenes have moderately ambitious plans on Justice, and although question marks exist over resources and their ability to convert these (and other) ambitions into outcomes, they are nonetheless making significant efforts – for example, they have scaled up “SlovRep” in Brussels to some 170 staff, which is more than UKRep had under the last UK Presidency in 2005.

Slovene JHA priorities

2. While JHA work takes place within the overall framework of the Hague Programme Action Plan (2005), we know following discussion with Slovene justice officials (in Edinburgh and Ljubljana) that they will seek to progress justice dossiers under a more general theme of direct benefit to the citizen, including taking forward work on e-justice. If the Reform Treaty comes into force as anticipated on 1 January 2009, then all negotiations under the old JHA legal base must be clearly completed by the end of 2008 if they are not to fall. This will therefore put pressure on the 2008 Presidencies to deliver. They will also continue the work of the “Future Group”, a small group of Member States consisting of recent and future Presidencies looking to develop ideas for the next JHA Action Plan (c 2010 – 15). 3. In terms of civil law matters, they will progress but are ultimately likely to hand over most of the active dossiers to the French at the end of June. Slovenia is to hold an EU Conference on e-justice in June, following similar conferences held by the German and Portuguese Presidencies, at which we are planning for Scotland to be represented. In criminal law, they will seek to complete as far as possible a new FD on trials in absentia, which they see as a flagship initiative, and which they are co-sponsoring. However, this may be ambitious. An amending terrorism FD might also get a fair wind, and appears uncomplicated, while suspended sentences etc is also deliverable. The other dossiers will most likely need to be carried over. On police co-operation, while Prum looks capable of being substantially completed, SIS II is proving to be technically troublesome, and the Europol CD, though mostly done already, could still prove difficult. 4. The following points are of particular interest as regards Scotland: in civil law, they will aim to tie-up any outstanding issues on Rome I (draft EU

regulation on applicable law in contracts), the text for which was agreed at the JHA Council earlier this month. In relation to both Rome III (draft regulation on applicable law and jurisdiction in cross-border divorce) and the draft Maintenance Regulation, the Slovenes’ objective is to progress the negotiations as far as possible, but they expect to hand these over to the French Presidency at the end of June. The UK is currently not opted in to Rome I, Rome III or to the

Annex B

Maintenance Regulation, but expects to opt-in to Rome I once the Regulation is adopted in the spring, following a UK stakeholder consultation. Although not a dossier per se, the Slovenes will also take forward a European Commission proposal to amend the Council Decision creating the EU Civil Judicial Network, a body established in 2001 to improve, simplify and improve effective judicial cooperation between the Member States.

in relation to e-justice, which straddles both civil and criminal law, they will inherit

an increasingly high-profile project from the Portuguese, and a priority one for the Commission. They will focus on supporting development of a European Portal (a virtual electronic platform to existing information in national databases, e.g. insolvency registers, land registers); use of video conferencing; and electronic initiation of claims. To date, Scottish interests have been fully involved, with the Scottish Court Service, Crown Office and others providing information for the project. Slovenia will organise an EU Conference on e-justice in June.

in criminal law, their main project is likely to be a new Framework Decision (FD)

on trials in absentia. There is also a new recently tabled FD on terrorism, which seeks to harmonise law provisions in the EU in line with a recent Council of Europe Convention, by amending a previous FD. It is also likely that their Presidency will see the publication and initial negotiations on a new Council Decision (CD) on Eurojust, which will seek to update and amend the current CD. In addition to these new initiatives there is also a significant inherited agenda. While a general agreement was reached on the FD on mutual recognition of suspended sentences and alternative sanctions at the December JHA Council, further work will be required on matters such as recitals. Further work is also needed on the Directive on protection of the environment through criminal law provisions, and it is expected that the next stage of the exchange of information from the criminal records project will be launched. They may also try to make some headway on an FD to promote mutual recognition of bail decisions, which although published some time ago has up to now not been prioritised. It has, however, been recently redrafted and simplified.

