4. The Committee was first informed about the negotiations by a letter from Bob Ainsworth MP, then Parliamentary Under Secretary of State, Home Office, on 29 May 2002.[10] Mr Ainsworth provided some information on the content of the negotiating mandate, but noted that the latter was a confidential document not falling within the normal criteria for scrutiny. He confirmed that the Agreements resulting from those negotiations would be submitted for parliamentary scrutiny when presented to the Council for approval.

5. Mr Ainsworth next wrote to the Committee on 30 January 2003. He noted that at the meeting of 28 November 2002 the JHA Council agreed to changes in the negotiating mandate, with provisions relating to the extradition of own nationals and the narrowing of the political offence exception being withdrawn. The Minister reiterated that the documents in question were confidential and could not be deposited for scrutiny. He reassured the Committee that he would provide the draft Council Decision authorising the Presidency to conclude the agreement when it became available and added: "at that time you will of course have an opportunity to scrutinise the text in full". Mr Ainsworth further noted that the Greek Government did not anticipate conclusion of the Agreement during its Presidency.

6. The conclusions of the February JHA Council however indicated that the Council contemplated that the Agreement would be concluded during the Greek Presidency (in May or June) after having undergone scrutiny by national parliaments. In the light of these conclusions, the Committee wrote to the Home Office on 24 March 2003. We made clear our expectation that the draft Agreements would be deposited in Parliament for scrutiny and that both this Committee and the House of Commons European Scrutiny Committee would be given sufficient time to examine the texts. We asked for the texts to be deposited as soon as possible.

7. Mr Ainsworth replied on 27 March. He provided the Committee with a copy of the draft Agreements but asked for these documents to be treated as confidential since they had been given an EU confidential classification. The Minister said that he would deposit for scrutiny the unclassified Decision authorising the Presidency to sign the Agreements, but that this deposit would not be accompanied by the texts of the Agreements. He further noted that the Council Secretariat had advised that it might not be possible to declassify the texts of the Agreements until after they had been signed.

8. The Committee refused to examine the Agreements on this 'confidential' basis. In our response of 3 April, we told the Minister that such an approach "would be inconsistent with the principles of parliamentary scrutiny and how they have been practised in this Parliament for many years". No explanation had been given as to why the documents had to remain classified as confidential (Lord Filkin claimed that this was necessary in order to protect the negotiating position of the parties—letter of 17 April). We accordingly insisted that the documents be deposited in Parliament for scrutiny in the usual way and noted that the manner in which the Council, the Greek Presidency and the Government were dealing with the matter raised "issues of substantial constitutional significance both for the Union and the UK".

9. In addition to our correspondence with the Government, we took the unprecedented step of also writing, jointly with the Commons European Scrutiny Committee, a letter to the EU Presidency. The letter (dated 10 April) invited the Presidency "to supply to this Parliament and to all the parliaments in the Union copies of the draft Agreements so that they can undertake scrutiny of them in an appropriate manner, namely publicly and meaningfully and with sufficient time to consider the constitutional, legal and political issues raised by the Agreements". The letter also proposed that, consistently with the spirit of the Protocol on the Role of National Parliaments annexed to the Treaty of Amsterdam, national parliaments be allowed six weeks to consider the draft Agreements.

10. The Agreements were finally declassified in early May and deposited for scrutiny on 13 May.[11] We welcome the de-classification of the documents but regret the tight deadlines imposed on the Committee, which left limited time to examine the complex issues arising from them. Time was limited because the Decision authorising the Presidency to conclude the Agreements (also held under scrutiny by our Committee) was on the agenda for adoption at the JHA Council of 5-6 June. The Committee decided that the best way forward in these circumstances would be to invite the Minister to give oral evidence on June 4. In his appearance before the Committee, Mr Ainsworth confirmed that the Government "will potentially be overriding scrutiny" on June 6 (Q 1).[12] This was the day on which the Justice and Home Affairs Council proposed to authorise the Presidency to designate the person to sign the Agreements at the EU-US Summit on 25 June.

11. On the basis of the evidence given by the Minister and his team, and in particular the assurances he provided on human rights aspects, the Committee decided to clear the documents from scrutiny. We have recorded these assurances in our letter to Mr Ainsworth of 12 June. We nevertheless considered that it was important to examine some of the issues arising from the Agreements in greater detail. That is the purpose of this Report. We are grateful to our Specialist Adviser, Professor William Gilmore, for his assistance in this task.

12. Before turning to these issues, however, we must record our opinion that the decision of the Presidency to retain the 'confidential' classification on these Agreements after the negotiations between the EU and the US had been concluded and their content had been agreed both by the EU Member States and by the US was unnecessary and contrary to the democratic accountability that ought to inform decisions by EU institutions regarding access to documents. The decision was also, of course, inimical to the proper conduct of scrutiny procedures by national Parliaments and was responsible for the time constraints within which the Committee had to carry out its scrutiny. The decision is especially regrettable in the context of the effective parliamentary scrutiny of multilateral Treaties. It is in marked contrast to the position in the United States where the Senate advises on and consents to the ratification of Treaties that are not self-executing. We express the hope that in future a clearer understanding of the requirements and importance of open government will prevail.

11   Document 8295/1/03 CATS 20 USA 29 Rev 1. The Government has also deposited for scrutiny the draft Decision authorising the signature of the Agreements by the Presidency on behalf of the Council (document 8296/03 CATS 21 USA 30, submitted by the Home Office on 28 April 2003). The Government's Explanatory Memoranda accompanying these documents are reproduced in Appendix 2. Back

12   The transcript of Mr Ainsworth's evidence is printed in Appendix 2 to this Report. Back