House of Commons - Documents considered by the Committee on 6 January 2016

Documents considered by the Committee on 6 January 2016 - European Scrutiny Contents

4 EU measures to combat terrorism

Committee's assessment	Legally and politically important
Committee's decision	Not cleared from scrutiny; further information requested; opt-in decision to be debated on the floor of the House — the debate should take place before the expiry of the three-month opt-in deadline or the target date for agreeing a General Approach within the Council, whichever is earlier; drawn to the attention of the Home Affairs Committee
Document details	Proposal for a Directive on combating terrorism
Legal base	Articles 83(1) and 82(2)(c) TFEU; ordinary legislative procedure; QMV
Department	Home Office
Document Numbers	(37372), 14926/15, COM(15) 625

Summary and Committee's conclusions

4.1 The recent terrorist attacks in Paris have increased awareness of the threat presented by foreign terrorist fighters — radicalised individuals who have travelled to conflict zones and returned to the EU to carry out acts of terrorism. Widespread use of the internet and social media has made it easier to disseminate terrorist propaganda, radicalise and recruit new activists and plan and coordinate operations. The Commission considers that changes are needed to existing EU laws to keep pace with the evolving nature of the terrorist threat and with developments in international law. It has proposed a new Directive which seeks to close a loophole in the current EU legal framework on terrorism by requiring Member States to make it a criminal offence to receive, as well as to provide, training for terrorist purposes. The proposed Directive would also require Member States to make it a criminal offence to travel abroad to provide or receive training for terrorist purposes or to commit or contribute to acts of terrorism, including through participation in a terrorist group. Organising or facilitating travel abroad for these purposes would similarly have to be treated as a criminal offence.

4.2 The changes proposed would bring EU law into line with the criminal law measures set out in a United Nations Security Council Resolution adopted in September 2014 (UNSCR 2178) which have since been enshrined in the Additional Protocol to the Convention on the Prevention of Terrorism agreed by the Council of Europe in October 2015. They would also go further, in particular by requiring Member States to ensure that specific assistance and support services are readily available to all victims of terrorism in their Member State of residence.

4.3 The proposed Directive is subject to the UK's Title V (justice and home affairs) opt-in and will only be binding on the UK if the Government decides to opt in. The Minister for Security (Mr John Hayes) describes the factors which the Government will take into account in deciding whether or not to opt in. Whilst indicating that the Government "broadly supports the aims" of the proposal, he questions whether it complies with the principle of subsidiarity on the grounds that the objectives can be achieved by Member States and "the introduction of minimum standards in the field of substantive criminal law is unnecessary".[9] The Minister identifies areas in which changes to domestic legislation would be required if the Government were to decide to opt into the proposed Directive, and says that the Government is considering whether such changes are operationally necessary.

4.4 We welcome the Minister's diligence in clearly identifying the factors which the Government intends to weigh in reaching its opt-in decision. We note, however, that the balance appears to have been tipped decisively towards not participating in the proposed Directive as the Government disputes the need for minimum EU standards in the field of substantive criminal law and considers that the objectives of the proposal can be sufficiently achieved by Member States.

4.5 The Government's objections on subsidiarity grounds are reinforced by two further factors which are not subsidiarity-related. The proposed Directive incorporates most of the provisions of a 2002 Framework Decision on combating terrorism which is no longer binding on the UK, following the previous Coalition Government's decision to opt out of EU police and criminal justice measures adopted before the Lisbon Treaty took effect.[10] Opting into the proposed Directive would effectively reverse that decision. It could also reduce the UK's room for manoeuvre in future negotiations at an international level dealing with terrorism laws, as the Commission would most likely argue that the UK has accepted exclusive EU external competence by virtue of its participation in the proposed Directive.

4.6 Notwithstanding these concerns, the Minister does acknowledge that a case can be made for action at EU level to ensure "a consistent approach" to combating terrorism. Accepting, as we do, that the EU has clear competence to act in this area, we do not recommend that the House issue a Reasoned Opinion, taking into account the following factors:

· Recent terrorist attacks have demonstrated a potential for EU added value in establishing a common legal framework to deal with individuals based in one Member State before they can carry out acts of terrorism in another;

· The proposed Directive would replace a 2002 Framework Decision on combating terrorism which was adopted by unanimity (including, at that time, the UK) and which seeks to ensure that terrorist offences can be effectively prosecuted across the EU;

· The proposal essentially updates the 2002 Framework Decision to align it more closely with international standards and obligations; and

· UK objections, including any on subsidiarity grounds, can in this case be adequately met by not opting into the proposal.

