Select Committee on European Union Minutes of Evidence

Examination of Witnesses (Questions 1-19)




  1. Minister, welcome. I am sorry to have kept you waiting for a moment or two outside. We had things to deal with beforehand. Thank you very much indeed for coming. You are more than welcome. We realise what a busy period this must be for you. I wonder if we could go straight in to talk about the scrutiny of ESDP. I wonder if you could tell us why it appeared to take so long for the Ministry of Defence and the Foreign Office to put together a plan on how to permit scrutiny for the various activities in which ESDP is taking part, because we would have thought that all parties were aware both of the timescale for the missions and the need for scrutiny by Parliament. I wonder if you could tell us about that, bearing in mind the Government overriding the scrutiny on the military mission.

  (Dr MacShane) Thank you, my Lord Chairman. I apologise for not appearing before the previous Committee. I am grateful for your acceptance of that due to pressures in other parts of my work. I do regret the fact that it has taken so long to put in clear and robust arrangements. That reflects discussions with other ministries that have points of view on this. We have to get the balance right between the absolute obligation for Parliament and the scrutiny committees to have time and information to allow proper examination of ESDP decisions, but we also have to understand that ESDP will need to make decisions quite rapidly because of the pressure of events. Then, of course, perhaps the most difficult aspect of all of this is: How do we balance the need for Parliament to scrutinise with ensuring that there is proper operational security for military operations in which our own troops and indeed other European troops are involved? It concerns classified information. I have every confidence in parliamentary colleagues on that issue, but NATO and EU have their own security concerns, allied and friendly governments have their own security concerns. We hope now that we have the right mechanisms in place. I notice that I seem to spend a lot of time signing off on explanatory memorandums, much more now than even a few months ago, because of ESDP requirements, but, I apologise, it has taken longer than we thought to get these mechanisms up and running.

  2. Thank you for that. Minister, if I may go back, a little earlier I failed to welcome Mr Chilcott and Mr Johnston. If, Minister, you would like either of them to embellish anything you have said, the Committee would welcome that very much. Could I also say that I did tell the Committee of your great courtesy in telephoning—I think it was from Vienna, if I recall—
  (Dr MacShane) One of those airports, my Lord Chairman. They are all the same these days!

  Chairman: You kindly telephoned me to apologise and I appreciated that very much indeed.

Lord Inge

  3. Could I pursue that question, Minister, please. You say you believe it has improved. Could you tell us how in concrete terms you think it is going to be improved in the future and what are the main lessons you think you have learned from this exercise so far.
  (Dr MacShane) I think the fact now that we will send the necessary documents very swiftly to the scrutiny committees; we will submit the explanatory memoranda covering unclassified ESDP text; and we will submit unclassified explanatory memoranda summarising classified documents. In a broader sense, I hope that more parliamentary colleagues will travel to other European countries and take a greater interest in CFSP and ESDP policy. I think we will be operating now on the same basis as CFSP documents; that is to say, joint actions, common positions, council decisions which will be deposited for scrutiny, but I think we must accept that at times decisions in this field just take so much more quickly than on domestic policy matters from Europe that it will not be possible always to have prior scrutiny of the implementation of policy. But the discussion of how we arrive at policy and the nature of the policy debates that will take place under ESDP, I attach the highest performance to those being before parliamentarians, so they understand what we are doing and what we are saying in the name of the British Government in the context of ESDP.

  4. So that I am clear, are we saying it is the sensitivity of some of the documents or the sensitive things like the concept of operations and the capabilities we were acquiring?
  (Dr MacShane) There, obviously, our colleagues in the Ministry of Defence, my Lord, will have positions that they may not wish to put into the public domain for obvious operational reasons. But I would make a clear division between the policy discussion and debates that will take place as the ESDP evolves and as CFSP evolves over time and actual operational details for reasonable security reasons—and it is not just a British point of view; we have to reflect the concerns of allies and partners—and then the difficulty when something flares up and one has to take decisions very, very quickly and it may not be possible obviously to put material before the scrutiny committees on the basis of their rhythms of meetings. But our general view, as I say, is to put as much as possible before the Committee before final decisions are taken.

  5. Are you saying, therefore, that you think the structure is about right but it is just getting the process better?
  (Dr MacShane) I think it is about process. I think also we will be on a learning curve on this. I think now, following discussions inside Whitehall and with the partners, we have a right approach and we opt for the maximum openness, but it will be tested over time.

