Supplementary memorandum from the Foreign
and Commonwealth Office
When the Foreign Secretary, supported by Mr
Kim Darroch, gave evidence to the Foreign Affairs Committee on
the Seville European Council on 19 June, there were three questions
which arose on which the Committee was promised further information
in writing. These related to:
the EU's policy at Seville on the
relationsip between its policies on development and asylum and
the effect on UK law and obligations
of Directives on asylum and on parental responsibility; and
whether Treaty change would be required
for the changes to the internal organisation of the Commission
recently proposed by Mr Romano Prodi.
This letter takes each point in turn. I am replying
since both of the witnesses are travelling; and I understand the
Committee would appreciate a response today.
As was subsequently made clear in the conclusions
of the Seville European Council, the EU wants to stress enhanced
cooperation with third countries as a crucial part of achieving
our policy objectives in relation to immigration and asylum. There
is no intention to punish or target individual countries, and
no country is specifically mentioned in the Seville Conclusions.
The Conclusions make clear that any EU action would respect our
development policy objectives and existing contactural commitments.
But the European Council also wanted to make clear that persistent
non-compliance by third countries would adversely affect their
relations with the Union.
So, the Seville Conclusions send a strong signal
to third countries about the need to co-operate in combating illegal
immigration and returning their own nationals. Seville states,
for example, that any future EU co-operation agreement with third
countries should include clauses on migration and readmission.
At the Justice and Home Affairs Council in Luxembourg
on 13 June, the Home Secretary spoke of the need to set up rapid
operations to remedy weaknesses identified involving national
border guard services in joint operations with other services
to target, arrest and disrupt trafficking gangs. Turkey, Lebanon,
Albania, Poland and countries of the former Yugoslavia were suggested
as priority countries to work with in this respect.
The witnesses were asked whether an EU Directive
on asylum would override UK domestic legislation and UK obligations
under the 1951, and whether the proposed instrument on parental
responsibility would affect UK obligations under the 1951 UN and
1980, Hague Conventions.
It might be helpful to recall that Seville agreed
the following timetable for moving towards a common EU asylum
policy; adoption of the Dublin II Regulation by the end of 2002;
of minimum standards on refugee status; family reunification and
long-term residence status by June 2003; and of common standards
for asylum procedures by end 2003.
Article 63 of the Treaty establishing the European
Community (TEC) provides that the EC can adopt measures on asylum
in certain areas. These measures are to be "in accordance
with the Geneva Convention of 28 July 1951 and the protocol of
31 January 1967 relating to the status of refugees and other relevant
treaties". The Community is not a party to those instruments.
All of the Member States are party to those instruments and their
obligations as a matter of international law as parties thereto
are unaffected by any internal Community measures.
Measures under Article 63 TEC may be in the
form of Directives or Regulations. Directives are binding on the
Member States as to the result to be achieved, but leave to the
national authorities the choice of form and methods of implementation.
Provisions contained in Directives may also, in certain circumstances,
have directly effect in the Member States. Regulations have general
application, are binding in their entirety and are directly applicable
in all Member States. The principle of the supremacy of Community
law over conflicting national law is well established.
With regard to the proposed Regulation relating
to Parental Responsibility, the Government agrees that there is
a need to avoid undermining the 1980 Hague Convention on Child
Abduction, while supporting the opportunity to improve mutual
recognition of custody and access orders within the EU member
states. We are currently working in discussions with partners
to ensure that any instrument does not depart fundamentally from
the basic philosophy of the Convention. Legally, the internal
measure would not override the Hague Convention which is any instrument
of international law.
The situation is complicated by the fact that
the Nice Treaty has not yet entered into force. Article 217 of
the Treaty establishing the European Community (TEC) presently
states that "The Commission may appoint a Vice-President
or two Vice-Presidents from among its members." Until Nice
is formally ratified, Article 217 TEC would need to be amended
to allow more than two Vice-Presidents to be appointed, if that
remained their formal designation.
The Nice Treaty would replace Article 217 to
enable the President "to decide on its [the Commission's]
internal organisation in order to ensure that it acts consistently,
efficiently and on the basis of collegiality." It would also
state that "After obtaining the approval of the College,
the President shall appoint Vice-Presidents from among its members."
There is no other article in the existing Treaties which would
preclude Mr Prodi's proposals form being implemented.
European Union Department
Foreign and Commonwealth Department
19 July 2002