The Hague Programme on strengthening freedom, security and justice in the European Union

17 Nov 2004

The Hague Programme on strengthening freedom, security and justice in the European Union

About the Speech:

Address by the Minister of Justice, Equality and Law Reform, Mr Michael McDowell, T.D., to the Institute of European Affairs.
Wednesday 17 November, 2004
‘The Hague Programme on strengthening freedom, security and justice in the European Union’

Introduction

Ladies and Gentlemen, it is a great pleasure to be here today in the Institute of European Affairs.

I have been invited to talk to you about the both the significance, and the substance, of the new Hague Programme on strengthening freedom, security and justice in the European Union which was adopted by the European Council on Friday 5 November, 2004.

I intend to spend no more than 25 minutes speaking after which I will be happy to take questions.

Background and Context

The Hague Programme builds on work which has been ongoing in the framework of the European Union and the European Community in the area of justice and home affairs for many years now.

That cooperation, until the Maastricht Treaty in 1993, took place for the most part outside Community structures and was intergovernmental in nature. The Maastricht Treaty brought that cooperation within the new structures of the Union while preserving many of its essential intergovernmental characteristics, through the creation of the separate Justice and Home Affairs pillar.

The 1997 Treaty of Amsterdam gave a further impetus to the development of cooperation in these areas by making the development of the Union as an area of freedom, security and justice one of the five key objectives of the Union. The Treaty of Amsterdam also integrated those aspects of cooperation in JHA matters directed to visas, asylum, immigration and free movement into the Community framework.

The European Council, in conjunction with the entry into force of the Amsterdam Treaty, devoted a special meeting to the creation of the Union as an area of freedom, security and justice in Tampere in October 1999. The Tampere European Council Conclusions emphasised the importance which the European Council attached to that objective and launched an ambitious five year project to that end. The Tampere Conclusions represented a set of key policy orientations and priorities for the purpose of creating an area of freedom, security and justice as well as a five year work programme for the Justice and Home Affairs Council..

Our Presidency of the European Union coincided with the final year of the Tampere programme and a key emphasis of the Irish Presidency therefore was to bring work on important elements which remained outstanding to conclusion. We can, I believe, report a significant degree of success in that respect.

The Irish Presidency Programme, however, also included a commitment to launch the process leading to the development of the post-Tampere agenda in the JHA sector. The European Council in June agreed that the time had come to launch that next phase of the process of creating a genuine area of freedom, security and justice. They therefore invited the Council and Commission to prepare a programme for the coming years. The June European Council Conclusions set the broad parameters for what was to become the Hague Programme, when stating that the new Programme:

• must be commensurate with that challenge and with the expectations of our citizen;
• should be practical, building on work already underway arising from the Tampere programme and an evaluation of first generation measures;
• should be grounded in the principles of subsidiarity, proportionality, and solidarity;
• should make real and substantial progress towards enhancing mutual confidence and promoting common policies, including practical cooperation, to the benefit of our citizens.

The European Council also set an ambitious timeframe for that task, asking for it to be ready for consideration by them before the end of 2004.

The June European Council was significant, of course, for much more than that. The agreement reached on the Draft Treaty establishing a Constitution of Europe was the outstanding achievement of that Council. It was also one which in turn had implications for the mandate entrusted to the Netherlands Presidency. That then was the context and background against which the Netherlands Presidency set about the preparation of the new Hague Programme.

Now let me turn to the Hague Programme itself.

The Hague Programme

Nature of the Hague Programme

So what is the Hague Programme? The Hague Programme is intended to be the successor programme to Tampere. It is, like the Tampere programme, intended to be a five year programme. It is also intended, like the Tampere programme, to be comprehensive in its scope. It therefore deals with all aspects of policies relating to the area of freedom, security and justice, including their external dimension, and includes in the region of 90 envisaged actions for this purpose.

The Programme was extensively discussed, prior to its adoption by the European Council, by the Justice and Home Affairs Council at each of the three Council meetings during the Dutch Presidency and also at the November meeting of the General Affairs and External Relations Council.

General Principles

One of the significant aspects of the Programme is that it is specifically underpinned by a number of general principles. There are four broad principles to which I would refer :

• Firstly, the need for a pragmatic approach building on ongoing work arising from the Tampere programme, current action plans and an evaluation of first generation measures – this is clearly derived from the European Council mandate;

• Secondly, that the Programme is grounded in the general principles of subsidiarity, proportionality, solidarity and respect for the different legal systems and traditions of the Member States – again, this is clearly derived from the European Council mandate;

• Thirdly, that while the Treaty establishing a Constitution of Europe serves as a guideline for the level of ambition, the existing Treaties provide the legal basis for Council action until such time as the Constitutional Treaty takes effect; and,

• Finally, that fundamental rights, as guaranteed by the European Convention on Human Rights and the Charter of Fundamental Rights, contained in Part II of the Constitutional Treaty - including the explanatory notes, as well as the Geneva Convention on Refugees, must be fully respected.

