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Access to EU Documents (EU Committee Report)

I thank the chairman of the law and institutions sub-committee, the noble and learned Lord, Lord Mance, not only for guiding the sub-committee, of which I am a member, through this inquiry, but also for the comprehensive and clear explanation that he has given this afternoon, which relieves other members of the sub-committee of the obligation to go through the report in detail. I attended a hearing of the European Parliament with members of the relevant committee of the Parliament and representatives of national parliaments. It is a fair assessment of the mood of that meeting that the European Parliament, and particularly the committee’s rapporteur at the time, Mr Cashman, would go further than this report to your Lordships’ House. This would be the case particularly in relation to the two areas to which some time is devoted in the report—I refer to the disclosure of legal advice and of documents used in the formulation of policy. As regards the disclosure of legal advice, I, like the noble Lord, Lord Grenfell, hope that the level of protection for legal advice, which we assume is given by the present regulation following the ECJ’s judgments in the Sweden and Turco cases, will be given by any new regulation; but also that an appropriate distinction is drawn between legal advice given to parties in a dispute and legal advice that has been relied upon to establish legal competence. As regards the disclosure of documents, the report supports the Government’s efforts to establish a clear definition of documents in the regulation, and questions the unsatisfactory suggestion that the definition should in some way be linked to the method of transmission of the document. The report strikes a reasonable balance that allows advice and negotiating positions to remain confidential, subject to an overriding public interest. However, it is against the public interest to have a system that encourages too much informality—a system where frank advice cannot be given and advice is not recorded for fear that it would leak into the public domain. In the evidence session, I asked Mr Regan, first secretary to the United Kingdom Permanent Representation, how far the regulation would go in respect of preliminary thinking and advice. His answer was that the regulation would cover all documents held by the institution, including initial thoughts, early drafts and internal e-mails between officials of the commissions. I suggest that that would not be a useful outcome. It is essential that we seek to achieve the balance that Mr Regan referred to—namely, that between the principle of transparency and the good functioning of the Administrations and the legislature. As has already been said today, there is considerable transparency in the workings of the European Union—perhaps more than in the workings of Westminster and Whitehall. Having said that, though, in my opinion the least transparent of all the institutions is the Council of Ministers. When the Council acts as a legislator, at the very least it should be the norm that the meetings are open to public scrutiny, as are those of all the other legislative bodies of the member states. It is also important that we pursue the matter raised by the noble and learned Lord, Lord Mance, regarding Parliament’s ability to see documents, and that some arrangements are come to along the lines of those achieved by other Governments, particularly in Scandinavia. As a member of the sub-committee, I echo the sentiments expressed regretting the fact that it will no longer be possible for it to be chaired by a serving Lord of Appeal in Ordinary. Rather than "ordinary" in the ordinary sense of the word, the noble and learned Lords who have chaired the sub-committee have brought extraordinary expertise to the task, and the members of this sub-committee have been particularly fortunate in having the noble and learned Lord, Lord Mance, as our chairman. Under his leadership we have been present at meetings in Europe and taken an evidence session in Brussels—something that I believe broke new ground for Sub-Committee E. Whatever the merits or otherwise of the establishment of the Supreme Court, the loss of the Law Lords, and of the noble and learned Lord in particular, is one of the least desirable consequences.