Select Committee on European Scrutiny Twenty-Second Report




Draft Council Framework Decision on the strengthening of the penal framework to prevent the facilitation of unauthorised entry and residence; and

Draft Council Directive defining the facilitation of unauthorised entry, movement and residence.

Legal base:Articles 31(e) and 34(2)(b) EU; consultation; unanimity

Article 63(3)(b) EC; consultation; unanimity

Deposited in Parliament:21 June 2001
Department:Home Office
Basis of consideration:EM of 15 January 2002; Minister's letter of 18 March 2002
Previous Committee Report:HC 152-xv (2001-02), paragraph 6 (30 January 2002)
To be discussed in Council:No date fixed
Committee's assessment:Legally and politically important
Committee's decision:Not cleared; further information requested


  8.1  This proposal consists of a Framework Decision on jurisdiction and penalties in relation to 'facilitation' offences (offences concerned with facilitating illegal immigration and trafficking in human beings), together with a Directive on the material scope of the offences to be adopted under Article 63(3)(b) EC and defining the facilitation of unauthorised entry, movement and residence.

  8.2  The previous Committee considered earlier versions of the Framework Decision and the Directive on 29 November 2000 and considered the then current version on 21 March 2001. We also considered that document on 18 July 2001, when we asked the Minister to provide an account of where matters stood with the proposal and to deposit the then latest versions. We were concerned that the Government had seen fit to make a statement in the Justice and Home Affairs Council on 28 and 29 May 2001 that the UK would lift its scrutiny reserve when the matter came up for formal adoption in the Council, even though we had not cleared the document from scrutiny. We deplored this practice and asked the Minister to explain why such an announcement was made.

  8.3  We noted that the current document was deposited on 20 June 2001, but that no Explanatory Memorandum on this document was produced for over six months. We were told by the Minister that the delay was due to confusion over whether such an Explanatory Memorandum should be deposited, in the light of the provisional agreement reached at the May 2001 JHA Council.

  8.4  We considered that there had been serious failings in the presentation of the proposal for scrutiny. We asked the Minister for an explanation of why there should have been any confusion over the need to provide an Explanatory Memorandum to accompany the latest texts of this proposal, and why it should have taken over six months for it to be produced, particularly when we had specifically requested the Minister on 18 July 2001 to provide an account of where matters stood with this proposal and to deposit the current revised versions. We also asked the Minister to identify which text of the proposal was the subject of 'political agreement' at the Justice and Home Affairs Council in May 2001.

The Minister's letter

  8.5  In her letter of 18 March 2002 the Parliamentary Under-Secretary of State at the Home Office (Angela Eagle) explains the delay in depositing the Explanatory Memorandum of 15 January 2002 as follows:

"As reported by Barbara Roche in her letter of 6 June 2001, the JHA Council on 28-29 May 2001 reached political agreement on these documents[21], subject to the addition of the words "by applying its national law and practice" in Article 1(2) of the draft directive. The Government stated that it would lift its Parliamentary scrutiny reserve in time for formal adoption of these instruments. I must apologise for the fact that my letter of 15 January stated that there had been a "provisional agreement" on the text, as it was in fact a political agreement.

"It was because political agreement had been reached on the text that officials were not clear that it would be correct to submit an Explanatory Memorandum on the agreed texts. Under the terms of the scrutiny reserve resolution, the Parliamentary reservation should have been lifted at the point of political agreement rather than formal adoption (with the Government writing to the Committees to provide an explanation of its reasons). The Government did not do this because a number of other Member States retained parliamentary reservations at the point of political agreement. I apologise again for the confusion which arose within the department about the effect of the Government's decision on the scrutiny process."

  8.6  The Minister also explains that the latest texts of this proposal (10714/01 and 11015/01) were deposited on 6 March, and that these are substantially the texts which the Minister expects will go to the Council for formal adoption[22]. The Minister further explains that an Explanatory Memorandum on these documents is being deposited.


  8.7  Whilst we are grateful for the Minister's letter, we consider that it raises as many questions as it answers. It appears from her letter that the Government agreed to these measures when the JHA Council reached political agreement on them on 28-29 May 2001. The Minister states that "the Parliamentary reserve should have been lifted" at the time political agreement was reached (with the Government writing to the Committee to explain its reasons), but that this was not done. The Minister explains that this was "because a number of other Member States retained parliamentary reservations at the point of political agreement".

  8.8  We ask the Minister to explain more precisely whether the Government did participate in the political agreement reached by the Council on 28-29 May 2001 and, if so, to explain why this was done when the proposal was still subject to scrutiny.

  8.9  We note the Minister's intention to deposit the latest texts of the proposal, but if it is the case that political agreement has already been reached on these measures, we ask the Minister to explain why a new text is now being produced. Given the history of this matter, we also ask the Minister to undertake not to signify agreement of any kind to the new texts until we have had the opportunity to consider them in the light of the Explanatory Memorandum which the Minister has promised.

  8.10  We shall hold the present document under scrutiny pending the Minister's reply, which we shall expect to receive in time to consider in conjunction with her Explanatory Memorandum.

21  i.e. (23077) 8632/01; see headnote to this paragraph. Back

22  The Minister explains that a further amendment will be made to take account of the approval on 28 February of Ireland's participation in the Schengen arrangements. A recital will be added to the effect that Ireland is deemed to have made an application under Article 5 of the Schengen protocol that it wishes to participate in this measure. Back

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 28 March 2002