Select Committee on European Communities Second Report


Letter from Lord Tordoff, Chairman of the Committee to Barbara Roche MP, Minister of State, Home Office

  My attention has been drawn to the adoption of the above Decision at the 2/3 December Justice and Home Affairs Council. The annotated agenda sent to this Committee on 25 November stated that the draft Decision "has never previously been produced as a depositable document and has suddenly appeared as a Council Decision for agreement at the Council. We expect that this will be dropped as other Member States are likely to be similarly concerned at the appearance of this item as an `A' point". As the draft Decision had not been deposited in Parliament, my expectation was that the UK would object to its adoption as an "A" point. The Committee Office sought clarification, at official level, of the reasons for agreeing the draft Decision before it had been deposited and cleared scrutiny.

  I am afraid I find the explanation provided by your officials unsatisfactory. First, the covering note from the Council General Secretariat states that the text of the Decision was agreed by Coreper on 24 November. The content of the draft Decision must have been known to officials some time in advance of the Council meeting yet, it would seem, no effort was made to alert the Committee to the possibility that agreement might be reached on the text.

  Secondly, it has been suggested that the draft Decision was not a depositable document. I find this surprising as it appears to fall squarely within the definition of "European Union documents" used by the Scrutiny Committees of both Houses. The Scrutiny Reserve Resolution would therefore seem to apply.

  Your officials considered the text to be non-contentious. The draft Decision would not, in their view, cause the UK any difficulties or require the Government to decide whether or not to exercise its right of opt-in under its Protocol relating to measures based on Title IV. I regret that the Committee did not have the opportunity to consider any of these important questions. Article B of the Decision would seem to require the Community, at the request of a third country, to conclude an agreement imposing specific obligations on the Member States regarding readmission, including nationals of other countries and stateless persons. The extent of these obligations and, in particular, their impact on the UK would seem to merit further explanation.

  I would, at the very least, have expected clarification of the nature and extent of the Community's powers, under Title IV of the EC Treaty, to conclude readmission agreements with third countries and the implications for UK immigration policy of the Community asserting, and exercising, such an external competence.

  I look forward to receiving your comments on the above.

26 January 2000

Letter from Barbara Roche MP, Minister of State, Home Office to Lord Tordoff, Chairman of the Committee

  Thank you for your letter of 26 January about this document, which was adopted as an "A" Point at the Justice and Home Affairs Council on 2-3 December. I enclose a copy for your information. You questioned why it was considered that this proposal was not subject to the Parliamentary scrutiny process.

  As you note, when this item first appeared on the JHA Agenda, we (and other Member States) were concerned that, not having seen the document in question, it appeared to be a proposal which had not previously been discussed at working group level or submitted for Parliamentary scrutiny. This was the basis of the reference on the annotated agenda which was sent to the Scrutiny Committees.

  Subsequently, we were informed that the item referred to an issue which simply involved the updating of standard wording dating from 1995 relating to readmission, to be inserted into future Community and mixed agreements with third countries. This updating was required as a result of the entry into force of the Amsterdam Treaty. The Council was advised that this was neither a formal measure expressly provided for in the Treaty, nor an informal measure (such as negotiating mandate) which was directly linked to such a measure, and thus was not a proposal on which we were required to decide whether to exercise our opt-in. Having considered the text (which the Home Office received only on 2 December), we concluded that it was non-contentious and caused the UK no difficulties.

  At the same time, officials considered whether the document should be deposited for scrutiny (in which case we would have had to put down a scrutiny reserve on this "A" Point). We considered that this was not a depositable document as it was merely a preparatory measure. The text makes technical amendments to the standard readmission clause which is included in negotiating mandates for third country agreements. The amended text does not affect the underlying policy issue. Negotiating mandates are not themselves subject to scrutiny, but future agreements in which this wording is used will, of course, be subject to normal Parliamentary scrutiny procedures.

  The Government accepts that the Community has competence to conclude readmission agreements with third countries under the provisions of Article 63(3)(b)TEC. I understand that the Commission are considering bringing forward proposals for negotiating Community readmission agreements with Russia, Sri Lanka, Pakistan and Morocco. When such proposals are submitted, the UK will have the opportunity to decide whether to exercise its opt-in under the terms of the Protocol to the Treaty of Amsterdam.

  I hope this clarifies the position to your satisfaction.

21 February 2000

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