21 Forced labour
| Committee's assessment
| Legally and politically important |
| Committee's decision | 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
21.1 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".[106]
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.
21.2 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.[107] 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.
21.3 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.
21.4 In her latest update, the Minister for Modern
Slavery and Organised Crime (Karen Bradley) confirms that the
Presidency intends to put both draft Decisions forward for adoption
at the Competitiveness Council on 2/3 March and explains how the
Government proposes to register its objection to the EU's assertion
of exclusive external competence for matters covered by the Protocol.
21.5 This is a disappointing outcome. As the draft
Decisions have been adopted at the Competitiveness Council, we
clear them from scrutiny. In doing so, we ask the Minister to
report back to us on the outcome of the Competitiveness Council
and on the scope of the UK statement to be recorded in the Council
minutes. We note that the draft minute statement provided by the
Minister refers only to the judicial cooperation Decision —
document (b) — whereas our understanding of the Government's
position is that the EU lacks exclusive competence for any
matters covered by the Protocol, including the social policy elements
contained in document (a). We would be grateful for confirmation
from the Minister that this remains the case and, if so, whether
and how the UK has formally registered its broader objection,
within both the Council and the ILO, to the EU exercising any
exclusive competence in relation to the Protocol.
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
21.6 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.
21.7 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.
21.8 During our scrutiny of the draft Decisions,
we have indicated that, if they were to be adopted at a future
Council, contrary to the Government's wishes, we would expect
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. We asked for
sight of any minute statement made by the UK, and suggested that
this should cover both the Commission's assertion of exclusive
competence and its assertion that the judicial cooperation measure
does not engage the UK's Title V opt-in.
The Minister's letter of 27 February 2015
21.9 The Minister (Karen Bradley) provides an update
on recent progress in negotiations:
"The latest Latvian Presidency proposals
consisted of an unamended Decision related to social policy aspects
of the Protocol, and a Decision related to judicial co-operation
matters that was also not significantly amended. The latest version
of this Decision remains unclear as to whether the EU is exercising
exclusive external competence, shared competence, or both in relation
to the judicial co-operation matters."
21.10 The Minister sets out the position taken by
the UK during discussion of the proposals at Coreper on 20 February:
"The UK reiterated its view that these Decisions
are unnecessary; that whilst we support the Protocol and intend
to ratify it, we do not believe there is any EU exclusive external
competence arising from the Protocol; and therefore Member States
should be able to ratify the Protocol in their own right. The
UK also argued that the Decisions should clarify whether they
are covering exclusive external competence, shared competence,
or both. Furthermore, whether the Decisions apply to exclusive
external competence, or to shared competence, or both, the UK's
view remained that the Protocol 21 opt-in is engaged, and Recital
(9) of the JHA decision needs to be amended accordingly."
21.11 Whilst the UK view that the Protocol does not
give rise to exclusive external competence commanded support from
other Member States, and some also raised concerns about the proposed
legal base, no other Member State indicated an intention to vote
against the draft Decisions. As a result, the Minister expects
the Presidency to put the measures to the Competitiveness Council
for adoption on 2/3 March. She continues:
"The Government is disappointed with this
outcome given that a number of Member States raised concerns about
the dossier during negotiations. The UK will lay a minute statement,
as below, confirming that we do not believe that there is any
EU exclusive external competence arising from the Protocol, that
the UK's JHA opt-in applies, and that the UK has not opted into
the judicial co-operation Council Decision."
21.12 The Minister provides a draft of the minute
statement which she expects the UK to make upon the adoption of
the Decisions by the Council:
"The United Kingdom wishes to record its
support for the Protocol of 2014 to the Forced Labour Convention,
1930, and to place on record its intention to ratify the Protocol.
"The United Kingdom wishes to record its
view that there is no exclusive external competence for the Union
arising from the Protocol in respect of the subject matter referred
to in the 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. Accordingly, there was no requirement
for the Member States to be authorised to this extent to ratify
the Protocol in the interests of the Union. Accordingly, Member
States should have been able to consider ratification of the Protocol
in their own right.
"Further, the United Kingdom considers that
the draft Council Decision in relation to matters related to
judicial cooperation in criminal matters, being a measure
proposed pursuant to Title V of Part Three of the Treaty on the
Functioning of the European Union, is subject to Protocol (No.
21) to the Treaties on the position of the United Kingdom and
Ireland in Respect of the Area of Freedom, Security and Justice.
"Accordingly, the United Kingdom does not
consider that it is automatically bound, as suggested by Recital
(9), to participate in the Council Decision simply on account
of its participation in Directive 2011/36/EU on preventing and
combating trafficking in human beings and protecting its victims,
and Directive 2012/29/EU establishing minimum standards on the
rights, support and protection of victims of crime.
"As a result, the United Kingdom will not
exercise its right under Protocol 21 to opt into the 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."
Previous Committee Reports
Thirty-second Report HC 219-xxxi (2014-15), chapter
13 (4 February 2015); 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).
106 Article 1 of the Convention. Back
107
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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