Select Committee on European Scrutiny Seventh Report


COMMON PRINCIPLES FOR THE ELECTION OF MEMBERS OF THE EUROPEAN PARLIAMENT



(20673)

A4 - 0212/98


European Parliament Resolution on a draft electoral procedure incorporating common principles for the election of Members of the European Parliament.
Legal base: Article 190(4) EC
Department: Home Office
Basis of consideration: Minister's letter and Supplementary EM of 14 January 2000
Previous Committee Report: HC 23-iv (1999-2000), paragraph 7 (15 December 1999)
Discussed in Council: Date not set
Committee's assessment: Politically important
Committee's decision: Not cleared; awaiting further information on progress

Background

  5.1  When we last considered this document (in December 1999), we expressed dissatisfaction with its delayed deposit and raised a number of questions about the proposals contained in it.

  5.2  On one issue, that of dual mandates, the Government had not taken a view as it did not wish to pre-judge the outcome of the Royal Commission on House of Lords Reform. The Royal Commission has now reported[18]. In paragraph 8.20 it states: "We ... agree with those who argued that membership of the second chamber would be too onerous a task to combine with the increasingly exacting task of being an MEP. We note that the European Parliament is itself opposed to the idea that any of its members should have a dual mandate. For our part, we have no objection in principle to individuals seeking a dual mandate, but it would be wrong to make it a requirement." This passage is followed by Recommendation 48: "No one should become a member of the second chamber by virtue of being a United Kingdom MEP".

The Minister's letter and Supplementary EM

  5.3  The Minister of State at the Home Office (Mrs Barbara Roche) has now written to us with a Supplementary EM which repeats her earlier apology for the delay and addresses our questions. She says:

"At paragraph 7.10 of the [Committee's] Report, the Committee expresses its dissatisfaction with the delayed deposit of the document and the EM. The Government can assure the Committee that the need to inform them was not forgotten before work at Council level on the dossier began. The Government is well aware of the priority attaching to the Explanatory Memorandum, and reiterates the Minister's apology for other overriding priorities having led to the delay. The Government agrees that such delays on documents of political importance are unacceptable and the officials with responsibility for this area have been given a clear reminder of the need to avoid them in future.

"At paragraph 7.11, the Government is asked to confirm that it will oppose Article 7 of the draft, that would reserve a proportion of seats to MEPs representing the Union as a whole, resolutely. The Government agrees that it should maintain its present firm opposition if this Article was found to be carried forward within the draft proposals of the Council. At present, there are strong indications that the Council will take note of the arguments of Member States, and that its proposals will allow the electoral procedures to remain governed in each Member State by its national provisions, under an essentially proportional voting system.

"At paragraph 7.12, the Committee observes that being an MEP is, or should be, a full-time occupation which it is difficult to reconcile with membership of any national Parliament. It asks whether it is only the Government's wish not to pre-judge the outcome of the Royal Commission on House of Lords reform which prevents it from taking a stronger line on this issue. The Government accepts the argument presented by the Committee, but cannot take a final view on dual mandates until the Royal Commission has reported. In the meantime, the Council has indicated that its proposals will take into account the Government's concern that the position of those individual UK MEPs who currently hold dual mandates should be preserved.

"At paragraph 7.13, the Committee asks why the draft Act should not require (rather than simply permit) Member States to set a limit on candidates' expenditure as, without such a requirement, one or more Member States may not do so, to the disadvantage of poorer political parties. The Government will give further consideration to this issue. However, it appears doubtful whether making the Act prescriptive upon this point is consistent with permitting electoral procedures to be governed in each Member State by its national provisions.

"At paragraph 7.14, the Government welcomes the Committee's agreement that the draft Act is the most appropriate vehicle for extending the European Parliamentary franchise to the citizens of Gibraltar. The Government is seeking amendment of the 1976 Act on Direct Elections in order to bring into force the judgment of the European Court of Human Rights in Matthews v UK. This would allow the enfranchisement of Gibraltar in good time for the 2004 elections. In the event that this amendment is not achieved, other options would then have to be considered, including unilateral action as recommended by the Select Committee on Foreign Affairs. The Home Office is currently considering what domestic administrative preparation will be required to extend the European Parliament franchise to Gibraltar.

"At paragraph 7.15, the Committee asks whether the consolidation of the Act of 1976 with this Act and the substantive elements of the Resolution in a single instrument might aid intelligibility. The Government understands that the Council is in fact working towards bringing substantial elements of the Resolution within the draft Act. The Government will consider the call for a consolidation with the 1976 Act.

"With respect to the Committee's decision to keep this document under scrutiny, the Government hopes that the foregoing comments will have been helpful. The Government notes that progress is taking place within the Council towards a draft Act that may be substantially revised in comparison with [this] document and reiterates its commitment to ensuring that the Committee is informed at an early stage of significant developments. The Government will take the opportunity as necessary of advising the Committee when decisions have been made in respect of those questions which require further consideration".

