Documents considered by the Committee on 18 March 2015 - European Scrutiny Contents


31 EU-Ukraine: EU restrictive measures

Committee's assessment Politically important
Committee's decisionCleared from scrutiny
Document detailsCouncil Decision and Regulation on restrictive measures against the former Ukrainian leadership
Legal base(a) Article 29 TEU; unanimity; (b) Article 215 TFEU; QMV
DepartmentForeign and Commonwealth Office
Document numbers(a)  (36684), — (b) (36685), —

Summary and Committee's conclusions

31.1 The Council first adopted a Decision on this issue on 5 March 2014, when 18 individuals (former President Yanukovich, two of his sons and 15 other former Ministers and members of his administration) were included on the annex of persons subjected to the restrictive measures. A further Council Decision adopted in 14 April 2014 added another four individuals to the annex, and also amended the identifying information for three listed individuals.

31.2 Then, in early February, the Council having been provided by the Ukrainian Prosecutor General with attestations setting out the progress of their investigations, the Council adopted a further Council Decision and Regulation, amending the existing criteria in order to take account of the full range of criminal activity being investigated by the Ukrainian Authorities that comes under the definition of misappropriation, so as to ensure the listings remained robust.[86] The Committee cleared them from scrutiny on 11 February 2015 (see paras 31.13-31.16 below for details).

31.3 Now, as part of the annual renewal process, four individuals have been removed from the annex of listed persons; and a further four individuals became subject to a shorter "rollover" of three months.

31.4 The Minister's Explanatory Memorandum and the Council Decision and Council Regulation were not received until 2 March, meaning that an over-ride of scrutiny has inevitably arisen in order to meet the 6 March deadline for renewal.

31.5 The Minister acknowledges that the brief comments in his Explanatory Memorandum are an insufficient explanation, saying: "If an override of the usual scrutiny procedures is necessary to meet this deadline, I will write in full setting out the reasons for this." (see paras 31.17 and 31.23 below).

31.6 He then did so, in a subsequent letter of 9 March, the essence of which is that lengthy discussions resulted in the first drafts of this Council Decision and Council Regulation, covering this renewal and the amendments, were only circulated to EU Partners on 25 February (see paras 31.24-31.26 below for details).

31.7 Once again, the process has been found wanting. We fail to understand why, if the criteria could be amended on 29 January, it was not possible to agree on the limited subsequent changes to the listings before 25 February. Nor why it was then not possible for the Minister to have provided an Explanatory Memorandum in time for our 4 March meeting. Once again, he assures the Committee that "this is something I take seriously" and that he has "instructed my officials to continue to raise these concerns with colleagues in the EU".

31.8 We reproduce at the Annex to this chapter of our Report a letter of 4 March 2015 from the Minister, on "Engaging with EU institutions on UK Parliamentary Scrutiny". He recalls his letter of 9 December 2014 to the then new EU High Representative for Foreign Affairs and Security Policy (HR; Federica Mogherini) concerning scrutiny, and professes himself encouraged that she has said that her services will work to provide legal acts at an earlier stage and, for annual renewal of sanctions measures, will begin the review and renewal process at an earlier stage to allow parliamentary scrutiny to take place.

31.9 The Minister also says that his officials and the UK Representation have had a "productive meeting" with senior EEAS officials — as well as others in the Council Secretariat, Latvian Presidency Team and Luxembourg Presidency Team — to ensure the UK parliamentary scrutiny process is better understood and "to strengthen our engagement"; that his officials have agreed to return to brief EEAS Working Group Chairs, "to ensure that all those involved with the process of document production have a good understanding of UK parliamentary scrutiny"; and that he and they "will continue to engage with the EEAS and other EU institutions to provide workshops on UK parliamentary scrutiny and meet with key EU officials on a regular basis to ensure that scrutiny timetables are taken into account wherever possible".

31.10 All of this is welcome. But we have been here before; c.f. his earlier, similar representations to Ms Mogherini's predecessor, Baroness Ashton, which, to the best of our knowledge, produced a similar "encouraging" response but no demonstrable improvement in performance. So, once again, the proof of the pudding will be in the eating. With that in mind, and on the assumption that the Minister and his officials have the necessary mechanisms in place, we should be grateful if the Minister would write in six months' time with his assessment of how much the EEAS performance has improved.

31.11 Also, there is the question of the FCO's own procedures. So far as this instance is concerned, see above: more generally, see the observations in our Reports on the recent renewal of the restrictive measures against the Mugabe regime in Zimbabwe[87] and the mandate extension of the EU mission on the training of Somali security forces (EUTM Somalia)[88] and our conclusions in respect of Iranian nuclear crisis at chapter 14.

31.12 In the meantime, as no political or legal issues arise, we now clear this Council Decision and Council Regulation from scrutiny.

