36. INCLUSION OF MODEL READMISSION
CLAUSES IN COMMUNITY AND MIXED AGREEMENTS WITH THIRD COUNTRIES
(13409/99, MIGR 69)
Letter from Lord Tordoff, Chairman of
the Committee to Barbara Roche MP, Minister of State, Home Office
My attention has been drawn to the adoption
of the above Decision at the 2/3 December Justice and Home Affairs
Council. The annotated agenda sent to this Committee on 25 November
stated that the draft Decision "has never previously been
produced as a depositable document and has suddenly appeared as
a Council Decision for agreement at the Council. We expect that
this will be dropped as other Member States are likely to be similarly
concerned at the appearance of this item as an `A' point".
As the draft Decision had not been deposited in Parliament, my
expectation was that the UK would object to its adoption as an
"A" point. The Committee Office sought clarification,
at official level, of the reasons for agreeing the draft Decision
before it had been deposited and cleared scrutiny.
I am afraid I find the explanation provided
by your officials unsatisfactory. First, the covering note from
the Council General Secretariat states that the text of the Decision
was agreed by Coreper on 24 November. The content of the draft
Decision must have been known to officials some time in advance
of the Council meeting yet, it would seem, no effort was made
to alert the Committee to the possibility that agreement might
be reached on the text.
Secondly, it has been suggested that the draft
Decision was not a depositable document. I find this surprising
as it appears to fall squarely within the definition of "European
Union documents" used by the Scrutiny Committees of both
Houses. The Scrutiny Reserve Resolution would therefore seem to
Your officials considered the text to be non-contentious.
The draft Decision would not, in their view, cause the UK any
difficulties or require the Government to decide whether or not
to exercise its right of opt-in under its Protocol relating to
measures based on Title IV. I regret that the Committee did not
have the opportunity to consider any of these important questions.
Article B of the Decision would seem to require the Community,
at the request of a third country, to conclude an agreement imposing
specific obligations on the Member States regarding readmission,
including nationals of other countries and stateless persons.
The extent of these obligations and, in particular, their impact
on the UK would seem to merit further explanation.
I would, at the very least, have expected clarification
of the nature and extent of the Community's powers, under Title
IV of the EC Treaty, to conclude readmission agreements with third
countries and the implications for UK immigration policy of the
Community asserting, and exercising, such an external competence.
I look forward to receiving your comments on
26 January 2000
Letter from Barbara Roche MP, Minister
of State, Home Office to Lord Tordoff, Chairman of the Committee
Thank you for your letter of 26 January about
this document, which was adopted as an "A" Point at
the Justice and Home Affairs Council on 2-3 December. I enclose
a copy for your information. You questioned why it was considered
that this proposal was not subject to the Parliamentary scrutiny
As you note, when this item first appeared on
the JHA Agenda, we (and other Member States) were concerned that,
not having seen the document in question, it appeared to be a
proposal which had not previously been discussed at working group
level or submitted for Parliamentary scrutiny. This was the basis
of the reference on the annotated agenda which was sent to the
Subsequently, we were informed that the item
referred to an issue which simply involved the updating of standard
wording dating from 1995 relating to readmission, to be inserted
into future Community and mixed agreements with third countries.
This updating was required as a result of the entry into force
of the Amsterdam Treaty. The Council was advised that this was
neither a formal measure expressly provided for in the Treaty,
nor an informal measure (such as negotiating mandate) which was
directly linked to such a measure, and thus was not a proposal
on which we were required to decide whether to exercise our opt-in.
Having considered the text (which the Home Office received only
on 2 December), we concluded that it was non-contentious and caused
the UK no difficulties.
At the same time, officials considered whether
the document should be deposited for scrutiny (in which case we
would have had to put down a scrutiny reserve on this "A"
Point). We considered that this was not a depositable document
as it was merely a preparatory measure. The text makes technical
amendments to the standard readmission clause which is included
in negotiating mandates for third country agreements. The amended
text does not affect the underlying policy issue. Negotiating
mandates are not themselves subject to scrutiny, but future agreements
in which this wording is used will, of course, be subject to normal
Parliamentary scrutiny procedures.
The Government accepts that the Community has
competence to conclude readmission agreements with third countries
under the provisions of Article 63(3)(b)TEC. I understand that
the Commission are considering bringing forward proposals for
negotiating Community readmission agreements with Russia, Sri
Lanka, Pakistan and Morocco. When such proposals are submitted,
the UK will have the opportunity to decide whether to exercise
its opt-in under the terms of the Protocol to the Treaty of Amsterdam.
I hope this clarifies the position to your satisfaction.
21 February 2000