Twenty-eighth Report of Session 2013-14 - European Scrutiny Committee Contents


16   The EU and Indonesia

(34881)

8949/13

COM(13) 230

Draft Council Decisions on the conclusion of the Framework Agreement on Comprehensive Partnership and Cooperation between the European Community and its Member States and the Republic of Indonesia

Legal baseArticles 207, 209, and Article 218(6)(a) TFEU; QMV; consent
Document originated24 April 2013
Deposited in Parliament30 April 2013
DepartmentForeign and Commonwealth Office
Basis of considerationMinister's letter of 28 October 2013
Previous Committee ReportsHC 83-xvi (2013-14), chapter 21 (9 October 2013); HC 83-xii (2013-14), chapter 21 (17 July 2013)
Discussion in Council22 July 2013
Committee's assessmentLegally and politically important
Committee's decisionCleared (decision reported 9 October 2013)

Previous scrutiny

16.1  When we last reported on this proposal, we drew the following conclusions:

"There are two points to make. The first is that the Minister appears to be unaware of his Government's Code of Practice on Scrutiny of Opt-In and Schengen Opt-Out Decisions, adopted in May of this year and to be found in annex S of the Cabinet Office Scrutiny Guidance. At paragraph 4 the Code says that an Explanatory Memorandum 'will provide an indication, to the extent possible, of the Government's views as to whether or not it would opt in and the factors likely to influence the Government's decision'. We ask the Minister to consider whether saying 'at the time the Government had not yet arrived at a view' is a satisfactory explanation of why there was no mention of factors likely to influence the Government's opt-in decision in the Explanatory Memorandum. On reflection he may realise that the Government's opt-in decisions are rarely agreed at the time an Explanatory Memorandum is drafted, that is why the relevant factors are so important.

"Secondly, it is dismissive of the Committee's interest in the Government's reasons for not opting into a readmission agreement with Indonesia to reply by saying no more than it was not in the UK's interest to do so. Again, on reflection, he may realise that 'not in the UK's interest' can cover a host of virtues or a multitude of sins: either way, it is not illuminating in any sense at all.

"We think the letter displays a cavalier disregard for a Report of this Committee, which sits ill with the Minister's overall responsibility for relations with Parliament on EU affairs, and with his often repeated statements that he takes Parliamentary scrutiny very seriously indeed. We therefore ask the Minister to reconsider his answers, to write again, and to ensure that the relevant officials in his Department are made aware of our concerns."

Minister's letter of 28 October 2013

16.2  The Minister for Europe replied as follows:

"Thank you for your Committee's clearance of the Proposal for a Council Decision on the conclusion of the Framework Agreement on Comprehensive Partnership and Cooperation between the European Community and its Member States, of the one part, and the Republic of Indonesia, of the other part, as 'legally and politically important'.

"I understand your Committee's concerns expressed in its report of 9 October regarding the lack of a fuller explanation in my Explanatory Memorandum (EM) dated 9 July 2013 regarding the Government's approach to the opt-in in this case. Relevant officials have been made aware that, in order to fully comply with the JHA Code of Practice guidance, EMs submitted to your Committee should seek to set out factors likely to inform the Government's consideration in future cases of this kind.

"My officials are working to improve internal procedures to ensure that factors likely to influence the Government's decision are detailed at an early stage in EMs and correspondence with your Committee - in order to ensure that the important work of the Parliamentary scrutiny committees is informed by the greatest extent of information possible. I fully accept your point that the Government should be able to provide greater detail on the factors likely to affect an opt-in decision.

"I appreciate that the explanation given in my 2 August letter that 'it was not in our national interest to opt-in' could have been elaborated further. The Government decided that the UK should not opt in to the readmission element of the EU-Indonesia PCA and that we should instead assume these commitments in our own right as a separate contracting party to the agreement. This was our preferred approach due to the fact that the readmission provision fell in an area of unexercised shared competence, where either the EU or the Member States could act.  We took the view that the EU should not bind the UK by its exercise of such shared competence.

"However, we will assume these commitments in our own right. Indonesia is not currently an immigration returns priority for the UK (there were only nine enforced returns to Indonesia in 2012) and there are no problems with existing bilateral returns arrangements which signing up to a EU agreement on readmission would help resolve. However, should the EU bring forward a future readmission agreement with Indonesia, the Government's view is that our opt-in will apply. Any such future readmission agreement would of course be deposited separately with Parliament for the scrutiny committees' consideration.

"We were able to take this approach due to the mixed competence nature of the agreement and because it was unclear from the text whether the EU or the Member States (or both) were entering into the commitments on readmission.  We are therefore bound by the readmission commitment in respect of Indonesia, but not as part of the EU."

Conclusion

16.3  We note the Minister's acknowledgement of the failings of his original Explanatory Memorandum and trust a similar situation will not arise again.

16.4  The differences of opinion between the Government and ourselves on the application of the opt-in in the absence of a Title V legal base have been aired in many of our previous Reports; and so, whilst grateful for the Minister's reply, we do not propose to take this further.



 
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