on the police co-operation side, the agenda is principally inherited and

substantially technical. They will therefore try to take forward to completion implementing provisions on the recently agreed Prum CD, which deals with exchange of information from DNA and fingerprint databases in respect of active cases. They will also aim to close off negotiations on the Europol CD, which is seeking to replace the existing Convention with a CD so as to bring it into the mainstream EU legal base. Finally, they will oversee continued work on the SIS II project (Schengen Information System), the electronic system of police alerts which was set up initially to support the relaxation of internal EU borders.

Annex C January 2008

PRINCIPAL EU JHA CIVIL DOSSIERS UPDATE JANUARY 2008

Subject and Summary of Proposal Current Position Next Steps

Green Paper on Succession and Wills (Devolved) This Commission Green Paper (issued March 2005) considered issues such as mutual recognition of the title of executors to administer estates, and common rules on which country’s law should apply to succession in an international case.

Scottish Government officials consulted widely with key stakeholders and worked closely with UK Government colleagues in producing a consolidated UK response (issued end August 2006). The gist of that response was that harmonisation of laws would be undesirable and unnecessary; any reforms should be based on mutual recognition and enforcement of judgments; and measures should cover only cases with a cross-border element, with proposals supported by clear evidence that they offer proportionate solutions to real problems. To inform the Commission’s deliberations, the UK and Scottish Government officials met with the Commission in December, presenting a supplementary UK paper outlining the sort of succession regime the UK could support.

This very complex area has already been the subject of unsuccessful attempts at worldwide regulation in the Hague. An EU solution may therefore be difficult to arrive at. The Commission is considering responses to its proposals and has committed to produce legislative proposals by November 2008. Between now and then, there will be another national experts meeting or a hearing in May and a Regulatory Impact Assessment will be finalised in June. The UK Government will be working on an additional paper to influence the Commission’s thinking, with Scottish Government input.

Proposed Council Regulation on jurisdiction and applicable law in matrimonial matters (Rome III) (Devolved) This draft Regulation proposes the introduction of common European rules regulating which country’s law would apply in cross-border divorce cases. It would also rationalise the EU’s jurisdictional rules, and provide for cases to be transferred between courts in different Member States.

The UK’s response (October 2005) to the Commission’s Green Paper highlighted serious concerns around applying foreign law to cross-border divorce situations, since the courts in Scotland and the other UK jurisdictions have no experience of doing so. This would therefore add cost, delay and complexity to the process. The UK, supported by the Scottish Government, has therefore opted out of the subsequent proposals brought forward by the Commission. The then Justice 1 Committee strongly supported that position.

Negotiations, which began working group level in November 2006, will continue under the Slovene Presidency (the Slovenes indicated to us they expect to hand these over to the French Presidency at the end of June). Scottish Government officials will continue to work closely with UK counterparts in monitoring the situation. The assessment remains that the negotiations are unlikely to result in a regulation that the UK could sign up to.

1.

Annex C January 2008

Subject and Summary of Proposal Current Position Next Steps

Proposed Council Regulation creating a European Small Claims Procedure (the so called Small Claims Regulation) (Devolved) The aim of this Regulation is make it easier to enforce cross-border small claims up to the value of €2,000.

The Commission presented a revised proposal for a Regulation establishing a European Small Claim Procedure, following consultation on a 2003 Green Paper where the Executive contributed to the UK response. After negotiations, the Regulation was formally adopted at the JHA Council in June 2007.

The procedural provisions of the Regulation will come into effect on 1 January 2009.

