Select Committee on European Scrutiny Twenty-Fifth and Twenty-Sixth Report


STRENGTHENING THE PENAL FRAMEWORK TO PREVENT UNAUTHORISED ENTRY AND RESIDENCE


(a)
(23077)
8632/01



(b)
(23289)
10704/01

(c)
(23290)
11015/01


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 Directive defining the facilitation of unauthorised entry,
transit and residence.


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


Legal base:(a) and (c) Articles 31(e) and 34(2)(b) EU; consultation; unanimity
(a) and (b) Article 63(3)(b) EC; consultation; unanimity
Deposited in Parliament: (a) 21 June 2001
(b) and (c) 6 March 2001
Department:Home Office
Basis of consideration: (a) EM of 15 January 2002; Minister's letter of 18 March 2002
(b) and (c) EM of 19 March 2002; Minister's letter of 10 April 2002
Previous Committee Report: (a) HC 152 -xv (2001-02), paragraph 6 (30 January 2002) and HC 152-xxii (2001-02), paragraph 8 (20 March 2002)
To be discussed in Council: No date fixed
Committee's assessment:Legally and politically important
Committee's decision:Cleared



Background

  11.1  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), and 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. The earlier version of the proposal which we considered on 20 March combined the Framework Decision and the Directive in the one document (document (a)). The current versions are in separate documents, document (b) being the draft Council Directive and document (c) being the draft Council Framework Decision.

  11.2  The previous Committee considered earlier versions of the Framework Decision and the Directive on 29 November 2000 and considered the then current version 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 latest versions. In addition to a concern that the draft Directive did not adequately protect persons who were acting for humanitarian motives, we were concerned about the handling by the Government of its scrutiny obligations. We pursued these concerns on 30 January and 20 March 2002.

  11.3  Our concerns were, first, 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. Secondly, we noted on 30 January 2002 that the then current document had been deposited on 21 June 2001, but that no Explanatory Memorandum on this document had been produced for over six months.

  11.4  In her letter of 18 March 2002 the Parliamentary Under-Secretary of State at the Home Office (Angela Eagle) explained that the JHA Council on 28-29 May 2001 had reached political agreement on the proposal[29], subject to the addition of the words "by applying its national law and practice" in Article 1(2) of the draft Directive.

  11.5  In relation to the scrutiny obligations, the Minister explained that in circumstances where political agreement had been reached it was not clear that it would be correct to submit an Explanatory Memorandum on the agreed texts. The Minister acknowledged that under the terms of the scrutiny reserve resolution, the parliamentary scrutiny reservation should have been lifted at the point of political agreement rather than formal adoption (with the Government writing to the Committees to provide an explanation of its reasons). The Minister further explained that the Government had not done this, because a number of other Member States had retained parliamentary reservations at the point of political agreement. However, the Minister added that an Explanatory Memorandum would be submitted on the latest texts (documents (b) and (c)) and that these were substantially the texts which the Minister expected would go forward to the Council for formal adoption.

  11.6  We asked the Minister to explain whether the Government did participate in the political agreement reached by the Council on 28-29 May 2001 and, if so, to explain why this was done when the proposal was still subject to scrutiny.

The revised proposals

  11.7  The revised draft Framework Decision (document(b)) and the revised draft Directive (document (c)) are in substantially the same terms as the version (document (a)) we considered on 30 January and 20 March 2002. In her Explanatory Memorandum of 19 March the Minister explains that, apart from minor changes resulting from revision by jurist linguists, there has been only one change of substance to the Framework Decision, causing it to apply also to Gibraltar, and one change to the Directive.

  11.8  In the case of the Directive, an amendment to Article 1(2) was agreed at the JHA Council. This amendment inserts the words "by applying its national law and practice" into the humanitarian clause set out Article 1(2). The provision accordingly permits Member States to decide not to impose sanctions with regard to the offence of intentionally assisting a person to enter, or transit across, the territory of a Member State in breach of its laws on the entry or transit of aliens where the aim of the behaviour is to provide humanitarian assistance.

  11.9  In our earlier consideration of the "humanitarian clause" on 18 July 2001 we expressed our concern over the reply of the then Minister of State at the Home Office in her letter of 11 May 2001 that the Government "would not wish to introduce this type of immunity under UK law". We also expressed concern over the reply of the present Minister on 15 January 2002 that, although the Government had accepted the inclusion of an optional "humanitarian clause", it did not intend to apply it in the UK.

  11.10  However, we have since seen a copy of a letter of 18 March 2002 from the Minister to the Chairman of the House of Lords Select Committee on the European Union. The Minister makes the following statement with regard to the "humanitarian clause" in UK law and practice:

    "There is already a limited humanitarian clause in Section 25(1A) of the Immigration Act[30], as amended. This provides that the offence of knowingly securing or facilitating the entry of an asylum claimant into the UK will not apply when a person acts 'otherwise than for gain, or in the course of his employment by a bona fide organisation whose purpose it is to assist refugees'. We have no plans to change these 'humanitarian' provisions, and this is consistent with the reference to 'national law and practice' which was added to Article 1(2) of the Directive."

  11.11  With regard to the envisaged timetable for adoption of the proposals, the Explanatory Memorandum indicates that "the latest indications are that Denmark may be in a position to lift its parliamentary reservation in about several months time" and that it was expected that the Presidency would seek formal adoption of the proposals at the earliest opportunity thereafter.

The Minister's letter

  11.12  In her letter of 10 April, the Parliamentary Under-Secretary of State at the Home Office (Angela Eagle) addresses the points we raised on the presentation of this matter for scrutiny. The Minister confirms that the Government participated in the political agreement reached by the JHA Council on 28-29 May 2001 when the proposal was still subject to scrutiny. The Minister refers to the letter of 6 June 2001 from her predecessor to the Leader of the House, to her own letter of 6 September 2001 to the Committee, and to her evidence to us given on 31 October 2001 as explaining the reasons for that course.

  11.13  The Minister recalls her explanation that the circumstances of the May 2001 JHA Council were exceptional by reason of the general election period, and that the Government judged that there were important reasons for agreeing to the French Presidency proposals on illegal immigration. However, it remains the case that the proposal has yet to be formally adopted, nearly a year later, and that several further months will elapse before adoption.

Conclusion

  11.14  Since it is now clear from the Minister's reply to our sister Committee in the Lords that UK law does provide a defence from criminal proceedings for those working for humanitarian reasons, and that this will not be changed, our concern of substance with this proposal has been addressed.

  11.15  We nevertheless consider that the presentation of this matter for scrutiny has been a chapter of accidents. It would have been preferable for the Government to have acknowledged at the time that it was overriding the scrutiny reserve when it participated in the political agreement to this proposal at the Justice and Home Affairs Council in May 2001. It was at this stage that any further substantial discussion of the proposal was effectively foreclosed, and it was then that the Government should have sought to justify the overriding of the scrutiny reserve as best it could.

  11.16  In the event, any argument that the proposals had to be agreed to at that time for reasons of urgency now seem entirely specious, given that nearly a year has now elapsed with no formal adoption of these proposals.

  11.17  We do not think that any purpose is now served by holding the documents under scrutiny, and we are content to clear them. In so doing, we acknowledge the improvements which the Minister has brought about in the observance of the scrutiny requirements for matters for which she is responsible, and we have grounds for confidence that this particular history will not be repeated.


29  i.e. document (a). Back

30   Section 25(1A) Immigration Act 1971 as substituted by s.29 Immigration and Asylum Act 1999. Back


 
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