Documents considered by the Committee on 22 November 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

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

Legal base

Articles 82(2), 84 and 218(5) TFEU: QMV


Business, Energy and Industrial Strategy and Home Office

Document Number

(37562), 6695/16 + ADD 1, COM(16) 111

Summary and Committee’s conclusions

4.1This proposal would authorise the EU to sign14 the Istanbul Convention of the Council of Europe on preventing and combating violence against women and domestic violence. Details of the Istanbul Convention are set out in our first Report. All Member States have separately signed the Convention (the UK in in 2012) and 14 have ratified it. The UK has not yet ratified as this would require primary legislation to meet the Convention’s requirement that participants assume extra territorial jurisdiction for offences committed by their nationals.

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

4.3The original proposal has now been split into two parts: it is accepted, that the UK does not participate in one unless it were to opt-in;17 the other covers the rest of the Convention, where the Commission regards the UK opt-in as not applicable with the consequence that the UK is an automatic participant.

4.4The Minister for Crime, Safeguarding and Vulnerability (Sarah Newton) wrote on 24 April 2017 updating us on the legal dispute and UK progress in ratifying the Convention; and again on 14 July 2017 indicating that both proposals had been adopted by the Council on 11 May. The UK did not vote at COREPER and, presumably, did not vote in the Council. Therefore, there has not been an override of scrutiny. Although not mentioned in the Minister’s letter, both Decisions were published in the Official Journal of 20 May 2017 as Decision 2017/865 and Decision 2017/866.

4.5The Minister does not expect the proposals to enable the EU to conclude (ratify) the Convention to be adopted until 2018.

4.6The Minister writes to the Committee as if the UK does not participate in either Decision because it did not opt in to either. However, recital (10) of Decision 2017/865 states: “Ireland and the United Kingdom are bound by Directives 2011/36/EU and 2011/93/EU of the European Parliament and of the Council and are therefore taking part in the adoption of this Decision”. We ask the Minister to confirm whether she regards the UK as participating in this Decision or not; and if not, to indicate what steps she has taken (such as a statement attached to the Council minutes) to make this clear.

4.7Both Decisions include recitals indicating that the EU is only acting to the extent to which it has exclusive competence,18 meaning that where competence in respect of the Convention is shared, Member States are exercising it. Whilst the best approach (which was dropped by the Maltese Presidency in this case) is to identify the specific provisions of the Convention for which the EU is exercising competence, we accept that the approach taken in these Decisions is an improvement on the approach commonly taken to external agreements of fudging whether the EU or Member States are exercising shared competence.19 It still leaves uncertainty as to the precise provisions for which the EU has exclusive competence.

Full details of the documents

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: (37562), 6695/16 + ADD 1, COM(16) 111.

The Minister’s letter of 24 April 2017

4.8The Minister set out in this letter progress on the legal disputes and UK ratification of the Convention:

“The Government does not consider that there is any exclusive EU competence in relation to the Convention. However, a majority of other Member States consider that there is at least some exclusive competence. The previous Presidency text (14756/16 and 14757/16) clarified that the Council Decisions authorised the EU to sign the Convention to the extent that the EU had exclusive competence. To accommodate concerns from some Member States on the extent of EU competence, the Presidency have removed the specific reference to exclusive competence in recitals 6 and 9 of both split Council Decisions (14756/16 REV 2 and 14757/16 REV 2). This language has been replaced with language drawn from Article 3(2) TFEU, specifying that the Union shall have competence insofar as the Convention may affect common rules or alter their scope. I do not consider this is a substantive change as the text is correctly reflecting the relevant provision of the Treaty on exclusive competence. Three Member States have objected to this change as they want a specific reference to exclusive competence, but they do not constitute a blocking minority.

“Four Member States also raised a concern that the current split decisions imply a partial signature, and that the EU must either sign or not sign the Convention. They have asked for an amendment to Article 1 of both split Council Decisions to remove the specific references to the provisions that these Council Decisions are authorising the EU to sign for. These Council Decisions are intended to clarify the responsibilities between the Union and the Member States in terms of responsibility for implementation of provisions of the Convention. They also clarify the extent to which the EU is permitted to exercise competence. I do not agree that the change requested by these four countries is necessary, and indeed there is previous precedent for language along the current drafting from previous split Decisions (for example, the Council Decisions of 10 November 2015 authorising Member States to ratify, in the interests of the European Union, the Protocol of 2014 to the Forced Labour Convention, 1930, of the International Labour Organisation). The Presidency, supported by two Member States, took this position at the working group.

