Documents considered by the Committee on 4 July 2018 Contents

8EU approval of the Global Compact on Migration

Committee’s assessment

Legally and politically important

Committee’s decision

(a) Cleared from scrutiny

(b) Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs and the International Development Committees

Document details

(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

Legal base

(a) Article 16 TEU and Article 209 TFEU, QMV

(b) Article 16 TEU and Article 79 TFEU, QMV

Department

Home Office

Document Numbers

(a) (39583), 7400/18 + ADD 1, COM(18) 167

(b) (39584), 7391/18 + ADD 1, COM(18) 168

Summary and Committee’s conclusions

8.1In its latest Global Trends report, the United Nations Refugee Agency estimates that 68.5 million individuals were forcibly displaced worldwide as a result of persecution, conflict, or generalised violence by the end of 2017, a new “record high” and an increase of 2.9 million on the previous year.193 The vast majority (85%) 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 “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”.194

8.2A 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.195 The European Commission has proposed two Council Decisions (published on 21 March) which would give it the authority to approve the Global Compact on behalf of the EU at the intergovernmental conference in December. The first proposed Decision—document (a)—would cover the development policy elements of the Global Compact. The second proposed Decision—document (b)—would cover 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.

8.3The 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.

8.4In her Explanatory Memorandum of 11 April 2018, the Immigration Minister (Caroline Nokes) told us that there was 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 would be put to the vote. The Commission considered 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) were not appropriate in this case as the Global Compact would not create any legal obligations under domestic or international law.196 It had therefore cited Article 16 TEU as the procedural legal base for both proposals, relying on Court of Justice case law to support its position.197 The Minister noted that this was “the first time the Commission has taken this approach in using Article 16 TEU” and that the Government was considering its position.198 She added that, even if the Government decided not to opt into document (b), the UK would still be bound by document (a) dealing with the development cooperation elements of the Global Compact and so would be able to attend and influence EU coordination meetings within the United Nations and negotiate as part of the EU block.199 She set out the factors that would inform the Government’s opt-in decision but indicated that a decision not to opt into document (b) was unlikely to have a negative political impact. The UK would, in any event, remain free to sign the Global Compact on Migration in its national capacity as the EU only has observer status within the United Nations

8.5In our Report chapter agreed on 25 April, we asked the Minister to:

8.6We noted that development cooperation and migration were areas of shared competence in which both the EU and Member States were entitled to act and asked the Minister to explain:

8.7In her letter of 31 May 2018, the Minister tells us that the three month opt-in deadline will expire on 23 July. The Commission had envisaged securing the Council’s agreement to adopt the proposed Decisions before the April round of negotiations within the UN began, meaning that the UK would not have had time to complete its domestic processes for reaching an opt-in decision. The Commission had therefore concluded that the UK would not opt into document (b). During discussions in COREPER at the end of March, Member States raised concerns about authorising the EU (through the Commission) to approve the Global Compact when it was still under negotiation. The proposals were not taken to the Council for approval, but nor were they formally withdrawn by the Commission. As a result, the Minister confirms that “the UK still has a JHA opt-in decision to take”.

8.8The Minister agrees with the Commission that the usual procedural legal base for establishing the EU’s position within an international body (Article 218(9) TFEU) cannot be used for the negotiation of non-legally binding instruments. She considers that “Article 16 TEU could potentially be an appropriate legal base in this case” and that its use would be consistent with Court of Justice case law,202 but adds that the Commission should only seek authorisation to approve the Global Compact on Migration on behalf of the EU “when there is a final or near-final version of the text, likely in late June”.

8.9Finally, the Minister considers that the Global Compact “contains a mixture of Union and Member State competence” and that the purpose of the proposed Council Decisions is “to allow the EU to speak with a single voice during negotiations in the UN, adding weight to Member States’ existing coordination of their negotiating positions”. The Minister adds:

“We do not consider it necessary for there to be a legal basis for this co-ordination, and agree with other Member States that it would be inappropriate to authorise the EU to approve the GCM at this stage in negotiations, but agree that it remains helpful for EU Member States to continue to adopt a co-ordinated approach, in so far as possible, to negotiations in the UN.”

8.10The Minister invites us to clear the proposed Council Decisions from scrutiny.

Our Conclusions

8.11We are content to clear from scrutiny the proposed Council Decision on the development policy elements of the Global Compact on Migration—document (a)—as the authorisation given to the Commission to approve these elements of the Global Compact would not encroach on Member States’ competence to act in the area of development cooperation.203

8.12We are not willing to clear from scrutiny the proposed Council Decision on the immigration policy elements of the Global Compact—document (b)—for two reasons. First, the Minister confirms that “the UK still has a Justice and Home Affairs opt-in decision to take” but does not tell us whether the Government intends to opt in. We ask her to provide this information, and the reasons underlying the Government’s opt-in decision, at the earliest opportunity. Second, recitals to the proposed Decision indicate that its purpose is to “preserve the unity of the EU position in order to ensure that the final text of the Global Compact for Migration is consistent with EU acquis and policy”.204 This might imply that there are elements of the Global Compact for which the EU has acquired exclusive competence (meaning that only the EU can act) or that the EU is exercising shared competence.205 We therefore ask the Minister again to identify specifically the extent to which the EU has exclusive competence for the Global Compact (or parts of it) and the extent to which compoetence is shared.

8.13Pending further information, document (b) remains under scrutiny. We draw this chapter to the attention of the Home Affairs Committee and the International Development Committee.

Full details of the documents

(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), 7400/18 + ADD 1, 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), 7391/18 + ADD 1, COM(18) 168.

Background

8.14The 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:

Previous Committee Reports

Twenty-fifth Report HC 301–xxiv (2017–19), chapter 7 (25 April 2018).


194 See the text of the New York Declaration for Refugees and Migrants agreed on 19 September 2016.

195 The latest version of the text—“zero draft plus”—is attached to the proposed Council Decisions (see ADD 1).

196 See p.3 of the Commission’s explanatory memorandum accompanying both proposed Council Decisions.

197 See Council v. Commission, Case C-660/13.

198 See para 7 (i) of the Minister’s Explanatory Memorandum.

199 The EU has observer status within the United Nations General Assembly and can present common positions agreed on behalf of the EU and EU Member States.

200 See para 14 of the Minister’s Explanatory Memorandum.

201 See para 43 of the Court’s ruling in Council v. Commission, Case C-660/13.

202 See Council v. Commission, Case C-660/13.

203 See Article 4(4) TFEU which provides that the competence conferred on the EU in the area of development cooperation shall not prevent Member States from exercising their competence in the same area.

204 See recitals (8) and (12).

205 Where competence is shared, either the EU or the Member States may exercise it—the choice is one of policy. Government policy is that normally Member States should exercise shared competence, leaving the EU to exercise competence only where it is exclusive.

206 See the website of the International Organisation for Migration for further details.




Published: 10 July 2018