Documents considered by the Committee on 18 April 2018 Contents

2International cooperation to combat match-fixing

Committee’s assessment

Legally and politically important

Committee’s decision

Not cleared from scrutiny; further information requested; drawn to the attention of the Digital, Culture, Media and Sport 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 manipulation of sports competitions with regard to matters not related to substantive criminal law and judicial cooperation in criminal matters

(b) Proposal for a Council Decision on the conclusion, on behalf of the European Union, of the Council of Europe Convention on the manipulation of sports competitions with regard to matters related to substantive criminal law and judicial cooperation in criminal matters

Legal base

(a) Articles 114, 165 and 218(6)(a) TFEU, EP consent, QMV

(b) Articles 82(1), 83(1) and 218(6)(a) TFEU, EP consent, QMV

Department

Digital, Culture, Media and Sport

Document Numbers

(a) (38991), 11723/17, COM(17) 387; (b) (38992), 11724/17, COM(17) 386

Summary and Committee’s conclusions

2.1The proposed Council Decisions would authorise the EU to conclude (ratify) the Council of Europe Convention on the Manipulation of Sports Competitions (“the Convention”). The purpose of the Convention is to protect the integrity of sport and sports ethics by establishing a range of measures to prevent, detect and sanction match-fixing which apply, variously, to public authorities, sports governing organisations, competition organisers, and the providers of sports betting services. The first of the proposed Decisions — document (a) — would cover provisions of the Convention which fall within the powers conferred on the EU by Article 114 (the internal market) and Article 165 (sport) of the Treaty on the Functioning of the European Union (TFEU). The second — document (b) — would cover provisions on criminal law, judicial cooperation and law enforcement which fall within the scope of Articles 82(1) and 83(1) TFEU (judicial cooperation in criminal matters). These Articles are subject to the UK’s Title V (justice and home affairs) opt-in, meaning that the UK is not bound to participate in the second Council Decision unless it chooses to opt in, but will be bound by the first Decision if it is adopted.

2.2Earlier Council Decisions agreed in 2013 authorised the Commission (alongside Member States) to take part in the negotiations leading to the adoption of the Convention, but only on those matters falling within EU competence.78 In 2015 the Commission proposed two Council Decisions authorising the EU to sign the Convention. The Council was unable to reach agreement and the proposed Decisions were not adopted.79 The EU has not therefore signed the Convention.

2.3The UK did not opt into these earlier Council Decisions. The Government disagreed with the Commission’s view that the EU had exclusive competence for parts of the Convention dealing with illegal sports betting services provided from and to third countries (Article 11) and data protection (Article 14), meaning that only the EU, not Member States, could act in relation to these provisions. It considered that the Convention covered areas of shared competence, that Member States and not the EU should act in areas of shared competence, and that the Commission had failed to provide a clear rationale for the EU to participate in the Convention.

2.4The Minister for Sport and Civil Society (Tracey Crouch) questioned whether it would be feasible for the Council to adopt Decisions authorising the EU to conclude (ratify) the Convention without first authorising the EU to sign the Convention and said there was little to indicate that the “stalemate” which had so far prevented the Decisions on signature from being adopted would be overcome.

2.5Whilst recognising that little progress was likely to be made during the current Bulgarian Presidency, we expressed our grave concern that the Minister’s Explanatory Memorandum on the latest Commission proposals to ratify the Convention was three months overdue, meaning that the deadline for deciding whether to opt into document (b) had already expired by the time we received it.80 As a result of the delay, the Government’s decision not to opt in was taken without consulting the Scrutiny Committees or ensuring that Parliament had an opportunity to consider the factors informing the Government’s opt-in decision and express a view before a final decision was reached. We welcomed the Minister’s sincere apology for failing to comply with the Government’s own Code of Practice on parliamentary scrutiny of opt-in decisions but noted that a similar lapse had occurred during scrutiny of the proposed Council Decisions on signature of the Convention. Given her assurance then that “lessons have been learned” and processes put in place to ensure that breaches of the Code are “never repeated”, we asked her to provide details of the steps that she intended to take to ensure full compliance with the Code of Practice.81

2.6The Minister responds that her Department “does not routinely deal with justice and home affairs matters related to opt-in decisions” and that the proposed Council Decisions are “an exception”. Officials have nonetheless established “an operational framework to identify and act upon any opt-in issues which arise at the earliest opportunity” which is being embedded through learning and development. She reiterates the Government’s view that the Commission has failed to establish exclusive EU competence for any provisions of the Convention and says that the UK has placed a scrutiny reservation on the proposals. She undertakes to update us on any developments.