Full details of the documents: (a) Council Decision (CFSP) 2015/143 of 29 January 2015 amending Decision 2014/119/CFSP concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine: (36684), —: (b) Council Regulation (EU) 2015/138 of 29 January 2015 amending Regulation (EU) No. 208/2014 concerning restrictive measures directed against certain persons, entities and bodies in view of the situation in Ukraine: (36685), —.

Background

31.13 With his Explanatory Memorandum of 2 February 2014, the Minister submitted for scrutiny a new Council Decision and Regulation amending the existing criteria and taking account of the full range of criminal activity being investigated by the Ukrainian Authorities that came within the definition of misappropriation. This resulted from the Ukrainian Prosecutor General having provided the Council with attestations setting out the progress of their investigations; and, following on from the submission of these attestations, the Council having sought clarification on the activities that constitute misappropriation of assets under Ukrainian law, to ensure the listings remain robust.

31.14 The listings in question relate to the ongoing asset freeze on 22 individuals associated with the former Ukrainian Government, and who were identified as being responsible for the misappropriation of Ukrainian State funds; this was instituted to help prevent further asset flight, thus protecting state funds for use by future governments, as well as supporting the rule of law in Ukraine. The documentary evidence provided to support these listings comprised letters from the Ukrainian Prosecutor General indicating an intention to prosecute for the misappropriation of state funds.

31.15 In a separate letter of the same date, the Minister said that, being in need of renewal before 5 March 2015, and to ensure that the listings of those targeted by these measures remained robust, all individuals who met the amended criteria would need to be re-listed, noting that:

"Because of the legal requirement that individuals are notified of their relisting ahead of the renewal of the measures, and to ensure they are provided adequate time to make any representations against their re-listing, it has been necessary to adopt this Council Decision and Council Regulation at short notice. If prompt action had not been taken, it might have been impossible to re-list any of the 22 individuals before the current measures expire, and any assets currently frozen under those measures would have been released.

"I therefore regret that I found myself in the position of having had to agree to the adoption of these Council Decisions and Council Regulations before your Committee had had an opportunity to scrutinise the documents."

31.16 The Committee cleared the documents, and in the circumstances outlined by the Minister, did not take issue with his having over-ridden scrutiny.[89]

The further draft Council Decision and Council Regulation

31.17 In his Explanatory Memorandum of 2 March 2015, the Minister for Europe says that, as part of the current renewal, the Council has agreed the delisting of four individuals who no longer met the listing criteria:

"Andriy Portnov, former Adviser to the President of Ukraine; Ihor Kalinin, former Adviser to the President of Ukraine; Oleksii Azarov, the son of the former Prime Minister of Ukraine; and Oleksandr Yakymenko, former Head of the Security Service of Ukraine."

31.18 In addition, the Minister explains:

"the listings of Olena Lukash, former Minister of Justice; Viktor Viktorovych Yanukovych, son of the former President; Serhii Kliuiev, businessman; and Dmytro Tabachnyk, former Minister of Education and Science, will be renewed for a shorter time period of 3 months in order for the Ukrainian Authorities to complete their ongoing criminal investigations. Amendments have also been made in an annex to the Council Decision and Council Regulation to some of the identifying information and the statements of reasons of the listed persons."

31.19 With regard to the timing of his Explanatory Memorandum, the Minister says:

"Unfortunately, due to ongoing discussions between Members of the Council, the circulation of the Council Decision and Regulation were completed at too late a date to allow for the usual time to be provided for scrutiny procedures before the measures lapse on 6 March. The discussions have also been delayed because of the amendment made in January to one of the designating criteria, and the subsequent requirement to notify the listed individuals of this change."

The Government's view

31.20 The Minister again emphasises that these measures target those who were identified as being responsible for the misappropriation of Ukrainian State funds and persons responsible for human rights violations, and "are distinct from those taken in response to Russia's ongoing destabilisation of Ukraine and illegal annexation of Crimea".

31.21 The Minister also recalls that the documentary evidence provided to support these listings consisted of letters from the Ukrainian Prosecutor General indicating an intention to prosecute for the misappropriation of state funds — their inclusion on the sanctions list being "to help prevent further asset flight, thus protecting state funds for use by future governments, as well as supporting the rule of law in Ukraine".

31.22 The Minister then says that, following on from the provision by the Ukrainian Prosecutor General of attestations setting out the progress of their investigations:

"the Council has agreed the delisting of 4 individuals who are either no longer under investigation or whose activities no longer meet the designation criteria. The listings of 4 further individuals will be extended for 3 months in order to give time for the Ukrainian Authorities to complete their investigations. The remaining 14 listings have been renewed for a further 12 months. These decisions were taken as part of a regular process by which the EU reviews sanctions designations in light of currently available information to ensure that the list continues to be legally robust."