4.7 We consider it unlikely that the Court of Justice would invalidate, on subsidiarity grounds, a Directive adopted in line with this proposal. We do, however, consider that the Government's opt-in decision raises important issues of policy and principle and recommend that it should be debated on the floor of the House. The Minister has not yet notified us of the three-month deadline for notifying the UK's opt-in decision — we ask him to do so as a matter of urgency. We note that the Dutch Presidency intends to secure agreement to a General Approach at the March Justice and Home Affairs Council. We expect the opt-in debate to be scheduled to take place before the expiry of the three-month opt-in deadline or the target date for agreeing a General Approach, whichever is earlier.

4.8 The Minister is confident that UK domestic law already meets the requirements set out in international law (notably, UN Security Council Resolution 2178 agreed in September 2014, the Council of Europe Convention on the Prevention of Terrorism and a recently agreed Additional Protocol). The proposed Directive seeks to ensure a similar level of compliance across all EU Member States, but goes further in some (limited) respects. The Minister's Explanatory Memorandum reveals a good deal of uncertainty as to the extent to which UK domestic law already complies with the provisions contained in the proposed Directive or, where it does not, whether it would be operationally useful for it to do so. On the one hand, the Minister suggests that opting into the proposed Directive might require "significant changes" to the UK's domestic law, notably in relation to provisions concerning the liability of companies (legal persons) and extra-territorial jurisdiction. On the other, he indicates that only "limited changes" to UK primary legislation would be needed to comply with the requirements on extra-territorial jurisdiction. We ask him to clarify the nature and extent of changes that would be required to UK law if the Government were to decide to opt into the proposed Directive and to explain in greater detail their significance and impact. In this context, we ask him to explain whether the offence contained in section 5 of the UK's Terrorism Act 2006 concerning the preparation of terrorist acts would meet the requirements of Article 9 of the proposed Directive on travelling abroad for the purpose of terrorism. We also ask the Minister to share with us the outcome of his analysis of the operational need for those elements of the proposal that go beyond the requirements of international law and existing UK law.

4.9 The Commission argues that a common EU-wide understanding of terrorism and terrorist-related offences is necessary to avoid any "legal gap" in the protection afforded to EU citizens and to establish a clear benchmark for cross-border information exchange and police and judicial cooperation. We ask the Minister to comment on the risk that differences in the legal framework established at EU level and the UK's domestic law could impede practical cooperation and make it more difficult to prosecute terrorist offences which have a cross-border dimension.

4.10 The Commission has not prepared an Impact Assessment to accompany the proposed Directive, "given the urgent need to improve the EU framework to increase security in the light of recent terrorist attacks".[11] We ask the Minister whether he accepts that the terrorist threat justifies the failure, in this case, to present an Impact Assessment and whether the Government intends to publish its own.

4.11 Pending the Minister's reply, the proposed Directive remains under scrutiny. We draw it to the attention of the Home Affairs Committee.

Full details of the documents: Proposal for a Directive on combating terrorism and replacing Council Framework Decision 2002/475/JHA on combating terrorism: (37372), 14926/15, COM(15) 625.

Background

Existing EU measures

4.12 Following the 9/11 terrorist attacks against the United States of America in 2001, the EU adopted a raft of measures to prevent and combat terrorism. They included a 2002 Framework Decision which sought to approximate national criminal laws and introduce common rules on jurisdiction to ensure that terrorist offences could be prosecuted effectively throughout the EU. The Framework Decision required Member States to introduce criminal penalties in relation to a number of commonly-defined terrorist offences, including participation in a terrorist group, and to ensure "appropriate assistance" for the families of victims of terrorism.[12] It was amended in 2008 and the definition of terrorism-related offences extended to include "public provocation to commit a terrorist offence", "recruitment for terrorism" and "training for terrorism".[13]