Conclusion

  5.4  We thank the Minister for her apology and for her helpful answers to our questions. Our comments on her response are as follows:

    (i) we welcome the Government's agreement to continue with its opposition to Article 7 — and the suggestion that the Article may not be carried forward;

    (ii) we are encouraged that the Government accepts our argument that being an MEP is, or should be, a full-time occupation which it is difficult to reconcile with membership of any national Parliament. Although the (now published) report of the Royal Commission on House of Lords Reform does not oppose the principle of dual mandates, it shares our view of the workload involved. We shall be surprised, therefore, if the Government does not come out against dual mandates once it finalises its view on the matter;

    (iii) we are pleased that the Government will give further consideration to the question of requiring (rather than simply permitting) Member States to set a limit on candidates' expenditure. Such a provision appears to us no more prescriptive than others in this proposal, such as the maximum size of constituencies;

    (iv) we welcome the efforts the Government is making to ensure the enfranchisement of Gibraltar in good time for the 2004 elections and in particular its commitment to consider, if need arises, the option of unilateral action; and

    (v) we are pleased to learn that the Council plans to bring substantial parts of the Resolution within the draft Act. We urge the Government to press for a consolidation with the 1976 Act in the interests of clarity and coherence.

  5.5  None of our comments requires an immediate response. However, in view of the fact that substantial revisions are possible, we will keep the document under scrutiny until we have further information about its likely final form. We ask the Minister to keep us fully informed of developments on the question of the Gibraltar franchise.

DETERMINING OBLIGATIONS AS BETWEEN THE MEMBER STATES FOR THE READMISSION OF THIRD-COUNTRY NATIONALS

(20790)
12488/99

Draft Council Regulation determining obligations as between the Member States for the readmission of third-country nationals.
Legal base: Article 63(3)(b) EC; consultation; unanimity
Deposited in Parliament: 20 December 1999
Department: Home Office
Basis of consideration: EM of 14 January 2000
Previous Committee Report: None; but see (19903) 10338/1/98: HC 34-xix (1998-99), paragraph 5 (12 May 1999)
To be discussed in Council: No date set
Committee's assessment: Politically important
Committee's decision: Not cleared; further information on progress requested

Background

  6.1  Last year, we twice considered a draft Readmission agreement between the EU Member States and a third country[19]. We have still not cleared that document, on which negotiations continue. This current proposal is related to it, in that, once such agreements with third countries are in place, a mechanism for determining obligations as between the Member States for the readmission of third-country nationals will be needed. As the proposal builds upon the Schengen acquis, the UK is able to decide whether or not to participate in the measure.

The document

  6.2  The proposal provides a framework for the determination of obligations as between the Member States for the readmission of third-country nationals, including those who may be returned to a Member State under the terms of any future readmission agreement concluded by the Community with a third country. The assessment of responsibility would be based on criteria similar to those used in the Dublin Convention for the determination of which Member State is responsible for considering an asylum application (for example, possession of a valid residence document or visa).

The Government's view

  6.3  The Minister of State at the Home Office (Mrs Barbara Roche) comments as follows:

"The Government is concerned that this proposal is premature, in that discussions on the format of the model multi-lateral readmission agreement to be concluded between the Community and a third country are only at an early stage. The Government nevertheless acknowledges that, once such a Community agreement has been concluded, internal rules on procedure will be required for the effective implementation of the agreement.

"The Government also questions the value of reliance on criteria similar to those used in the Dublin Convention. In particular, the level of proof required in establishing to which Member State a third country national should be returned has caused particular difficulties in the Dublin context. This is an area of the Dublin Convention which the Government is anxious to see improved. Member States have not always been able to agree on what constitutes acceptable indicative evidence of a third country national's entry or stay on their territory and these issues would need to be carefully considered in any new arrangement. The Government also considers that the proposal as drafted would be fairly limited in effect in that, in current experience, the majority of illegal entrants are undocumented and could not be considered against the criteria set out in Articles 4-7 of this proposal [dealing with valid residence permits or visas]. They may, however, come within Articles 8 and 9 [dealing with irregular entry and border checks], although in practice the level of proof required may again be an obstacle to return".

  6.4  The Minister draws attention to some weaknesses in the current draft. Although the first recital states that the repatriation of illegal residents requires taking measures on readmission in general, no justification for this statement is provided. In addition, the recitals fail to address the compliance of the draft Regulation with the principles of subsidiarity and proportionality.

  6.5  In relation to subsidiarity, the Government considers that informal, bilateral action between Member States would probably be sufficient to regulate readmission within the Community. However, it recognises that Community-wide regulation will be necessary in the context of Community-level agreements on readmission with third countries.

  6.6  The Minister tells us that the Government is considering whether to exercise its opt-in to this proposal and will in the meantime participate in the negotiations over the text.

