Legally and politically important
Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs and the International Development Committees
(a) Proposal for a Council Decision authorising the Commission to approve, on behalf of the Union, the Global Compact for Safe, Orderly and Regular Migration in the field of development cooperation;
(b) Proposal for a Council Decision authorising the Commission to approve, on behalf of the Union, the Global Compact for Safe, Orderly and Regular Migration in the area of immigration policy
(a) Article 16 TEU and Article 209 TFEU, QMV;
(b) Article 16 TEU and Article 79 TFEU, QMV
(a) (39583), 7400/18 + ADD 1, COM(18) 167;
(b) (39584), 7391/18 + ADD 1, COM(18) 168
7.1The United Nations Refugee Agency reports that by the end of 2016, 65.6 million individuals were forcibly displaced worldwide as a result of persecution, conflict, violence or human rights violations, 22.5 million were refugees, the highest level ever recorded. The vast majority (84%) are hosted by developing regions. In September 2016 the United Nations General Assembly adopted the New York Declaration for Refugees and Migrants which recognises that large-scale movements of refugees and migrants are a “global phenomena that call for global approaches and global solutions”. The Declaration sets out a process for international negotiations which will culminate in the adoption of a Global Compact for Safe, Orderly and Regular Migration (“the Global Compact on Migration”) in December 2018 establishing “a framework for comprehensive international cooperation on migrants and human mobility”.
7.2A first draft of the Global Compact was published in February followed by a revised draft (“zero draft plus”) in March and intergovernmental negotiations are underway to agree the final text. The European Commission considers that active engagement and a “unified EU approach” during the preparatory stages have resulted in a draft text which largely reflects EU policy on migration. It has proposed two Council Decisions which would give it the authority to approve the Global Compact on behalf of the EU at the intergovernmental conference in December. The first—document (a)—would cover the development policy elements of the Global Compact and the second—document (b)—the immigration policy elements. Two Decisions are needed as the UK’s Title V (justice and home affairs) opt-in applies to document (b) dealing with immigration, 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.
7.3The European Commission considers that the Council can give the authorisation it seeks to approve the Global Compact on Migration under the powers conferred by Article 16 of the Treaty on European Union (TEU) which provide that the Council shall exercise “policy-making and coordinating functions”. It says it is seeking authorisation so far in advance of the intergovernmental conference in December because it believes that the EU’s influence can be exercised most decisively during the early stages of negotiation on a final text. It undertakes to cooperate closely with Member States and revert to the Council if the final text of the Global Compact on Migration diverges substantially from the latest draft text (which is attached to both of the proposed Council Decisions).
7.4The Immigration Minister (Caroline Nokes) says that the UK has worked constructively with the European Commission and EU Member States to shape the early drafts of the Global Compact on Migration and that their positions are closely aligned. Even if the Government decides not to opt into the proposed Council Decision concerning the immigration aspects of the Global Compact—document (b)—the UK will still be bound by the proposed development cooperation Decision—document (a)—and so will be able to attend and influence EU coordination meetings within the United Nations and negotiate as part of the EU block. She sets out the factors that will inform the Government’s opt-in decision but indicates that a decision not to opt into document (b) is unlikely to have a negative political impact.
7.5The Minister explains that there is some uncertainty as to the procedures that the Commission should follow to obtain the Council’s authorisation to approve the Global Compact on Migration and some doubt whether the proposed Council Decisions will be put to the vote. The Commission has cited Article 16 TEU as the procedural legal base for both proposals. This is because the Commission considers that the usual procedures for negotiating, signing and concluding international agreements or establishing the EU’s position in an international body (set out in Article 218 TFEU) do not apply as the Global Compact will not create any legal obligations under domestic or international law. The Commission relies on Court of Justice case law to support its position. The Minister says “this is the first time the Commission has taken this approach in using Article 16 TEU” and that the Government “is considering its position on whether we agree with this approach”.
7.6The Minister tells us that “there is no date for a vote on the Council Decisions and they might not be voted on”. Yet, despite this apparent lack of urgency, she questions “whether the UK will have the time to take a decision to opt in”. Under the UK’s Title V (justice and home affairs) opt-in Protocol, the UK has three months in which to decide whether to opt into the proposed Council Decision concerning the immigration aspects of the Global Compact on Migration—document (b). We ask the Minister to:
7.7We would welcome the Minister’s view on the case law relied on by the Commission to support its choice of Article 16 TEU as the procedural legal base for the proposed Council Decisions. We ask her to:
7.8The Minister’s Explanatory Memorandum does not include an assessment of the application of the subsidiarity principle—an important omission given that development cooperation and migration are areas of shared competence in which the EU and Member States are entitled to act. Nor is there any indication that the Commission has produced its own competence assessment to demonstrate the basis on which the EU has competence for policy areas covered in the Global Compact on Migration. We ask the Minister to explain:
7.9Pending further information, the proposed Council Decisions remain under scrutiny. We draw this chapter to the attention of the Home Affairs Committee and the International Development Committee.