The UK's position

4.13 The 2002 Framework Decision (as amended) is one of a number of substantive EU criminal law measures that ceased to apply to the UK on 1 December 2014, following the decision taken by the previous Coalition Government to opt out en masse of EU police and criminal justice measures adopted before the Lisbon Treaty took effect on 1 December 2009. Whilst recognising that the Framework Decision created "a useful standard for terrorist offences" and "a more hostile environment for terrorists" across Europe, the Government considered that the offences concerned "could be achieved by Member States acting individually".[14] The Home Secretary (Mrs Theresa May) told the House in July 2013:

"It is not for Europe to impose minimum standards on our police and criminal justice systems."[15]

4.14 She and the then Justice Secretary (Chris Grayling) considered that involving the Court of Justice ("CJEU") in the interpretation of substantive criminal law was "an area of particular sensitivity":

"UK courts would be compelled to interpret UK law in line with CJEU judgments. While we acknowledge that the CJEU may well take a sensible approach here, we feel it is inevitable that this will eventually lead to a harmonisation of criminal law across the EU. We do not believe that it is helpful for policy judgments as to where the boundaries lie in these sensitive matters to happen anywhere other than the UK. Our view is that it should be for the UK Parliament and courts to set and interpret matters of substantive criminal law."[16]

International developments

4.15 The Council of Europe Convention on Terrorism was adopted (in 2005) in the aftermath of the 9/11 terrorist attacks. It requires State Parties to the Convention to establish as criminal offences action which may lead to the commission of a terrorist offence, such as public provocation or incitement of terrorism, recruitment for terrorism and the provision of training for terrorism. These offences must be accompanied by "effective, proportionate and dissuasive penalties" and implemented in a way which respects human rights obligations, in particular the right to freedom of expression, association and religion. There are specific provisions on protection, support and compensation for victims of terrorism. The Convention also includes rules on jurisdiction and on international cooperation in investigating and prosecuting terrorist offences.

4.16 Negotiations on an Additional Protocol to the Convention were concluded within the Council of Europe in April 2015. The Additional Protocol is intended to give effect to UN Security Council Resolution (UNSCR) 2178 (2014). It seeks to strengthen the legal framework for preventing terrorism and, in particular, to tackle the threat posed by so-called "foreign terrorist fighters".[17] The Additional Protocol extends the categories of acts which are to be made serious criminal offences to include participation in an association or group for the purpose of terrorism, receiving training for terrorism, and travelling abroad (or funding or otherwise facilitating such travel) for the purpose of terrorism. State Parties are also required to designate an around-the-clock contact point to exchange information on foreign terrorist fighters.

4.17 In June 2015, the Commission put forward Decisions authorising the EU to sign both the Convention and the Additional Protocol. The Decisions were subject to the UK's Title V (justice and home affairs) opt-in. The Government informed us last September that it had decided not to opt in as it considered that competence for matters covered by the Convention and Additional Protocol should be exercised by the UK, not by the EU.[18] The EU (without the UK's participation) signed the Convention and Additional Protocol in October 2015. The proposed Directive would enable the EU to conclude (ratify) the Additional Protocol by incorporating its provisions in EU law.

4.18 There is considerable political momentum to strengthen the criminal law framework for terrorism. A statement agreed by EU Justice and Home Affairs Ministers in January 2015, following the Charlie Hebdo attacks in Paris, underlined the need to "consider further legislative developments with regard to the common understanding of criminal activities related to terrorism in light of UNSCR 2178 (2014)".[19] In April 2015, the Commission published its European Agenda on Security which identified a need for "a solid criminal justice response to terrorism", including "more coherent laws against foreign terrorist fighters". The Commission indicated that it would "launch an impact assessment in 2015" with a view to updating the 2002 Framework Decision (as amended) in 2016.[20] Shortly after the terrorist attacks in Paris in November 2015, a special meeting of EU Ministers responsible for countering terrorism agreed a set of Conclusions expressing support for the Commission's intention to propose a new Directive updating and replacing the 2002 Framework Decision (as amended) before the end of 2015 "with a view to collectively implementing into EU law UNSC Resolution 2178 (2014) and the Additional Protocol to the Council of Europe Convention".[21]

The proposed Directive

4.19 The proposed Directive would replace, but does not repeal, the 2002 Framework Decision (as amended in 2008). It would bring together within a single, consolidated instrument existing EU rules on terrorism, supplemented by new provisions to reflect the requirements of UNSCR 2178 (2014) and the Additional Protocol, as well as more detailed provisions on assistance for victims of terrorism. In the following paragraphs, we summarise the main elements of the proposed Directive, identifying which are new and which derive from the existing Framework Decision and remain unchanged.