2.7We are disappointed with the Minister’s response. Our predecessors were given a categorical assurance in 2016 that “lessons have been learned” and processes put in place to ensure that breaches of the Government’s Code of Practice on parliamentary scrutiny of justice and home affairs opt-in decisions are “never repeated”. The fact that a similar breach has occurred on similar documents within the space of two years demonstrates that these latest proposals are not an “exception” and that processes for handling opt-in decisions have not been properly embedded. We remind the Minister that the Government’s Code of Practice on parliamentary scrutiny of justice and home affairs opt-in decisions has formed part of Cabinet Office guidance on scrutiny of EU documents since May 2013 and is intended to ensure that all Government Departments — even those for whom opt-in decisions are not a routine part of their business — fulfil their obligations to Parliament.

2.8We note that the Government has placed a parliamentary scrutiny reserve on the proposed Council Decisions and welcome her undertaking to inform us promptly of any developments. Meanwhile, the proposals remain under scrutiny. We draw this chapter to the attention of the Digital, Culture, Media and Sport 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 manipulation of sports competitions with regard to matters not related to substantive criminal law and judicial cooperation in criminal matters: (38991), 11723/17, COM(17) 387. (b) Proposal for a Council Decision on the conclusion, on behalf of the European Union, of the Council of Europe Convention on the manipulation of sports competitions with regard to matters related to substantive criminal law and judicial cooperation in criminal matters: (38992), 11724/17, COM(17) 386.

Background

2.9Our earlier Reports listed at the end of this chapter provide a more detailed overview of the proposed Council Decisions and the Government’s position, as well as our analysis of the division of competences between the EU and Member States.

The Minister’s letter of 9 April 2018

2.10The Minister responds to our request for details of the steps that she has taken to ensure full compliance with the Code of Practice on parliamentary scrutiny of opt-in decisions:

“My Department does not routinely deal with justice and home affairs matters related to opt-in decisions and so this file is an exception. However, officials have established an operational framework to identify and act upon any opt-in issues which arise at the earliest opportunity in conjunction with the relevant government departments and this is also being embedded through learning and development.”

2.11The Minister assures us that she will update us “in light of any further developments in Brussels”, and adds:

“I have taken note of the fact that [the] proposals remain under the scrutiny of the Committee and would like to reiterate that the Government has itself placed a scrutiny reservation on the texts which remains in place.”

2.12The Minister also reiterates the Government’s view that the Commission has failed to establish exclusive EU competence for any part of the Convention.

Previous Committee Reports

Twentieth Report HC 301–xix (2017–19), chapter 1 (14 March 2018) and Tenth Report HC 301–x (2017–19), chapter 2 (17 January 2018).


78 See recital (6) of Council Decision 2013/304/EU and recital (8) of Council Document 10180/13 which provide: “In the case that the EU decides to join the future Convention, the legal nature of the Convention and distribution of the powers between the Member States and the Union will be determined separately at the end of the negotiations on the basis of an analysis of the precise scope of the coverage of the individual provisions”.

79 Although the procedure for adopting the proposed Decisions only required a qualified majority, the Council Presidency at the time made clear that it would only proceed with the consent of all participating Member States.

80 The three-month opt-in deadline expired on 24 November 2017. The Minister submitted her Explanatory Memorandum on 15 December 2017.

81 See the Minister’s letter of 20 January 2016 to the Chair of the European Scrutiny Committee.




Published: 24 April 2018