FIGHT AGAINST ORGANISED CRIME (6582/05,
8496/06)
Letter from the Chairman to Paul Goggins
MP, Parliamentary Under Secretary of State, Home Office
Thank you for your letter of 19 December 2005[158]
which was considered by Sub-Committee E (Law and Institutions)
at its meeting on 18 January. We are pleased to note that you
share the Committee's concern regarding the need for clarity of
language in the Framework Decision. We note that the negotiations
are ongoing and that there are differences of view among Member
States relating to Articles 1 and 2. We thank you for your undertaking
to keep the Committee informed of developments.
The Committee decided to retain the proposal
under scrutiny.
19 January 2006
Letter from Paul Goggins MP to the Chairman
Thank you for your letter of 19 January 2006
on the above draft Framework Decision. I am writing partly in
response to that letter but also to let you know that the Austrian
Presidency is moving this dossier forward more rapidly than we
had anticipated. The new draft text, upon which the Presidency
is seeking general agreement in principle at the JHA Council on
27 April, has only very recently been issued and has been deposited
with the scrutiny committees in both Houses. In the Government's
view this text is acceptable as will be explained in the Explanatory
Memorandum which will follow shortly. In the circumstances, however,
I would like to take this opportunity to bring you up to date
and touch on the remaining outstanding issues in our correspondence.
First, I would like to reassure you that the
new text reflects your concerns which, as ever, have been very
helpful during the course of the negotiations. The Austrian Presidency
has focussed on resolving the outstanding questions relating to
Articles 2 and 3. As a result there has not been an opportunity
to consider your point about whether the language in Article 1
referring to the offences falling within the scope of the instrument
needs to be amended to make it clear that it is a reference to
national laws only and does not embrace international law.
However, our understanding is that Member States
interpret the language as reference to national laws only. Despite
the late stage in the negotiations we will seek to raise this
point should an opportunity arise. Our current view, however,
is that the instrument would be acceptable even if no such amendments
were made.
As regards Article 2, the proposed directing
offence has now been omitted and the conspiracy option of the
Joint Action of 1998 included. Accordingly, Articles 2 and 3 are
now to be treated as a package, providing added value by including
in Article 3 some approximation of maximum penalty levels, which
was of course absent from the Joint Action. We believe that Articles
1, 2 and 3, as drafted in the text just issued, are a proportionate
response to the need to ensure that Member States' laws are adequate
to provide a European response to organised crime.
There has not yet been a suitable opportunity
to address your concern about Article 9 insofar as it concerns
how a TEC instrument should be construed. I understand this concern
and we will continue to seek to address the point. If the Article
is adopted in its present form it is possible that the reference
to TEC instruments may be of no legal effect. This is not very
satisfactory from a technical point of view but we do not consider
that this potential technical defect in the instrument would justify
the UK blocking a general agreement to the present text.
We will inform you of the outcome of the discussion
of this dossier at the JHA Council on 27 April.
24 April 2006
Letter from the Chairman to Paul Goggins
MP
Thank you for your letter of 24 April which
was considered by Sub-Committee E (Law and Institutions) at its
meeting on 3 May. It is regrettable that you were not able to
inform the Committee of progress of negotiations until just three
days before the Justice and Home Affairs Council and that your
Explanatory Memorandum on the new draft text has still not been
provided to Parliament. We note, however, that, as described in
your letter, certain progress has been made and that the Government
have been receptive to the points made earlier by the Committee.
We look forward to learning from you of the outcome of the discussions
at the JHA Council and, in particular, whether scrutiny has been
overridden in this case. In the meantime the proposal is retained
under scrutiny.
4 May 2006
Letter from Vernon Coaker MP, Parliamentary
Under Secretary of State, Home Office to the Chairman
In his letter of 24 April, Paul Goggins indicated
that he would write to inform you of the outcome of the JHA Council
consideration of this instrument. I have now taken over Ministerial
responsibility for this portfolio and am writing to you as promised.
The Council succeeded in overcoming the outstanding
issues relating to Articles 2 and 3 and agreed a "general
approach". A number of Parliamentary scrutiny reservations
were maintained however, including that of the United Kingdom.
I attach the text of the instrument as considered at the Council.
This text differs in no significant way from the text (DOC 8496/06
of 20 April) to which our latest EM relates.
As explained in Paul Goggins' last letter this
dossier moved towards agreement more quickly than we had anticipated.
Fortunately, in this instance the negotiations produced a text
that raised no substantial issues for the United Kingdom. In the
circumstances, the Government did not believe that it was right
to block a general approach. I would like, however, to offer my
apologies for any constraint the Committee may feel as a result
of the haste with which the substantive negotiations of this instrument
were concluded.
Your points on Articles 1 and 9, touched upon
in my letter of 24 April, were raised with the Presidency. As
regards Article 1 the Presidency confirmed that the reference
to offences in the definition of a criminal organisation was intended
to be a reference to offences in national law only and not to
embrace international law. The Presidency believes, however, that
no textual clarification is necessary as this interpretation is,
in their view, the natural reading of the text. As regards Article
12 the Presidency noted the point and indicated that they would
consider the case for clarification. No changes to the text were
made. As indicated in Paul Goggins' letter of 24 April the Government
takes the view that the technical defect that the current wording
may involve is unsatisfactory but unlikely to be of any practical
significance.
Finally, I hope that you will now be able to
clear this document from outstanding scrutiny in readiness for
formal agreement. I am of course open to answer any outstanding
questions you may have.
