10 Trafficking in firearms
| (34793)
7933/13
COM(13) 154
| Draft Council Decision on the conclusion of the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organised Crime
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| Legal base | Articles 114, 207 and 218(6)(a) TFEU; EP consent; QMV
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| Department | Home Office
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| Basis of consideration | Minister's letter of 25 June 2013
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| Previous Committee Reports | HC 83-iii (2013-14), chapter 13 (21 May 2013) and
HC 86-xxxix (2012-13), chapter 10 (24 April 2013)
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| Discussion in Council | 26 June 2013
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| Committee's assessment | Legally important
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| Committee's decision | Not cleared; further information requested
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Background and previous scrutiny
10.1 The purpose of the draft Council Decision is to authorise
the European Union to conclude (ratify) a Protocol to the UN Convention
against Transnational Organised Crime. The Protocol seeks to
promote cooperation between State Parties to prevent and combat
the illicit manufacturing of, and trafficking in, firearms, including
their component parts and ammunition. A number of the provisions
of the Protocol have been implemented by EU measures establishing
minimum harmonised rules on firearms. All of these measures,
as well as a 2001 Council Decision authorising the then European
Community to sign the Firearms Protocol, cite a combination of
internal market and/or common commercial policy legal bases.
The Commission considers that the adoption of these measures ensures
that the EU's legislative framework is fully compliant with those
elements of the Protocol falling within EU competence.
10.2 Annexed to the draft Council Decision is
a "declaration of competence" which sets out the scope
of EU competence in relation to the Firearms Protocol. The areas
of competence described correspond to the legislative measures
already adopted by the EU and are reflected in the choice of substantive
legal bases for the draft Decision — Articles 114 and 207
of the Treaty on the Functioning of the European Union (TFEU)
concerning the internal market and the common commercial policy.
10.3 Whilst the Government broadly welcomes EU
participation in the Protocol and accepts that the EU has competence
in relation to many of its provisions, it has expressed concern
that the conclusion of the Protocol by the EU would make the UK
subject to all of its provisions, including those requiring State
Parties to criminalise certain activities or conduct. Although
the draft Council Decision does not cite a Title V legal base,
the Government considers that EU ratification of the Protocol
would establish binding obligations in the justice and home affairs
field. The Minister for Policing and Criminal Justice (Damian
Green) therefore told us that the Government would "nevertheless
proceed to take an opt-in decision, in line with the Government's
view that the presence of binding JHA obligations rather than
the citation of a JHA legal base is the trigger for our opt-in."[25]
Our Fortieth Report of Session 2012-13, agreed on 24 April 2013,
and our Third Report, agreed on 21 May 2013, describe the main
elements of the Protocol and the reasons why the Government considers
that its Title V opt-in is in play.
10.4 Our principal concern in scrutinising the
draft Council Decision has been to establish whether it would
authorise the EU to exercise competence in the justice and home
affairs field. If it would, then we would have no difficulty
in endorsing the Government's position that a Title V legal base
should be cited and that the UK's Title V opt-in applies. We
have highlighted the importance of the declaration of competence
annexed to the draft Council Decision as a means of delimiting
the extent of EU competence in relation to the Protocol. However,
we have also indicated that we are not clear on what basis the
Government considers that the Commission has asserted an EU competence
in relation to those elements of the Protocol touching on justice
and home affairs matters. Indeed, the Government has told us
that the Commission accepts that the authorisation given to the
EU to sign up to the Protocol only extends to those matters which
it was responsible for negotiating on behalf of the EU when the
Protocol was established and that this excluded justice and home
affairs matters.[26]
10.5 We reiterated the concern expressed in our
Report, Opting into international agreements and enhanced Parliamentary
scrutiny of opt-in decisions, that "a unilateral subjective
assessment of the content and legal effect of a multilateral agreement
will inevitably lead to legal uncertainty" and that the citation
of Title V legal base is therefore necessary to trigger the UK's
Title V opt-in.[27]
As, however, the Government takes a contrary view, we asked the
Minister to inform us as soon as possible of the Government's
opt-in decision and to explain the reasons for, and consequences
of, its decision.
The Minister's letter of 25 June 2013
10.6 The Minister for Policing and Criminal Justice
(Damian Green) agrees with us that the declaration of competence
is an important factor in describing the extent of EU competence,
and adds:
"As suggested by your Committee, we have been
exploring the possibility of making the wording clearer, perhaps
by identifying specific Articles (and elements within them) which
fall within the competence of the EU. This was the formulation
used when the EU ratified the parent Convention. The Commission
do not, however, accept that greater clarity is needed and have
indicated that most of their declarations of competence do not
include an "article by article" analysis."
10.7 He says that the Government has not succeeded
in persuading the Commission to include a Title V legal base:
"They have also reaffirmed their view that under
EU legislation they cannot combine in one legislative document
two different legal bases. They have made the point that the
legal base they cited in relation to this particular Council Decision
is a commercial one (exclusive competence) and that they cannot
therefore also cite Articles 83 and 87 which cover JHA (shared
competence) matters. The Government questions this interpretation."
10.8 Turning to those parts of the Protocol which
require State Parties to introduce criminal sanctions, the Minister
observes:
"The Commission have also noted that if they
had wanted to conclude the part of the Protocol on criminal sanctions
they would have submitted a second proposal with a Title V base.