Proposed Council Regulation on jurisdiction, applicable law recognition and enforcement of decisions relating to maintenance obligations (Devolved) This draft Regulation seeks to provide a more unified and consistent approach to maintenance claims for EU citizens who wish to apply where the maintenance debtor is in another EU country

The UK, supported by the Scottish Government, decided not to opt into the finalised draft instrument, largely for the same reasons associated with not opting into the ‘Rome III’ proposal, i.e. we have no experience of applying foreign law in family cases, which would be costly, complex and impedimentary. Negotiations of the draft Maintenance regulation have been underway in the Council working group since February 2006, including agreement on general future approach at the April 2007 JHA Council.

The EU proposal is inextricably linked with a parallel international convention which was concluded in November 2007 in the Hague Conference on International Private Law. The successful outcome of the Hague Conference, and corresponding text, provides a good basis for work on the Community's draft regulation. The EU negotiations will re-commence under the Slovene Presidency, and Scottish Government officials will maintain close contact with Whitehall counterparts within the Council working group, seeking to resolve the key issues to enable us to consider accepting the measure once agreed.

Draft Council Regulation on the law applicable to non-contractual obligations (Rome II) (Mainly Devolved) This Regulation seeks to govern which country’s law should apply to a civil dispute about a non-contractual obligation which has an international element.

Proposals first published by the Commission in 2003. The most politically sensitive aspect of Rome II was defamation, on which the UK was proactive in securing agreement to its exclusion in order to safeguard wider political agreement on the dossier. In June 2007 EU Justice Ministers took note of the agreement reached between the Council and European Parliament in the Conciliation Committee. The Parliament then approved the conciliation agreement and the Regulation was published in the Official Journal on 31 July 2007.

Following formal adoption of the Regulation, it will enter into force on 11 January 2009, the date by which it requires to be implemented in domestic law. That will require amendments to existing UK legislation, probably by Order(s) under the European Communities Act 1972. Consideration is also being given to making similar changes to rules for cases between UK legal jurisdictions, i.e. between Scotland and E&W.

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Annex C January 2008

Subject & Summary of proposal Current Position Next Steps Directive on Alternative Dispute Resolution – Mediation (Devolved) This Directive aims to facilitate alternative methods of settling disputes and simplify access to justice in civil and commercial matters. It seeks to promote the use of mediation by citizens and businesses for all civil and commercial law disputes. The Directive will apply to processes where two or more parties to cross-border disputes attempt voluntarily to reach amicable agreement with mediator assistance.

The European Commission issued a draft directive on certain aspects of mediation in civil and commercial matters in 2004, which the UK opted into. Political agreement was reached on a draft Directive at the November 2007 JHA Council.

Once the Directive is finalised, it will be necessary to consider what further action is necessary to ensure it is fully implemented in Scotland, including as regards the confidentiality of mediation and also prescription and limitation periods.

Green Paper on Matrimonial Property Regimes (Devolved) The Commission published a Green Paper in July 2007 seeking to address issues relating to matrimonial property regimes and the property consequences of potentially equivalent relationships, and provide possible solutions through the harmonisation of conflict rules in cross-border situations that increasingly arise where a person/ couple’s property is concurrently located in several Member States and is to be distributed upon divorce or separation.

Extensive consultation with key stakeholders has taken place in Scotland and rest of UK on the basis of which the UK submitted an initial, sceptical, response at the end of April 2007. The response indicated that the proposals did not adequately reflect the position of common-law jurisdictions such as Scotland and England, nor had they been prepared with proper regard for better regulation principles.

More detailed responses for Scotland and E&W will be prepared for submission to the Commission by summer 2008. The Commission will decide how to take this forward after consideration of all Green Paper responses.

Service of documents in civil or commercial matters (Devolved) This proposal seeks to amend the existing ‘Service Regulation’ (1348/2000), which governs the service of judicial and extra-judicial documents. The transmission of such documents is to be made direct and by rapid means between local bodies designated by Member States.

Agreement on a text was reached by the European Parliament and Council of Ministers in November 2007, subsequently published in the Official Journal on 10 December 2007.

We have until 13 November 2008 to give effect to the revised Regulation, although is likely that only minor changes to Scottish court rules will be necessary.