Definition of terrorist offences and offences related to a terrorist group

4.20 The proposed Directive reproduces the provisions of the 2002 Framework Decision requiring Member States to establish various intentional acts as terrorist offences and to criminalise participation in a terrorist group, without making any substantive changes.

Offences related to terrorist activities

4.21 The proposed Directive similarly reproduces provisions of the 2002 Framework Decision (as amended in 2008) which require Member States to criminalise conduct intended to provoke the commission of a terrorist offence ("public provocation") or to recruit or train individuals to commit a terrorist offence. According to the Commission, these terrorist-related offences are intended to ensure that the public dissemination of messages encouraging terrorist activities (including, for example, the glorification of suicide bombers, the release of images of brutal assassinations, or invitations to join violent jihad), as well as the use of online (or other types of) recruitment tools or training manuals, are punishable in all Member States.[22]

4.22 These existing provisions of EU law would be supplemented by three new criminal offences which form the core of the Additional Protocol: receiving training for terrorism, travelling abroad for terrorism, and organising or otherwise facilitating travel abroad for the purpose of terrorism. The inclusion of these new offences in the proposed Directive is intended to ensure that all Member States introduce similar criminal provisions in their national laws, making it easier to prosecute the offences throughout the EU. The offences replicate those contained in the Additional Protocol, but go further in one respect. The proposed Directive would require Member States to make it a criminal offence to travel abroad for the purpose of participating in the activities of a terrorist group.

4.23 Whilst the Commission makes clear that criminal liability for these new offences requires specific intent or knowledge that the conduct in question is for the purpose of terrorism, it also acknowledges that the scope of the offences is potentially very broad. For example, the offence of travelling abroad for terrorism is not limited to third (non-EU) countries, but also includes travel to other EU Member States. As a consequence:

"All individuals travelling to another country will be potentially affected by the provisions on the criminalisation of the act of travelling abroad for the purpose of terrorism under the Directive."[23]

4.24 The Commission nonetheless considers that "the seriousness of the threat posed by foreign terrorist fighters warrants a robust response which […] should be fully compatible with fundamental rights and freedoms and the rule of law".[24]

4.25 The proposed Directive includes a new provision on terrorist financing, as well as a broad definition of "funds", which is intended to ensure that all Member States criminalise the provision of funding for terrorism or offences related to terrorist groups or activities (including funding to enable an individual to travel abroad for the purpose of terrorism).

General provisions

4.26 The proposed Directive reproduces the provision contained in the 2002 Framework Decision, as amended in 2008, stipulating that it is not necessary to demonstrate that an act of terrorism has taken place to establish criminal liability. In addition, a new provision makes clear that it is not necessary to establish a link to a specific terrorist offence.

4.27 Existing provisions requiring Member States to criminalise aiding or abetting, incitement and attempts are extended to cover most of the new offences included in the proposed Directive.

4.28 The remaining provisions on penalties, the liability of legal persons, and jurisdiction and prosecution remain unchanged, with one notable exception. The proposed Directive includes a new rule on jurisdiction to ensure that an individual providing training for terrorist purposes can be prosecuted in the Member State where the training is received.

Victims of terrorism

4.29 The 2002 Framework Decision requires Member States to "take all measures possible to ensure appropriate assistance for victims' families". The proposed Directive includes more extensive provisions on the provision of information and support services for victims of terrorism, specifying that they must be "confidential, free of charge and easily accessible to all victims of terrorism". It also acknowledges the cross-border dimension of terrorist attacks and the need to ensure that support is available in the victim's home Member State, in cases where the attack occurred in a different Member State. The provisions on victims' rights are intended to supplement those contained in a 2012 Directive dealing with victims of crime.[25]

Legal base

4.30 The proposed Directive cites two legal bases in Title V of Part Three of the Treaty on the Functioning of the European Union (TFEU) which authorise the EU to establish minimum rules concerning:

· "the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension", including terrorism (Article 83(1) TFEU); and

· "the rights of victims of crime" (Article 82(2)(c) TFEU).