I accept that this offers reassurance in relation to Articles
5 and 6 of the Protocol but the Commission have not specifically
addressed our concern that there are also elements within Articles
9 and 11 which establish binding JHA obligations, and which are
subject to the current Council Decision. I note your Committee's
view that both Articles appear to suggest an element of discretion
in determining how they should be implemented and could be considered
exhortatory rather than legally binding. However, in my view
the wording of articles 9 and 11 goes further than simply encouraging
action by Member States, because it uses the language 'shall take'
the necessary measures/appropriate measures, and I read 'shall'
as having the effect of imposing an obligation".
10.9 The Minister continues:
"As you are aware, it is the Government's firm
view that the opt-in is triggered by the presence of binding JHA
obligations rather than by the citation of a JHA legal base, and
this being so we have asserted that the opt-in applies to this
Council Decision and are proposing to opt in prior to the adoption
of the measure by the EU on 26 June. We will put on the record
by means of a minute statement the Government's position that
the opt-in applies and that we have opted in.
"Although there is some ambiguity in relation
to the full extent of the Commission's declared competence, we
are very much in favour of the objectives behind ratification
of the Protocol. We already have some of the toughest gun controls
in the world and fully support any measures to counter transnational
crime and to ensure that other countries also have tough gun controls
to make it more difficult for criminals in this country to source
their weapons from abroad. In terms of the consequences of a
decision to opt-in, the six Articles to be ratified are already
covered by the changes made to European legislation in order to
meet the requirements of the Protocol. This was achieved through
amendments to the existing Weapons Directive 91/477 on the acquisition
and possession of weapons by means of Directive 2008/51/EC and
the adoption of Regulation 258/2012 to combat illicit arms trafficking
through improved tracing and control of export of civilian arms
from the EU. These have been incorporated as necessary into UK
legislation. In so far as I believe there are specific JHA obligations
in Articles 9 and 11, these are not in themselves immediately
problematic since we already have measures in place to prevent
illicit reactivation and for any deactivation measures to be verified
by a competent authority and the weapon marked.
"Article 11 requires state parties to take measures
to increase the effectiveness of border controls and police and
customs trans-border co-operation, but it does not go as far as
mandating any specific measures, nor does it require that those
measures have to be achieved through legislation, as opposed to
through practical or operational initiatives which are kept under
close review."
10.10 The Minister concludes by noting that the
draft Council Decision is expected to be adopted on 26 June and
that the Government intends to abstain from the vote in order
to avoid overriding scrutiny. He asks us to clear the draft Decision
from scrutiny.
Conclusion
10.11 The Minister is familiar with our view
that the citation of a Title V legal base is not merely desirable,
but also necessary, to trigger the application of the UK's Title
V opt-in. Although the Minister suggests that there is some ambiguity
as to the full extent of the Commission's competence in relation
to the Protocol, it seems that the Commission and other Member
States do not agree. In our view, the Government's decision to
assert that the UK's opt-in applies in this case, and to make
a statement in the Council's minutes to that effect, illustrates
our concern that "a unilateral subjective assessment of the
content and legal effect of a multilateral agreement will inevitably
lead to legal uncertainty."[28]
Indeed, by asserting that the UK's opt-in applies and by choosing
to opt in, the Government appears to accept that the Council Decision
does authorise the EU to exercise competence in the justice
and home affairs field in relation to the Protocol, contrary to
the expectations of the Commission and other Member States. We
question whether this is a sensible way to safeguard against competence
creep.
10.12 We ask the Minister to tell us why the
Government has decided to exercise its opt-in, rather than to
ratify the Protocol in its own right and to implement any criminal
law obligations as a matter of domestic law, and whether the Government's
opt-in decision (and the reasons for it) have been set out in
a Written Ministerial Statement to Parliament. We also ask him
why it has taken so long to notify us of the Government's opt-in
decision, and why the Minister wrote to us only a day before the
draft Decision was adopted.
10.13 We infer from the Minister's letter
that one of the reasons given by the Commission for not including
a Title V legal base is that it is not possible to combine in
a single legislative instrument legal bases covering areas of
exclusive and shared EU competence. However, the version of the
draft Council Decision which we have under scrutiny cites two
legal bases — one, Article 207 TFEU on the common commercial
policy, is an exclusive EU competence, and the other, Article
114 TFEU on the internal market, is a shared competence. We ask
the Minister to clarify which legal base or bases are cited in
the Council Decision adopted on 26 June and to indicate whether
the Government intends to challenge the validity of the Decision
on the grounds that it fails to cite a Title V (justice and home
affairs) legal base. Pending the Minister's reply, the draft
Council Decision remains under scrutiny.
25 See letter of 8 May 2013 from the Minister for Policing
and Criminal Justice (Damian Green) to the Chair of the European
Scrutiny Committee. Back
26
Ibid. Back
27
Thirtieth Report of Session 2010-12, HC 955-I, (18 May 2011). Back
28
See the Thirtieth Report of Session 2010-12, HC 955-l, (18 May
2011): Opting into international agreements and enhanced Parliamentary
scrutiny of opt-in decisions. Back
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