European Scrutiny Committee Contents

Annex: Letter from the Minister for Europe of 10 November 2011: the application of the Justice and Home Affairs Opt-In to international agreements

"Further to my letter of 19 July 2011; your letter of 12 October 2011 and the joint letter from the Home Office and Ministry of Justice of 3 November. I am writing to set out the Government's position on the justice and home affairs (JHA) opt-in in relation to international agreements to coincide with the publication of the Government's final response to your Committee's report "Opting into international agreements and enhanced Parliamentary scrutiny of opt-in decisions".

"I understand your concerns about the Government's assertion that the JHA opt-in Protocol is engaged by JHA content rather than just by the citation of a Title V legal base in a measure. I gave evidence to your Committee on the reasons for the Government's position in April. As you know, I attach huge importance to effective Parliamentary scrutiny of this Government's actions in the EU. For this reason, following the publication of your report in May, I have held discussions with Ministerial colleagues and asked officials to review the Government's position on this issue. Unfortunately, the Government and your Committee have come to two different conclusions on this important point. In the Government's view, as set out in the Home Secretary and Justice Secretary's joint letter of 3 November, a JHA obligation in a measure should never be regarded as ancillary for the purpose of the predominant purpose test and will always justify the citation of a JHA legal base. In such circumstances we consider that the UK is not bound by a measure which creates JHA obligations unless we have opted in pursuant to the Protocol. We consider this is the case irrespective of whether a JHA legal base has been cited. We will therefore lobby for such a legal base to be cited in all relevant Council Decisions. On this basis, if we are unsuccessful in arguing that a JHA legal base should be cited in a Council Decision, we would nonetheless assert that the opt-in applies where an international agreement creates obligations in the JHA field.

"I would reiterate that the scrutiny process remains of great importance to the Government. We will make every effort to ensure that your Committee and the Lords EU Select Committee have the opportunity to express views on EU proposals. However, given our continuing disagreement over the circumstances in which the JHA opt-in applies to international agreements, the Government is left with no option but to override a scrutiny block imposed by your Committee on international agreements where we assert that the JHA opt-in applies. This is of course not something we do lightly. But the conclusion of these agreements is an important element in the Government's key European policy objective of promoting economic growth and employment through stronger trade relations between the EU and its Member States and third countries.

"With regret, I am therefore overriding the current scrutiny blocks on the proposals for Council Decisions on signature by the EU of the agreements with Iraq (16152/10 (32176), 16179/10 (32177) &  SN 4953/1/10 REV.1 (32638)), Vietnam (18041/10 (32369, 14R, 10-12)), the Philippines (13615/10 (31949 & OTNYR (32472))) and Mongolia (7853/11 (32608)). It is my intention to do so again with regards to any future proposal for a Council Decision on signature or conclusion of an international agreement by the EU where the Committee withholds scrutiny clearance on this point alone. It is important that the UK is able to use its vote to support international agreements of this kind which contribute to UK prosperity."

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Prepared 13 December 2012