“Your letter asked for the Government’s view on the merit of the split into two Council Decisions. The Government considers that the JHA opt-in should apply to both Council Decisions, given that they both cite JHA legal bases. Therefore, I do not consider that a split is necessary. But I recognise that splitting is consistent with the EU’s previous approach that the UK’s JHA opt-in does not apply in relation to exercises of exclusive EU competence—a position the Government disagrees with.

“The Government considers that the opt-in should apply in both cases. As we did not opt into the proposal before it was split, we consider that the decision not to opt in applies equally to both proposals.

“As issues relating to competence and the extent of EU signature / accession to the Convention are proving difficult to resolve at working group level, the Presidency intend to put these discussions to COREPER on 26 April to seek resolution. They are likely to call for a vote at this meeting. The Government’s position is that we do not consider that we have a vote on either proposal due to the application of the JHA opt-in and the decision not to opt in.

“I note your frustration that the Government has not taken steps to ratify the Convention. As the Prime Minister has made clear, this Government is absolutely committed to ratifying the Istanbul Convention. In most respects, the measures already in place in the UK to protect women and girls from violence comply with or go further than the Convention requires. In order to be compliant with Article 44 of the Convention we must take extra-territorial jurisdiction (ETJ) over certain offences. We already have ETJ over some of the offences covered by the Convention, including the common law offence of murder, sexual offences against children, forced marriage and female genital mutilation. However, there are still a number of offences where it does not yet apply, and to ensure we comply with Article 44 primary legislation needs to be introduced in England and Wales, as well as in Scotland and Northern Ireland. I am working closely with Ministerial colleagues in the Ministry of Justice to progress this issue and we are exploring all options for bringing the necessary legislation forward.

“In addition, the Government is supporting Dr Eilidh Whiteford’s (SNP) Private Member’s Bill Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Bill which passed its Third Reading in the House of Lords on 6 April and is now awaiting Royal Assent. The Bill places a duty on the Government to lay a report before Parliament as soon as reasonably practicable after the Bill comes into force which sets out the steps to be taken to enable the UK to ratify the Convention, as well as the timescale within which ratification is expected. It also requires the Government to lay an annual report before Parliament on progress toward ratification.”

The Minister’s letter of 14 July 2017

4.9The Minister subsequently set out the position as follows:

“As mentioned in my letter of 24 April, the Maltese Presidency were intending to put the two Council Decisions authorising the EU to sign the Convention to COREPER on 26 April to seek resolution on the outstanding issues. At that meeting, the Council Decisions were agreed by a qualified majority. The only amendment to the versions in documents 14756/16 REV 2 and 14757/16 REV 2 (referenced in my 24 April letter) was to remove the specific references to the provisions that these Council Decisions are authorising the EU to sign for.

“One Member State voted against the proposals. As the UK has not opted into these Council Decisions, the UK did not vote at COREPER. The Council Decisions were subsequently adopted at the Agriculture and Fisheries Council on 11 May.

“I expect negotiations in relation to the Council Decisions on conclusion to begin under the Estonian Presidency. However, as half of Member States have not yet ratified the Convention, I do not expect the Decisions on conclusion to be adopted until 2018 at the earliest. Discussions this year are likely to focus on the Code of Conduct proposed in Article 4(2) of document 6696/16, which seeks to regulate the relationship between the EU and Member States in relation to monitoring, reporting, voting arrangements and the functioning of the coordinating body referred to in Article 10 of the Convention. I expect that this discussion, and the European Parliament’s comments on 11 May in relation to the adoption of the Council Decision on signature which supported a broader EU accession, indicate that there may yet be further discussions on the extent the EU exercises competence in relation to the Convention.”

Previous Committee Reports

Thirty-seventh Report HC 71–xxxv (2016–17), chapter 4 (29 March 2017); Twenty-eighth Report HC 342–xxvii (2015–16), chapter 12 (13 April 2016).

14 It still needs conclusion (ratification by the EU). That is the subject of a separate proposal.

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

16 Exclusive EU competence must be exercised by the EU. Where competence is shared it can be exercised by either the EU or the Member States, the choice is political.

17 Covering Articles 60 of the Convention (Gender based asylum claims) and Article 61 (non-refoulement i.e. the practice of not forcing refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution). These are areas where the UK does not participate in the internal EU rules giving rise to its competence to enter into an external agreement such as the Convention.

18 Recitals (6) and (7) of each Decision. This is the substantive effect of recitals (6).

19 See, for example Chapter 17 of our previous Report, relating to strategic agreements with Australia and New Zealand.

28 November 2017