Documents considered by the Committee on 24 January 2018 Contents

13EU participation in Council of Europe Convention and Additional Protocol on the Prevention of Terrorism

Committee’s assessment

Legally and politically important

Committee’s decision

Cleared from scrutiny; drawn to the attention of the Home Affairs Committee

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)

Legal base

(a) and (b) Articles 83(1) and 218(6)(a) TFEU, QMV, EP consent

Department

Home Office

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

13.1These proposed Council Decisions would authorise the EU to conclude (ratify):

13.2The UK has signed but not yet ratified the Convention and Additional Protocol. The Council adopted Decisions authorising the EU to sign these instruments in 2015. The Decisions were subject to the UK’s Title V (justice and home affairs) opt-in. The Government at the time decided not to opt in, meaning that the Decisions on signature do not apply to or bind the UK. The Minister for Security (Ben Wallace) told us in November that the Government was also “not minded” to opt into the latest proposals authorising the EU to conclude the Convention and Additional Protocol, adding:

“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.”173

13.3We suggested that there was no basis in the EU Treaties for the Court of Justice to assert jurisdiction over matters of national security and invited the Minister to elaborate on his concerns. As his Explanatory Memorandum lacked an analysis of the division of competences between the EU and Member States in relation to counter-terrorism measures, we asked him whether he considered that the Convention and Additional Protocol concerned areas of shared or exclusive competence—the distinction matters because it determines whether the Member States are free to act individually or only the EU can act—and to indicate how this should be reflected in the proposed Decisions. We also requested a more detailed insight into the position of other Member States, particularly those that had already ratified the Convention and (in much smaller numbers) the Additional Protocol. We asked the Minister to clear up any ambiguity about the possibility of the UK opting in to the Decisions following their adoption by the Council and to tell us how soon he expected the UK to ratify the Convention and Additional Protocol.

13.4In his letter of 11 January, the Minister confirms that the Government has decided not opt in to the proposed Decisions as “there is no added value in doing so”. Nor would the Government change its position (and seek to opt in post-adoption) if Member States succeeded in inserting additional wording to limit EU competence in relation to the Convention and Additional Protocol. He anticipates that Member States will wish to include “the same caveat” in the Decisions concluding these instruments as they secured in the earlier Decisions on signature, meaning that the EU could only participate in the Convention and Additional Protocol to the extent that it affects common EU rules or alters their scope. The Government does not accept that there are any areas of exclusive competence, reiterating its view that there is only shared competence as EU criminal law measures are based on “minimum rules”, not fully harmonised common rules, meaning that there is no impediment to Member States implementing the provisions of the Convention and Additional Protocol.

13.5The Minister agrees that “there is no basis in the Treaties for the Court of Justice to assert jurisdiction over matters of national security” but adds that “national security is not defined in the Treaties and the institutions often have a narrower interpretation than the Member States”.

13.6As the Government has decided not to opt in to the proposed Council Decisions authorising the EU to conclude (ratify) the Convention and Additional Protocol, we accept that it will have little leverage to press for changes that would limit EU participation. We are grateful for the Minister’s indication that other participating Member States are likely to seek the addition of a recital limiting EU participation to matters falling within the exclusive competence of the Union and making clear that Member States are free to act in areas of shared competence. We consider that a consistent approach in the Decisions authorising the EU to sign the Convention and Additional Protocol (adopted in 2015) and the Decisions authorising ratification is essential to ensure clarity and legal certainty.

13.7We are content to clear the proposed Decisions from scrutiny, since they will not apply to the UK, but ask the Minister to write to us once the Decisions have been adopted so that he can update us on the outcome of negotiations and explain whether Member States have succeeded in limiting EU participation in the Convention and Additional Protocol. 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

13.8The 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. In reaching its decision not to opt in, the Government at the time 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, but contested the Commission’s view that the EU had exclusive competence for some of the provisions, meaning that the EU had to participate. The Government 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 […].”174

13.9The final versions of the 2015 Council Decisions on signature (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 alter 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.175

