Meeting Summary
The Committee looks at the significance of EU proposals and decides whether to clear the document from scrutiny or withhold clearance and ask questions of the Government. The Committee also has the power to recommend documents for debate.
Brexit-related issues
The Committee is now looking at documents in the light of the UK’s decision to withdraw from the EU. Issues are explored in greater detail in report chapters and, where appropriate, in the summaries below. The Committee notes that in the current week the following issues and questions have arisen in documents or in correspondence with Ministers:
- What scope is there for the UK to cooperate with the European Border and Coast Guard Agency (the successor to Frontex) and to participate in the EU database on authentic and false documents (“FADO”) after the UK leaves the EU and any post-exit transition/implementation period has ended?
- What status will agreements with third (non-EU) countries on law enforcement cooperation which the UK participates in before exit day have in UK law once the UK leaves the EU?
- The Committee has asked the Government to provide time for a debate on the financial implications of a ‘no deal’ Brexit, after the Treasury refused to indicate whether it is minded to accept an EU request to pay £15 billion to the EU in 2019 even if the UK leaves the European Union this month without a Withdrawal Agreement in place, and
- The Committee considered the implications of Brexit for the coordination of social security between the UK and the remaining 27 Member States, considering recently-agreed European rules on access to unemployment benefit and an emergency regulation on social security for UK citizens living in the EU if the Withdrawal Agreement is not ratified.
Summary
Strengthening the European Border and Coast Guard Agency and combating document and identity fraud
The European Commission has put forward a proposal to strengthen the operational capability of the European Border and Coast Guard Agency (“EBCGA”, the successor to Frontex) so that it is equipped to operate as “a genuine border police”. The Agency would also take over responsibility for a database (“FADO”) which assists Member States in identifying forged or falsified identity documents. The UK cannot participate in the EBCGA, as it builds on parts of the Schengen rule book on external border control which do not apply to the UK, but it does participate in the FADO database. The Government will have to decide whether it wishes to continue participating in the FADO database once it is brought within the European Border and Coast Guard Agency or to opt out, meaning that the UK would no longer have direct access to the information held in it. The Explanatory Memorandum submitted by the Immigration Minister (Rt Hon. Caroline Nokes MP) hints that the Government may wish to participate, not least as it would strengthen the UK’s hand in negotiating a future EU/UK internal security treaty which includes the capabilities provided by FADO to detect false documents and prevent identity fraud. The European Scrutiny Committee requests an update on negotiations on the European Border and Coast Guard Agency, including provisions on the Agency’s cooperation with third countries and their relevance for the UK post-exit. The Committee also seeks further information on the practical implications for the UK of participating in FADO but not in the EBCGA and the scope for UK participation in FADO as a third country after leaving the EU.
Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee
Cross-border police cooperation: Third country participation in the Prüm framework for exchanging DNA, fingerprint and vehicle registration data
The European Commission has invited the Council to agree Decisions authorising the EU to sign and conclude Agreements with Liechtenstein and Switzerland enabling them to take part in EU measures providing for the automated exchange of DNA profiles, fingerprints and vehicle registration data (“the Prüm package”) to assist in the investigation of cross-border crime. The proposals are subject to the UK’s justice and home affairs opt-in so will only apply to the UK if the Government decides to opt in. The Government now confirms that it has decided to opt into the proposals and reiterates its commitment to full implementation of the Prüm measures in the UK as well as ongoing access to Prüm as part of a post-exit agreement on internal security with the EU. The European Scrutiny Committee recognises that the policy objective of extending participation in Prüm is likely to have operational benefits for the UK (increasing the pool of data its law enforcement authorities can access) and strengthen the UK’s case for a continuing relationship with Prüm and other EU data sharing instruments after leaving the EU. The Committee therefore agrees to grant a scrutiny waiver so that that the Government can vote for the proposals when they are brought to the Council for formal adoption but asks the Government to clarify the status in domestic law of “directly effective rights derived from the Agreements” (with Liechtenstein and Switzerland) once the UK has left the EU.
Not cleared from scrutiny; scrutiny waiver granted; further information requested; drawn to the attention of the Home Affairs Committee and the Justice Committee
Cross-border access to electronic evidence in criminal proceedings
The European Commission has requested authorisation from the Council to negotiate a new Protocol to the Council of Europe Cybercrime Convention and a new agreement with the United States of America to facilitate cross-border law enforcement access to electronic evidence (emails, texts, etc) held by online service providers based in a different jurisdiction. The Commission considers that the EU has exclusive competence to conduct both sets of negotiations, meaning that only the EU, not individual Member States, may lead the negotiations. The Government questions the Commission’s view that the EU has exclusive external competence and makes clear that the proposals are subject to the UK’s justice and home affairs opt-in. As a result, the UK will only be bound by them if the Government decides to opt in. The European Scrutiny Committee asks whether the Council and the Commission agree with the Government’s analysis of the application of the UK’s justice and home affairs opt-in Protocol.
Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee and the Justice Committee
UK contributions to the EU budget in a ‘no deal’ scenario
The Committee has considered a letter received from the Chancellor about the possibility of continued UK payments into the EU budget, even in a ‘no deal’ scenario where the £39 billion Brexit financial settlement is not ratified by the House of Commons. Under a contingency proposal due to be adopted shortly by the remaining Member States, the UK would be asked to make its £17 billion gross contribution for 2019 in full, in return for continued UK eligibility to receive most types of EU funding for the remainder of the year. The Chancellor’s letter, dated 27 March, refused to clarify the Government’s position or provide assurance, as requested, that parliamentary approval for any ‘no deal’ payments to the EU would at the very least require a Statutory Instrument under the affirmative procedure (meaning the Treasury could only release the funds with the House of Commons’ explicit consent).
Given the Government’s refusal to indicate whether it is minded to accept the EU’s request (for example as a way of unblocking trade negotiations in the aftermath of a ‘no deal’ Brexit), the Committee has used its powers to recommend the EU proposal for debate on the Floor of the House at the earliest opportunity as a precursor to any formal parliamentary approval for further payments to the EU.
Not cleared from scrutiny; recommended for debate on the Floor of the House; drawn to the attention of the Committee on Exiting the European Union, the Public Accounts Committee and the Treasury Committee
Brexit: coordination of social security and access to healthcare
The European Scrutiny Committee has today issued its final report on new European legislation on coordination of social security for EU nationals who exercise their free movement rights. Among other things, the new rules will alter how EU nationals can access unemployment benefit in other Member States, and which country is responsible for the payment of certain benefits. The underlying Regulation also underpins the current, pre-Brexit rights of UK pensioners living in countries like Spain, France or Ireland to access healthcare services locally free of charge, with the costs reimbursed by the British Government.
The Committee considers the new rules to be of political importance because this body of European legislation would continue to apply indefinitely to and in the UK under the draft Withdrawal Agreement, as part of the Citizens’ Rights sections for British citizens already living in the EU and vice versa. It also took the opportunity to consider an EU contingency proposal in case the Agreement is not ratified, which protects the right of certain national insurance contributions made in the UK prior to ‘exit day’ to be taken into account when UK and EU nationals apply for social security assistance in one of the remaining 27 Member States. However, the contingency proposal falls far short of the rights that would be protected if the Withdrawal Agreement is ratified, as it excludes for example access to healthcare, exportability of benefits and detailed rules to decide which country is responsible for the payment of benefits to a specific individual.
Cleared from scrutiny; drawn to the attention of the Health and Social Care Committee, the Joint Committee on Human Rights and the Work and Pensions Committee
Carcinogens and Mutagens Directive (Phase II)
The proposal under scrutiny concerns the second raft of amendments suggested by the Commission to the Carcinogens and Mutagens Directive (CMD). As originally introduced, these changes would bring used engine oils within the scope of the CMD. It would also add five specific carcinogenic substances to the CMD and set OELVs for each. The proposal was adopted at the Environment Council on 20 December 2018. The final text of the Directive includes significant changes versus the original proposal. At the behest of the European Parliament, Diesel Engine Exhaust Emissions (DEEEs) were brought within the scope of the Directive with an ‘occupational exposure limit value’ (OELV) set for elemental Carbon (as a ‘marker’ for DEEEs). On the grounds that the inclusion of DEEEs and the setting of an OELV for elemental Carbon had not been handled correctly, the Government did not support adoption.
Since the Committee last wrote to the former Minister, the Government has committed to bring forward legislation that would place a duty on Government to report to Parliament on future changes to EU law covering workers’ rights. This commitment would take the form of a statutory consultation with workers’ and employers’ representatives followed by a report to Parliament. With regard to the Directive under consideration, its transposition date—of early 2021—takes it outside of the proposed transitionary period under the draft Withdrawal Agreement (ending on 31 December 2020) but means that it would fall within the scope of the Government’s consultation commitment. As such, the Committee has sought further information on whether the Government would consult on bringing forward legislation—or by other means giving effect to—the changes under consideration. Given uncertainty surrounding the operation of the Government’s commitment, the Committee has also sought clarification of the criteria against which such a decision will be made, for example, covering how occupational safety and health legislation is defined.
