Appendix
Handling of Limité documents: Government
guidance to Departments
For insertion into the Cabinet Office's 'Parliamentary
Scrutiny of European Union Documents: Guidance for Departments'
Background
In response to the House of Lords European Union
Committee Inquiry report on "Codecision and national parliamentary
scrutiny" (17th Report, 08-09), the Government agreed to
share EU documents marked limité (often written as LIMITE)
with the scrutiny Committees in confidence where they are judged
to be relevant to documents under scrutiny. Chris Bryant MP, then
Minister for Europe, confirmed this arrangement in his letter
of 23 March 2010 to both Committees.
In the Government response to the European Scrutiny
Committee Inquiry report on "Reforming the European System
in the House of Commons"
(24th Report, 13-14, pg 9) the Government set out its commitment
to a strong and transparent scrutiny system, including sharing
limité documents wherever possible and useful, and agreed
to press for these documents to be made public where the limité
marking is deemed unnecessary.
The following guidelines for handling limité
documents are to provide clarity and underpin best practice in
a) sharing limité documents with the Committees
and b) pressing for the removal of limité markings
with the Council of the European Union (hereinafter 'the Council').
Information which bears an EU classification marking
(i.e. RESTREINT UE / EU RESTRICTED, CONFIDENTIEL UE / EU CONFIDENTIAL,
SECRET UE / EU SECRET or TRES SECRET UE / EU TOP SECRET) is not
under the scope of these guidelines.
What does limité mean?
Limité is not a security classification, but
a distribution marking. Council Secretariat guidance states that
documents marked limité may be given to any member of a
national administration of a member state and the Commission (for
the purposes of this guidance, national Parliaments are considered
as part of national administrations). Limité documents
may not, however, be given to any other person, the media, or
the general public without specific authorisation, nor may they
be published in any way which makes them accessible in the public
domain.
When are documents marked limité?
Documents are marked limité in various circumstances,
including: when they contain specific and possibly sensitive views
expressed by Member States; when they contain draft proposals
which are of a provisional nature or are evolving; or when they
contain sensitive financial or security information or information
that, if disclosed, would undermine the protection of public (e.g.
defence and military matters) or individual interest.
It is for Member States to decide whether to share
limité documents with their national Parliaments. However,
the document must retain the limité marking and so must
not be used by the Parliamentary Committees in any way which makes
public the substance or detail of the document. The attached Council
guidance for staff (Annex X),73F[74]
which we understand is still under consideration in light of the
Access Info judgment, provides further information.
Handling Advice: Sharing limité documents
Principles when sharing
Limité documents can be shared with the Committees
in confidence and are made available on the Government's authority,
but they cannot be deposited for scrutiny. There will be occasions
when a proposal which is marked limité will be subject
to an unnumbered Explanatory Memorandum (EM) and, although in
those circumstances the limité text has not been deposited,
the proposal will still be subject to the Houses' Scrutiny Reserve
Resolutions by virtue of the EM having been submitted.
The Committees cannot publish or comment directly
on any limité document in a way that publicly discloses
its content, but the Committees can use the information to inform
their overall scrutiny of a proposal. Officials can also provide
off the record briefings on issues covered in limité
documents to answer the Committee's questions whilst still
ensuring that confidential material is not made public. This may
require Ministerial approval depending on departmental procedures.
Officials should decide whether to share a given
document on a case-by-case basis, taking into account its political
and legal importance, and in light of the following guidelines:
What to consider sharing:
· Revised
versions of proposals or documents that have already been deposited
for scrutiny, but have changed substantially.
Access to these documents will facilitate the Committees' continued
engagement with the EU decision-making process. Examples include
Presidency texts, working group texts, and texts produced during
the trilogue process under the Ordinary Legislative Procedure
(usually in the form of tables which compare the original proposal
with the positions advanced by the three institutions during negotiation).
As there will be many iterations of these documents during the
negotiating process, officials must decide at what point sharing
a limité text will be most valuable to the Committees.
An ongoing dialogue with the Clerks will often help to determine
the most appropriate point to share such texts.
· Draft
Council or European Council Conclusions which relate to documents
subject to scrutiny. While Conclusions
are not subject to scrutiny, Conclusions will often be adopted
on or relevant to eg Commission Communications, which are depositable
documents in their own right. Sharing copies of draft Council
Conclusions can help the Committees with their scrutiny of the
source document under consideration.
· Documents
which explain the progress or impact of a given programme or mission.
Sight of such documents will enable the
Committees to engage the EU institutions and Government well in
advance of any proposal to extend or alter EU programmes or missions.
Examples include CSDP mission progress reports and strategic reviews,
as well as draft budgets.
· Documents
which have been requested by the Scrutiny Committees. The
fact that the Committees are aware of a given document and asked
for it to be shared indicates that they believe it to be of interest
and/or relevant to their scrutiny of other documents. It is advisable
to find out why the Committee believe the document is of value,
and then to consider the document against these 'share' and 'what
not to share' guidelines.
What not to share:
· Council
Legal Service Opinions in their entirety, or documents which disclose
the existence of Council Legal Service' opinions.
The UK Government cannot disclose such information to Parliament
as this would breach the Council Rules of Procedure - Article
6 on professional secrecy and disclosure of documents.
· Documents
which disclose detailed and sensitive information about Member
States' negotiating positions.74F[75]
· Revised
versions of documents that have already been deposited for scrutiny,
but have been subject to only minor amendments. For
example, minor changes to wording. This risks overburdening
the Committees and their Clerks with documents that would not
help them in their work.
