10EU participation in Council of Europe Convention and Additional Protocol on the Prevention of Terrorism
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Committee’s assessment |
Legally and politically important |
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Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee |
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Document details |
(a) Proposal for a Council Decision on the conclusion, on behalf of the European Union, of the Council of Europe Convention on the Prevention of Terrorism (CETS No. 196); (b) Proposal for a Council Decision on the conclusion, on behalf of the European Union, of the Additional Protocol supplementing the Council of Europe Convention on the Prevention of Terrorism (CETS No. 217) |
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Legal base |
(a) and (b) Article 83(1) and 218(6)(a) TFEU, QMV, EP consent |
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Department |
Home Office |
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Document Numbers |
(a) (39144), 13424/17 + ADD 1, COM(17) 606; (b) (39143), 13425/17 + ADD 1, COM(17) 607 |
Summary and Committee’s conclusions
10.1The Council of Europe Convention on the Prevention of Terrorism was adopted in the aftermath of the 9/11 terrorist attacks in the United States of America. Participating countries are required to criminalise behaviour which may lead to acts of terrorism, such as public provocation or incitement of terrorism, recruitment for terrorism and the provision of training for terrorism. These criminal offences must be accompanied by “effective, proportionate and dissuasive penalties” and implemented in a way which respects human rights obligations, in particular the right to freedom of expression, association and religion. There are specific provisions on protection, support and compensation for victims of terrorism. The Convention also includes rules on jurisdiction and on international cooperation in investigating and prosecuting terrorist offences.
10.2The Convention has been supplemented by an Additional Protocol which gives effect to the criminal law aspects of UN Security Council Resolution (UNSCR) 2178 (2014) on Threats to international peace and security caused by terrorist acts and seeks to strengthen further the legal framework for preventing terrorism and tackling foreign terrorist fighters.109 Under the Additional Protocol, participation in an association or group for the purpose of terrorism, receiving training for terrorism, and travelling abroad (or funding or otherwise facilitating such travel) for the purpose of terrorism are to be made serious criminal offences and an around-the-clock contact point designated in each participating country to exchange information on foreign terrorist fighters.
10.3The UK has signed but not yet ratified the Convention and Additional Protocol. In 2015, the Council adopted Decisions authorising the EU to sign both instruments.110 These Decisions were subject to the UK’s Title V (justice and home affairs) opt-in. The then Government contested the Commission’s view that the EU had exclusive competence in areas governed by the Convention and Additional Protocol and said it was undertaking its own competence analysis. It accepted that the EU and Member States shared competence in relation to counter-terrorism measures and that the Council was entitled to authorise the EU to sign the Convention and Additional Protocol. Nonetheless, the Government decided not to opt in, and made clear that competence in this area should be exercised by Member States:
“Security is a matter for national governments and national parliaments. Whilst cooperation across borders is important—indeed, often necessary—it is for the UK to judge what is best done in our national interest. Not opting into these proposals will ensure that the UK cannot be caught by any exercise of EU competence in this area […].”111
10.4The final versions of the 2015 Council Decisions (unlike the Commission’s original proposals) include a recital which makes clear that the EU is only authorised to act “as regards matters falling within the competence of the Union in so far as the Convention/Additional Protocol may affect those common rules or alter their scope” and that Member States “retain their competence in so far as the Convention/Additional Protocol does not affect common rules or later the scope thereof”—meaning that EU participation is limited to those (unspecified) provisions of the Convention and Additional Protocol for which the EU has acquired exclusive competence based on the adoption of internal EU rules.112
10.5The Commission has now proposed two further Council Decisions which would authorise the EU to conclude (ratify) the Convention—document (a)—and the Additional Protocol—document (b). The Commission appears to accept that the Convention covers areas of shared competence as well as areas of exclusive EU competence. By contrast, it asserts that the EU has exclusive competence to conclude the Additional Protocol since all its provisions “overlap with” and are “covered to a large extent” by EU law.113
10.6The Security Minister (Mr Ben Wallace) indicates that the Government is “not minded to opt in at this stage” as “it would not be in the national interest to do anything which could bind us to an exercise of EU competence in relation to counter-terrorism which could limit our future ability to act independently on terrorism legislation; or which could grant the Court of Justice of the European Union jurisdiction over national security matters in relation to the UK”.114
10.7In correspondence on a separate matter—law enforcement access to data held in the EU’s asylum database (Eurodac)—the Immigration Minister (Brandon Lewis) told us:
“Article 4(2) TEU [Treaty on European Union] expressly provides that national security remains the sole responsibility of each Member State. It is a Treaty provision which speaks for itself.”115
10.8We ask the Minister whether he agrees that Article 4(2) TEU “speaks for itself” in precluding any EU competence for matters of national security? If so, does he also agree that there is no basis in the EU Treaties for the Court of Justice to assert jurisdiction over matters of national security?
