Documents considered by the Committee on 29 March 2017 Contents

4EU participation in a Council of Europe Convention on preventing and combating violence against women

Committee’s assessment

Legally and politically important

Committee’s decision

Not cleared from scrutiny; further information requested

Document details

(a) Proposal for a Council Decision on the signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence; (b) Proposal for a Council Decision on the conclusion, by the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence

Legal base

(a) Articles 82(2), 84 and 218(5) TFEU: QMV (b) Articles 82(2), 84 and 218(6)(a) TFEU; QMV; EP consent

Department

Home Office

Document Numbers

(a) (37562), 6695/16 + ADD 1, COM(16) 111; (b) (37563), 6696/16 + ADD 1, COM(16) 109

Summary and Committee’s conclusions

4.1These proposals would authorise the EU to sign and conclude (ratify) the “Istanbul Convention” of the Council of Europe on preventing and combatting violence against women and domestic violence. Details of the Istanbul Convention are set out in our first Report on these proposals. All Member States have separately signed the Convention (the UK in 2012) and 14 have ratified it. The UK has not yet ratified, as this would require primary legislation to meet the Convention’s requirements that participants assume extra territorial jurisdiction for offences committed by their nationals. Dr Eilidh Whiteford’s Prevention and Combatting Violence Against Women and Domestic Violence (Ratification of Convention) Bill, supported by the Government and currently before the House of Lords, would make the necessary provisions to enable ratification.

4.2The Convention, whilst important in its subject matter, does not raise controversial policy issues. However it has given rise to legal issues such as:

4.3Since the Committee first reported, there has been correspondence over the legal issues. The Minister for Vulnerability, Safeguarding and Countering Extremism (Sarah Newton) now writes with the significant update that the Presidency proposes splitting the original proposal into two; one authorising the EU to sign the Convention insofar as it applies to gender based asylum claims and non-refoulement9 (where it is agreed that the UK opt-in applies) and a second concerning the remaining aspects of the Convention where the Council considers that the EU has exclusive competence, but it is not clear that the UK opt-in applies.

4.4We emphasise that we look forward to UK ratification of the Istanbul convention. Our concerns are about the extent to which the EU has competence in its own right. We note that the Government remains of the view that the EU has no exclusive competence over the Convention. If this view prevails then there is no need for these proposals to be adopted at all, as Member States can exercise both their own competence and competence which they share with the EU.

4.5We have been consistently seeking from the Government, with mixed success, transparency that it is putting into effect its own policy that the EU should, generally, only enter into international agreements where it has exclusive competence, leaving Member States to exercise competence that they share with the EU. We therefore commend legal texts making it clear that the EU is only acting in respect of matters for which it has been agreed that it has exclusive competence.

4.6In such cases Ministers should seek to specify the extent of EU exclusive competence, as in the case here with the first of the split proposals relating to gender based asylum claims and non-refoulement. However, we recognise that this is not always possible, as with the second of the split proposals. In such cases a recital in the terms proposed by the Presidency would be an acceptable approach.

4.7Given that the questions (a) whether the EU has any exclusive competence and (b) whether the UK opt-in is engaged have not been satisfactorily resolved, we retain both proposals under scrutiny pending further information on how these issue are to be resolved. We are proposing to grant a scrutiny waiver, if the Minister considers agreement desirable, on condition that the UK concerns about competence are spelled out in an accompanying Ministerial Statement.

Full details of the documents

(a) Proposal for a Council Decision on the signing, on behalf of the European Union, of the Council of Europe Convention on preventing and combatting violence against women and domestic violence: (37562), 6695/16 + ADD 1, COM(16) 111; (b) Proposal for a Council Decision on the conclusion, by the European Union, of the Council of Europe Convention on preventing and combating violence against women and domestic violence: (37563), 6696/16 + ADD 1, COM(16) 109.

The Minister’s Letter of 13 March 2017

4.8The Minister’s letter provides an update on the proposal to split document (a) including the possible text of each split Decision:

“In your letter of 2 November 2016, you emphasised your view that this Decision should be clear as to the extent to which the EU is exercising competence and whether that competence is exclusive to the EU or shared with Member States; and whether or not the UK opt-in is engaged.

“The relevant working group met again in February to discuss these proposals, based on a revised text from the Slovak and Maltese Presidencies. The Presidency text split the proposal to sign the Convention into two Council Decisions. The Council Decisions propose that the EU signs the Convention for the aspects of the Convention over which the EU has AETR exclusive external competence, based on internal EU legislation.”

4.9The first Council Decision concerns only Articles 60 (Gender-based asylum claims) and 61 (Non-refoulement) of the Convention. The EU competence to sign these provisions of the Convention is based on the provisions relating to taking into account gender when making asylum decisions in the 2011 Directive on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection (Qualifications Directive 2011/95/EU). As the UK is not bound by this legislation, and there are no similar provisions in the earlier version of the Qualifications Directive (2004/83/EC) by which the UK is bound, the Presidency accepted that the UK could not be bound by an EU exercise of exclusive external competence in relation to this provision in the Convention. This Council Decision authorises EU signature of these Articles of the Convention and reflects the UK’s decision not to opt in.

“The second Council Decision authorises EU signature for the remaining aspects of the Convention where the Council considers that the EU has exclusive external competence. Recital 6 of the Decision states: “The Union has exclusive competence pursuant to Article 3(2) TFEU to the extent that the Convention may affect common rules or alter their scope. In particular, the Union has exclusive competence pursuant to Article 3(2) TFEU for certain provisions of the Convention relating to judicial cooperation in criminal matters and for the provisions relating to asylum and non-refoulement.”

4.10This Decision is therefore limited to “the provisions of the Convention with regard to matters related to judicial cooperation in criminal matters falling under the exclusive competence of the Union” (recital 9). The Presidency considers that the EU has exclusive external competence in relation to certain provisions of the Convention relating to victims’ rights on the basis of existing EU internal legislation, including the Directive establishing minimum standards on the rights, support and protection of victims of crime (2012/29/EU), the Directive on combating the sexual abuse and sexual exploitation of children and child pornography (2011/92/EU) the Directive on preventing and combating trafficking in human beings and protecting its victims (2011/36/EU) and exclusive competence relating to substantive law and procedures in relation to the offences covered by Directives 2011/92/EU and 2011/36/EU. This Decision does not recognise the UK’s JHA opt-in decision and states that the UK is bound by this Decision.

“The Government remains of the view that the EU has no exclusive competence to sign the Convention, as the measures on which the exclusive EU competence is based are minimum standards measures which leave Member States with the ability to go further than EU law. Competence should therefore be shared and Member States should be able to decide whether the EU exercises shared competence.

“There remain some Member States who have indicated that they have concerns with these Decisions, either because they consider that the EU has no exclusive competence, or because they consider that the EU should be signing the Convention for both shared and exclusive EU competence, rather than limiting EU signature to exclusive EU competence. However, I understand that the Presidency is aiming to seek agreement to these Decisions at a Council in March.”

Previous Committee Reports

Twenty-eighth Report HC 342-xxvii (2015–16), chapter 12, (13 April 2016).


7 Letter of 13 June from the then Minister for Preventing Abuse, Exploitation and Crime (Karen Bradley) to Sir William Cash.

8 Exclusive EU competence must be exercised by the EU, exclusive competence for the EU in respect of external agreements can arise when that external agreement affects internal EU rules—Article 3(3) TFEU which codifies early “AETR” case law of the Court of Justice. Where competence is shared it can be exercised by either the EU or the Member States, the choice is political.

9 The practice of not forcing refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution.




31 March 2017