Select Committee on European Scrutiny Fifteenth Report


STRENGTHENING THE PENAL FRAMEWORK TO PREVENT UNAUTHORISED ENTRY AND RESIDENCE



(a)

(21969)

13739/00


(b)

(22350)

8115/01



(c)

(22351)

8242/01


(d)

(23077)

8632/01




Draft Council Framework Decision on the strengthening of the penal framework to prevent the facilitation of unauthorised entry and residence. Draft Council Directive defining the facilitation of unauthorised entry, movement and residence.

Draft Council Framework Decision on the strengthening of the penal framework to prevent the facilitation of unauthorised entry and residence. Draft Council Directive defining the facilitation of unauthorised entry, movement and residence.

Outcome of proceedings of the Mixed Committee at the level of ambassadors.


Draft Council Framework Decision on the strengthening of the penal framework to prevent the facilitation of unauthorised entry and residence. Draft Council Directive defining the facilitation of unauthorised entry, movement and residence.

Legal base:Articles 31(e) and 34(2)(b) EU; consultation; unanimity

Article 63(3)(b) EC; consultation; unanimity

Deposited in Parliament:(a) 11 January 2001

(b)26 April 2001

(c)26 April 2001

(d) 21 June 2001

Department:Home Office
Basis of consideration:(a) Minister's letter of 15 January 2002

(b),(c) and (d) EM of 15 January 2002

Previous Committee Report:(a) HC 28-ix (2000-01), paragraph 1 (21 March 2001), HC 152-i (2001-02), paragraph 7 (18 July 2001)
To be discussed in Council:JHA Council 28 February/1 March 2002
Committee's assessment:Legally and politically important
Committee's decision:(a), (b) and (c) Cleared

(d) Not cleared; further information requested


Background

  6.1  This proposal consists of a Framework Decision on jurisdiction and penalties in relation to 'facilitation' offences (offences concerned with facilitating illegal immigration and trafficking in human beings), together with a Directive on the material scope of the offences to be adopted under Article 63(3)(b) EC and defining the facilitation of unauthorised entry, movement and residence.

  6.2  The previous Committee considered earlier versions of the Framework Decision and the Directive on 29 November 2000 and considered the then current version (document (a)) on 21 March 2001. We also considered that document on 18 July 2001, when we asked the Minister to provide an account of where matters stood with the proposal and to deposit the then current versions.

  6.3  We repeated the concern expressed by the previous Committee that those representing bona fide organisations should not be penalised by this measure. We did not consider that those who act for humanitarian reasons could be adequately protected by prosecution discretions, or by the courts taking humanitarian reasons into account by way of mitigation. We considered that conduct which was in furtherance of humanitarian concerns with no motive of gain ought not to be criminal in the first place, and asked the Minister to explain the view that any 'humanitarian clause' should be optional rather than mandatory.

  6.4  Finally, we were concerned that the Government had seen fit to make a statement in the Justice and Home Affairs Council on 28 and 29 May 2001 that the UK would lift its scrutiny reserve when the matter came up for formal adoption in the Council, even though we had not cleared the document from scrutiny. We deplored this practice and asked the Minister to explain why such an announcement was made.

The scrutiny process

  6.5  Documents (b) and (c) were deposited on 30 April 2001, but no Explanatory Memorandum (EM) on them was received until 15 January 2002. This EM also covers document (d), the current version of the proposal. This document is said to have been deposited on 20 June 2001, but we understand that it was subsequently withdrawn. At all events, no EM on this document was produced for over six months.

  6.6  In her letter of 15 January 2002, the Parliamentary Under-Secretary of State at the Home Office (Angela Eagle) explains that:

"The delay in replying to the Committee's Report was due to confusion over whether a reply should be sent in light of the provisional agreement reached at the May 2001 JHA Council."

  6.7  Similarly, in her EM of 15 January 2002 the Minister explains that the delay in producing an EM on documents (b), (c) and (d) was due to confusion over whether such an EM should be deposited, in the light of the provisional agreement reached at the May 2001 JHA Council.