Not cleared from scrutiny; further information requested; drawn to the attention of the Business, Energy and Industrial Strategy Committee, the Health and Social Care Committee, and the Work and Pensions Committee
Second mobility package: Clean Vehicles Directive
The proposal under scrutiny concerns the amendment of Directive 2009/33/EU—on the promotion of clean and energy-efficient road transport vehicles—and would widen its scope to include a revised definition of what constitutes a ‘clean’ light-duty vehicle (LDV). The Directive would also set a minimum public procurement target for clean LDVs. When the Committee last considered the proposal (on 21 November 2018), we granted a scrutiny waiver in order for the Government to support a General Approach to be sought by the Austrian Presidency in the Transport Council of 3 December 2018.
The Minister now writes—27 March 2019—requesting clearance of the proposal from scrutiny ahead of adoption which is scheduled for the middle of April. The Minister helpfully provides an update on the provisional agreement reached on the proposal between the Romanian Presidency and the European Parliament. On the content of the proposal, minimum procurement targets for new ‘clean vehicles’ have been agreed at 38.5% for cars and vans, 10% for trucks and 45% for buses (half should be zero emission) from spring 2021 up to December 2025 and, from 2025 to December 2030, respectively, 38.5%, 15% and 65%. The Minister is broadly support of the final text of the proposal and states that he “welcomes the progress that has been made [during negotiations on the Directive]” and that he is “satisfied that the provisional agreement goes a long way to meeting the Government’s objectives for the Directive”. On this basis, the Committee is content to grant a waiver for adoption, however, owing to outstanding questions on the Government’s plans for the transposition of the Directive, we do not believe it appropriate to clear the file from scrutiny as requested.
Not cleared from scrutiny; further information requested, scrutiny wavier granted
Documents drawn to the attention of select committees:
(‘NC’ indicates document is ‘not cleared’ from scrutiny; ‘C’ indicates document is ‘cleared’)
Business, Energy and Industrial Strategy Committee: Carcinogens and Mutagens Directive (Phase II) [Proposed Directive (NC)]
Committee on Exiting the European Union: Brexit: UK contributions to the EU budget in 2019 in a ‘no deal’ scenario [Proposed Regulation (NC; recommended for debate on the floor of the House)]; Negotiating mandates for EU-US trade talks [Proposed Decisions (NC; scrutiny waiver extended until 22 May 2019)]
Foreign Affairs Committee: Negotiating mandates for EU-US trade talks [Proposed Decisions (NC; scrutiny waiver extended until 22 May 2019)]
Health and Social Care Committee: Brexit: coordination of social security and access to healthcare [Proposed Regulations (C)]; Carcinogens and Mutagens Directive (Phase II) [Proposed Directive (NC)]
Home Affairs Committee: Strengthening the European Border and Coast Guard Agency and combating document and identity fraud [Proposed Regulations (NC)]; Cross-border access to electronic evidence in criminal proceedings [Recommended Council Decisions (NC)]; Cross-border police cooperation: Third country participation in the Prüm framework for exchanging DNA, fingerprint and vehicle registration data [Proposed Decisions (NC; scrutiny waiver granted)]
International Trade Committee: EU safeguard measures on steel imports [Commission Implementing Regulation (C)]; Negotiating mandates for EU-US trade talks [Proposed Decisions (NC; scrutiny waiver extended until 22 May 2019)]
Justice Committee: Cross-border access to electronic evidence in criminal proceedings [Recommended Council Decisions (NC)]; Cross-border police cooperation: Third country participation in the Prüm framework for exchanging DNA, fingerprint and vehicle registration data [Proposed Decisions (NC; scrutiny waiver granted)]; Recast of the Brussels IIa Regulation [Proposed Regulation (C)]
Public Accounts Committee: UK contributions to the EU budget in 2019 in a ‘no deal’ scenario [Proposed Regulation (NC; recommended for debate on the floor of the House)]
Treasury Committee: UK contributions to the EU budget in 2019 in a ‘no deal’ scenario [Proposed Regulation (NC; recommended for debate on the floor of the House)]
Work and Pensions Committee: Brexit: coordination of social security and access to healthcare [Proposed Regulations (C)]; Carcinogens and Mutagens Directive (Phase II) [Proposed Directive (NC)]
Published: 9 April 2019