31.23 Finally, the Minister says:

"The new documents will need to be adopted before 6 March 2015, to ensure that the measures remain in force. If an override of the usual scrutiny procedures is necessary to meet this deadline, I will write in full setting out the reasons for this."

The Minister's letter of 9 March 2015

31.24 The Minister begins by recalling his 2 February Explanatory Memorandum and the Council Decision and Council Regulation that sought to clarify the criteria to be met before an individual can be identified as being responsible for the misappropriation of Ukrainian state funds; and that this amendment to the criteria had to be adopted at short notice, so that the wider review of the whole measures could be concluded to allow adoption of new legal documents by the 6 March renewal date.

31.25 The Minister then continues as follows:

"There were lengthy discussions amongst EU Member States after 2 February on the review of these measures. As you will have seen from my Explanatory Memorandum dated 2nd March, these discussions led to a package of changes to the current listings: four individuals were removed from the annex of listed persons; and a further four individuals became subject to a shorter rollover of 3 months. Due to the length of these discussions, the first drafts of a Council Decision and Council Regulation covering this renewal and the amendments were only circulated to EU Partners on 25 February. I subsequently found myself in the position of having to agree to the adoption of these documents on 5 March, before your Committee had had an opportunity to complete your scrutiny of the documents. Any delay in adoption would have resulted in the entire package of measures, and the asset freezes set in place by them, falling away."

31.26 Finally, recalling the Committee' oft-expressed criticism that renewals of this type are not considered earlier in the EU, reducing the possibility of the documents being scrutinised, the Minister says:

"This is something I take seriously and I have instructed my officials to continue to raise these concerns with colleagues in the EU."

Previous Committee Reports

None, but see, (36632), — and (36633), —: Thirty-third Report HC 219-xxxii (2014-15), chapter 9 (11 February 2015); also see (35905), — and (35906), —: Forty-seventh Report HC 83-xlii (2013-14), chapter 23 (30 April 2014); (35880), — and (35881), —: Forty-fourth Report HC 83-xxxix (2013-14), chapter 3 (26 March 2014); and (35848), — and (35849), —: Fortieth Report HC 83-xxxvii (2013-14), chapter 1 (12 March 2014).

Annex: Letter of 4 March 2014 from the Minister for Europe: "Engaging with EU institutions on UK Parliamentary Scrutiny"

    "As I set out in my letter to you on 15 December 2014, I wrote to High Representative Federica Mogherini concerning scrutiny on 9 December 2014. I am writing to update you on the High Representative's reply and our latest engagement with the EU institutions.

    "In my letter to HRVP Mogherini, I emphasised the importance of providing documents well in advance to ensure sufficient time for UK parliamentary scrutiny. On documents where timetables are known, such as mission renewals, I set out the dates by which we would need to receive documents from the EU in order to allow for scrutiny. I also offered for my officials to brief EEAS officials on the UK parliamentary scrutiny process.

    "I am encouraged by her reply, in which she has made clear that her services will work to provide legal acts at an earlier stage and, for annual renewal of sanctions measures, she will instruct her services to begin the review and renewal process at an earlier stage to allow parliamentary scrutiny to take place. There are of course challenges that she has highlighted, such as unpredictable developments in CFSP and CSDP, and in the case of sanctions, the time it takes to secure consensus amongst Member States before legal acts can be produced. However, I think this gives us a strong basis for working together and I am reassured that the EEAS will work harder to ensure that documents are produced early where possible.

    "Since writing to HRVP Mogherini, my officials visited Brussels and, with the UK Representation, held a productive meeting with senior EEAS officials — as well as others in the Council Secretariat, Latvian Presidency Team and Luxembourg Presidency Team — to ensure the UK parliamentary scrutiny process is better understood and to strengthen our engagement. My officials have agreed to return to brief EEAS Working Group Chairs to ensure that all those involved with the process of document production have a good understanding of UK parliamentary scrutiny.

    "We will continue to engage with the EEAS and other EU institutions to provide workshops on UK parliamentary scrutiny and meet with key EU officials on a regular basis to ensure that scrutiny timetables are taken into account wherever possible."


86   These measures do not affect the criteria set out for those responsible for human rights violations. These measures are also distinct from the measures taken in response to Russia's ongoing destabilisation of Ukraine and the illegal annexation of Crimea. Back

87   See (36694), - and (36695), -: Thirty-sixth Report HC 219-xxxv (2014-15), chapter 19 (11 March 2015). Back

88   See (36656), -: Thirty-sixth Report HC 219-xxxv (2014-15), chapter 16 (11 March 2015). Back

89   See (36632), - and (36633), -: Thirty-third Report HC 219-xxxii (2014-15), chapter 9 (11 February 2015).  Back


 
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Prepared 27 March 2015