Documents considered by the Committee on 21 July 2015 - European Scrutiny Contents


20 Diplomatic and consular protection of Union citizens in third countries

Committee's assessment Politically important
Committee's decisionNot cleared from scrutiny; further information requested; drawn to the attention of the Foreign Affairs Committee
Document detailsDraft Council Directive on consular protection for citizens of the Union abroad
Legal baseArticle 23(2) TFEU; QMV; consultation
DepartmentForeign and Commonwealth Office
Document numbers(33569), 18821/11 + ADDs 1-2, COM(11) 881

Summary and Committee's conclusions

20.1 Under Article 23 TEU an EU citizen in the territory of a country in which s/he has no diplomatic mission is entitled to protection by the diplomatic or consular authorities in that country of any other Member State, on the same conditions as the nationals of that State. A so-called "Lead Country" mechanism has been the main vehicle for implementing this obligation (each EU mission in a given country has responsibility for particular "unrepresented" Member States' nationals in line with centrally-agreed allocations that ensure than no-one is left without recourse to a local EU mission). A Council consular cooperation working party (COCON) organises exchanges of information on national best practices and appropriate guidelines. The south Asian Tsunami and Lebanon in 2006 demonstrated that these arrangements could also handle serious crises.

20.2 Nonetheless, since 2007, the Commission has been set on a path towards a "right" to a common level of consular protection for all Member States' citizens in third countries and for a leading role by EU delegations in ensuring its provision.

20.3 As the "Background" section below relates, the Government and other like-minded Member States have been reshaping the Commission proposals so that UK "red lines" have not been crossed. Or — as revisions of the original draft have been limité — so the Minister for Europe (Mr David Lidington) says.

20.4 Now, the Minister declares that:

·  the majority of the UK's previous objections and concerns with the Directive having been addressed during the negotiations — with its title amended to better reflect its scope, viz., the "Proposal on the coordination and cooperation measures to facilitate consular protection for unrepresented citizens of the Union in third countries" — the position was reached where the Foreign Secretary and he could agree the text;

·  the Presidency pushed for a quick adoption of the Directive as Member States were in broad agreement;

·  the Directive was adopted by QMV at the 20 April 2015 Foreign Affairs Council; and

·  the UK abstained from voting on the grounds that the Directive had not cleared scrutiny.

20.5 He also notes that Member States now have until 1 May 2018 to implement the Directive.

20.6 We ask the Minister to deposit the final text of the Directive and, in his supplementary Explanatory Memorandum, illustrate precisely where, and how, the UK's concerns have been met, interests safeguarded and "red lines" not been crossed.

20.7 We would also like the Minister to look into the process by which scrutiny of the negotiations was handled in the FCO. As noted in the "Background" section below, the Committee made it clear more than a year ago that it envisaged a revised text being deposited and — as with the precursor Green Paper and Commission Communication — debated prior to adoption by the Council. Yet nothing was heard from the Minister until less than two weeks prior to its last, pre-dissolution meeting — and then in a letter that went astray, and which made no mention of this clear expectation.

20.8 In the meantime, we shall retain the document under scrutiny.

20.9 We again draw these developments to the attention of the Foreign Affairs Committee.

Full details of the documents: Draft Council Directive on consular protection for citizens of the Union abroad: (33569), 18821/11 + ADDs 1-2, COM(11) 881.

Background

20.10 The Commission's 2007 Green Paper (which was debated in European Committee[ 195]) and two subsequent Communications put forward a number of proposals covering the full range of consular services.[ 196] The Commission seemed determined on a path that was likely to lead to increasing pressure for a "right" to a common level of consular protection for all Member States' citizens in third countries and for a leading role by EU delegations in ensuring its provision.

20.11 The most recent European Committee B debate, on the second of the Commission Communications, took place on 12 July 2011, at the end of which the Committee agreed the following motion:

    "That the Committee takes note of European Union Document COM (2011) 149, relating to consular protection for EU citizens in third countries; recalls that such Communications are not legally binding; underlines that the competence for consular protection remains with Member States; and agrees with the Government's approach to the EU's consular work."[ 197]

20.12 The Minister's concerns about the subsequent draft Directive are summarised in our predecessors' February 2012 Report.[ 198] The Committee endorsed them, and also the high priority that the Government attached both to the provision of consular services and to keeping this service democratically accountable to Parliament, flexible, able to respond to need, and professionally delivered.

20.13 Nothing more was heard from the Minister until April 2014, when he reported that the Greek Presidency had decided to press ahead, and that the most recent draft text addressed "a number of concerns held by ourselves and other Member States". He recalled that his major concerns were around ensuring that it is Member States and not the EU Institutions who provide consular services, and avoiding any restrictions on the Government's freedom to choose which consular services to provide and the manner in which those services are provided. While the Directive was unnecessary, he was content that it did not "cross UK red lines". Some changes to the text were, however, being suggested; and Article 12 (which looks at financial procedures) still needed to be addressed. The Minister concluded by undertaking to continue to keep the Committee updated on the discussions.

20.14 Being a limité text, the Committee pointed out that it was unable in any way to discuss the Minister's assertion about its not crossing "UK red lines". The Committee also made it clear that it would wish to recommend that the final version of the draft Directive be debated prior to any vote in Council; and asked the Minister to ensure that the text was deposited in good time for such a debate to be held, along with an Explanatory Memorandum that demonstrated:

—  how all the concerns outlined in his original 2012 Explanatory Memorandum had been addressed;

—  how it did not cross "UK red lines";

—  how consistency of language with previous Council Decisions and the language on the EEAS review agreed at the General Affairs Council in December 2013 had been achieved; and

—  how the financial procedures to which he referred had been satisfactorily addressed.

