Select Committee on European Union Fortieth Report


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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