These general principles can be said, therefore, to provide the base on which the Hague Programme rests.

Implementation and Evaluation

Those general principles are further underlined by the emphasis placed on the need for effective implementation and evaluation of measures and on the provision for a mid-term review.

The Council is being required to develop in 2005 practical methods to facilitate timely implementation in all policy areas, including proper plans to ensure effective national implementation and regular progress reports by the Commission to the Council.

It is intended that those evaluations will be systematic, objective, impartial and efficient and capable of addressing the functioning of the various measure for the purpose of suggesting solutions for problems encountered in their implementation and/or application. The Commission will also be also required to prepare a yearly evaluation report of measures which it is to submit to the Council and inform the European Parliament and national parliaments.

The Hague Programme also makes provision for a mid-term review by 1 November 2006. This review is intended to coincide with the coming into force of the Constitutional Treaty. It is intended to enable the Commission to report ‘… to the European Council on progress made and to propose necessary additions to the programme …’. This review will clearly also be able to take account of the possibilities offered by the coming into force of the Constitutional Treaty.

Experience with the Tampere programme has shown that a programme in the JHA sector cannot remain static. The European Council has updated the Tampere programme from time to time in response to changing circumstances and developments. Provision for a mid-term review, particularly in light of the impact the new Constitutional Treaty will have, is both a sensible and pragmatic proposal. The continuing emphasis on evaluation and implementation is also important. This is something which the Irish Presidency emphasised in the Declaration on Combating Terrorism in response to the tragic events of Madrid in March.

I would now like to turn to the substance of the Hague Programme itself.

Specific Orientations in the Hague Programme

In terms of substance, the Programme is divided into four areas. These are:

• Strengthening Freedom;
• Strengthening Security;
• Strengthening Justice, and
• External Relations.

I would now like to outline some key elements in the four areas in question. I do not intend to rehearse each and every aspect of the Hague Programme under the four headings but would propose to highlight three or four aspects of the programme in each instance which I believe are, or will be, of particular significance for the future development of cooperation in justice and home affairs matters in the Union.

Strengthening Freedom

The Strengthening Freedom section of the Programme is concerned with policies in relation to citizenship of the Union, asylum and migration policy including their external dimension, integration of third country nationals, and the management of migration flows.

There are a number of aspects of the Hague Programme in this respect which I believe are important. The key elements include :

• First, the request to the Council to adopt a decision, no later than 1 April 2005, to apply qualified majority voting and co-decision procedures to certain aspects of asylum, immigration and free movement policies where it does not currently apply.

The immigration and asylum matters to become subject to quality majority voting and co-decision are areas covered by Title IV of the Treaty Establishing the European Community but the move to qualified majority voting and co-decision will not include measures in the area of legal migration. The European Council’s request in this respect derives from an existing provision of the Treaty - Article 67 (2) – and is consistent with the Declaration adopted by the European Council in conjunction with the Nice Treaty. It also responds to the views expressed by the European Parliament.

• Second, the target of 2010 for the further development of a Common Asylum System through the adoption by that date of a common asylum procedure and a uniform status for those who are granted asylum or subsidiary protection, consistent with the full and inclusive application of the Geneva Convention.

This is in keeping with the objectives set out in the Draft Treaty and will be based on an evaluation of the first phase legal instruments in this field which is to be completed by 2007.

• Third, The proposed policy plan on legal migration which will include admission procedures capable of responding promptly to fluctuating demands for migrant labour.

The Hague Programme, in calling for this policy plan, also makes clear that the competence for determining the volumes of admission of labour migrants remains with the Member States.

• Fourth and finally in this context, the continuing emphasis on the external dimension of asylum and immigration.

This was an important feature of the Tampere Programme. It remains important that the Union should continue to work in partnership and cooperation with countries of origin.

Strengthening Security

The Strengthening Security section of the Programme covers police cooperation and the fight against terrorism with particular reference to the exchange of information, the management of crises and development of operational cooperation.

The three key elements of the Programme I would identify in this connection are :

• First, the emphasis placed on the exchange of information for the purpose of combating cross-border crime and terrorism, including the commitment that the exchange of such information should be governed by the principle of availability subject to appropriate safeguards.