4.31 Both legal bases are subject to the UK's Title V (justice and home affairs) opt-in, meaning that the UK will only be bound by the proposed Directive if the Government decides to opt in.

4.32 The Directive would replace, but does not repeal, the 2002 Framework Decision (as amended). This is because all Member States (except the UK) are bound by the Framework Decision unless or until it is repealed or replaced by a subsequent measure. Denmark will continue to remain bound by the 2002 Framework Decision as it is precluded from participating in post-Lisbon EU police and criminal justice measures.[26] Ireland is entitled to opt into the proposed Directive on the same basis as the UK but, should it decide not to do so, will remain bound by the 2002 Framework Decision (as amended).[27]

Justification for action at EU level

4.33 The main justification advanced by the Commission for action at EU level is to establish a common understanding of terrorism offences and ensure compliance with international obligations and standards in order to avoid "significant loopholes in the criminal justice response".[28] According to the Commission:

"Implementing the Additional Protocol and the relevant criminal law aspects of UNSCR 2178 (2014) through EU-wide minimum rules, and in particular additional common definitions of criminal offences taking account of the evolution of terrorist threats, would avoid any legal gaps that may result from a fragmented approach and would be of clear added value for enhancing the security of the EU and the safety of EU citizens and people living in the EU. Furthermore, EU-wide definitions would facilitate a common understanding and benchmark for cross-border information exchange and cooperation in police and judicial matters."[29]

4.34 The Commission underlines the cross-border dimension of terrorist threats and the need to ensure that the scope of terrorist or terrorist-related offences is "sufficiently aligned to be truly effective".[30]

Impact assessment

4.35 There is no impact assessment accompanying the proposed Directive, "given the urgent need to improve the EU framework to increase security in light of recent terrorist attacks".[31]

Fundamental rights

4.36 In its analysis of the impact of the proposed Directive on fundamental rights, the Commission notes that all EU measures intended to enhance security must comply with the principles of necessity, proportionality and legality, and contain appropriate safeguards to ensure accountability and judicial redress.[32] It considers that the proposal respects fundamental rights and the principle of proportionality by "limiting the scope of the offences to what is necessary to allow for the effective prosecution of acts that pose a particular threat to security". The Commission highlights recitals 19 and 20 of the proposed Directive which identify the relevant rights and principles governing EU action and make clear that national laws implementing the Directive must be "proportional to the nature and circumstances of the offence", necessary in a democratic society and exclude "any form of arbitrariness or discrimination".

The Minister's Explanatory Memorandum of 17 December 2015

4.37 The Minister expresses support for international efforts to implement more robust counter-terrorism legislation and practices with a view to increasing "investigative and prosecutorial capabilities" in all Member States. He explains that the UK participated fully in the development of the Additional Protocol and, in common with other countries belonging to the Council of Europe, has "a keen interest in engaging positively" and in sharing best practice to tackle the threat from foreign terrorist fighters, adding that the UK "independently signed" the Additional Protocol last October. He considers that UK legislation is already compliant with the provisions of UNSCR 2178 (2014), the Council of Europe Convention on the Prevention of Terrorism (which the UK signed in May 2006) and the Additional Protocol.

4.38 The Minister confirms that the Framework Decision (as amended in 2008) no longer applies to the UK. He raises no objection to the aims of the proposed Directive, which the Government "broadly supports", and says that the UK is "substantially compliant" with its provisions and with those contained in the Framework Decision. He notes, however, that some elements of the proposed Directive might require "significant changes" to domestic law if the Government were to decide to opt in, although his Explanatory Memorandum later suggests that only "limited changes" to primary legislation would be required.[33] Whilst foreseeing no legal impediment to making such changes, he says that the Government is considering whether they are operationally necessary and whether they go beyond the requirements established by UNSCR 2178 (2014) and the Additional Protocol.