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Annex C January 2008

Subject & Summary of Proposal Current Position Next Steps Proposed Council Regulation on the law applicable to contractual obligations (Rome I) (Reserved and Devolved) Proposed Regulation aims to establish uniform rules as to which country’s law should apply in cross-border cases concerning contractual issues. There are no distinctly Scottish issues in this dossier.

After extensive consultation with key stakeholders and further consideration, UK Ministers decided not to opt into the instrument, mainly to safeguard UK financial (City of London) interests. However, the UK played a full part in the Council negotiations and political agreement to final text, meeting the UK’s main concerns, was agreed at the JHA Council of Ministers in December 2007.

The next step will be adoption by the EU of the Regulation early Spring 2008. There will need to be a Regulatory Impact Assessment and a consultation with relevant UK stakeholders, as well as further scrutiny by the House of Lords, before a decision can be taken as to whether the UK should opt in to the final instrument. If the UK decides to opt-in, amendments to existing UK legislation, probably by Order under the European Communities Act 1972, will be required. Scottish Government officials are working closely with Whitehall policy leads.

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Annex C December 2007

PRINCIPAL EU JHA CRIMINAL AND POLICE DOSSIERS JANUARY 2008 UPDATE

Subject and Summary of Proposal Current Position Next Steps

Framework Decision (FD) on Financial Penalties. (Devolved) This FD applies the principle of mutual recognition to fines. The effect, in general, is that a fine given in one EU jurisdiction can be enforced in any other.

Adopted on 24 February 2005, Council Framework Decision 2005/214/JHA.

Implementation deadline is 22 March 2007. As Scotland has its own fines regime, it was agreed that it would be appropriate for the Scottish Parliament to make the necessary implementing legislation for Scotland. An affirmative order making power was included in the Criminal Proceedings etc (Reform) (Scotland) Act 2007. It is anticipated that this measure will proceed in the new session of Parliament along a similar timetable to the implementing legislation in the rest of the UK, to ensure consistent UK wide compliance.

Framework Decision on Mutual Recognition of Confiscation Orders. (Devolved) This FD applies the principle of mutual recognition to seizure of assets. The effect, in general, is that an order to confiscate assets made by a court in one EU jurisdiction can be enforced in any other.

Formally adopted and published on 6 October 2006 as Council Framework Decision 2006/783/JHA.

Implementation deadline is 24 November 2008. Scottish Government policy leads are considering implementation and are in contact with their HO counterparts. Current proceeds of crime legislation is contained in a single UK wide statute. No particular Scottish dimensions appear to be raised in that context by the FD.

Framework Decision on the European Evidence Warrant. (Mainly devolved) This FD applies the principle of mutual recognition to the provision of certain types of readily available evidence in cross border criminal proceedings. It will begin the process of replacing traditional mutual legal assistance by, for example, creating deadlines to respond and limiting grounds for refusal.

Published 14 November 2003. Working Group negotiations commenced July 2004 and were substantially completed by 2006. A general approach was reached at the JHA Council on 2 June 2006, since when technical work on the text and forms has been largely completed.

It is anticipated that the FD will be finally adopted at some point in 2008. Implementation would be required some 2 years after adoption. Many of the functions related to mutual legal assistance are matters of criminal procedure, and are dealt with in operational terms for Scottish interests by the Crown Office. The European Evidence Warrant when implemented will therefore impact on their operations.

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Annex C December 2007

Subject Current Position Next Steps

Framework Decision on Taking into Account Convictions in the Member States of the EU in the course of new Criminal Proceedings. (Devolved) This FD proposes that the principle of assimilation be applied to previous convictions from foreign jurisdictions. The intended effect is that a foreign previous conviction is to be treated in domestic criminal proceedings as would an equivalent domestic one, according to national law.

Published 17 March 2005. Introduced to the working group in January 2006. After initial negotiations the text was simplified and this enabled rapid progress to be made. A general approach was agreed at the December 2006 JHA Council.

