The European Scrutiny Committee has made further
progress in the matter referred to it and has agreed to the following
Draft Council Framework Decision laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of drug trafficking.
|Legal base:||Articles 29, 31(e) and 34(2)(b) EU; consultation; unanimity
|Document originated:||23 May 2001
|Forwarded to the Council:
||27 June 2001|
|Deposited in Parliament:
||18 July 2001|
|Basis of consideration:
||Minister's letter of 29 November 2001|
|Previous Committee Report:
||HC 152-iv (2001-02), paragraph 3 (7 November 2001)
|To be discussed in Council:
||No date set|
|Committee's assessment:||Legally and politically important
|Committee's decision:||Not cleared; further information requested
1.1 At the Tampere European Council in October 1999,
Member States agreed on a commitment to establish common definitions
and penalties for a number of offences, including drug trafficking.
1.2 The draft Framework Decision defines drug trafficking
and related offences, and provides for maximum penalties of not
less than five years' imprisonment in serious cases. The Framework
Decision also provides for a number of aggravating and mitigating
circumstances to be taken into account in sentencing, for the
liability of legal persons, and for the making of rules on jurisdiction.
We considered the draft Framework Decision on 7 November 2001
when we put a number of questions to the Minister.
1.3 We were concerned that the definition of trafficking
as set out in Article 1 of the Framework Decision might have a
narrower scope than existing international instruments and domestic
law, since it appeared to depend on the notion of making a profit.
We were also concerned about the vagueness of the provisions on
aggravating and mitigating circumstances, and the narrowness of
the rules on jurisdiction.
The Minister's letter
1.4 In his letter of 29 November 2001, the Parliamentary
Under-Secretary of State at the Home Office (Mr Bob Ainsworth)
explains that negotiations on the proposal have not progressed
beyond discussion of the definitions in Article 1, and that there
has been limited opportunity to establish the Commission's intentions
in respect of subsequent Articles or for Member States to make
known their views formally.
1.5 In relation to Article 1, the Minister refers to
our concern that the inclusion of the notion of profit in the
definition of "illicit drug trafficking" would cause
the definition to be narrower in scope than the definition in
the 1988 UN Convention against Illicit Traffic in Narcotic Drugs
and in UK law. On this point the Minister reports that a majority
of Member States, including the UK, favour deleting the notion
of profit and that the Presidency has agreed to produce a new
text, aligning the definition more closely with the UN Convention.
1.6 We noted that, despite the elaborate nature of the
provisions on aggravating and mitigating circumstances for the
purpose of sentencing, no attempt had been made to define what
was meant by "serious" for the purpose of the minimum
sentence of five years under Article 4(1). We asked if the Minister
intended to put forward any proposals in this regard. The Minister
comments as follows:
"The UK already has a well advertised position that,
as a priority, it wants to see tough common EU minimum maximum
sentences for criminals trafficking in large quantities of harmful
(i.e. class A drugs). Such a requirement is already met in the
UK, where there is a maximum penalty of life imprisonment for
trafficking in Class A drugs. But the UK wishes to ensure that
other Member States have tough penalties too. Our overall objective
in this critical area of the instrument would therefore be to
seek a much more specific definition of "serious" and
also to obtain a considerable increase in the current 5 year penalty
for "serious" offences and the proposed 7 year penalty
for "serious" offences with additional aggravating circumstances.
Exactly how this is to be achieved remains to be negotiated with
other Member States, who have yet to reveal their formal positions
on this. Any solution reached would also need to take account
of the very different systems which currently exist for determining
penalties for drug trafficking offences in various Member States."
1.7 We drew attention to the unclear scope of Article
5(1)(c) relating to "persons who are unable to exercise their
free will", and the somewhat random choice of examples in
Article 5(1)(e) to denote persons in a position of trust or authority.
On these points, the Minister comments as follows:
"With regard to Article 5(1)(c) we agree with the Committee
that the definition of "persons who are unable to exercise
their free will" is not entirely clear. Officials will seek
to clarify the position once negotiations reach that stage. However,
it is thought unlikely that the Commission intend to include all
drug addicts within the definition of "persons who are unable
to exercise their free will" but that rather they are seeking
to recognise the seriousness of offences involving the mentally
handicapped. We will seek to clarify this.
"The purpose of the Commission's decision to draft Article
5(1)(e) relating to positions of authority in specific rather
than generic terms has not been made evident. However, we agree
with the Committee that the list of occupations in the article
is not sufficiently comprehensive to cover the abuse of a position
of trust or authority, and therefore favour negotiating a more
1.8 In response to our remarks on the narrowness of the
rules of jurisdiction in Article 9, the Minister comments as follows:
"The terminology is similar to that adopted in other
EU instruments and would not in our view constrain the UK from
exercising wider powers of jurisdiction in accordance with UK
law and the provisions of the 1988 UN Convention."
1.9 We are grateful to the Minister for his helpful
letter informing us of the state of negotiations on the proposal,
and for explaining the views of the Government on those parts
which have yet to be negotiated.
1.10 We welcome the indication given by the Minister
that the definition of drug trafficking in Article 1 will be aligned
more closely with the 1988 UN Convention, and we shall look forward
to sight of the revised text.
1.11 We note the Minister's comment that the provisions
of Article 9 on jurisdiction would not prevent the UK from asserting
jurisdiction on the wider basis available under UK law and provided
for in the 1988 UN Convention. However, it seems to us that, with
the adoption of the proposals for a European arrest warrant, the
provisions of Article 9 will need to be reconsidered, since it
will no longer be possible to refuse extradition on the grounds
of the person's nationality. We do not see any compelling reason
why the rules on jurisdiction should not be more closely aligned
with those of the 1988 Convention, particularly in relation to
nationals or persons habitually resident within the national territory.
We ask the Minister if he agrees with this approach.
1.12 We shall hold the document under scrutiny pending
the deposit of the revised text.