The Minister’s letter of 11 January 2018

13.10We drew the Minister’s attention to an observation made by the then Immigration Minister (Brandon Lewis) in July 2017 that Article 4(2) of the Treaty on European Union expressly provides that “national security remains the sole responsibility of each Member State” and that “it is a Treaty provision which speaks for itself.”176 We asked whether he agreed that this Treaty provision speaks for itself” in precluding any EU competence for matters of national security and, if so, whether he also agreed that there was no basis in the EU Treaties for the Court of Justice to assert jurisdiction over matters of national security. The Minister responds:

“I agree with my colleague the Immigration Minister, and it has always been the UK position, that Article 4(2) TEU is clear when it states that ‘in particular, National Security is the sole responsibility of each Member State’. As such I would agree that there is no basis in the treaties for the Court of Justice to assert jurisdiction over matters for national security. However, national security is not defined in the treaties and the institutions often have a narrower interpretation than the Member States.”

13.11We noted that the Minister’s Explanatory Memorandum lacked any analysis of the division of competences between the EU and Member States in relation to terrorism, despite this being a major pre-occupation of the previous Government when examining the proposed Council Decisions on signature of the Convention and Additional Protocol in 2015. Unlike these earlier Decisions, the proposed Decisions authorising the EU to conclude (ratify) the Convention and Additional Protocol did not appear to constrain in any way the areas in which the EU would be competent to act. We asked whether the Government intended to press for the inclusion of a recital in each of the proposed Decisions (mirroring the recitals in the Decisions on signature) limiting the EU’s participation in the Convention and Additional Protocol to matters for which the EU has exclusive competence. We also asked whether the adoption of a new EU Directive on combating terrorism in 2017—after the EU had signed the Convention and Additional Protocol—tipped the balance towards establishing that the EU had now acquired exclusive competence.

13.12The Minister sets out the Government’s position on the earlier Decisions on signature:

“The UK opposed the EU signing on behalf of Member States on the grounds of subsidiarity and because the EU does not have the exclusive competence over criminal law, including as it relates to counter terrorism, required for the EU to be able to sign treaties (Article 3(2) TFEU). However, we accepted that as there was shared competence in the area it was for the Council to decide whether to authorise the Commission to sign on behalf of Member States. It is possible that the Council will approve ratification of the instruments with the same caveat over competence, although it is as yet unclear whether the adoption of Directive 2017/541 on combating terrorism will changes Member States’ views on the extent of EU competence.”

13.13The Government remains of the view that competence for criminal law measures (including those relating to counter-terrorism) is shared as “these measures can only form minimum standards”, not common rules, meaning that Member States can go further. He makes clear that the Council must authorise the Commission to sign and ratify international instruments but suggests that the UK “would be in a weak position” to press for the inclusion of recitals similar to those contained in the earlier Decisions on signature, given that it did not opt in to the Decisions. He considers that Member States participating in the earlier Decisions on signature “are likely to insert the same caveat into the Council Decision to ratify as they did into the Council Decision to sign the instruments “, thereby “making it clear that the EU can only [conclude] the instruments insofar as they have competence under the Treaties to do so”.

13.14Finally, the Minister confirms that the Government has decided not to opt into the proposed Decisions authorising the EU to conclude the Convention and Additional Protocol, noting that:

“All opt in decisions are taken in line with the national interest. The UK has signed the instruments in our own right and UK domestic law is fully compliant following the passage of the 2015 Counter Terrorism and Security Act.”

13.15He adds that the Government’s assessment of the national interest would not change, even if Member States succeeded in inserting wording limiting EU competence for matters covered by the Convention and Additional Protocol. He reaffirms the Government’s intention to “ratify at the earliest opportunity” but makes clear that “our priority is the ongoing review of CT [counter-terrorism] powers and legislation following the terror attacks in the UK last year”, adding: “Once the review has been completed and its findings have been actioned, we will take forward the ratification of the instruments”.

Previous Committee Reports

Fourth Report HC 301–iv (2017–19), chapter 10 (6 December 2017). See also 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).


172 UNSCR 2178 (2014) on Threats to international peace and security caused by terrorist acts.

173 See para 11 of the Minister’s Explanatory Memorandum of 27 November 2017.

174 See the letter of 17 September 2015 from the then Security Minister (Mr John Hayes) to the Chair of the European Scrutiny Committee.

176 See the Minister’s letter of 13 July 2017 to the Chair of the European Scrutiny Committee.




29 January 2018