16 The EU and Indonesia
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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
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| Legal base | Articles 207, 209, and Article 218(6)(a) TFEU; QMV; consent
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| Document originated | 24 April 2013
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| Deposited in Parliament | 30 April 2013
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | Minister's letter of 28 October 2013
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| Previous Committee Reports | HC 83-xvi (2013-14), chapter 21 (9 October 2013); HC 83-xii (2013-14), chapter 21 (17 July 2013)
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| Discussion in Council | 22 July 2013
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| Committee's assessment | Legally and politically important
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| Committee's decision | Cleared (decision reported 9 October 2013)
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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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