  6.8  We find it difficult to understand how such confusion could have arisen in view of the specific requests from both the previous Committee and ourselves to be kept informed of the outcome of discussions. We draw attention, in particular, to our request of 18 July 2001[24] to the Minister asking for an account of where matters then stood with the draft Framework Decision and the Directive and for deposit of the then current revised versions. We also remind the Minister of her evidence given to us on 31 October 2001 in which she undertook to respond within three weeks to any points we raised and to provide an Explanatory Memorandum within ten days of deposit of the document to which it refers.

  6.9  Documents (a),(b) and (c) concern an earlier version of the proposal which was submitted as a "B" point[25] at the Justice and Home Affairs Council on 28 and 29 May 2001. Document (d) is the current version which bears the date of 11 May 2001. It now seems likely (though this is not made clear in the EM) that it was document (d) which was considered at the Council on 28 and 29 May 2001. The letter of 6 June 2001 from the then Minister of State at the Home Office (Mrs Barbara Roche) to the then Leader of the House recording the outcome of the JHA Council explains that the UK maintained its parliamentary scrutiny reserve, "but made it clear that it would lift the reserve when the points came up for formal adoption". The letter further explained that the text would be revised by lawyer-linguists before their formal adoption, which might take place in the course of June 2001.

  6.10  Document (d) is the latest version of the proposal to be deposited, but it is not explained whether this is the version which reflects the outcome of the JHA Council and incorporates any revisions by jurist-linguists. The Minister states in her EM of 15 January 2002 that "the Texts have only recently returned from lawyer linguists". Given the express request we made to the Minister on 13 July 2001 for an account of where matters stood with the proposal, it would have been at least helpful if the EM had made clear (if indeed this is the case) that the texts of 11 May 2001 were the ones put before the JHA Council, that it is these which have been the subject of 'political agreement' and that it is these which have been revised by lawyer- linguists.

The revised proposal

  6.11  The draft Directive defining the facilitation of unauthorised entry, movement and residence has undergone a number of minor changes. The principal amendment has been to Article 1(2). It is now provided that a Member State may decide not to impose sanctions in respect of the act of intentionally assisting a person to enter, or transit across, the territory of a Member State in breach of the laws of that State on the entry or transit of aliens. Member States may so decide where the aim of the behaviour is to provide humanitarian assistance to the person concerned. The provisions of Article 1(2) do not apply to assisting a person to reside within the territory of a Member State in breach of the laws of that State where this is done for financial gain.

  6.12  The provisions of Article 1(2) constitute a 'humanitarian clause', which is designed to meet the concerns expressed by non-governmental organisations (and by the previous Committee) that persons such as those organisations, legal representatives and close relatives who assist asylum seekers and refugees from purely humanitarian motives could find such activities made criminal by Article 1. It is nevertheless apparent from the text of 11 May 2001 that one Member State was opposed to the clause and called for its deletion, whilst another was opposed to its optional nature.

  6.13  The text of the Framework Decision was also the subject of detailed amendment. The principal amendments relate to the penalties for intentionally assisting a person to enter or transit across the territory of a Member State (the offence under Article 1(1)(a) of the Directive) where the offence is committed as an activity of a criminal organisation[26] or where the offence is committed 'while endangering the lifes [sic] of the persons who are the subject of the offence'. In these cases, a minimum penalty of at least eight years is to be provided for. This is qualified by the addition of a new Article 1(4) which permits the lower penalty of six years to be provided for 'if imperative to preserve the coherence of the national penal system'.

  6.14  The Framework Decision has also been amended by the addition of a further ground of jurisdiction under Article 4(1)(c) requiring Member States to make rules to establish jurisdiction where the offence is committed for the benefit of a legal person established within that Member State. A new Article 4a provides that Member States which do not extradite their own nationals must establish jurisdiction over the offences when committed by their own nationals outside the national territory[27].

The Government's view

  6.15  The Minister's letter of 15 January 2002 replies to the questions raised by the previous Committee on 21 March 2001.[28] Her EM of the same date, explains documents (b), (c) and (d).

