Select Committee on European Scrutiny Thirty-Eighth Report







Draft Council Decision establishing a mechanism for evaluating the legal systems and their implementation at national level in the fight against terrorism.

Legal base:

Articles 29 and 34(2)(c) EU; consultation; unanimity



Home Office

Basis of consideration:

EM of 11 June 2002; Minister's letter of 21 August 2002

Previous Committee Report:

HC 152 -xxxiv (2001-02), paragraph 4 (26 June 2002)

To be discussed in Council:

No date fixed

Committee's assessment:

Legally and politically important

Committee's decision:




    1. Following the attacks on New York and Washington on 11 September 2001, the Justice and Home Affairs Council of 20 September concluded that the co-ordinating committee of senior officials of the Member States established under Article 36 EU[53] should work out a procedure for peer review of national anti-terrorist arrangements within the EU.
    2. We considered on 26 June 2002 a draft Council decision establishing such a procedure and raised a number of questions, notably as to whether the peer review would extend to specific counter-terrorist operations, the degree of access the review teams would have to secret information, and the publicity to be given to the reports of the reviews.
    3. The Minister's reply

    4. In his letter of 21 August, the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) replies to each of our concerns. As to our first point, the Minister assures us that the proposal will not include any evaluation of specific counter-terrorist operations. The Minister further explains:
    5. "Any such evaluation would infringe on operational sensitivities and scrutiny of the actions of the police and/or security/intelligence agencies of individual Member States is not an area where the EU has any competence. As such, any attempt to evaluate specific counter-terrorist operations would not be acceptable to Member States."

    6. When we considered the proposal on 26 June, we noted that Article 1(2) required Member States to cooperate with the evaluation teams 'with due regard for the rules of law and ethics applicable at national level' and asked the Minister if this meant that evaluation teams would be given access to information which would otherwise be protected by the Official Secrets Act 1989 and what meaning was to be given to the term 'ethics' in this context.
    7. The Minister replies that pursuant to Article 6 of the proposal, the programme of visits for the evaluation team will be arranged by the Member State. Any visits arranged by the UK would be subject to national law, including the Official Secrets Act 1989 and longstanding policy and codes of behaviour with regard to issues of national security, including longstanding practice on access by third parties to sensitive operational and intelligence material. The Minister points out that Article 9 of the proposal obliges members of evaluation teams to treat any information they receive confidentially, but comments that, given established policy and legislation relating to issues of national security, it was hard to envisage the UK revealing any sensitive information under this proposal.
    8. Finally, we asked the Minister what publicity, if any, was to be given to the recommendations under Article 8(3) of the proposal by the Council to the Member State concerned. In his reply, the Minister first notes that the evaluation report under Article 8(1) will be confidential, and that any recommendations made by the Council on the basis of such a report will also not be made public. The Minister comments further that in areas such as terrorism, a certain amount of secrecy is necessary. He further points out that, if weaknesses in counter-terrorist arrangements identified by the evaluation teams were to be made public, it was possible that these might be exploited by terrorists and their supporters.
    9. Conclusion

    10. We are grateful to the Minister for his reply. We welcome the assurance he gives that the system of peer evaluation, as provided for in Article 1(1) of the proposal, is not to apply to specific counter-terrorist operations carried out by the services of Member States.
    11. We also welcome his assurance that the proposal will not require the disclosure of information protected by the Official Secrets Act 1989, and his explanation of the degree of publicity to be given to recommendations of the Council made under Article 8(3) of the proposal.
    12. In the light of the assurances and explanations given by the Minister, we are content to clear the document.


53  The Committee's purpose is to give opinions to the Council and to contribute to the preparation of the Council's discussions on matters covered by Article 29 EU.  Back

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Prepared 11 November 2002