Select Committee on European Scrutiny Thirty-Fourth Report



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
Department:Home Office
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[8] 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[9].


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).

  4.4  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 States.

  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.

8  The 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

9  OJ No L 344, 15.12.1997, p.7. Back

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2002
Prepared 11 July 2002