10.9It is disappointing that the Minister provides no analysis of the division of competences between the EU and Member States in relation to terrorism, given that this was a major pre-occupation of the previous Government when examining the proposed Council Decisions on signature of the Convention and Additional Protocol in 2015. It is striking that the proposed Council Decisions authorising the EU to conclude (ratify) the Convention and Additional Protocol do not appear to constrain in any way the areas in which the EU is competent to act, unlike the earlier Decisions on signature. Does the Government intend to press for the inclusion of a recital limiting the EU’s participation in the Convention and Additional Protocol to matters for which the EU has exclusive competence?
10.10Since authorising the EU to sign the Convention and Additional Protocol in 2015, the EU has adopted a Directive on combating terrorism which covers much of the same ground as the Council of Europe instruments and which Member States are required to transpose into their domestic laws by 8 September 2018.116 Although the UK has not opted into the Directive, does the Minister consider that it tips the balance towards establishing that the EU now has exclusive competence to sign the Convention and/or the Additional Protocol or does he consider that there remain areas of shared competence? Should the proposed Council Decisions include a recital setting out the internal measures (including the Directive) on which the EU’s assertion of exclusive competence is based?
10.11We would welcome a more detailed insight into the position of other Member States, particularly those that have already ratified the Convention and (in much smaller numbers) the Additional Protocol. Does the Minister expect Member States to exert pressure to include additional wording limiting EU participation in the Convention and Additional Protocol to matters falling within the exclusive competence of the Union, ensuring that Member States are free to act in areas of shared competence? If they were to succeed, would the Government consider opting in after the Council Decisions have been adopted, given that the Minister says that the Government is “not minded to opt in at this stage”?
10.12The Minister tells us that the UK is fully compliant with the Convention and Additional Protocol, following the passage of the Counter-Terrorism and Security Act 2015, and that the Government intends to ratify both instruments. We ask him whether there are any remaining impediments and how soon he expects the UK to proceed to ratification.
10.13The proposed Council Decisions remain under scrutiny pending further information. We draw this chapter to the attention of the Home Affairs Committee.
Full details of the documents
(a) Proposal for a Council Decision on the conclusion, on behalf of the European Union, of the Council of Europe Convention on the Prevention of Terrorism (CETS No. 196): (39144), 13424/17 + ADD 1, COM(17) 606’; (b) Proposal for a Council Decision on the conclusion, on behalf of the European Union, of the Additional Protocol supplementing the Council of Europe Convention on the Prevention of Terrorism (CETS No. 217): (39143), 13425/17 + ADD 1, COM(17) 607.
Background
10.14The Committee’s previous Reports (listed at the end of this chapter) provide details of the earlier Council Decisions authorising the EU to sign the Convention and Additional Protocol and the factors informing the Government’s decision not to opt in.
The proposed Council Decisions authorising the EU to conclude the Convention and Additional Protocol
10.15The Commission notes that the Convention came into force on 1 June 2007. All EU Member States and the EU have signed the Convention; 23 Member States have ratified it. The Additional Protocol came into force on 1 July 2017. The EU and 25 Member States have signed the Additional Protocol; only five Member States have ratified it. The remaining Member States and the EU may only ratify the Additional Protocol once they have ratified the Convention (or ratify both instruments simultaneously).
10.16In its explanatory memorandum accompanying document (a), the Commission identifies 13 EU police and criminal justice measures—the latest being a Directive on Combating Terrorism adopted in March 2017—which establish the EU’s competence to act in areas covered by the Convention. It says that these measures “highlight the need for Member States to act within the framework of the EU institutions when undertaking international commitments in the area of fighting terrorism”.117 The UK participates in more than half of these measures but has not opted into the Directive on Combating Terrorism.