Conclusion

  6.7  The prematurity of this proposal is less obvious to us than to the Minister, given the need, which she admits, to determine responsibility for the taking back of a third country national once there is a Community-level agreement on readmission, and the difficulty of devising workable criteria. We can see, however, that the UK may be in some difficulty over its decision about participation at this stage. Logic would seem to dictate that the UK should opt in both to this proposal and to the readmission agreement (once negotiated) or to neither of them. Will the Minister confirm that this is the case?

  6.8  The Minister does not dispute that the proposal builds upon the Schengen acquis. Given that the Protocol on integrating that acquis into the EU framework gives the UK a reasonable period within which to state its willingness to take part (in contrast to the three month period laid down in the Protocol on the position of the UK and Ireland), how much time does the Government think is available to it to consider whether to exercise its opt-in to this proposal?

  6.9  We will keep this proposal under scrutiny until we have the Minister's response to these questions and until further progress has been made in negotiations.

SANCTIONS AGAINST THE TALIBAN

(20807)
13964/99
COM(99) 662

Draft Council Regulation concerning a flight ban and a freeze of funds and other financial resources in respect of the Taliban of Afghanistan.
Legal base: Articles 60 and 306 EC; qualified majority voting
Document originated: 7 December 1999
Forwarded to the Council: 8 December 1999
Deposited in Parliament: 6 January 2000
Department: Foreign and Commonwealth Office
Basis of consideration: EM of 24 January and Minister's letter of 25 January 2000
Previous Committee Report: None; but see (20616) —: HC 34-xxxi (1998-99), paragraph 16 (10 November 1999)
To be discussed in Council: Expected to be adopted at an early Council
Committee's assessment: Politically important
Committee's decision: Not cleared; further information requested

Background

  7.1  On 15 October 1999, United Nations Security Council Resolution (UNSCR) 1267 was adopted. It demanded that the Afghan faction known as the Taliban, which also calls itself the Islamic Emirate of Afghanistan, should hand over Usama bin Laden for trial, without delay. Bin Laden is wanted by the United States authorities in connection with terrorist acts against US diplomats and diplomatic premises abroad. Under the Resolution, given the Taliban's failure to comply, UN Member States are required to impose a flight ban and to freeze the Taliban's funds and other financial resources.

  7.2  The EU Member States decided to implement these measures collectively in the Community and on 15 November 1999, Common Position (1999/727/CFSP) was adopted. We cleared it in draft on 10 November.[20]

The draft Council Regulation

  7.3  In his EM of 24 January, the Minister of State at the Foreign and Commonwealth Office (Mr Vaz) says that on 9 December the Commission presented a draft Council Regulation, but this has been substantially revised. He has provided a copy of both texts. The revised draft is expected to be adopted soon and the Minister expresses the hope that we can clear the measure quickly. The UN Resolution came into force in the UK and Overseas Territories on 26 November, through Statutory Instruments made under the United Nations Act 1946.

  7.4  The revised Regulation will impose sanctions against any aircraft, funds or financial resources listed in its annexes. These lists will be drawn up by the Taliban Sanctions Committee, established by UNSCR 1267 (1999), and the Regulation provides for them to be supplemented and/or amended by the Commission on the basis of "determinations" made by the UNSC or the Taliban Sanctions Committee. Exemptions may be obtained through the competent authorities of the Member States listed in an annex. Exemptions granted by the Taliban Sanctions Committee will apply throughout the Community.

  7.5  Article 10 of the draft provides for the Regulation to apply "notwithstanding any rights conferred or obligations imposed by any international agreement signed or any contract entered into or any licence or permit granted before the entry into force of this Regulation".

Conclusion

  7.6  We understand that the Minister would prefer the parliamentary scrutiny reserve to be lifted as early as possible on this proposal. Nevertheless, we are concerned at the scope of Article 10. It is so widely cast as to have, in our view, an uncertain effect on those EU persons or bodies who, before the Regulation comes into force, have had legitimate business with the Taliban. They will have had little prior warning and no mention is made of providing compensation or exemption from damage in given circumstances. No justification is offered by the Minister for such a draconian measure, though the reason for putting intense pressure on the Taliban, as provided for in the Regulation as a whole, is clear.

  7.7  We, therefore, ask the Minister to tell us whether the possible effect of the Regulation on third parties has been taken fully into account. Meanwhile, we shall not clear the document.


18  A House for the Future: Royal Commission on the Reform of the House of Lords, Cm 4534, January 2000. Back

19  (19903) 10338/1/98; see HC 34-xiv (1998-99), paragraph 5 (24 March 1999) and HC 34-xix (1998-99), paragraph 5 (12 May 1999).  Back

20  (20616) -; see HC 34-xxxi (1998-99), paragraph 16 (10 November 1999). Back


 
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