Documents considered by the Committee on 24 January 2018 Contents

7EU Participation in a Council of Europe Convention on preventing and combatting violence against women

Committee’s assessment

Legally and politically important

Committee’s decision

Cleared from scrutiny

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 combatting violence against women and domestic violence

Legal base

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

Department

Business, Energy and Industrial Strategy and Home Office

Document Number

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

Summary and Committee’s conclusions

7.1The original proposal would have authorised the EU to sign95 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 predecessor’s Report of 13 April 2016. 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 requirement that participants assume extra territorial jurisdiction for offences committed by their nationals.

7.2The Convention, whilst important in its subject matter, does not otherwise raise controversial policy issues. However, it has given rise to legal issues as to:

7.3The original proposal has now been split into two parts and adopted in May 2017 as two separate Decisions: (a) Decision 2017/866 which all parties accept that the UK does not participate in, having not-opted in;98 and (b) Decision 2017/865 which covers the rest of the Convention, which on its face follows the Commission ‘s assertion that the Commission regards the UK opt-in as not applicable with the consequence that the UK is an automatic participant.

7.4When it last examined these Decisions, the Committee noted that they both made it clear that the EU was acting only to the extent that it had exclusive competence, leaving a residual fudge as to which provisions of the Convention this applied to. We expressed concern at the discrepancy between the UK position that Decision 2017/865 did not apply to the UK and the text of the Decision itself which indicates otherwise.

7.5The Minister for Crime, Safeguarding and Vulnerability (Victoria Atkins) has written in response to these matters.

7.6We are grateful for the response from the Minister which includes the text of a minute statement laid at the time of the adoption of Decisions 2017/865 and 2017/866. This is reproduced at the annex to this chapter. It is helpful in clarifying the UK position on competence and the engagement of the UK opt-in under Protocol 21.

7.7We also welcome the Minister’s ongoing vigilence on the issue of competence which she will need to maintain in relation to the forthcoming proposal to authorise the EU to conclude the Istanbul Convention as well as the development of a Code of Conduct laying down the arrangements between the Council and the Commission regarding the exercise of rights and obligations of the European Union and Member States under the Convention.

7.8We clear this matter from scrutiny whilst retaining under scrutiny the proposal authorising the EU to conclude the Convention.

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 combatting violence against women and domestic violence: (37562), 6695/16 + ADD 1, COM(16) 111.

The Minister’s letter of 3 January 2018

7.9The Minister explains:

“Your report notes that recital (10) of Decision 2017/865 states that the UK and Ireland are participating in this Decision, and asks whether we regard the UK as participating.

“The UK laid a minute statement on adoption of the Council Decision 2017/865 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 with regard to matters related to judicial cooperation in criminal matters. This minute statement confirmed the UK’s support for the Convention and our intention to ratify it. It also noted the UK’s view that there is no exclusive external competence for the Union arising from the Convention with regard to matters related to judicial cooperation in criminal matters and that it should be for the Council to determine freely the matters in respect of which the European Union should sign the Convention. Finally, the minute statement confirms that we do not consider the UK to be automatically bound, as suggested by recital (10) of the Council Decision. I have attached a copy of the minute statement to this letter.

“As the UK has not indicated that it wishes to be bound by this Council Decision in line with Article 3 of Protocol (No. 21) to the Treaties, and as the Government does not consider the UK to be automatically bound as suggested by recital (10), the UK is not participating in the adoption and implementation of this Council Decision.

“I note your Committee’s comments about the exercise of competence in relation to the Convention. Whilst the Government does not consider the UK to be bound by these Council Decisions authorising the EU to sign the Convention, the Government has fully engaged in negotiations on the extent of EU competence. I agree that clarification that the EU is only acting to the extent that it had exclusive competence is a helpful approach. The UK will be watchful in further negotiations on a Code of Conduct laying down the arrangements between the Council and the Commission regarding the exercise of rights and obligations of the European Union and Member States under the Istanbul Convention; and, as long as the UK remains a Member State, on the Council Decision on the conclusion of the Convention, to seek to ensure that this position on competence is not watered down.”

Previous Committee Reports

Second Report HC 301–ii (2017–19), chapter 4 (22 November 2017); 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).


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

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

97 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.

98 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.




29 January 2018