10.17The Commission appears to accept that the Convention covers areas of shared competence as well as areas of exclusive EU competence. By contrast, it asserts that the EU has exclusive competence to conclude the Additional Protocol since all its provisions “overlap with” and are “covered to a large extent” by EU law.118
10.18Both proposed Council Decisions include an introductory recital stating that “the Union has already adopted measures in the different areas covered by the Convention/Additional Protocol” but only one measure—a 2002 Council Framework Decision on combating terrorism—is specifically mentioned.119 The UK does not participate in this Framework Decision, one of the EU police and criminal justice measures which ceased to apply to the UK from 1 December 2014. Neither of the proposed Council Decisions seeks to constrain in any way the areas in which the EU is competent to act. This contrasts with the Council Decisions authorising the EU to sign the Convention and Additional Protocol which include recitals limiting the EU’s competence to provisions covering areas of exclusive EU competence—meaning provisions which may affect common rules adopted by the EU or alter their scope.
10.19The substantive legal base for both proposed Council Decisions is Article 83(1) of the Treaty on the Functioning of the European Union (TFEU). This reflects the Commission’s view that “the predominant purpose” of the Convention and the Additional Protocol is to introduce criminal offences relating to terrorism—Article 83(1) authorises the EU to establish minimum rules on the definition of particularly serious criminal offences which have a cross-border dimension. The Council is required to obtain the consent (approval) of the European Parliament before adopting the proposed Decisions.120
10.20The Commission accepts that both proposed Council Decisions are subject to the UK’s Title V (justice and home affairs) opt-in Protocol and that the UK will only be bound by them if the Government decides to opt in. This contrasts with the Commission’s view that Ireland (also a beneficiary of the Title V opt-in Protocol) is automatically bound by the proposed Council Decisions because, unlike the UK, it continues to participate in the 2002 Council Framework Decision on combating terrorism.
The Minister’s Explanatory Memorandum of 27 November 2017
10.21The Minister says that following the passage of the Counter-Terrorism and Security Act 2015, UK law is “fully compliant” with the Convention and Additional Protocol. The UK did not opt into the 2015 Council Decisions authorising the EU to sign the Convention and Additional Protocol, has signed both instruments independently of the EU and “plans to ratify them”.121
10.22He notes that the Government will need to decide whether it wishes to opt into the proposed Council Decisions authorising the EU to conclude (ratify) the Convention and Additional Protocol. The three-month period for opting in at the negotiating stage and securing a vote will expire on 19 January 2018. The Minister continues:
“The longstanding approach of the UK Government is that it would not be in the national interest to do anything which could bind us to an exercise of EU competence in relation to counter-terrorism which could limit our future ability to act independently on terrorism legislation; or which could grant the Court of Justice of the European Union jurisdiction over national security matters in relation to the UK.”
10.23In light of these concerns, he indicates that the Government is “not minded to opt in at this stage”.
Previous Committee Reports
None on these documents, but see the Committee’s earlier Reports on proposed Council Decisions authorising the EU to sign the Convention and Additional Protocol: First Report HC 342–i (2015–16), chapter 39 (21 July 2015); Third Report HC 342–iii (2015–16), chapter 27 (9 September 2015); and Fifth Report HC 342–v (2015–16), chapter 31 (14 October 2015).
111 See the letter of 17 September 2015 from the then Security Minister (Mr John Hayes) to the Chair of the European Scrutiny Committee.
112 See recital (6) of Council Decision (EU) 2015/1913 and recital (5) of Council Decision (EU) 2015/1914.
113 See p.4 of the Commission’s explanatory memorandum accompanying document (b).
114 See para 11 of the Minister’s Explanatory Memorandum.
116 See Directive (EU) 2017/541 on combating terrorism.
117 See p.4 of the Commission’s explanatory memorandum accompanying document (a).
118 See p.4 of the Commission’s explanatory memorandum accompanying document (b).
119 See recitals (3) and (4) in document (a) and recitals (3) and (5) in document (b).
120 See Article 218(6)(a) TFEU which sets out the procedures for concluding an international agreement.
121 See para 7 of the Minister’s Explanatory Memorandum.
11 December 2017