Select Committee on European Scrutiny Eleventh Report


The European Scrutiny Committee has made further progress in the matter referred to it and has agreed to the following Report:—


COM(01) 259

Draft Council Framework Decision laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of drug trafficking.

Legal base:Articles 29, 31(e) and 34(2)(b) EU; consultation; unanimity
Document originated:23 May 2001
Forwarded to the Council: 27 June 2001
Deposited in Parliament: 18 July 2001
Department:Home Office
Basis of consideration: Minister's letter of 29 November 2001
Previous Committee Report: HC 152-iv (2001-02), paragraph 3 (7 November 2001)
To be discussed in Council: No date set
Committee's assessment:Legally and politically important
Committee's decision:Not cleared; further information requested



  1.1  At the Tampere European Council in October 1999, Member States agreed on a commitment to establish common definitions and penalties for a number of offences, including drug trafficking.

  1.2  The draft Framework Decision defines drug trafficking and related offences, and provides for maximum penalties of not less than five years' imprisonment in serious cases. The Framework Decision also provides for a number of aggravating and mitigating circumstances to be taken into account in sentencing, for the liability of legal persons, and for the making of rules on jurisdiction. We considered the draft Framework Decision on 7 November 2001 when we put a number of questions to the Minister.

  1.3  We were concerned that the definition of trafficking as set out in Article 1 of the Framework Decision might have a narrower scope than existing international instruments and domestic law, since it appeared to depend on the notion of making a profit. We were also concerned about the vagueness of the provisions on aggravating and mitigating circumstances, and the narrowness of the rules on jurisdiction.

The Minister's letter

  1.4  In his letter of 29 November 2001, the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) explains that negotiations on the proposal have not progressed beyond discussion of the definitions in Article 1, and that there has been limited opportunity to establish the Commission's intentions in respect of subsequent Articles or for Member States to make known their views formally.

  1.5  In relation to Article 1, the Minister refers to our concern that the inclusion of the notion of profit in the definition of "illicit drug trafficking" would cause the definition to be narrower in scope than the definition in the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and in UK law. On this point the Minister reports that a majority of Member States, including the UK, favour deleting the notion of profit and that the Presidency has agreed to produce a new text, aligning the definition more closely with the UN Convention.

  1.6  We noted that, despite the elaborate nature of the provisions on aggravating and mitigating circumstances for the purpose of sentencing, no attempt had been made to define what was meant by "serious" for the purpose of the minimum sentence of five years under Article 4(1). We asked if the Minister intended to put forward any proposals in this regard. The Minister comments as follows:

    "The UK already has a well advertised position that, as a priority, it wants to see tough common EU minimum maximum sentences for criminals trafficking in large quantities of harmful (i.e. class A drugs). Such a requirement is already met in the UK, where there is a maximum penalty of life imprisonment for trafficking in Class A drugs. But the UK wishes to ensure that other Member States have tough penalties too. Our overall objective in this critical area of the instrument would therefore be to seek a much more specific definition of "serious" and also to obtain a considerable increase in the current 5 year penalty for "serious" offences and the proposed 7 year penalty for "serious" offences with additional aggravating circumstances. Exactly how this is to be achieved remains to be negotiated with other Member States, who have yet to reveal their formal positions on this. Any solution reached would also need to take account of the very different systems which currently exist for determining penalties for drug trafficking offences in various Member States."

  1.7  We drew attention to the unclear scope of Article 5(1)(c) relating to "persons who are unable to exercise their free will", and the somewhat random choice of examples in Article 5(1)(e) to denote persons in a position of trust or authority. On these points, the Minister comments as follows:

    "With regard to Article 5(1)(c) we agree with the Committee that the definition of "persons who are unable to exercise their free will" is not entirely clear. Officials will seek to clarify the position once negotiations reach that stage. However, it is thought unlikely that the Commission intend to include all drug addicts within the definition of "persons who are unable to exercise their free will" but that rather they are seeking to recognise the seriousness of offences involving the mentally handicapped. We will seek to clarify this.

    "The purpose of the Commission's decision to draft Article 5(1)(e) relating to positions of authority in specific rather than generic terms has not been made evident. However, we agree with the Committee that the list of occupations in the article is not sufficiently comprehensive to cover the abuse of a position of trust or authority, and therefore favour negotiating a more generic definition."

  1.8  In response to our remarks on the narrowness of the rules of jurisdiction in Article 9, the Minister comments as follows:

    "The terminology is similar to that adopted in other EU instruments and would not in our view constrain the UK from exercising wider powers of jurisdiction in accordance with UK law and the provisions of the 1988 UN Convention."


  1.9  We are grateful to the Minister for his helpful letter informing us of the state of negotiations on the proposal, and for explaining the views of the Government on those parts which have yet to be negotiated.

  1.10  We welcome the indication given by the Minister that the definition of drug trafficking in Article 1 will be aligned more closely with the 1988 UN Convention, and we shall look forward to sight of the revised text.

  1.11  We note the Minister's comment that the provisions of Article 9 on jurisdiction would not prevent the UK from asserting jurisdiction on the wider basis available under UK law and provided for in the 1988 UN Convention. However, it seems to us that, with the adoption of the proposals for a European arrest warrant, the provisions of Article 9 will need to be reconsidered, since it will no longer be possible to refuse extradition on the grounds of the person's nationality. We do not see any compelling reason why the rules on jurisdiction should not be more closely aligned with those of the 1988 Convention, particularly in relation to nationals or persons habitually resident within the national territory. We ask the Minister if he agrees with this approach.

  1.12  We shall hold the document under scrutiny pending the deposit of the revised text.

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2002
Prepared 17 January 2002