No other issues now appear to be at hand and, pending the lifting of some national scrutiny reservations, it ought to be formally adopted at some point in 2008. Implementation will therefore most likely be required by 2010. It is thought that Scotland may be largely compliant already as a result of provisions included in the Criminal Justice (Scotland) Act 2003.

Framework Decision on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving the deprivation of liberty for the purpose of their enforcement in the European Union. (Devolved) This initiative deals with the conditions under which a custodial sentence imposed in one Member State can be enforced in another i.e. it relates to the transfer of prisoners.

Published 24 January 2005. Amongst matters requiring lengthy negotiation were the extent to which Member States should be obliged to accept transfers and also the extent to which prisoners themselves should have a say. However, a general approach was reached at the JHA Council in February 2007, since when technical work has been proceeding with respect, for example, to the forms. In light of the changes made to the original text during negotiations, the European Parliament was invited to deliver its further opinion on the text by 26 October 2007.

Final adoption will hopefully come at some point in 2008. As an implementation window of 3 years will probably be given for this initiative, this would require national legislation to be in place by 2011. Early assessment is that the impact on Scotland will be minimal due to the small number of EU prisoners in Scotland, and vice versa.

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Annex C December 2007

Subject Current Position Next Steps

Framework Decision on the European Supervision Order in pre-trial procedures between Member States. (Devolved) The broad aim of this measure is to allow the substitution, in suitable cases, (where bail would be considered for a national in the same circumstances) of pre-trial detention for defendants in criminal proceedings arising in other Member States, with a non-custodial supervision measure in the person’s normal place of residence i.e. a type of bail, which would be mutually recognised. Recent Scottish legislation has revised bail provisions and a key interest for the Scottish Government will be the potential interplay between any EU initiative and domestic provision.

Published 29 August 2006. This initiative entered the working group in January 2007. Initial reactions were that the ambitious text proposed by the Commission would need thorough analysis and attention in the working group. This was not a German Presidency priority and thus there was only one working group meeting devoted to it during their Presidency. However, it was discussed at the JHA Council in September 2007, when an orientation debate was held. It was agreed that work should continue, but on the basis of a revised text which would be based firmly on the principle of mutual recognition, with as much respect as possible for national criminal law and procedure. The revised text was finally published in December 2007.

There is no clear information yet to indicate the level of resource which the Slovene Presidency intends to give to this dossier. Any initial further consideration of the FD will be at working group level.

Framework Decision on the Recognition and Enforcement in the European Union of prohibitions arising from convictions for sexual offences committed against children. (Devolved) This FD proposes the mutual recognition of prohibitions from working with children as a result of implementation of the penalties in the FD of 2003 on sexual exploitation of children. Scotland has its own barring regime, which, however, is broadly similar to that in the rest of the UK.

Although published in November 2004, progress was very slow on this dossier, mainly because of the wide disparity of provision with regard to disqualification between MS, thus leading to practical problems with mutual recognition. For example, some MS do not have prohibition orders as such, relying instead on scrutiny of the criminal record in the specific case. The German Presidency secured agreement at the June 2007 JHA Council that the best way in which to make progress was to improve exchange of information from national criminal records with regard to these offences.

Following the agreement at the June 2007 JHA Council, the substance of this initiative will be taken forward within the Framework Decision on exchange of information from the criminal record, referred to below.

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Annex C December 2007

Subject Current Position Next Steps Framework Decision on recognition and supervision of suspended sentences and alternative sanctions. (Devolved) This initiative seeks to enable convicted persons who have been given such sentences to return to their normal place of residence, and to facilitate the giving of such sentences, where this is otherwise appropriate, by setting out a scheme of mutual recognition and execution. The scope includes parole within the definition of suspended sentence, as well as alternative and conditionally suspended sentences. Scottish measures in this area, while similar to the rest of the UK, are distinctive both in terms of substantive provision and also procedures. For instance, there are currently no suspended sentences in Scotland.