Lord Bowness

  6. You have already told us that classified documents will be the subject of unclassified summary. May I perhaps go back one stage further. We have your letter to Lord Grenfell of 5 or 6 February. You talk about classified information. Really, the basic question: Who decides whether the document is classified in the first place?
  (Dr MacShane) In ESDP, clearly, it will be the Council Secretariat acting on behalf of all the Member Governments sitting in the Council of Ministers of the European Union. Their decision will be influenced by whether the document contains information contributed by ourselves, other Member States or by NATO which has been deemed to be classified and we would expect that to be respected. But we will deposit explanatory memoranda in front of the scrutiny committees which summarise the policy content of classified text. Clearly, if the classified text is, as it were, orders of the day for military operations, then I expect those summaries will be rather short because we do not want to reveal what we plan to do.

  7. My Lord Chairman, may I ask the Minister further. You said that if we had submitted classified information you would expect the Council Secretariat to respect that. Do we have an absolute right to insist that it remains classified? I say "we"; does any Member State putting the information forward have a right to insist it remains classified or is there an element of discretion with the Council Secretariat?
  (Dr MacShane) I think it is the same rules that would apply within NATO, the same rules that can apply in terms of foreign policy issues which are communicated "within the EU but not to go out into the public domain". I have confidence that people will respect that because other countries also take positions, in some cases, rather more rigorous and robust, on what their own public are allowed to know.

Baroness Park of Monmouth

  8. Just following that up, Minister, I have been looking at Appendix B to your letter to Lord Grenfell and there are these stages that are set up. I wonder whether you could explain how the first three—which are, Council agreement on concept, Council agreement on joint action, and Council decision to select a military strategic option—can possibly be classified. I can understand that from possibly stage 4 onwards there would be very strong arguments for it, but, before that, surely what is being discussed is the principle of whether a machine that has been created might or might not be used in a situation which must be fairly publicly known.
  (Dr MacShane) The point is that the distinction between a general policy discussion and operational implementation can be much more narrow than one imagines. If, at the level of the Council, there is serious discussion about sending troops to intervene in a given region of crisis, does one want that to be known from the moment of the decision, the policy decision, to the people who might have to deal with that intervention until such time as one has troops ready to go into operational action.

  9. Minister, has there ever been a confidential Council decision? Moreover, are we not talking about us, not the general public, when we are discussing this matter?
  (Dr MacShane) I think there have been confidential Council decisions. I think that the issue of whether one makes public decisions about which the military say to us "Please don't" is something that all the European Union Partner States would have to take very seriously.

  10. Forgive me for pursuing this further, but what is to stop you issuing it to us and saying, "This is confidential, this is delicate, therefore please do not discuss it in a public session."
  (Dr MacShane) Nothing. Nothing at all, Lady Park. I think that will again have to evolve over time. I think we have evolved over time, setting up the Security and Intelligence Committee in the Commons which now receives—these are backbench MPs—very classified information. I think you are absolutely right that European parliamentarians at the national and European level will not want these decisions, as it were, suddenly to see the light of day without some parliamentary scrutiny. It is a process which we will have to test over time. But we do not want to find ourselves in a position, having made commitments today on the record in a parliamentary committee, that then can be thrown in our face when military people tell us in x years time, "Look, we want to spring a surprise, so please don't announce this on the . . ."


  11. If I may pursue it a little further. Minister, you will know there are a number of members of this Committee who have been close to government, both in a parliamentary and a public service role, and I think it will be familiar to all those members of seeing documents marked confidential over which one scratches one's head and says, "Why on earth has somebody written confidential"—or even "classified"—"on the top?" We are all accustomed to wondering why that has happened. Could I ask you specifically to use the goodwill of government, so that, where there are documents which it would be helpful for this Committee, particularly, to see, you could go through a process which I have known before. I was on the Foreign Affairs Committee down the other end of the building for 10 years and it was quite a familiar arrangement that classified documents were entrusted to the clerk of the committee and members of the committee could go and see them provided that the document was never taken away from the safekeeping of the clerk. It would be helpful if you could give us an undertaking that sympathy would be given to that approach for classified documents, were it felt that you were not endangering secrecy or anybody's lives—I mean, nobody would want that, but where there is something which was classified but there was really not much need for it—but it was—that it could be made available to the Committee.
  (Dr MacShane) My Lord Chairman, I am very sympathetic to that. I notice on my briefing it has stamped "Restricted" on the top but it is actually what I am saying to you on the record.

Lord Inge

  12. We are grateful that you are so open!
  (Dr MacShane) It must be something that is endemic under our system. Lord Inge could perhaps answer this better because in my experience it is always the military who do not want to say that Christmas Day generally falls on 25 December just in case the enemy finds out.