(a) Proposal for a Council Decision authorising the Commission to approve, on behalf of the Union, the Global Compact for Safe, Orderly and Regular Migration in the field of development cooperation: (39583), + , COM(18) 167. (b) Proposal for a Council Decision authorising the Commission to approve, on behalf of the Union, the Global Compact for Safe, Orderly and Regular Migration in the area of immigration policy: (39584), + , COM(18) 168.
7.10The Global Compact on Migration is intended to address all aspects of international migration, including its humanitarian, developmental, human rights-related and other dimensions. According to the International Organisation for Migration it will:
7.11The first proposed Council Decision—document (a)—would authorise the Commission to approve the development cooperation elements of the Global Compact on Migration. Migration is one of the cross-cutting themes included in the European Consensus on Development, a framework agreed by the EU institutions and Member States in 2017 to guide their cooperation with developing countries and implement the United Nations’ 2030 Agenda for Sustainable Development. The European Consensus on Development states that the EU and Member States “actively support […] the elaboration of the UN Global Compacts on Migration and Refugees, as called for by the 2016 New York Declaration for Refugees and Migrants”. In addition to Article 16 TEU, the proposed Council Decision cites Article 209 TFEU on development cooperation as the legal base for the EU to act.
7.12The second proposed Council Decision—document (b)—would authorise the Commission to approve the immigration policy elements of the Global Compact on Migration. It includes a recital stating that the UK’s Title V (justice and home affairs) opt-in applies and that the UK has decided not to opt in. The proposal cites Article 79 TFEU concerning the development of a common immigration policy and Article 16 TEU as the legal base for the EU to act.
7.13In its explanatory memorandum accompanying the proposed Council Decisions, the Commission states that the Global Compact on Migration “does not, nor does it intend to, create any legal obligations under domestic or international law”. It says that it has “exceptionally” put forward proposals to obtain the Council’s advance authorisation to approve the Global Compact on behalf of the EU so that the EU (through the Commission) can be active and influential “at a stage where the policy making function is exercised in substance” and ensure that the final text agreed is consistent with EU laws and policies.
7.14The Minister confirms that the Global Compact on Migration will be “a non-binding agreement”. She says the UK has engaged constructively with the European Commission and EU Member States during the initial consultation phase and the early rounds of negotiations and “our views have been largely aligned”, with particular emphasis placed on “the need for state sovereignty on migration policies”, border management and the return of individuals that have no right to remain, and “the need for a clear distinction between refugees and economic migrants”.
7.15The Minister notes that the UK’s Title V (justice and home affairs) opt-in applies to the proposed Council Decision dealing with the immigration policy—document (b). She sets out the factors which will inform the Government’s opt-in decision:
7.16The Minister adds:
“Even if we do not opt in, the UK will continue to attend and influence the EU coordination meetings in the UN as we will be bound by the development co-operation Council Decision. This will allow the UK to negotiate as part of the European Union block, but will also enable the UK to voice its views on migration matters. Consequently, the UK will be able to advocate removing any unhelpful suggestions from the EU’s and the UN’s text in relation to migration matters, which can be particularly helpful on areas where there is divergence.
“The European Commission has already assumed that the United Kingdom, together with the Republic of Ireland and the Kingdom of Denmark will be bound by the Council Decision on development cooperation, but will not opt in to the Council Decision on migration policy. Therefore, we do not expect a negative political impact from a decision to not opt in to the Council Decision.”
7.17The Minister indicates that questions remain over the process proposed by the Commission to secure authorisation from the Council to approve the Global Compact on Migration and that the Government has yet to reach a view on the use of Article 16 TEU for this purpose. She says that the proposed Council Decisions may not be put to the vote. Whatever the outcome, the UK will remain free to sign the Global Compact on Migration in its national capacity as the EU only has observer status within the United Nations.
None on these documents.
116 See .
117 See the of the New York Declaration for Refugees and Migrants agreed on 19 September 2016.
118 The latest version of the text—“zero draft plus”—is attached to the proposed Council Decisions (see ADD 1).
119 The EU has within the United Nations General Assembly and can present common positions agreed on behalf of the EU and EU Member States.
120 See p.3 of the Commission’s explanatory memorandum accompanying both proposed Council Decisions.
121 See Council v. Commission, .
122 See para 7 (i) of the Minister’s Explanatory Memorandum.
123 See paras 12 and 19 of the Minister’s Explanatory Memorandum.
124 See para 14 of the Minister’s Explanatory Memorandum.
125 See para 43 of the Court’s ruling in Council v. Commission, .
126 See the of the International Organisation for Migration for further details.
127 See the .
128 See p.3 of the Commission’s explanatory memorandum accompanying both proposed Council Decisions.
129 See para 3 of the Minister’s Explanatory Memorandum.
130 See paras 4 and 13 of the Minister’s Explanatory Memorandum.
131 See para 12 of the Minister’s Explanatory Memorandum.
132 See paras 13–14 of the Minister’s Explanatory Memorandum.
Published: 1 May 2018