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Access to EU Documents (EU Committee Report)

According to an ancient myth, much loved of poets, the male swan remains completely mute until just before leaving this world. It then sings one final melody. When I introduced the report of the EU Select Committee on the initiation of legislation in the EU last December, I thought that that would be my swan-song. I am delighted to sing a second time before the Law Lords depart this Palace for their new palace across Parliament Square—their Palais de Justice. It is an especial pleasure to do so in the presence of the Minister, the noble Lord, Lord Malloch-Brown. I have had some opportunity to follow his energy and engagement particularly in the Congo, a country in which I have developed an interest and some involvement while here in Parliament. I am sorry to learn that this will also be his swan-song as Minister, but at least we shall have the pleasure of hearing from him how far the Government and the Committee are singing in tune on this issue. The report on access to documents comes at a time when openness in the legislature and Government are topical subjects nationally and at the European level. It relates to a Commission proposal of 30 April last year to recast with amendments an existing Regulation 1049 of 2001 governing public access to European Parliament, Council and Commission documents. The regulation is the European equivalent of our Freedom of Information Act. To inform its attitude to the proposal, which remains under scrutiny, Sub-Committee E undertook a short inquiry. We had the assistance, both in correspondence and orally, of the then Minister for Europe, Caroline Flint MP. By happy coincidence, the main European Union Select Committee was at the same time hearing extensive evidence on co-decision and its impact on national parliamentary scrutiny. There is a synergy between the subjects. Parliamentary scrutiny depends for its completeness and efficiency on access to information and documents. We were able in these two inquiries to examine the extent to which the terms and application of the existing and proposed regulation may restrict the national Parliament’s access to documents of the European institutions. Incidentally, the report on co-decision will be published next Tuesday. Access to documents is a subject that arouses some passion. I should make it clear that we are talking not about truly sensitive documents, classified "Trés Secret" or "Confidentiel", which have their own special regime. With regard to other documents, the European Parliament has urged repeatedly that the other European institutions should operate with much greater transparency. The first article of the existing treaty sets out as an objective that the Union should take decisions as openly as possible. The European Court has in several judgments interpreted the existing regulation in a liberal sense, underlining the importance of transparency to build confidence in Europe, and the general need for claims to withhold disclosure to be considered on a document-by-document basis rather than a blanket one. Sweden was a claimant in two cases. It is, along with other Nordic countries, a strong protagonist of more transparency. The current Swedish presidency, unsurprisingly, has announced its intention of reaching agreement on the present proposal this year. To date, there has been no first reading or common Council position; but it is evident that there are divisions among member states. Ironically, we found these published on the web in the form of a Czech presidency working document, accompanied by a commentary from Professor Steve Peers of Statewatch. Perhaps ungallantly, we asked the Minister whether she felt that such disclosures would, in the language of the regulation and the proposal, ""seriously undermine the decision-making process"" through which the present proposal is going. She explained in no uncertain terms the United Kingdom Government’s view that it would. What would be the effect of the proposal? Commissioner Wallstrom, in a speech this year, said that, ""the present Regulation has on the whole worked well"." She cited ever-increasing applications for access and ever-decreasing refusals. That trend was borne out by a Commission survey last October. However, she said that there was room for improvement, particularly for ordinary citizens as opposed to "professionals of EU affairs". The survey showed that 30 per cent of access requests come from academics, which is a good way of bringing the affairs of the EU to wider public attention. The commissioner also asserted that the proposal would not lead to any diminution in the level of access. However, our examination has revealed that, in some respects, the proposal could lead to some diminution in transparency. It also revealed that the Government, in at least two areas, are seeking further reductions in access. Of course, every change must be judged on its merits, and, in two respects in which the proposal would limit access, the committee saw merit in the suggestion. I will deal briefly with the two respects. First, the proposal would exclude from the regulation documents in the institutions’ possession that have been submitted to courts by parties other than the institutions. The idea is that it should be for the relevant courts, European or national, to decide under their own rules whether and how such third-party documents should be made publicly accessible. The institutions’ own pleadings remain subject to the regulation. The institution can disclose them if it wishes, or it can seek to withhold them on a regulation ground: for example, because disclosure would undermine the public interest in court proceedings or the purpose of inspections and investigations. However, the Minister made it clear that the Government want to go further. They fear that the institutions’ pleadings might, if disclosed, refer to and disclose the Government’s position. However, if that is a risk, it has existed under the current regulation for some time. The second proposed restriction of access is a new blanket exclusion from the regulation of information obtained by one of the institutions from third parties in the framework of an investigation. This seems an appropriate protection of, for example, whistle-blowers in the context of a competition investigation. Both the existing and the proposed regulation provide for disclosure to be withheld where it would undermine the protection of legal advice. In the case of Sweden v Turco, however, the Court of Justice thought that the general public interest in open administration positively required disclosure of a Commission legal opinion on the Community’s competence. In that case, that was competence to regulate by directive access to the labour market by third-country nationals. The Government opposed that decision before the Court and still resists it. The Minister explained that they would like to see the relevant Article 4(2)(c) amended. The committee sees no reason to alter it. In the committee’s view, the Court’s decision in the Turco case does not mean that all legal advice will always be disclosable in a legislative context, let alone in the course of an investigation or legal proceedings. Access to documents created in the context of legislative and other decision-making is the key area. The Commission, the Council and the European Parliament all participate in the process by which European legislation is formulated and agreed. In our report on the initiation of legislation, we concluded that: ""The Commission operates in a very open way, both