4.39 The changes would mainly concern the provisions on extra-territorial jurisdiction in Article 21 of the proposed Directive which, the Minister suggests, are more extensive than the equivalent provisions in the UK's Terrorism Act 2006:

"Article 21, as currently drafted, would require Member States to assume universal jurisdiction over offences contained within it (i.e. extra-territorial jurisdiction — 'ETJ') over offences committed overseas by persons of any nationality and stateless persons regardless of the nationality of the victim. This is because although the Article includes standards typically found in this type of provision, such as obligations that participating Member States establish jurisdiction over offences committed wholly or partly within its territory, at sea on board vessels flying its flag or an aircraft registered there and by nationals or residents overseas, it also contains obligations to assume jurisdiction over offences which are committed for the benefit of a company (legal person) established in a Member State's territory (i.e. wherever that offence is committed and whoever the victim might be) or where the offence is committed against the institutions or people of the Member State in question, which could of course be a British Embassy or consulate overseas, for example.

"Our current criminal law against terrorism provides for universal ETJ for a number of terrorist offences; for example, by virtue for example of section 17 of the Terrorism Act 2006. The Government is currently analysing the full implications of the proposal as regards ETJ obligations."[34]

4.40 The Minister also questions whether UK terrorism laws comply with the obligation to establish extra-territorial jurisdiction for the offence of "public provocation", now contained in Article 5 of the proposed Directive:

"This requires Member States to criminalise the distribution, or otherwise making available, of a message to the public with the intent to incite the commission of terrorism. Our current law provides ETJ for the offence of encouragement of terrorism (which incorporates glorification), under section 1 of the 2006 Act. However, ETJ in relation to section 1 is limited by the Act to where the encouragement takes place in respect of one or more 'Convention Offences' (offences in the Council of Europe Convention on the Prevention of Terrorism). Convention Offences are listed in Schedule 1 to the 2006 Act and include hijacking, hostage taking and the use of nuclear weapons. The UK does not take ETJ in relation to its dissemination (distribution) offence under section 2 of the 2006 Act.

"We legislated through the Serious Crime Act 2015 to extend territorial jurisdiction over two other offences in the Terrorism Act 2006, to enable the prosecution in the UK of UK-linked individuals who prepare (section 5) or train for terrorism (section 6) overseas. This legislative change ensured that our national legislation further complemented the aims of UNSCR 2178. We will need to consider further to what extent these provisions provide compliance with the ETJ obligations in relation to Article 5 [of the proposed Directive], as part of our ongoing assessment of the wider implications of the ETJ obligations."

4.41 The Minister notes that Article 9 of the proposed Directive includes a new offence of "travelling abroad for terrorism" which is intended to criminalise travel to "any country, including to those within the EU and […] to the country of nationality or residence of the perpetrator".[35] He adds that section 5 of the UK's Terrorism Act 2006 includes similar provisions, making it a criminal offence to travel (or facilitate travel) abroad for the purpose of terrorism, but does not clearly indicate whether the Act complies fully with Article 9.

4.42 The Minister also draws attention to Article 19 of the proposed Directive, establishing the liability of legal persons for the offences contained in the proposal, and adds:

"The Government intends to explore the necessity for such liability in this context and is considering the extent to which domestic criminal law currently corresponds to the obligations."[36]

4.43 The Minister considers that the UK, through its recent transposition of a 2012 Directive dealing with victims of crime and existing statutory provision, complies with the new provisions on the rights of victims of terrorism.

4.44 The Minister notes that the proposed Directive engages a range of rights set out in the EU Charter of Fundamental Rights, but adds:

"Security and respect for fundamental rights are consistent and complementary objectives under EU law. Fundamental rights are not absolute (Art. 52 of the EU Charter), and will therefore be balanced against the security objective."[37]

4.45 He continues:

"Any measures taken in domestic law to implement the measures of the Directive would need to conform to the principles of legality and proportionality in terms of sanction; ensure the right to a fair trial and effective judicial redress and be applicable in a fair and non-discriminatory way. The measures in the Directive are largely already implemented in domestic criminal law by way of primary legislation which is in compliance with these principles. Any extension of ETJ to bring domestic law in compliance with the requirements of the Directive would also need to comply with these principles.