  6.16  The previous Committee had asked the then Minister if she had consulted bona fide humanitarian organisations about the 'humanitarian clause' and, if so, to state whether they were content with the protection provided by it, even in circumstances where it is provided that the offence of facilitating entry can be committed irrespective of any motive of financial gain. The Minister replies:

"Although the Government has not consulted such organisations directly, they have nonetheless had the opportunity to comment on the draft instruments. The Government believes that protection for the legitimate work of refugee organisations should not extend to condoning deliberate breaches of immigration control by such organisations. Although we have accepted the inclusion of an option "humanitarian clause", we do not intend to apply it in the UK."

  6.17  The previous Committee had also asked the then Minister to inform it of the outcome of discussions on the question of the minimum maximum penalty for the most serious facilitation offences. In reply, the EM explains the operation of the new Article 1(4), which provides for a lower maximum penalty of six years and was drafted "to address the concerns of those Member States who considered that a minimum maximum penalty of 8 years' imprisonment would have been out of proportion with their national penalty system". In her letter, the Minister comments on these provisions as follows:

"The Government considers that the new wording in Article 1(4) of the Framework Decision is a sensible compromise made to enable the instrument to be concluded. Given that a number of Member States will make a declaration that they will apply a maximum penalty of at least 10 years, the Government considers that the concept of imposing severe sanctions, as mandated by the Feira European Council, has not been lost."

  6.18  The EM explains the detailed amendments which have been made to both the Directive and the Framework Decision. It also explains that the drafts were subject to debate at the Justice and Home Affairs Council on 28 and 29 May 2001 and refers to the letter of 6 June 2001 from the then Minister reporting that "the JHA Council had reached political agreement on the draft instruments". The EM also points out that the texts have only recently returned from lawyer linguists and that a number of Member States have scrutiny reserves outstanding. The Minister concludes by stating that she expects the Directive and the Framework Decision to be put to a Council for adoption as an 'A' point[29] at the February Justice and Home Affairs Council.

Conclusion

  6.19  We consider that there have been serious failings in the presentation of this proposal for scrutiny. We do not understand why there should have been any confusion over the need to provide an Explanatory Memorandum to accompany the latest texts of this proposal, and why it should have taken over six months for it to be produced, particularly when we had specifically requested the Minister on 18 July 2001 to provide an account of where matters stood with this proposal and to deposit the current revised versions. We would be grateful for an explanation from the Minister.

  6.20  We also ask the Minister to identify which text of the proposal was the subject of 'political agreement' at the Justice and Home Affairs Council in May 2001, to identify the text which will be presented to the JHA Council on 28 February and 1 March as an 'A' point and to confirm that the latter will be deposited in good time before that Council.

  6.21  On the substance of the proposal, we ask the Minister if she agrees that the new Article 4a on the extradition of a State's own nationals has already been overtaken by the European Arrest Warrant proposal, and that it should be further amended so as to avoid inconsistency between the two instruments.

  6.22  We also ask the Minister whether it was the UK which opposed inclusion of a 'humanitarian clause', and to explain further the reasons for her view that this clause should not be applied in this country.

  6.23  We are considering whether to recommend a debate on this document, and will make a decision when we have the Minister's reply. We therefore look forward to a prompt reply from the Minister and shall hold document (d) under scrutiny in the meantime. We clear documents (a) to (c), which have been superseded.


24  See HC 152 -i (2001-02), paragraph 7 (18 July 2001). Back

25  i.e. a point which is for discussion, rather than formal adoption. Back

26  As defined in the Joint Action of 21 December 1998: OJ No L 351, 29.12.98, p.1. Back

27  Since the Framework Decision on the European Arrest Warrant will require every Member State to abandon any rule preventing the extradition of its own nationals, this provision appears to have no purpose.  Back

28  See HC28-ix (2000-01), paragraph 1 (21 March 2001). Back

29  i.e. a point adopted without discussion. Back


 
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