10 Forced labour
| Committee's assessment
| Legally and politically important |
| Committee's decision | Not cleared from scrutiny; further information requested
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| Document details | (a) Draft Council Decision authorising Member States to ratify the Protocol of 2014 to the Forced Labour Convention 1930 of the International Labour Organisation with regard to matters related to social policy (b) Draft Council Decision authorising Member States to ratify the Protocol of 2014 to the Forced Labour Convention 1930 of the International Labour Organisation with regard to matters related to judicial cooperation in criminal matters
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| Legal base | (a) Articles 153(1)(a) and (b) and 218(6)(a)(v) TFEU; QMV; EP consent; (b) Articles 82(2) and 218(6)(a)(v) TFEU; QMV; EP consent
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| Department | Home Office
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| Document numbers | (a) (36329), 13158/14, COM(14) 563; (b) (36328), 13157/14, COM(14) 559
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Summary and Committee's conclusions
10.1 The purpose of these draft Decisions is to authorise Member
States to ratify a new Protocol to the Forced Labour Convention.
The aim of the Convention is to "suppress the use of forced
or compulsory labour in all its forms within the shortest possible
period".[31] It
was agreed by the General Conference of the International Labour
Organisation (ILO) in 1930 and has been ratified by all Member
States. The Protocol, agreed in June 2014, contains additional
measures for the prevention and elimination of the use of forced
labour and the protection of victims.
10.2 Membership of the ILO is only open to state
parties. The EU participates as an observer, without voting rights.
The Commission considers that the EU has exclusive competence
in the areas covered by the Protocol and that, as a consequence,
EU authorisation is necessary to enable Member States to ratify
the Protocol. It has proposed two draft Decisions, the first —
document (a) ("the social policy Decision") —
concerning the working environment and working conditions, and
the second — document (b) ("the judicial cooperation
Decision") — concerning judicial cooperation in criminal
matters, in particular human trafficking and the rights of victims
of crime.[32] Document
(b) includes a Title V (justice and home affairs) legal base.
The Commission considers that the UK is automatically bound, by
virtue of its participation in EU Directives on human trafficking
and the rights of victims of crime, and that the UK's opt-in does
not apply.
10.3 The Government rejects the Commission's analysis.
It contends that the EU does not have exclusive competence for
any matters covered by the Protocol and, as a consequence, there
is no requirement for the EU to authorise Member States to ratify
it. The Government also contends that, if the draft Decisions
are to proceed, the judicial cooperation Decision (document (b))
is subject to the UK's Title V opt-in.
10.4 When we considered the draft Decisions at our
meeting on 10 December 2014, we indicated that we were unwilling
to clear them from scrutiny ahead of discussions at the Employment,
Social Policy, Health and Consumer Affairs (EPSCO) Council on
11 December. In her latest letter, the Minister for Modern Slavery
and Organised Crime (Karen Bradley) describes the revised proposals
put forward by the then Italian Presidency before the EPSCO Council,
explains that the Government has decided against opting into the
judicial cooperation Decision, and confirms that, in the event
of a vote, the Government intends to vote against the social policy
Decision.
10.5 We understand that the draft Decisions were
not put forward for adoption at the EPSCO Council on 11 December.
In her latest letter, the Minister refers to possible adoption
at a subsequent EPSCO Council on 17 December, although we can
find no record of such a meeting taking place. We ask the Minister
to clarify whether there have been further discussions or agreement
and, if not, how she expects the incoming Latvian Presidency to
take forward the draft Decisions.
10.6 We note that the Government has decided not
to opt into the judicial cooperation Decision (document (b)) and
intends to vote against the social policy Decision (document (a))
if it is brought to a future Council for agreement. We ask the
Minister whether other Member States agree with the Commission's
analysis that the UK's Title V opt-in does not apply to the judicial
cooperation Decision and whether the Government considers that
the UK would be bound by it, if adopted.
10.7 We remind the Minister that, if the draft
Decisions are adopted at a future Council, contrary to the Government's
wishes, we expect to hear what steps the UK intends to take, within
the Council and within the ILO, to record its objection to the
assertion of exclusive EU external competence and to make clear
that the UK is ratifying the Protocol on its own behalf. Meanwhile,
we look forward to receiving further progress reports and retain
both draft Decisions under scrutiny.
Full details of
the documents: (a) Draft
Council Decision authorising Member States to ratify, in the interest
of the European Union, the Protocol of 2014 to the Forced Labour
Convention, 1930, of the International Labour Organisation with
regard to matters related to social policy: (36329), 13158/14,
COM(14) 563; (b) Draft Council Decision authorising Member States
to ratify, in the interest of the European Union, the Protocol
of 2014 to the Forced Labour Convention, 1930, of the International
Labour Organisation with regard to matters related to judicial
cooperation in criminal matters: (36328), 13157/14, COM(14) 559.
