21 Detention, supervision and previous
convictions of EU citizens
| Committee's assessment
| Legally and politically important |
| Committee's decision | (a) Not cleared from scrutiny; recommending debate in European Committee B (decision reported on 30 April) rescinded; further information requested (b) Not cleared from scrutiny
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| Document details | (a) Commission Report on the implementation by Member States of the Framework Decisions (FD) 2008/909/JHA, 2008/947/JHA and 2009/829/JHA, known respectively as the Prisoner Transfer FD, the Probation FD and the European Supervision Order (35826), 6943/14 + ADD 1; (b) Commission Report on the implementation by Member States of Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the course of new criminal proceedings (the Previous Convictions FD) (36107), 10540/14 + ADD 1
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| Legal base | —
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| Department | Ministry of Justice
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Summary and Committee's conclusions
21.1 The Commission's reports assess the state of
implementation and usage of four measures which are subject to
the 2014 UK's block opt-out decision. In the case of document
(a), these are the Prisoner Transfer Framework Decision (2008/909/JHA),
the Probation Framework Decision (2008/947/JHA) and the European
Supervision Order (ESO) (Framework Decision 2009/829/JHA). Document
(b) addresses Framework Decision 2008/675/JHA, the Previous Convictions
Framework Decision. In summary, the Commission finds the low level
and quality of implementation and infrequent usage of the Frameworks
Decisions (FDs) is unsatisfactory, though less so in the case
of the Previous Convictions FD (where the implementation by 13
Member States, including the UK, is said to be "generally
satisfactory").
21.2 The Government confirmed in its Explanatory
Memorandum on document (a) that as part of the 2014 JHA block
opt-out process it seeks to rejoin the Prisoner Transfer FD (which
it has implemented), the ESO (which it has not implemented) but
not the Probation Transfer FD (also not implemented). It also
questioned the strong operational linkage between all the FDs
asserted by the Commission, but particularly between ESO and the
Probation FD (as it regards the latter as problematic). It also
commented on all the implementation problems with the FDs highlighted
by the Commission. In its Explanatory Memorandum on document (b),
the Government confirmed that it is seeking to rejoin the Previous
Convictions FD and in its Command Paper 8897 published on 3 July
the Government links the rationale for rejoining this FD with
the benefits of participating in the European Criminal Information
Records System (ECRIS).
21.3 Given the problems with implementation and usage
of the FDs addressed by document (a) and the ongoing question
of the Government's consistency of approach in seeking to rejoin
two of the three FDs, we recommended on 30 April that document
for debate in European Committee B. Further information requested
was provided by the Secretary of State for Justice (Chris Grayling)
in his letter of 3 July but we were dissatisfied with the lack
of explanation of the Government's position in respect of the
Probation FD. Although the Minister explained that the Government's
view remained that the measure was too complex and ambiguous for
UK participation, he indicated that this could change in the future
if it could be clearly demonstrated that the benefits of participation
would outweigh the risks. However, he did not explain the terms
of the "solution" relating to the Probation FD which
had resulted from the Government's block opt-out negotiations
with the Commission and was referred to in the Press Release of
the General Affairs Council of 24 June. In requiring a fuller
explanation, we asked specifically about the level of clarity
on "important and complex questions" that would be required
before the UK would participate in the measure. We also asked
for the debate to be held before the summer recess and to be keep
informed of progress in the UK's implementation of the ESO.
21.4 In our Seventh Report on document (b) we said
that the Report should be included in the document pack for the
European Committee debate given that it raised similar implementation
issues. In this context, we also questioned the Government's reliance
on the reciprocal benefit of the Previous Convictions PD given
the poor implementation by other Member States.
21.5 In now responding further, the Minister refers
to the discussions which took place during the general debate
of 10 July on matters related to the current documents and suggests
that the Committee might agree that there is now no longer any
need for the debate in European Committee.
21.6 We thank the Secretary of State for his response.
We agree that the discussions during the 10 July general debate
have, broadly, superseded the need for a separate debate in European
Committee on the issues raised by document (a) (and to which document
(b) is also relevant) and therefore rescind our debate recommendation
of 30 April.
21.7 However, we take this action in reliance
on the Government's commitment to provide Parliament "with
a further opportunity to vote" on such matters "in due
course". We expect this commitment to be honoured in a way
that allows Parliament ample opportunity to hold the Government
fully to account on the question of the block opt-out decision,
including on the issues raised by documents (a) and (b), and in
the form in which we have set out in successive reports on the
block opt-out.
21.8 We will continue to hold both documents (a)
and (b) under scrutiny in anticipation of further updates on developments,
in particular relating to the Government's ongoing assessment
of whether to join the Probation Framework Decision and its implementation
of the European Supervision Order.
Full details of the documents:
(a) Commission Report on the implementation by Member States of
the Framework Decisions 2008/909/JHA, 2009/947/JHA and 2009/829/JHA
on the mutual recognition of judicial decisions on custodial sentences
or measures involving deprivation of liberty, on probation decisions
and alternative sanctions and on supervision measures as an alternative
to provisional detention: (35826), 6943/14 + ADD 1, COM(14) 57;
(b) Commission Report on the implementation by Member States of
Framework Decision 2008/675/JHA of 24 July 2008 on taking account
of convictions in Member States of the EU in the course of new
criminal proceedings: (36107), 10540/14 + ADD 1, COM(14) 312.