in publishing information about its activities and in listening to views put to it"." The same can be said generally about the European Parliament. There is, however, a marked lack of transparency, first, regarding the Council and its meetings and, secondly, during the process of co-decision between the three institutions; that is, the process of private meetings and trialogues by which they interact, discuss and reach agreement informally on proposals. The Minister noted that the Council had, under the British presidency, introduced a system whereby the Council holds some meetings in public, but the real negotiations still occur as between member states, and as between the Council of Ministers, Parliament and the Commission behind the scenes. This brings us to the divide between those who believe that European legislation can and should be a more open process, and those who point to a need for private space if there is to be frank discussion and advice. The Minister, while supporting the European Parliament’s calls for greater transparency, was keen to maintain this space and to avoid a situation where negotiations were driven outside the formal meetings into the corridors and cafes of Brussels. She was also keen to draw a distinction between the nature and functions of the European Parliament and the Commission on the one hand and, on the other, of Ministers and heads of state representing their respective countries in the Council. She hinted at the tactical aspects that can lie behind individual member states’ negotiating positions and said that the discussions and stances of individual member states may be misunderstood if they were made public out of context and that it could undermine the Council’s position vis-à-vis the European Parliament if it had to disclose individual member states’ attitudes. Those are the battle lines between those who defend the status quo and those who believe that the Council, and the institutions when negotiating in co-decision, should act more like parliamentary Assemblies. How does the new proposal impact on this debate? The first point to note is a new definition. This would limit disclosable documents to those, ""drawn-up by an institution and formally transmitted to one or more recipients"—" whatever that may mean— ""or otherwise registered, or received by an institution"." On one view, depending on the force of the word "formally", this addition has the potential to reduce significantly the right of access. However, the intention may be no more than to avoid disclosure of every draft or every single copy. Clarification is certainly required. Apart from this, the proposal rephrases, but does not in text or terms significantly alter, the present legal position. In summary, under Article 4(3), documents relating to a matter on which a decision has not yet been taken are to be withheld, ""if disclosure would seriously undermine an institution’s decision-making process"," unless, ""there is an over-riding public interest"" requiring their disclosure. After a decision has been taken, only opinions for internal use as part of deliberations and preliminary consultations within the institutions can be so withheld, again subject to the same provisos. In practice, these provisions appear to be interpreted in a manner that corresponds with the Minister’s wishes, and so would no doubt please her. In other words, in order to limit disclosure to Community institutions and national administrations, the notation "Limité" is regularly stamped—largely, one may suspect, by Pavlovian reflex—on documents reflecting individual member states’ views, on drafting proposals and on legal opinions. One-third of all refusals of access are, according to the survey last October, on these grounds. It would be interesting to investigate whether the court’s decision in the Sweden and Turco case has made any discernible difference. Although it concerns legal advice, the reasoning is capable of a potentially wider application. We understood the Minister to desire not only a reversal of the Turco decision but even greater protection of a permanent and blanket nature against any disclosure of member states’ statements of position, ever. That would go beyond the present and proposed regulation, which has careful limitations by reference to the concepts of seriously undermining the decision-making process and the overriding public interest, and we did not agree with her about that suggestion. The notation "Limité" has hitherto had a considerable impact on UK parliamentary scrutiny. The view has been taken that it operates as a general bar to disclosure by the Government to Parliament, or so it may appear. The present inquiry and our co-decision inquiry have disclosed that this is not the case. Other parliaments—Nordic, German, French—regularly see "Limité" material. The Council’s own legal view is that there is no problem about giving national parliaments automatic access to such documents, on the basis that such parliaments will comply with the restrictions involved. These are not onerous. The Minister indicated a welcome willingness to explore with Parliament how this avenue should be followed. We trust that her successor, with a European parliamentary background, will be equally enthusiastic about doing so. I shall mention one other proposed extension of the grounds for withholding disclosure. This relates to documents submitted to institutions by member states acting other than in their legislative capacity—examples would be an application for state aid clearance, or a letter or report giving information. In Sweden v Commission, the Court held that member states had no veto over the disclosure of such documents; they had to justify their withholding on a basis to be found in the regulation. The proposal would modify this by giving states an additional right to rely on their own national legislation. On the face of it, this might give effect to whatever document-withholding rights that member states chose to enact domestically, and it is not stated what should happen if the European and national grounds for withholding disclosure overlap. In this, as in some other respects identified in our report, the proposal is unclear. We concluded our report by welcoming a new provision requiring legislative documents, and non-legislative documents of a general nature, to be made directly accessible to the public, where disclosable, without the previous impalpable qualification "as far as possible". I have long felt that the problem in the United Kingdom is that Europe is not properly understood or explained in its aims, its operation or its impact, and that the value attached in Europe to the United Kingdom’s engagement and our actual and potential influence in Europe are matters not sufficiently appreciated in the UK generally. Openness and accessibility to information are part of the key to addressing these problems. It has been a great privilege to have been the last serving Law Lord in a long line to have chaired Sub-Committee E and sat on the European Union Select Committee. While I hope I have contributed, I feel that I have gained far more from the experience, from the insights that it gives into the workings of this place and of Government, and from the friendships made in the process. As we move across Parliament Square to take our leave of absence while we are serving Law Lords—depending on future changes, who knows? Perhaps even for ever—I also express my thanks for all the support that I have had from Committee colleagues and officers and staff in this inquiry and in our work generally. I beg to move the Motion standing in my name.