"In particular, the prosecution of persons travelling abroad for the purpose of engaging in terrorism would restrict the right to freedom of movement. However that restriction falls within the terms of Directive 2004/38 EC which allows restriction of free movement for an individual with free movement rights on grounds of public policy or public security where the personal conduct of the individual concerned represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. This would be implemented in domestic law by section 5 of the Terrorism Act 2006 which makes it an offence to engage in conduct preparatory to giving effect to an intention to commit acts of terrorism or assist others to do so. Accordingly the offence is based upon the personal conduct of the person subject to it."[38]

4.46 The Minister notes that the purpose of the proposed Directive is "to ensure that a consistent approach is taken in response to the foreign fighter threat across the European Union" by establishing a set of EU-wide minimum standards.[39] He continues:

"While it could be argued that ensuring a consistent approach can only be done at EU level and therefore this proposal complies with the principle of subsidiarity, in the Government's view Member States can achieve the objectives of the proposal without an EU measure in this field and the introduction of minimum standards in the field of substantive criminal law is unnecessary."[40]

4.47 The proposed Directive is subject to the UK's Title V (justice and home affairs) opt-in. The Minister explains that the Government is "committed to taking all opt-in decisions on a case-by-case basis, putting the national interest at the heart of the decision-making process — mindful of our prevailing view that national security remains a matter for individual nations through their sovereign parliaments". He indicates that the Government is weighing its opt-in decision carefully, and will have particular regard to:

a. "whether the proposed Directive would likely make UK citizens safer, and provide for measures that are not already in place, to counter the threat from terrorism;

b. "whether the Government is willing to participate in the exercise of EU competence in relation to the introduction of minimum rules in the field of counter-terrorism, where the UK previously exercised its opt-out under Protocol 36 to the Treaties. It will also have regard to the consequences of opting into the Directive, and the extent to which it might be argued that this might make the UK subject to some exclusive EU competence in this field in future international negotiations;

c. "the implications of accepting CJEU jurisdiction in relation to the proposed Directive;

d. "the Government's view that national security is a matter for Member States to decide what is in its best interests to keep its citizens safe, its primary duty;

e. "the significance of an EU-level response to the threat from terrorism, particularly following the most recent terrorist attacks in France on 13 November;

f. "that UK legislation is already compliant with UNSCR 2178 and the Council of Europe Additional Protocol to the Convention on the Prevention of Terrorism, and allows the UK to disrupt the ability of people to travel abroad to fight, reduce the risks they pose on their return and combat the underlying ideology that feeds, supports and sanctions terrorism."[41]

4.48 The Minister undertakes to notify us of the Government's opt-in decision after it has been made. He expects the Dutch Presidency to seek a General Approach on the proposed Directive at the March Justice and Home Affairs Council (currently scheduled for 10/11 March).

Previous Committee Reports

None, but the following Reports on EU accession to the Council of Europe Convention on the Prevention of Terrorism (CETS No.196) and the Additional Protocol are relevant: Fifth Report HC 342-v (2015-16), chapter 31 (14 October 2015); Third Report HC 342-iii (2015-16), chapter 27 (9 September 2015); First Report HC 342-i (2015-16), chapter 39 (21 July 2015).

9 See para 30 of the Minister's Explanatory Memorandum. Back

10 The UK's block opt-out took effect on 1 December 2014. The UK immediately re-joined 35 EU police and criminal justice measures which were subject to the block opt-out, but they do not include the 2002 Framework Decision on combating terrorism. The procedures governing the UK's block opt-out are set out in Protocol No. 36 to the EU Treaties. Back

11 See p.12 of the Commission's explanatory memorandum accompanying the proposed Directive. Back

12 See Council Framework Decision 2002/475/JHA. Back

13 See Council Framework Decision 2008/919/JHA. Back

14 See p.91 of Command Paper 8671, published in July 2013. Back

15 HC Deb, 15 July 2013, col. 777. Back

16 Letter of 18 July 2013 from the Home and Justice Secretaries to the Chair of the House of Lords European Union Committee (Lord Boswell). Back

17 UNSCR 2178 (2014). See, in particular, the criminal law provisions contained in operative paragraph 6 of the Resolution. The Resolution defines foreign terrorist fighters as "individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, including in connection with armed conflict". Back

18 See Reports listed at the end of this chapter. Back

19 See the Riga Joint Statement issued by EU Justice and Home Affairs Ministers. Back

20 See (36829): First Report HC 342-i (2015-16), chapter 6 (21 July 2015). Back