7 EU Committee on Internal Security
| (a) (30877) —
—
(b) (31206) 16075/1/09 —
| Draft Council Decision on setting up the Standing Committee on operational cooperation on internal security
Draft Council Decision on setting up the Standing Committee on operational cooperation on internal security
|
| Legal base | (a) Article 71 TfEU; — ; simple majority
(b) Article 240(3) TfEU; — ; simple majority
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| Deposited in Parliament | (a) 2 September 2009
(b) 9 December 2009
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| Department | Home Office |
| Basis of consideration | (a) EM of 2 September 2009 and Minister's letter of 26 October 2009
(b) Minister's letter of 24 November and EM of 10 December 2009
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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 important
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| Committee's decision | (a) Cleared
(b) Not cleared; further information requested
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Legal background
7.1 Article 71 of the Treaty on the Functioning of the European
Union (TfEU) requires a standing committee to be set up within
the Council to improve and strengthen operational cooperation
on internal security in the EU.
7.2 Protocol 21 to the TfEU provides that the UK
is not to take part in the adoption of, or be bound by, measures
adopted under Title V of the TfEU (Articles 67 to 89) unless the
UK Government has opted into the measure.
7.3 Article 240(3) TfEU requires the Council to act
by a simple majority on procedural matters and for the adoption
of its rules of procedure.
7.4 Article 242 TfEU provides that:
"The Council, acting by a simple majority shall,
after consulting the Commission, determine the rules governing
the committees provided for in the Treaties."
Document (a)
7.5 On 2 September, the Minister of State at the
Home Office (Mr Phil Woolas) sent us document (a), the unofficial
draft of a Decision to set up the EU Standing Committee on Operational
Cooperation on Internal Security (COSI). In his covering Explanatory
Memorandum, he explained that the purpose of the draft Decision
would be to give effect to Article 71 TfEU (see paragraph 7.1
above) of the Lisbon Treaty came into force.
7.6 The main provisions of document (a) are as follows:
- COSI's function would be to
promote and strengthen coordination of the operational actions
of Member States' internal security authorities;
- COSI should facilitate and ensure effective operational
cooperation and coordination on police and customs cooperation,
asylum, immigration, visas, the control of the external borders
of the EU and judicial cooperation in criminal matters;
- COSI would evaluate the "general direction"
and efficiency of operational cooperation, spot weaknesses and
recommend remedies;
- COSI would be expressly prohibited from conducting
operations itself;
- COSI would also be prohibited from involvement
in the preparation of legislation;
- COSI would be able to invite representatives
of Europol, Eurojust, FRONTEX and other relevant bodies to attend
meetings as observers;
- COSI would be required to make regular reports
to the Council about its activities; and
- the Council should keep the European Parliament
and national parliaments informed of COSI's proceedings.
7.7 The Minister told us that the Government supported
the creation of COSI:
"to assist Member States in tackling common
threats and challenges from terrorism, organised crime and illegal
immigration. The UK has argued that EU cooperation needs a greater
practical focus to assist Member States in responding on the ground
to operational needs; we believe that this Committee should offer
the opportunity for such cooperation."[28]
The Government also supported the provisions of the
draft Decision, which would not, however, apply to the UK unless
the Government opted into it. The Government had not yet decided
whether to opt in.
7.8 The Minister also told us that:
"In the scenario where the Lisbon Treaty comes
into force, it seems highly possible that the Presidency would
table texts, such as this Council Decision, for adoption as early
as within a few weeks of the Lisbon Treaty entering into force".[29]
7.9 We had no reservations about the substance of
document (a). But we wrote to the Minister on 14 October:
- to ask if he agreed with us
that it would be contrary to the spirit of the Lisbon Treaty's
Protocol on the role of national parliaments in the EU if we were
not given proper time in which to consider the official text of
the draft Decision when it was published;[30]
and
- to ask for his views on whether Article 71 was
an adequate legal base for the proposed Decision.
7.10 In his reply of 26 October, the Minister noted
that the COSI Decision would not fall within the Lisbon Treaty's
definition of a legislative act and so Article 4 of the Protocol
on the role of national parliaments would not apply but suggested
a different way to give the Committee eight weeks for scrutiny
of JHA legislation. He explained that the Lisbon Treaty gives
the UK three months to decide whether to opt into a proposal for
JHA legislation. The Government would allow eight of those weeks
for Parliamentary scrutiny. By implication, the Government would
not breach a scrutiny reserve during those eight weeks; and the
Council would not adopt the legislation before the UK had reached
its decision whether to opt in.
7.11 We welcomed the Minister's reply.
Document (b)
7.12 On 24 November, the Parliamentary Under-Secretary
at the Home Office (Meg Hillier) wrote to tell us that the Presidency
now considered that Article 71 TfEU established COSI and so no
more was required than a procedural decision under Article 240(3)
TfEU (see paragraph 7.3 above). She enclosed document (b), a revised
text of the draft Decision, which differs from document (a) only
in citing Article 240(3) as the legal base and setting out two
Recitals.
7.13 The Minister also told us that the Government
had been planning to opt into the draft Decision but, on reflection,
concluded that Article 71 is not a measure that could be "binding
upon or applicable in" the UK (the words used in Article
2 of Protocol 21 — see paragraph 7.2 above) but would enable
the UK to take part in COSI without the need to opt in.
7.14 The Minister said that, in its discussions with
the Presidency, the Government had emphasised that "we must
be given sufficient time to consult parliament". Finally,
she said that the Government would send us an Explanatory Memorandum
on document (b) after the Lisbon Treaty had come into force.
7.15 The official text of the draft Decision was
deposited in Parliament on 9 December. The Minister's Explanatory
Memorandum of 10 December confirms that the Government is content
with the proposal and says that the draft Decision has received
wide support from other Member States.
Conclusion
7.16 We recognise the potential benefits for practical
cooperation between Member States through the creation of the
Committee on Internal Security. The drafting of document (b) is
clear and we have no questions about the substance of the document.
7.17 We have doubts, however, about the use of
Article 240(3) as the legal base for the measure. This is because
Article 242 TfEU is expressly and specifically about "the
rules governing the committees provided for in the Treaties"
(see paragraph 7.4 above). We ask the Minister to obtain an explanation
from the Council Legal Service about why Article 242 should not
be cited as the legal base and whether Article 240(3) is appropriate.
Pending the Minister's reply, we shall keep document (b) under
scrutiny. Document (a) has been superseded by document (b) and
so we clear document (a) from scrutiny.
28 Minister's Explanatory Memorandum of 2 September,
page 3, fourth paragraph. Back
29
Ibid. final page, last sentence. Back
30
The second Recital to the Protocol says that the Member States
have agreed to the provisions of the Protocol "Desiring to
encourage greater involvement of national parliaments in the activities
of the European Union and to enhance their ability to express
their views on draft legislative acts of the European Union". Back
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