Published on 15 January 2007 as an initiative of Germany and France. Entered the working group on 6 February 2007 and, as a major German priority, received significant attention. However, the initial text was ambitions, with a wide scope, and thus the Germans were unable to make as mush progress as they had hoped. While the June 2007 JHA Council noted progress made and agreed that negotiations should continue on the basis of a broad scope, nonetheless, the Portuguese Presidency concluded that realistic progress would only be made if some simplifications and restrictions were introduced. On this basis, and after making it the main criminal justice priority, a general approach was finally reached at the December 2007 JHA Council. Issues for the UK and Scotland were division of competencies between the issuing and executing authorities, on the basis of proportionality, and definition of authorities – for example, domestically, not all subsequent decisions post judgement are taken by judicial authorities. A satisfactory out come was reached on these matters for UK interests.

Further work will be required on the recitals and technical forms, which will be progressed during the Slovene Presidency. It is hoped that the text will be available for formal publication before the end of 2008. After this, a 3 year implementation window is provided for. It is likely that legislation will be required in Scotland to implement this FD.

Framework Decision on the Transmission to and Keeping by the Member State of Nationality of Information on Criminal Convictions. (Devolved) This FD proposes that a complete record be kept in the state of nationality of convictions against an individual anywhere

Published as a draft Framework Decision by the Commission on 12 January 2006. Although a low priority under previous Presidencies, this dossier was a major German priority and, therefore, after intensive negotiations, they were able to achieve a general approach at the June 2007 JHA Council.

Given the many technical issues in relation to connecting criminal record offices electronically, this aspect has not been included in the text which was the basis of the agreement at the June 2007 JHA Council. Technical work will continue on that text with a view to formal publication at some point in 2008. A 3 year implementation window has been

4.

Annex C December 2007

in the EU, and electronic exchange of information between criminal records. It also proposes measures to enable better understanding of what the convictions in question relate to e.g. identification of crime types which may be recorded differently between jurisdictions. Scotland has its own criminal record system.

provided. During this time a new technical Framework or Council Decision will be tabled to take forward the electronic exchange arrangements. Scottish criminal record office officials have been involved in this dossier from an early point and this process will continue into implementation of the recently agreed FD and the new initiative.

Subject Current Position Next Steps

Framework Decision on the fight against organised crime. (Devolved/Reserved) This FD seeks to add value to the EU 1998 joint action by specifically penalising participating in and directing a criminal organisation and through some approximation of penalties.

Published by the Commission on 19 January 2005, it entered the working group in March 2005. Discussions focused on very technical matters such as the definitions of “participating” and “directing”. A key issue for the UK was the interface with domestic conspiracy provisions in criminal law. This FD was formally adopted at the October 2006 JHA Council.

Technical work is continuing on the text in preparation for final publication. Implementation deadline, subject to final publication, likely to be 2009. Early analysis, subject to confirmation, is that Scots law is already compliant with the FD provisions.

Framework Decision on Minimum Standards in Criminal Proceedings. (Devolved) This FD aims to set common minimum standards with regard to certain procedural rights throughout the EU. The German Presidency published a new text, which sought to ensure consistency with ECHR. The scope covered the right to information, the right to defence (including legal assistance), the right to interpretation and the right to translation of documents. It also proposed that these rights be specifically made to apply to EAW and extradition proceedings. Implications for Scotland would depend on any text agreed, but might have had a read across to Scottish procedures in relation to initial

Published in 2004, this initiative first appeared in the working group in September 2004. However, progress was very slow partly due to the difficulty in arriving at a common approach where procedure varies in its detail across the different jurisdictions in the EU. Other concerns were in relation to legal base and potential confusion with ECHR. 6 MS, including the UK, tabled an alternative proposal focusing on purely cross border measures, such as the EAW, but also the promotion of practical measures, such as recording of police interviews, as an alternative solution. As a major German priority, this dossier was discussed at both the April and June 2007 JHA Councils. However, it was not possible for an agreement to be reached on the basis of any of the texts which were tabled at those times.