Background
10.8 Our earlier Reports, listed at the end of the
chapter, describe the basis on which the Commission seeks to assert
that the EU has exclusive competence to authorise Member States
to ratify the Protocol, as well as the Government's reasons for
believing that Member States alone are entitled to do so, without
requiring prior authorisation from the EU.
10.9 As we have already made clear, we consider that
the Government has good grounds for arguing, in this case, that
the criteria for establishing exclusive EU external competence
for the matters covered by the Protocol have not been met, given
that the relevant EU acquis and the Protocol itself are
based on minimum standards. The Government's position is, in our
view, weakened by its acquiescence, on previous occasions, in
the assertion of exclusive EU external competence in relation
to other ILO Conventions which suggests a lack of consistency
for which no convincing explanation has yet been given.
10.10 In advance of the EPSCO Council to be held
on 11 December, the Minister wrote to inform us that the Presidency
might split document (b) — the judicial cooperation Decision
concerning the criminal law aspects of the Protocol — into
two separate measures, one covering areas of exclusive EU competence,
the other areas in which competence was shared with Member States.
We indicated that such an approach would be futile since it would
be tantamount to accepting that the EU had some, albeit limited,
degree of exclusive external competence, whereas the Government's
position was that it lacked any such competence. In the circumstances,
we suggested that it would be inconceivable for the UK to support
the adoption of the draft Decisions at the 11 December EPSCO Council,
given the Government's position on competence. We asked the Minister
for a clearer indication of the UK's voting intentions as well
as the Government's opt-in decision in relation to document (b).
We also asked her to report back to us on the outcome of the Council.
We added that, if the draft Decisions were adopted at the EPSCO
Council, contrary to the Government's wishes, we expected the
Minister to explain what steps the UK would take, within the Council
and within the ILO, to record its objection to the assertion of
exclusive EU external competence and to make clear that the UK
would only proceed to ratify the Protocol on its own behalf.
The Minister's letter of 17 December 2014
10.11 The Minister (Karen Bradley) explains the approach
taken by the Italian Presidency in the run-up to the EPSCO Council
on 11 December:
"Following interventions by the UK and a
number of other Member States, the Italian Presidency has circulated
revised draft Council Decisions. The Presidency did not, as initially
indicated, split the Judicial Cooperation Decision into two, one
covering areas of exclusive EU external competence and one covering
areas of shared competence. Instead, the Recitals to both the
social policy and single judicial cooperation decision now seek
to limit their scope to areas of exclusive EU competence."
10.12 The Minister reiterates the Government's position
on competence and explains that the UK will not support the adoption
of either draft Decision:
"The Government continues to consider that
the existing EU internal rules, upon which the Commission's claim
to exclusive external competence is based, only contain minimum
standards. Minimum standards cannot be said to 'affect
common rules or alter their scope', in line with Article 3(2)
TFEU, and so cannot generate exclusive EU competence. Therefore
competence in this area remains shared between the EU and Member
States. Where competence is shared, the Council must decide whether
the EU should exercise that competence; it is the position of
this Government that Member States should take action.
"Therefore, whilst the Government supports,
and will ratify the 2014 Protocol, we do not support the EU authorising,
or compelling, Member States to ratify the Protocol. The Government
has decided not to opt into the Judicial Cooperation Decision
and will vote against the Social Policy Decision.
The UK is dedicated to tackling modern slavery
and we remain committed to ratifying the Protocol, noting existing
EU legislation, but we do not accept the role that is proposed
for the EU in this activity."
10.13 The Minister indicates that the UK was one
of around eight Member States that objected to the Presidency's
revised proposals, and adds:
"It is currently unclear whether the Presidency
will still seek to put the decisions to the EPSCO Council on 17
December."
Previous Committee Reports
Twenty-fifth Report HC 219-xxiv (2014-15), chapter
8 (10 December 2014); Twentieth Report HC 219-xix (2014-15), chapter
6 (19 November 2014) and Thirteenth Report HC 219-xiii (2014-15),
chapter 24 (15 October 2014). Also see (35961), 8988/14: Second
Report HC 219-ii (2014-15), chapter 18 (11 June 2014) and Fiftieth
Report HC 83-xlv (2013-14), chapter 9 (14 May 2014).
31 Article 1 of the Convention. Back
32
Two Council Decisions are needed because all Member States are
bound by the EU's social policy acquis and are therefore
entitled to vote for the first Council Decision, document (a).
By contrast, a different decision making procedure, excluding
Denmark, applies to the second draft Decision, document (b), as
it is a Title V (justice and home affairs) measure. Back
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