Background and previous scrutiny
21.9 The background to the Commission's reports,
the Government's views and previous scrutiny of the measures they
address, including within the context of the UK's 2014 JHA block
opt-out decision, are set out in our Forty-seventh Report of 2013-14
and our Seventh Report of 2014-15.
The debate on the floor of the House of 10 July
21.10 During the debate of 10 July, Sir William
Cash, our Chairman, put a number of questions to the Government
on behalf of the Committee including the following:
"We should like the Government to explain
why the 'solution concerning the Prüm Decisions and the Probation
Framework Decision' which was alluded to in the Council press
release issued after the General Affairs Council on 24 June, is
not mentioned or explained in Command Paper 8897, in the Minister
for Europe's written ministerial statement of 30 June informing
Parliament of the outcome of the Council, or in the letter of
3 July from the Home and Justice Secretaries to me, as Chair of
the European Scrutiny Committee. We note that details of the 'solution'
have emerged through press releases and reports and not through
the provision of information to Parliament, and we want to know
whether the Government regard that as an appropriate way for them
to engage with Parliament.
We seek further information on the content of
the deal that has been made, including any processes for consulting
Parliament. We want to know how much the UK has invested so far
in its preparations for implementing the Prüm decisions,
and we ask the Minister and the Secretary of State to set out
the Government's current assessment of the utility of the Prüm
and probation framework decisions."[101]
21.11 The Justice Secretary responded to this question
in his closing remarks:
"As the House will know, the list of measures
relating to my Department forms only a small part of what we are
debating, but I want to touch on one measure that does not appear
in the list. The House will recall that I have previously set
out why we chose not to rejoin the probation measure. I explained
that, to our knowledge, the measure has not yet been used, and
that there are serious questions about how it might work. I do
not believe that it is in our national interest to join the measure
at this time and leave the European Court of Justice as the potential
arbiter of such questions.
"The Commission and other member states,
by contrast, were keen for us to rejoin the measure because they
see it as part of a package that accompanies the prisoner transfer
agreement. Despite that, we have said that we will not join at
this time.
"Our concerns centre on the implications
of the measure for our courts, prisons and probation system. What
would happen, for example, if someone who had already been transferred
breached their licence conditions? Unlike many other member states,
the UK does not specify penalties for breaches of community orders
or probation. The measure would allow member states to return
to us the person we had extradited, but we could not do the same
to them. That would place significant potential burdens on our
courts and probation system.
"Of course, all of us are very happy to
see foreign national offenders returned to their home countries.
I have no principled objection to sending prisoners back to serve
their probation or community sentence in their home country. However,
the measure appears to have potential problems that may materialise
once it is in operation.
"We have indicated to the Commission, as
I said in our last debate on this matter, that we will take another
look at the measure when there is enough evidence of it working
and of its impacts to see whether there would be benefits to the
UK in taking part. To support that decision, we will publish for
Parliament an assessment of the potential impacts. Clearly, we
will not agree to join this or any further JHA measure unless
it is in our national interest to do so."[102]
The Minister's letter of 5 August 2014
21.12 The Justice Secretary, in response to our report
on document (a), says:
"In reference to the document on the Detention
and Supervision of EU Citizens, I am aware that your Committee
recommended the European Commission's report for a debate. I note,
however, that since your report, the measures covered by this
document were discussed during the General Debate on 10 July where
members of your Committee made particularly valuable contributions
on related matters. The measures in question have of course, also
already been covered extensively as part of the excellent inquiries
by both your Committee and the Justice Select Committee. I wonder
therefore if your Committee still wishes for a further debate
on these issues, particularly given the commitments reaffirmed
by the Home Secretary in the General Debate to provide Parliament
with a further opportunity to vote on this matter in due course."
"The Committee also asked for an explanation
of the agreement reached between the Government and the Commission
in relation to the Probation Framework Decision. As I explained
during the General Debate on 10 July, the Government did discuss
this measure with the Commission and has agreed to reconsider
the merits of UK participation in the future. As I set out to
the House, the Government will do this when there is enough evidence
of the measure working and of its impacts to see whether there
would be benefits to the UK in taking part. As part of this, the
Government will publish an assessment of the potential impacts
of that measure for the purposes of its reconsideration, to make
an assessment of whether it is in the national interest for the
UK to seek to rejoin it."
"On the implementation of the European Supervision
Order, your report noted that you wanted to stay updated. I of
course will ensure your Committee is updated as appropriate."
Previous Committee Reports
Seventh Report, HC 219-vi (2014-15), chapter 1 (9
July 2014) and Forty-seventh Report, HC 83-xlii (2013-14), chapter
3, (30 April 2014), (35826) 6943/14: Seventh Report, HC 219-vi
(2014-15), chapter 2 (9 July 2014) (36107) 10540/14:.
101 HC Deb, 10
July, cols 503-504. Back
102
HC Deb, 10 July, cols 548-549. Back
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