Documents considered by the Committee on 13 November 2017 Contents

46Multiannual Framework for the EU’s Fundamental Rights Agency 2018–22

Committee’s assessment

Legally and politically important

Committee’s decision

Cleared from scrutiny

Document details

Proposal for a Council Decision establishing a Multiannual Framework for the EU Fundamental Rights Agency for 2018–2022

Legal base

Article 352 TFEU; unanimity; EP consent


Ministry of Justice

Document Number

(37919), 10901/16, COM (16) 442

Summary and Committee’s conclusions

46.1The application of the EU’s Charter of Fundamental Rights (the Charter) both in relation to the EU institutions and the UK as a Member State has been an important focus of preceding Committees’ scrutiny. The EU Fundamental Rights Agency (FRA) was established in 2007 by Regulation (EC) No 168/2007 (the founding Regulation) to provide specialist advice to EU institutions and to Member States on the Charter. It carries out studies and research and publicises information to help public awareness of fundamental rights.

46.2The FRA’s principal areas of activity are set out in a five-year Multiannual Framework (MAF) agreed unanimously by the Council and the current Framework (2013–17) expires at the end of 2017.

46.3This proposal is for a new five year MAF for 2018–22, based on Article 5 of the founding Regulation. It follows some of the thematic areas set out in the current Framework but differs from others, most notably the current theme of “judicial cooperation, except in criminal matters” is expanded in the proposal to “judicial and police co-operation”.

46.4In the previous Committee’s report of 7 September 2016, the then Minister of Justice was asked to confirm what financial contributions the UK may have to make to this new MAF for the EU Fundamental Rights Agency, given that it is due to be agreed before 2018 when the UK is likely to still be a member of the EU. Our predecessors also requested the Government to provide its view of the proposal to them in due course, particularly the proposed extension of FRA activities to “judicial and police cooperation” and whether the Government was likely to support the proposal. In terms of supporting this proposal which has an Article 352 TFEU legal basis, European Union Act 2011 (EU Act) approval by primary legislation would be required in default of an exemption applying. Article 352 TFEU is the so-called “flexibility provision” which is only to be used as a legal basis where the necessary powers to attain the objective sought have not been provided elsewhere in the EU Treaties.

46.5The Parliamentary Under-Secretary of State for Justice (Dr Phillip Lee) now writes to inform us that the proposal has been agreed in COREPER and consented to by the European Parliament (EP) with only formal adoption in the Council outstanding. The EU Act will be no bar to the UK’s support for that adoption since the Government considers that an EU Act exemption applies.

46.6We thank the Minister for his letter of 17 July. We are content with the Government’s reliance on the exemption in Section 8(6)a of the European Union Act 2011 but look forward to seeing in due course the required Written Ministerial Statement.

46.7It is regrettable that to all intents and purposes, a deal has already been done on this unanimity proposal in the forum of COREPER. Although any Government support so far does not amount to a formal scrutiny override, it does circumvent the spirit of our scrutiny reserve resolution for proposals to be agreed in substance in COREPER, rather than in Council where our scrutiny reserve bites. Following that political agreement and EP consent, final adoption in Council will be a mere technicality.

46.8We understand that the adoption of the proposal in Council is now imminent. We therefore clear this document from scrutiny and recognise:

Full details of the documents:

Proposal for a Council Decision establishing a Multiannual Framework for the EU Fundamental Rights Agency for 2018–2022: (37919), 10901/16, COM (16) 442.

Minister’s letter of 17 July 2017

46.9We reproduce the Minister’s letter in full, considering that it concerns two important issues:

46.10The Minister says:

“Your committee reported on the proposal for a new multiannual framework (MAF) for the Fundamental Rights Agency in September 2016. I am writing to provide an update on negotiations on this proposal and respond to the issues your committee raised in its report.

“Following the conclusion of negotiations on this proposal at a technical level, COREPER (the committee of permanent representatives) agreed to transmit the draft proposal to the European Parliament, whose consent must be secured given the legal base (Article 352 of the Treaty on European Union). The European Parliament gave its consent on 1 June 2017. The UK has made clear that there is a Parliamentary Scrutiny reserve on the proposal. During these negotiations a number of changes were made to the draft which are directly relevant to the committee’s questions.

“As stated in the proposal and in the earlier Explanatory Memorandum, the work of the FRA must be carried out within its budget. The UK will continue to meet its legal and financial obligations until such time as it ceases to be a member of the European Union. The UK has previously agreed to the EU’s multi-annual financial framework for 2014–2020. The resolution of financial issues resulting from the UK’s departure from the EU before 2020 will be the subject of the exit negotiations.

“The committee has also asked about the inclusion of police and judicial cooperation in criminal matters in the thematic areas in which the FRA may work. This issue is not included in the version of the proposal agreed at technical level and transmitted to the European Parliament.

“Given the exclusion of this issue, and after considering other minor changes to the MAF, the Government has concluded that the proposal falls within the exempt purpose set out in Section 8(6)(a) of the European Union Act 2011 as it makes ‘provision equivalent to that made by a measure previously adopted under Article 352 TFEU, other than an excepted measure’. An Act of Parliament is therefore not required before a minister can support it at Council. and I will be laying a statement shortly to that effect as required by Section 8(5) of the EU Act”.

Previous Committee Reports

Tenth Report, HC 71–viii (2016–17), chapter 8 (7 September 2016).

20 November 2017