9. CONVENTION ON THE FIGHT AGAINST CORRUPTION
(24275)
6363/03
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Draft Council Decision on the application to Gibraltar of the Convention drawn up on the basis of Article K.3(2)(c) of the Treaty on European Union on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union.
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| Legal base: | —
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| Document originated: | 14 February 2003
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| Deposited in Parliament: | 17 February 2003
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| Department: | Home Office
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| Basis of consideration: | EM of 20 February 2003
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| Previous Committee Report: | None
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| To be discussed in Council: | No date set
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| Committee's assessment: | Legally and politically important
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| Committee's decision: | Not cleared; further information requested
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Background
9.1 The Convention on the fight against corruption involving
officials of the European Communities or officials of Member States
of the European Union was adopted by the Member States on 26 May1997
under Article K.3(2)(c) of the Treaty on European Union (now Article
34(2)(d) EU).[18]
9.2 The Convention requires Member States to make criminal
the requesting or receiving of corrupt advantages by officials
(whether national or Community officials) and office holders of
all kinds (such as judges, Ministers and holders of elected office).
9.3 The Convention was silent as to its territorial application,
and contained no express provision under which a Member State
could make a declaration extending the Convention to territories
for whose international relations it is responsible.
The proposed draft Decision
9.4 The proposed draft Decision would provide for the
Convention also to apply to Gibraltar. The proposal recalls that
no provision was made in the Convention regarding its application
to Gibraltar. The operative part of the Decision (Article 1) provides
that the Convention "is applicable to Gibraltar".
The Government's view
9.5 In his Explanatory Memorandum of 20 February 2003
the Parliamentary Under-Secretary of State at the Home Office
(Lord Filkin) explains that when the Convention was adopted in
1997 no territorial provision was made to apply it to Gibraltar,
but that the present proposal 'corrects that omission'.
9.6 The Minister explains that the proposal is not a
Council Decision within the terms of Article 34(2)(c) EU 'but
is rather a decision of the Council (an inter-governmental decision
or Beschluss)'. The Minister adds that this type of instrument
was chosen as the 'most appropriate and least time-consuming mechanism'
by which Member States could acknowledge the application of the
Convention to Gibraltar. The Minister also explains that the decision
will have no impact on UK law.
Our assessment
9.7 We have no difficulty of substance with the proposal
to extend the 1997 Convention to Gibraltar. Our concern is to
understand the precise nature of the instrument by which it is
proposed to achieve this result. As indicated above, the Minister
describes the instrument as an inter-governmental decision or
Beschluss.
9.8 We would have difficulty accepting that such a 'decision'
could make a material change to a convention adopted under Article
34(2)(d) EU. By the terms of that provision, conventions are recommended
to Member States 'for adoption in accordance with their respective
constitutional requirements' and we would expect any material
change to such a convention to be adopted by means of an amending
convention or protocol which would then require ratification (which
process would at least require Parliament to be given the opportunity
of considering the amendments under the 'Ponsonby rule').[19]
9.9 In the present case, it appears to us that the United
Kingdom is, in effect, asserting its right to extend the Convention
to territories for whose international relations it is responsible.
As the Minister explains, no territorial provision was made in
the Convention, but it does not seem to us to follow from this
that the UK was not entitled to make a declaration extending it
to Gibraltar. In normal treaty practice, it would then have been
for other Member States to accept that extension or not. It may
be that the decision is no more than a means of obtaining the
acceptance of all Member States of the territorial extension of
the Convention which is now being proposed by the UK, but we consider
that the Minister should be invited to confirm that this is so.
Conclusion
9.10 We thank the Minister for his Explanatory Memorandum.
We ask him to explain more fully the nature of the inter-governmental
decision or Beschluss which is proposed in the document,
and to confirm that it is not intended, in any event, to make
any material change to the 1997 Convention.
9.11 We shall hold the document under scrutiny pending
the Minister's reply.
18 The
text of the Convention is published on OJ No. C 195, 25.6.97 pp.
2-11. Back
19 Cf,
Erskine May's Parliamentary Practice, Twenty-second Edition, p.226. Back
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