Select Committee on European Union Thirty-Eighth Report

Letter from Lord Filkin, Parliamentary Under Secretary of State, Home Office, to Lord Grenfell, Chairman of the European Union Committee

  Thank you for your letter of 3 April to Bob Ainsworth. I am replying as your queries relate to parliamentary scrutiny procedures rather than judicial co-operation policy.

  I appreciate your desire to have a full and open debate on the substance of the draft Agreements. Our intention in providing the current drafts of the text was in no way to restrict that possibility and we will of course formally deposit the draft Agreements for scrutiny, with an accompanying Explanatory Memorandum, as soon as they are de-classified. Rather we provided the documents in order to offer you an early opportunity to comment on the proposals before negotiations between the EU and US were formally brought to a close through signature of the Agreements. We understood that the Committee was able to consider documents in confidence in line with the procedures set out in the Cabinet Office guidance on the provision of sensitive information to Select Committees.

  You ask why the documents are classified as EU confidential and cannot therefore be placed in the public domain. As Bob Ainsworth's letter explained, it is normal practice for negotiations on third country agreements to be held in restricted session and for the accompanying documents to be classified. This is necessary in order to protect the negotiating position of the parties. In particular, the premature disclosure of the results of an ongoing negotiating would prejudice the EU's credibility as a negotiating partner in international relations.

  The decision to classify a document is taken by the Council Secretariat, in consultation with all concerned, against criteria set down in the Council's security regulations of 19 March 2001. Documents are judged to be confidential where the unauthorised disclosure of the document could harm the essential interests of the EU or of one or more of its Member States. As I have explained, that criterion was judged to apply in this case given that at present the documents reflect the provisional results of ongoing negotiations with a third country in, as your letter acknowledges, an area of particular sensitivity. Disclosure of those provisional results could jeopardise the negotiation process.

  The decision to de-classify an EU document is not one which the UK can take unilaterally. Again the Council's security regulations make clear that such a decision can be taken only with the permission of the originator and if necessary after discussion with other interested parties. In this case, the agreement of the Member States and the US will therefore be required. It is unfortunate to note that these regulations are not respected by all and that consequently a version of the draft Agreements has been published on the Internet, although this was not the same version as that which accompanied Bob Ainsworth's letter of 27 March.

  I understand that you have now written separately to the President of the Council regarding de-classification of the draft Agreements. Home Office officials have also emphasised the need for an unclassified text as a matter of priority in discussions in Brussels this week.

  Finally, you may wish to be aware that I have today deposited an Explanatory Memorandum under the terms of section (vi) of the Committee's Orders of Reference on a council document which gives further details on the process and timetable for concluding the Agreements. Annexed to the document (8296/03) is a draft text of the Council Decision authorising the Presidency to sign the Agreements.

17 April 2003

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