Select Committee on European Union Forty-Ninth Report


Letter from the Chairman to Mr Bob Ainsworth MP, Parliamentary Under Secretary of State, Home Office

  You last wrote to the Committee on this subject on 30 January. The record of the 27/28 February Justice and Home Affairs Council records that "the Council could conclude the Agreement on May or June, after having involved the parliaments in an appropriate manner". It has been our expectation, and I believe the expectation of our sister Committee in the House of Commons, that the draft Agreement would be deposited with Parliament and that both Scrutiny Committees would be given sufficient time to examine the text.

  I understand that Member States may be asked at the JHA Council on 8 May to authorise the Presidency to sign the Agreement. Accordingly I request you to stand by the assurance given in your letter of 30 January that the Committee will have an opportunity to scrutinise the text in full. We would be grateful if you would deposit the document as soon as possible.

24 March 2003

Letter from the Chairman to Mr Bob Ainsworth MP, Parliamentary Under Secretary of State, Home Office

  Thank you for your letter of 27 March in which you requested that the draft EU/US Agreements be examined by Sub-Committee E (Law and Institutions). The Committee considered your letter (but not the Agreements, for the reasons I shall explain below) at its meeting yesterday.

  While we are aware of the urgency of the matter and are grateful for the efforts you are making to provide an unclassified version of the documents for Parliamentary scrutiny, we cannot agree to proceeding in the way you propose in your letter.

  Our primary role is to scrutinise EU measures which would become legally applicable or have legal effects, direct or indirect, in this country. It is apparent from the terms of your letter that the Agreements are such measures. We will accordingly need to scrutinise them.

  You have, however, suggested that Sub-Committee E should examine the documents in camera. We would not be allowed to take the views of experts and other interested parties. We would only be able to meet and discuss the matter with you and your officials in private. Seemingly we would not be able to publish correspondence or a Report which disclosed the content of the Agreements. We would not be able to show the documents to other Members of the House. There could be no free and open debate of the issues.

  Such an approach would be inconsistent with the principles of Parliamentary scrutiny and how they have been practised in this Parliament for many years. We do not rule out the possibility that some overriding public interest might exceptionally require a document to be kept out of the public domain and for scrutiny to be conducted in such a restricted way. But to expect the Committee to agree to this in the absence of a clearly identified and overriding public interest is unacceptable.

  Your letter offers no explanation as to why the documents (which appear to be in near final form and will be published after signature) should remain classified as "confidential". We would be grateful if you could explain the position more fully and in particular identify the reasons why these documents, which will have implications not just for the security but also the fundamental rights of citizens not only of this country but of all EU countries, cannot now be placed in the public domain. We are sure that you will bear in mind that, as Lord Goff of Chieveley said in the Spycatcher case, [1990] 1 AC at page 283, when commenting on the Government's attempts to restrain publication of allegedly confidential information—

    " a free society there is a continuing public interest that the working of government should be open to scrutiny and criticism."

  Lord Goff's observation applies at least as strongly to the workings of the EU as it does to the workings of our domestic Government.

  My letter of 24 March recalled the Government's earlier undertakings and the conclusions of the 27/28 February Justice and Home Affairs Council. The way in which the Council of Ministers (and the Greek Presidency) is now dealing with this matter and your proposal, pragmatic and well-intentioned as it is, for how this Parliament should scrutinise the Agreements in question, raise issues of substantial constitutional significance both for the Union and the UK.

  We stand ready to undertake the necessary scrutiny work when the documents are deposited with Parliament in the usual way. In the meantime I do hope you will understand and appreciate our position from which, in the present circumstances, we cannot move.

  I am copying this letter to Jimmy Hood MP, Chairman of the Commons European Scrutiny Committee; and to Dorian Gerhold, Clerk to the Commons Committee; Michael Carpenter, Legal Adviser to the Commons Committee; Les Saunders (Cabinet Office); Joanne Harrison, Departmental Scrutiny Co-ordinator.

3 April 2003

Letter from Lord Firkin to the Chairman

  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.

17 April 2003

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