  13. It depends who the enemy is, of course.
  (Dr MacShane) I think the problem is that to give a formal undertaking might put me at odds, particularly, with some of our NATO partners—because we are wanting to make NATO a full partner in this whole operation and they have some more stringent rules themselves. The general approach which you outline seems to me to be quite reasonable but then one person says that this might endanger military operations one way or another and another person says it will not. Do you err on the side of caution and keep everything secret or err on the side of openness and then face the accusation you have given some tiny bit of information away that could damage operations? I am in favour of the latter approach, I have to say, but I will certainly examine this and I think, over time, Europe cannot commit troops, put men and women in harm's way, without that being fully accountable and scrutinised by their elected representatives.

  Chairman: I think that is the last thing anybody on this Committee would wish to do.

Lord Inge

  14. If I may defend my old ministry, my Lord Chairman. You have put it very starkly, I think, Minister. If you are talking about giving away information that will affect operational capability, then I would very strongly agree that should be classified. If you are talking about general concepts, then I cannot understand why that has to be classified.
  (Dr MacShane) I agree with you, my Lord. I do not even see why it should be restricted.

  15. The only other people who might—and it would not necessarily be my ministry—is if, in designing the concept, you have to talk about the warring factions or whatever on the ground and that becomes politically and militarily sensitive. That is the only reason I can see it being done.
  (Dr MacShane) Thank you.


  16. Shall we move on. Let us leave the ESDP scrutiny and move to the General Affairs Council. I understand you would like to make a statement, Minister, which we would much enjoy hearing.
  (Dr MacShane) We had a successful General Affairs Council last week, which prepared the way for the spring Council of Heads of Government which I also attended. There was a commitment to see the EU actively involved in humanitarian relief for Iraq; a commitment to an effective European contribution to allow all Iraqis to live in freedom, dignity and prosperity under a representative government—in other words, to be free from the tyranny of Saddam Hussein; a commitment to the fundamental role of the United Nations in the international system and for the United Nations to play a central role during and after the current crisis, with the humanitarian needs of the Iraqi people continuing to be met through the Oil-for-Food Programme; a commitment to the full and effective disarmament of Iraq; a commitment to strengthening the transatlantic relationship—which was very strongly stressed by all 10 heads of government of the new Member States of the EU when they spoke to the existing EU heads of government when I had the honour to represent the United Kingdom at the lunchtime meeting on Friday; a commitment to the territorial integrity and sovereignty of Iraq; a commitment to work for the reinvigoration of the Middle East peace process, with the publication and implementation of the "road map"; and a commitment to strengthening the capacity of the European Union in the context of the CFSP and the ESDP. So, although there are massive diplomatic differences on how to handle Iraq, the President of the French Republic, I think, said that we should leave historians to analyse the last six months' wrangles of the UN and move forward, and I think that was the general wish of the representatives of the General Affairs & External Relations Council. There were a lot of other issues discussed—the Western Balkans, the spending of aid and trade money—but on Iraq it was a positive statement.

Lord Powell of Bayswater

  17. I have one follow-up question, my Lord Chairman. I was interested to hear what everyone apparently agreed at the Council on humanitarian aid to Iraq when this war is over and on the role of the United Nations. How has the impression got around that the French President has said he would veto a United Nations role following the conflict in case it retrospectively seemed to endorse the military activity?
  (Dr MacShane) The French Foreign Minister Monsieur de Villepin is currently addressing backbench MPs in another room somewhere in this building and I hope that question will be put to him. Indeed, it is right to say that President Chirac, I think on Saturday, referred to French disagreement, while the conflict was continuing, to new UN resolutions. My latest information from Paris is that France is now reconsidering that position and of course the Prime Minister is discussing with the President of the United States today what role the UN should play. I personally think that with, I think, $9 billion locked in escrow accounts from Iraqi oil, now is the time for the UN to release that money and to put some material hope back into the hearts and homes of the people of Iraq.

  18. You would be confident, Minister, on the basis of the discussion of the General Affairs Council, that the French would not in fact obstruct this?
  (Dr MacShane) I very much hope that to be the case.


  19. You mentioned frozen deposits of cash around the world which the UN might agree to release. I understand that some of that money has already been released. Would you regard that as legal?
  (Dr MacShane) I am not sufficiently an expert on international law, I am afraid, my Lord Chairman, but I do know that the UN has a very rigorous legal department which examines these issues in the most minute and particular detail. So if they are spending money, I am sure it is with due and proper authority.
  (Mr Chilcott) May I add something? Under United States' legislation they have powers, which we do not have in the United Kingdom, for them to make use of certain Iraqi frozen assets for the benefit of the Iraqi people, and there have been moves, if these are the assets to which you are referring. I think, under United States law, what has happened there is perfectly legal. For ourselves, this is something at which we are looking, and we are coming to the conclusion that, without a change in our own legislation, we would require Security Council authorisation to make use of these frozen assets.

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