Scrutiny Reform follow-up and Legacy Report - European Scrutiny Contents


Handling of Limité documents: Government guidance to Departments

For insertion into the Cabinet Office's 'Parliamentary Scrutiny of European Union Documents: Guidance for Departments'


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



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