As the German Presidency devoted considerable efforts to this dossier, following on from considerable previous negotiations starting in 2004, the Portuguese Presidency did not reopen this file. Any agreement in this area may therefore be dependent on future modifications to Treaty bases and voting arrangements.

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Annex C December 2007

police detention, and legal aid.

Subject Current Position Next Steps Framework Decision and Directive on Ship Source Pollution. (Reserved) This initiative proposed a series of measures to promote more effective EU wide provision in the criminal law against ship source pollution, in the wake of a series of high profile oil tanker incidents.

Framework Decision 2005/667/JHA adopted 12 July 2005 and Directive 2005/35/EC adopted on 7 September 2005. Subject to challenge by the Commission to the ECJ on legal base grounds, in the wake of the ECJ judgment of 13 September 2005 (C-176/03, Commission v Council) on protecting the environment through criminal law, referred to below. The judgment in this case has now been given (C-440/05) on 23 October 2007. It annulled the FD on grounds that it could have been dealt with under a 1st Pillar legal base. However, the ECJ concluded that it would not be appropriate under that legal base for detailed penalty types and levels to be proposed.

It is now likely that the Commission will table, during the time of the Slovene Presidency, a fresh Directive on ship source pollution, which will take account of the ECJ judgment in case C-440/05.

Framework Decision and Directive on Intellectual Property offences. (Reserved) This initiative seeks to approximate criminal law measures across the EU for counterfeiting intellectual property.

Published on 12 July 2005, this initiative entered the working group in October 2005. The Commission has now published a new proposed Directive on 26 April 06, replacing the previous combination of Directive/FD, in line with the their interpretation of ECJ Case C 176/03, referred to below. Negotiations were suspended in view of the further uncertainty created by the Commission challenge to the ship source pollution initiative, but tentatively resumed under the German Presidency, on a conditional basis, to look at issues in relation to necessity and scope. The UK has questioned the need for any new measures arguing that sufficient approximation has already been achieved through the Directive on the Enforcement of Intellectual Property Rights 2004/48/EC.

Further progress depends in part on the worked through implications of the ECJ judgments in environment protection and ship source pollution, and whether, for instance, the principles outlined in the judgments have application beyond environment protection type matters. However, the conclusions of experts as to whether there is actually a demonstrated need for new EU level legislation on this area will also be central.

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Annex C December 2007

Subject Current Position Next Steps

Directive on the protection of the environment through criminal law (Reserved/Devolved) The Directive proposes establishing a minimum set of serious environmental offences that should be considered criminal throughout the Community when committed intentionally or with at least serious negligence. The offences should be punishable by effective, proportionate and dissuasive criminal sanctions for natural persons, whereas criminal or non-criminal sanctions are to be applied to legal persons. Scope covers a broad range of environmental subject matter, provisions for the protection of which are currently in a range of UK and Scottish legislation.

This proposal, published on 9 February 2007, replaces previous proposals, in order to implement the findings of the European Court of Justice in its judgment of 13 September 2005 (C-176/03, Commission v Council), which annulled the Framework Decision 2003/80/JHA on the protection of the environment through criminal law. According to the judgment, the Community may take measures relating to the criminal law of the Member States which it considers necessary in order to ensure that the rules it lays down on environmental protection are fully effective. Some negotiations have already taken place, mainly with regard to technical environmental provisions. The matter of criminal law provisions will be dealt with substantively later, but the UK and many other MS have already argued that the Commission’s proposals in this matter are too detailed and not justified.