17 May 2006
Letter from the Chairman to Vernon Coaker
MP
The revised text of the Council Framework Decision
was considered by Sub-Committee E (Law and Institutions) at its
meeting on 24 May. The Committee is grateful for your Explanatory
Memorandum of 16 May which in part responds to the concerns raised
in my letter of 4 May. The Committee decided to retain the proposal
under scrutiny.
Two points of concern remain. First, you say
that the reference to offences in Article 1 is a reference to
offences in national law only and does not embrace international
law. This does not appear from the text of that Article or from
any of the recitals. We would therefore be grateful for explanation
of the reaons for reaching your conclusion.
Second, we note that the text of Article 9 has
not been amended. The Government have recognised that Article
9 may be of no legal effect and your predecessor said, quite candidly,
that the Government did not regard the presence of Article 9 as
a reason for blocking the measure. However, has the Government
considered making a minute statement to the effect that the United
Kingdom considers Article 9 to be of no legal effect, there being
no power in the Treaty on European Union to amend measures made
under the Treaty establishing the European Community?
The Committee decided to retain the proposal
under scrutiny. We look forward to receiving your response on
the points set out above.
25 May 2006
Letter from Vernon Coaker MP to the Chairman
Thank you for your letter of 25 May. I note
that the proposal is retained under scrutiny by the Committee.
I shall first deal with your two specific points.
As regards your point on Article 1, the Government takes the view
that whilst Article 1 does not expressly set out the scope of
"offences", this term is intended to be defined by reference
to domestic offences only. There is nothing in the text of the
Framework Decision to indicate that offences which are not offences
in national law should be covered. We have raised the point during
negotiations and the understanding amongst Member States is likewise
that the word "offences" is a reference to offences
in national law only. The Government will accordingly interpret
the reference in that way when we come to implement the instrument.
As I mentioned in my last letter, when asked about this point
directly the Presidency took the view that no clarification is
required. In these circumstances, given the late stage in the
negotiations, the Government does not propose to press the Presidency
further on the point.
Turning to Article 9, I believe that your assessment
of the legal impact of the Article, insofar as it purports to
provide for the interpretation of EC instruments, is correct.
It is, however, as I am sure you agree, very sensible to seek
to ensure that the references to participation in a criminal organisation
are interpreted in accordance with the new instrument. If the
European Court of Justice were called upon to consider Article
9 it may hold that it had no effect insofar as it purported to
amend references in Community measures.
This would limit the scope of Article 9's interpretative
provision but would not amount to a serious flaw in the legislation
with any significant implications for EU or national law. The
Government has alerted the Presidency to the point. Although mindful
that the position is not ideal the Government is in agreement
with the intent of the Article and is therefore not minded to
take up the issue in a minute statement.
I hope you find my explanations helpful and
that the Committee will be able to clear the document from outstanding
scrutiny in readiness for formal adoption of the proposal. I am,
of course, available to answer any further questions you may have.
26 June 2006
Letter from the Chairman to Vernon Coaker
MP
Thank you for your letter of 26 June which was
considered by Sub-Committee E (Law and Institutions) at its meeting
on 12 July. I am sure that you will not be surprised to learn
that the Committee is disappointed with the response given by
the Government.
On the first point (the scope of "offences"
referred to in Article 1) it seems surprising that the Government
are prepared to accept the word of the (then) Austrian Presidency
as being definitive as to what Article 1 means. You say that "given
the late stage in the negotiations" the Government do not
propose to press the Presidency further on the point. You will
recall that the Committee first raised this issue in my letter
of 7 April 2005.
As regards Article 9, the Government and the
Committee are at one in believing that this provision is ultra
vires. We regret that you do not feel able to take up our
suggestion that there might be a Council minute statement dealing
with Article 9 because "the Government is in agreement with
the intent of the Article". We do not believe that an appropriately
drafted minute statement need contradict that position. It need
only draw express attention to the fact that Article 9 is ultra
vires. You conclude that Article 9 "would not amount
to a serious flaw in the legislation". We consider it to
be a throughly bad precedent.
We note, however, that the Framework Decision
has in effect been agreed. In these circumstances, notwithstanding
its remaining concerns, the Committee decided to clear the proposal
from scrutiny.
13 July 2006
Letter from Vernon Coaker MP to the Chairman
Thank you for your letter of 13 July. I am very
grateful to the Committee for clearing the proposal through scrutiny.
I note your comments on the Government's reponse
to the Committee's views on certain aspects of Article 1 and Article
9. As I am sure you agree, I do not think it would be helpful
to rehearse the Government's views on these points once again,
although I should add here that I agree that the conflict between
EU and EC areas of competence in Article 9 is less than ideal.
I share your view that it is an unwelcome precedent. We shall
endeavour to ensure that this is not repeated in future instruments.
More generally I share your concerns that the
scrutiny process on this instrument has been a little less than
satisfactory. I sought to explain in previous correspondence this
is partly due to the negotiations proceeding to the end game rather
more quickly than officials had anticipated. Furthermore, we are
currently undertaking a review of the departmental arrangements
for handling EU business, including how to ensure matters such
as our scrutiny commitments are met as efficiently as possible.
In any event I apologise for any dissatisfaction experienced by
the committee in the handling of this dossier and assure you that
we will strive to avoid any repetition of this experience in the
future.
Undated, received August 2006
158 Correspondence with Ministers, 45th Report of
Session 2005-06, HL Paper 243, p 432. Back
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