See section 3.5. of the Cabinet Office guidance for
further details of the stages of the procedure where limité
documents may help in updating the Committees on developments.
How do I share limité documents with the
Scrutiny Committees?
Limité documents can be shared both informally
- via an email from officials to Clerks - and formally - under
the cover of a ministerial letter to the Committees or alongside
an unnumbered EM.
The responsible Department must ensure that
the following caveat is clearly included whenever a limité
document is shared i.e. within the covering email or letter:
The attached document is being provided to the Committee
under the Government's authority and arrangements agreed between
the Government and the Committee for the sharing of EU documents
carrying a limité marking. It cannot be published, nor
can it be reported on in any way which would bring detail contained
in the document into the public domain.
What if the limité document is then made
public?
If a limité document which has been shared
with the Committees subsequently has its limité marking
removed, the relevant scrutiny co-ordinator should contact the
Clerks to let them know that the Committees can now treat it as
a public document.
Pressing for the removal of limité markings
As set out above, there are valid reasons for the
use of the limité marking by the Council. However, where
Departments think that the limité marking is not necessary
or has been misapplied by the Council they should suggest its
removal. Government committed to pressing for the removal of limité
where unnecessary in its response to the European Scrutiny Committee's
scrutiny reform inquiry report. This is an important part of Government's
commitment to transparency and accountability through a strong
scrutiny system, and strengthening the role of national Parliaments
in EU decision-making.
When should I press for removal?
The application of the limité markings should
be consistent with the Council Secretariat's guidance. Therefore,
this is our test for whether a document should or should not be
marked limité. In line with the Council guidance on transparency
(included in annex):
a) Departments should press for removal
of the Limité marking on the following documents, which
Council guidance specifies should not be marked as limité:
· Provisional
agendas for Council meetings (including lists of «A»
items) and for its preparatory bodies, with the exception of agendas
for the Political and Security Committee, the Military Committee,
the Military Committee Working Group, the Politico-Military Working
Party, the Security Committee and the Terrorism Working Parties
(internal and international aspects);
· Documents
originating from a third party which have already been made public
by the originator, such as cover notes and letters addressed to
the Council by other institutions or bodies of the European Union
or, a Member State;
· In the
legislative field, «I/A» and «A» item notes
submitted to Coreper and/or the Council, and draft legislative
acts, draft common positions (Articles 251 and 252 TEC) and joint
texts approved by the Conciliation Committee (Article 251 TEC)
to which they refer; and
· Any
other text adopted by the Council (including by the written procedure)
which is intended for publication in the Official Journal.
· The
latest version of a document which has previously not been marked
as limité and which has not changed substantially.
Departments can also consider pressing for
removal on documents which do not fit under the criteria above
but are politically and legally important and where there is a
clear case that it would be helpful for the Committees' work to
be able to formally scrutinise this document, rather than just
seeing it for information. For example, on dossiers which are
coming up for adoption at Council swiftly but where no publically
available text is available. Departments should not press for
removal where the documents meet any of the criteria set out below.
· Departments
should not press for the withdrawal of the Limité
marking on the following documents, which Council guidance specifies
should be marked as limité:
· Documents
that include a Council Legal Service Opinion or disclose the
existence of a Council Legal Service' opinion. The UK Government
cannot disclose such information to Parliament as this would breach
the Council Rules of Procedure - Article 6 on professional secrecy
and disclosure of documents;
· Documents
that disclose detailed and sensitive75F[76]
information about Member States' negotiating positions;
· Documents
that contain politically sensitive information that would undermine
the decision-making process of the Council;
· Documents
that contains draft proposals which are of a provisional or evolving
nature; and
· When
disclosure of the document would undermine the protection of public
interest (public security, defence and military matters, international
relations, the financial, monetary or economic policy of the Community
or a Member State), the privacy and integrity of the individual,
commercial interests, court proceedings and legal advice, inspections,
or investigations and audits.
Departments should also use these criteria to consider
any requests from the Committees for the limité marking
to be removed from a document. If Departments are unsure about
how to proceed, they should consult EGIS, FCO and UKREP officials.
How do I press for removal?
Departments should instruct the relevant UKREP desk
officer for the dossier in question to submit a request to the
Council Secretariat.
If the request is denied by the Council Secretariat,
but Departments in liaison with UKREP believe the case still has
merit, then an appeal can be lodged and the Council Secretariat
Transparency Unit will take another look at the document, together
with the originating authority and Council Legal Service. If the
Council Secretariat still believe that there is justification
that the document should remain non-public, they will draft a
reply which will go to the Information Working Party for their
approval. If this is approved, Departments will be informed of
the decision.
Further information:
· 11336/11
- Handling of documents internal to the Council - on the Council's
Public Register-9 June 201176F[77]
74 Not published Back
75
The disclosure of Member States' negotiating positions is not
a reason per se to resist sharing limité documents. However,
there may still be circumstances where the sensitivity of a document
justifies it being withheld. If in doubt consult the relevant
UKREP desk officer and departmental scrutiny co-ordinator. Back
76
The disclosure of Member States' general negotiating positions
is not a reason per se not to push for the removal of the limité
marking. The lead official, consulting as appropriate, should
make a judgement as to the sensitivity of the negotiation positions.
The bar here will be higher than for decisions about when limité
documents can be shared with national authorities. Back
77
http://data.consilium.europa.eu/doc/document/ST-11336-2011-INIT/en/pdf
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