20.15 The Committee also drew these developments to the attention of the Foreign Affairs Committee.[ 199]

20.16 The Minister's further update of 6 June 2014 again said that he had "met all UK red lines by ensuring the removal of certain provisions from the Directive" and "that other provisions mirror language from existing council decisions". He maintained that the "overly prescriptive" first draft had been significantly reduced in size, with the Articles that attempted to set out standards of consular assistance in a range of scenarios being removed in their entirety, so that the current draft reflected "the reality that Member States provide assistance to unrepresented EU nationals in line with the assistance they would offer to their own nationals". He was nonetheless "continuing to press for a text that was consistent with Article 5 (10) of the Council Decision establishing the organisation and functioning of the EEAS (2010/427/EU) and with the language agreed at the General Affairs Council meeting in December, in particular to highlight that any activities undertaken by the EU delegation were at the request of Member States". These changes had occurred "as a result of a robust negotiation strategy and lobbying of like-minded Member States to support". He maintained that he had "ensured that the Directive no longer tries to influence Member State national policy or practice, as these are a Member State competence". Negotiations were still ongoing, but he was "confident that we can maintain the protection of our red lines and that consular policy is only made by Member States".[ 200] The Minister again concluded by undertaking to continue to keep the Committee updated on the discussions.

The previous Committee's assessment

20.17 This further information was reassuring, but the Minister was reminded that the Committee continued to await the "complete package", as set out in paragraph 0.16 above.

20.18 In the meantime, the draft Directive remained under scrutiny.

20.19 This further update was drawn to the attention of the Foreign Affairs Committee.[ 201]

The then Minister's letter of 11 March 2015

20.20 The Committee did not become aware of this letter until after the dissolution, when it was referred to in a subsequent letter of 27 April (see below).

20.21 The then (and current) Minister refers to his letter of 6 June 2014 and continues as follows:

"As I explained in my last letter, the majority of our previous objections and concerns with the Directive had been removed during the negotiations. We had met all UK red lines by ensuring the removal of certain provisions from the Directive, and that other provisions mirrored language from existing council decisions. The majority of Member States were happy with the Directive and supported concluding the negotiations. Member States also agreed to amend title of the Directive to better reflect its scope - it is now called the "Proposal on the coordination and cooperation measures to facilitate consular protection for unrepresented citizens of the Union in third countries".

"Over the course of the Italian Presidency, the negotiations progressed and we worked to protect our remaining outstanding red line on the role of the EU delegations. At the end of 2014, we undertook bilateral discussions with the French to explore a possible compromise on Articles 1 (General Provisions) & 9 (Role of the Union delegations), and the corresponding Recital (17), all of which refer to the role of the EU delegations.

"At their first COCON meeting in February 2015, the Latvian Presidency judged that the negotiations at the technical level were close to completion and announced their intention to take the Directive to COREPER. They called an extra COCON meeting on 5 March to have a final run through of their compromise text. Prior to this, we met with the French, Commission and EEAS (hosted by the Presidency) to look again at the compromise language on Articles 1 & 9 and Recital 17.

"We successfully negotiated changes to Recital 17 which ensures that the role of the EU delegation remains within the boundaries established by Article 35 of TFEU and Article 5 (10) of the EEAS Council Decision. We also secured a three year implementation period, plus a three year review period, which should limit the chance of any further discussion on the role of the EU in consular work in the medium term.

"The remaining issues with the text were addressed at COCON on 5 March, with the Presidency confirming the conclusions of the discussions at the technical level. They will be presenting the Directive for adoption at COREPER in April, with final adoption at Council following shortly thereafter."

The Minister's letter of 27 April 2015

20.22 Recalling his letter of 11 March 2015, which he says embodied "a position where the Foreign Secretary and I could agree the text", the Minister continues thus:

"I am writing to inform you that the Directive was adopted by Qualified Majority Voting (QMV) at the Foreign Affairs Council on 20 April 2015. The Presidency pushed for a quick adoption of the Directive as Member States were in broad agreement. The UK abstained from voting on the grounds that the Directive had not cleared House of Commons Parliamentary scrutiny. As the vote was subject to QMV our abstention did not affect the overall outcome. Member States now have until 1 May 2018 to implement the Directive."

Previous Committee Reports

Fifth Report HC 219-v (2014-15), chapter 6 (2 July 2014), Forty-eighth Report HC 83-xliii (2013-14), chapter 6 (7 May 2014) and Fifty-fourth Report HC 428-xlix (2010-12), chapter 7 (1 February 2012).


195   See Stg Co Deb, cols. 3-16. Back

196   See the Committee's Fifty-fourth Report HC 428-xlix (2010-12), chapter 7 (1 February 2012) for a full summary of the Green Paper and the subsequent Commission Communications. Back

197   See Stg Co Deb, cols. 3-12. Back

198   See the Committee's Fifty-fourth Report HC 428-xlix (2010-12), chapter 7 (1 February 2012). Back

199   See our Forty-eighth Report HC 83-xliii (2013-14), chapter 6 (7 May 2014). Back

200   See Fifth Report HC 219-v (2014-15), chapter 6 (2 July 2014) for the full text of the Minister's letter. Back

201   See Fifth Report HC 219-v (2014-15), chapter 6 (2 July 2014). Back


 
previous page contents next page


© Parliamentary copyright 2015
Prepared 30 July 2015