The exchange of information was a key issue identified in the European Council Declaration on Combating Terrorism for the purpose of developing practical police cooperation. I therefore welcome the continuing emphasis which has been placed on this in the context of the Hague Programme. The principle of availability for this purpose is intended to mean that a law enforcement officer in one Member State who needs information in order to perform his duties would be able to obtain that information from another Member State. Information would be made available for stated purposes only and would be subject to relevant conditions and safeguards.

• Second, the recognition that the effective prevention and combating of terrorism requires Member States to focus on the security of the Union as a whole as well as their own security.

This flows from the changing nature of the security threat and a recognition that cooperation between the intelligence and security services of Member States is absolutely necessary if we are to combat terrorists who move and cooperate across borders. The Hague Programme’s promise of a continuing focus on the March European Council Declaration, and the EU Action Plan on combating terrorism endorsed by the European Council in June, in the broader context of the fight against terrorism is also welcome.

• And third, the increased emphasis on more targeted cooperation through the proposal, for example, that Europol should produce yearly threat assessments which would focus on serious forms of organised crime in conjunction with the development of a methodology for increased intelligence-led law enforcement at EU level.

Strengthening Justice

The Strengthening Justice section of the Programme covers judicial cooperation in criminal and civil matters as well as the more general issues of confidence building and mutual trust and the expanded role of the European Court of Justice.

The key elements of the Programme for this purpose include :

• First that mutual recognition will remain the guiding principle for the development of judicial cooperation in both criminal and civil matters and that the emphasis should be on taking forward and completing the existing programmes of measures to implement that principle, before attention is given to additional proposals.

This approach is, of course, consistent with the Draft Treaty which provides that judicial cooperation in criminal and civil matters should be based on the principle of mutual recognition and is also consistent with the principles enunciated by the European Council in Tampere. The emphasis on completing the existing programmes of work in these areas is also consistent with the mandate set down by the European Council in June as well as the need for pragmatism and realism.

• Second, the emphasis on the development of mutual trust and confidence building for the purpose of strengthening judicial cooperation.

The Hague Programme emphasises a number of measures for this purpose, including the further development of judicial networks and organisations. The Hague Programme also importantly acknowledges the need to respect the diversity of legal systems of Member States.

• The third and final element, I would point to in the context of strengthening justice, is the emphasis on the role of Eurojust and the proposal to reconstitute it on the basis of a European law.

External Relations

The final section of the Hague Programme deals with the external dimension of the justice and home affairs agenda. The key development here will be the strategy to be presented to the European Council by the Commission and the Secretary General/High Representative Solana by the end of 2005 covering all external aspects of the Union policy on freedom, security and justice.

Conclusion

That then is a brief overview of the main elements of the Hague Programme.

The Hague Programme will now provide the framework for action by the Union in the JHA sector for the next five years. It will, more immediately, also provide the framework by which the Commission will prepare an Action Plan in 2005 with proposals for concrete actions to give the programme effect and a timetable for their adoption and implementation.

The Hague Programme at another level represents the continuation of a process begun in Tampere. The Hague Programme is a continuation and development of the work begun under the Tampere Programme. It is evolutionary therefore not revolutionary, but that is as it should be. It also represents in its own right another important staging post in the development of the Union as an area of freedom, security and justice. The Hague Programme moreover will be capable of providing the bridge between the existing treaty framework and the new Treaty establishing a Constitution for Europe at the appropriate time.

The Hague Programme also responds to a central concern of the citizens of the Union. The issues dealt with in the Hague Programme are among those which have been shown to be of greatest direct concern to those citizens. They attach great importance to the practical expression of the concept of freedom, security and justice. Events such as the 11 September 2001 attacks in the United States and the 11 March attacks in Madrid this year serve to underline those concerns.

The Hague Programme finally represents an important reaffirmation by the European Council of the importance which they attach to the development of the Union as an area of freedom, security and justice. The European Council underlined the need to pursue with determination the objective building a common area of freedom, security and justice back in June. The adoption of the Hague Programme by the European Council now is a clear signal of their determination to press ahead with that work. The European Council have also signalled clearly their intention to keep the matter under review.

It will be clear from what I have already outlined that the Hague Programme is a programme of some considerable substance for the period immediately ahead. The Netherlands Presidency are to be congratulated for the manner in which they have discharged the mandate entrusted to them by the European Council in June. They have, I believe, not only fully respected that mandate but have discharged it skilfully, by successfully combining ambition and realism in equal measure.