The June 2007 JHA Council noted progress to date and negotiations continued under the Portuguese Presidency. Substantive discussions on criminal law aspects have now begun in the wake of the ECJ judgment on ship source pollution, referred to above. The working group now appear set to agree a text which does not make detailed provisions with regard to the types of penalty and levels of punishment, in line with their interpretation of the ECJ cases. However, as this is a 1st Pillar Directive, the procedure in this instance is co-decision with the European Parliament. The Parliament has yet to give the Directive substantive consideration, but this will take place during the Slovene Presidency.

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Annex C December 2007

Subject Current Position Next Steps

Proposal for a Council Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters provided for by Title IV of the TEU. (Reserved) This initiative aimed to improve mutual trust in police and judicial co-operation in criminal matters, by making detailed provisions in relation to the area of data protection. However, the German Presidency published a simplified, revised text which sought to make overarching provision at a more general level.

Commission proposal adopted on 4 October 2005. Discussions in the working group focused on a number of technical issues, but there was also a policy debate on the extent to which the FD should simply cover cross border data exchange, or whether it should look at broader harmonisation of provisions EU wide. Other issues related to national security and exchanges of data with 3rd countries. Given slow previous progress the German Presidency proposed a new, more strategic approach. The June 2007 JHA Council noted that progress had been made on this dossier on the basis of the new text, and asked the working group to take the negotiations forward. Agreement was secured at the September 2007 JHA Council that scope ought to be restricted to cross border data, with a review clause 3 years after implementation, and that release of data to 3rd countries or international bodies would be permissible, but only if a number of conditions, including prior consent, were met. Further intensive negotiations took place under the Portuguese Presidency, which was able to guide the FD to a general agreement at the November 2007 JHA Council.

Further technical preparations on the FD will proceed under the Slovene Presidency, with a view to formal adoption as soon as possible in 2008.

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Annex C December 2007

Subject Current Position Next Steps

Prüm Convention (Devolved/Reserved) The Convention has been entered into by 7 Member States and makes provision for closer co-operation in a range of areas, such as DNA data and fingerprint exchanges, joint police operations, terrorism, air marshals, etc. There are a total of 52 Articles, arranged in 7 thematic Chapters. For information exchanges, the Convention operates on an “anonymous” hit/no hit basis. If a hit is confirmed then more detailed information has to be requested in accordance with national law, using conventional mutual legal assistance channels if appropriate.

The German Presidency proposed to extract from the Convention a selection of key 3rd Pillar measures, mainly in the area of information exchange, and convert them into an EU Council Decision. Therefore, provisions on, for example, air marshals and cross border “hot pursuit” were removed. This approach was agreed and the dossier, as a major German priority, received high priority. As a result of intensive negotiations, agreement was reached on a text based on the subject areas mentioned above at the June 2007 JHA Council. Work then continued on a technical “implementing” Council Decision, which achieved general agreement at the November 2007 JHA Council.

The next steps are to continue the implementing work at a practical level, which will proceed under the Slovene Presidency. Scotland, of course, has its own DNA and fingerprint legislation, and Scottish officials and experts will be involved in the implementation for the UK, in respect of these devolved interests.

Framework Decision on combating racism and xenophobia (Devolved/Reserved) This initiative seeks to provide a minimum level of EU wide harmonisation of the substantive law in respect of racist and xenophobic crime. The provisions also contain references to religious hatred, but in the context of an aggravating factor in racist crime. While legislation in these matters is largely reserved, religious hatred is a devolved matter.

The original proposal for EU legislation in this matter was proposed by the Commission in November 2001. However, despite several attempts over the years, it was not possible to arrive at agreement. Some of the issues which caused difficulties were in relation, for example, to freedom of expression. However, a German Presidency priority was to promote fundamental rights in JHA, which saw a revised text tabled for negotiations. This text formed the basis on which a general approach was agreed at the April 2007 JHA Council.

The text is now undergoing further technical revision in preparation for final publication. Legislation in the UK, including the Scottish aspects, is already compliant with the terms of the FD.

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