4. TERRORISM AND EVALUATION OF NATIONAL
Draft Council Decision establishing a mechanism for evaluating the legal systems and their implementation at national level in the fight against terrorism.
|Legal base:||Articles 29 and 34(2)(c) EU; consultation; unanimity
|Document originated:||24 April 2002
|Deposited in Parliament:||24 May 2002
|Basis of consideration:||EM of 11 June 2002
|Previous Committee Report:||None
|To be discussed in Council:||No date fixed
|Committee's assessment:||Legally and politically important
|Committee's decision:||Not cleared; further information requested
4.1 Following the attacks on New York and Washington
on 11 September 2001, the Justice and Home Affairs Council of
20 September concluded, inter alia, that the Article 36
Committee should work
out a procedure for peer review of national anti-terrorist arrangements.
A mechanism of this kind, dealing with the review of measures
against organised crime, has been established by Joint Action
97/827/JHA of 5 December 1997.
The draft Council Decision
4.2 Article 1 of the draft Council Decision introduces
a mechanism of 'peer evaluation of the national legal systems
in the fight against terrorism and their implementation, and in
particular of actions against terrorism'. Article 1(2) requires
Member States to ensure that its national authorities cooperate
fully with the evaluation teams appointed by the Presidency of
the Council 'with due regard for the rules of law and ethics applicable
at the national level'.
4.3 The subject matter of an evaluation and the order
in which Member States are to be evaluated are to be determined
by the Article 36 Committee on a proposal from the Presidency.
The first such evaluation is to be completed by the end of 2002
(Article 2). Within 15 days of a decision by the Article 36 Committee
to commence an evaluation, each Member State is to send the names
of one to three experts to the General Secretariat of the Council
(Article 3). The Presidency is then to choose a team of two experts
to carry out an evaluation in each Member State, ensuring that
they are not nationals of the Member State in question (Article
4.4 Articles 5 to 7 deal with the preparation and carrying
out of an evaluation visit and with the resulting report. Article
8 provides for the adoption by the Article 36 Committee of the
conclusions of a confidential report from the evaluation team.
By virtue of Article 8(3) the Presidency is to inform the Council
once a year of the results of the evaluation exercises. Where
it sees fit, the Council may address recommendations to the Member
State concerned and may invite that State to report back to the
Council on the progress it has made.
4.5 Under Article 8(4), the Presidency is to inform the
European Parliament each year of the implementation of the evaluation
mechanism. This duty is described as being 'in compliance with
Article 9(2)'. However, Article 9(2) provides that reports drawn
up within the framework of the Decision are to be confidential,
but that the Member State reported on may publish the report on
its own authority. If such Member State wishes to publish only
part of the report, it must first obtain the Council's consent.
The Government's view
4.6 In his Explanatory Memorandum of 11 June 2002, the
Parliamentary Under-Secretary of State at the Home Office (Mr
Bob Ainsworth) explains that the Government has no difficulties
in principle with the draft Decision, since the United Kingdom
has comprehensive anti-terrorist legislation and 'an excellent
record in implementing international counter-terrorist agreements'.
4.7 However, the Minister explains further that the Government
has a number of concerns in relation to what are described as
'unrealistic time-scales' imposed by the draft Decision. The Minister
refers in this regard to the date for completion of the first
evaluation exercise (end 2002) as fixed by Article 2(3), the 15
day deadline for nominating experts under Article 3, the one month
time scale for evaluation teams to visit the Member State and
the 15 day period within which the Member State may make comments
on the report by the evaluation team.
4.8 The Minister also considers that the draft Decision
should fix time scales for other steps in the evaluation process,
namely, the drawing up by the Presidency of the list of experts
under Article 3, the preparation of the questionnaire under Article
5 and its approval, and the forwarding of the draft report to
the Article 36 Committee under Article 8.
4.9 We agree with the Minister that the evaluation
process instituted by the proposal needs to be conducted within
realistic and comprehensive deadlines for each of its stages.
We note the Minister's comment that the United Kingdom would have
no difficulties of principle with the proposal. Nevertheless,
there are a number of points of detail on which we seek clarification
from the Minister.
4.10 First, we ask the Minister to confirm that the
system of peer evaluation, as provided for in Article 1(1) of
the proposal, applies both to national legal systems and to specific
counter-terrorist operations carried out by the services of Member
4.11 Secondly, we would be grateful for an explanation
from the Minister of the effect of the provision in Article 1(2)
under which Member States are to cooperate with evaluation teams
"with due regard for the rules of law and ethics applicable
at national level". In particular, we ask if the Minister
intends that evaluation teams should have access to information
which would otherwise be protected by the Official Secrets Act
1989, and what is intended by the reference to "ethics"
in this context.
4.12 Finally, noting that the Member State reported
on may publish the report of the evaluation team, and that the
European Parliament is to be informed of the implementation of
the evaluation mechanism, we ask the Minister what publicity,
if any, is to be given to recommendations by the Council under
Article 8(3) and, more generally, if the Minister considers that
the right balance has been struck between secrecy and freedom
of information by the present proposal.
4.13 We shall hold the document under scrutiny pending
the Minister's reply.
Coordinating Committee of senior officials of the Member States
established under Article 36 EU to give opinions
to the Council and to contribute to
the preparation of the Council's discussions on matters covered
by Article 29 EU. Back
No L 344, 15.12.1997, p.7. Back