Documents considered by the Committee on 4 February 2015 - European Scrutiny Contents


13 Forced labour

Committee's assessment Legally and politically important
Committee's decisionNot cleared from scrutiny; further information requested
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
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
DepartmentHome Office
Document numbers(a) (36329), 13158/14, COM(14) 563; (b) (36328), 13157/14, COM(14) 559

Summary and Committee's conclusions

13.1 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".[61] 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.

13.2 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.[62] 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.

13.3 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. It has confirmed that it has decided not to opt into that Decision, and to vote against the social policy Decision (document (a)). The Government nevertheless supports the Protocol and intends to ratify it in its own right.

13.4 In her latest update, the Minister for Modern Slavery and Organised Crime (Karen Bradley) responds to questions raised in our Twenty-eighth Report, agreed on 7 January 2015, and explains how she expects the Latvian Presidency to take forward discussions.

13.5 We thank the Minister for her latest update. As we have stated in our earlier Reports, until there is greater clarity as to the Presidency's intentions, the form in which any revised proposals are put forward for adoption, and the Council's position on the extent of EU competence in relation to the Protocol, we wish to retain the draft Decisions under scrutiny. We ask the Minister to continue to provide progress reports on the negotiations. In the event that the draft Decisions are adopted on the basis that the EU has exclusive external competence, we also ask the Minister to provide a copy of the minute statement made by the UK, which in our view should cover both the Commission's assertion of exclusive competence and its assertion that the UK opt-in to the judicial cooperation measure is not engaged.

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

13.6 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.

13.7 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.

13.8 We last considered the draft Decisions at our meeting on 7 January 2015. We asked the Minister to:

·  clarify whether there had been further discussions or agreement on the proposals at the end of the Italian Presidency and, if not, how she expected the incoming Latvian Presidency to take matters forward; and

·  explain whether other Member States agreed with the Commission's analysis that the UK's Title V opt-in did not apply to the judicial cooperation Decision and whether the Government would consider the UK to be bound by it, if adopted.

13.9 We also reminded the Minister that, if the draft Decisions were to be adopted at a future Council, contrary to the Government's wishes, we expected to hear what steps the UK intended 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 would be ratifying the Protocol on its own behalf.

The Minister's letter of 28 January 2015

13.10 The Minister confirms that compromise proposals prepared by the Italian Presidency, which sought to limit the judicial cooperation Decision to areas of exclusive EU external competence, were opposed by a number of Member States and were not considered by the Council in December. She adds:

    "The UK led this opposition on the basis that we do not consider there is any exclusive EU competence arising from the Protocol."

13.11 Whilst the Latvian Presidency is "keen to move forward" and has been willing to offer drafting changes, the UK continues to make clear that it sees no need for the draft Decisions, as the EU lacks exclusive competence and any shared competence should be undertaken by Member States.

13.12 The Government continues to argue that the UK's Title V (justice and home affairs) opt-in applies "in all cases where a Title V legal base is cited, even where there is exclusive EU external competence". She continues:

    "Most Member States do not engage in these discussions, and there is no overt support for the UK's position on this issue. The Government considers that the UK would not be bound by the judicial cooperation Decision, if adopted in its current form, as the UK has asserted the opt-in and not opted in."

13.13 Finally, the Minister explains that if the draft Decisions are adopted in their current form, on the basis that the EU has exclusive external competence, the UK will "put down a minute statement setting out its position". She invites us to clear the proposals from scrutiny.

Previous Committee Reports

Twenty-eighth Report HC 219-xxvii (2014-15), chapter 10 (7 January 2015); Twenty-fifth Report HC 219-xxv (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).


61   Article 1 of the Convention. Back

62   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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Prepared 13 February 2015