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Access to EU Documents (EU Committee Report)

I, too, congratulate the noble and learned Lord, Lord Mance, and his Select Committee for all the hard work that they have done to produce such an excellent report, Access to EU Documents. I am very fortunate to have been part of the noble and learned Lord’s two very distinguished outings in this House. I was very honoured to have heard his maiden speech at the end of last year. The House will miss him. I also agree with the noble Lords, Lord Grenfell, Lord Roper and Lord Dykes, and my noble friend Lord Bowness, in their admiration for the work of all 12 Law Lords who have chaired Sub-Committee E. They will also be missed when they go across the square. I thank the noble and learned Lord, Lord Mance, for explaining the background to this report and for the evidence that his sub-committee took. The report is a thorough and comprehensive analysis of the major issues of the European Commission’s proposed reform regulation 1049/2001, which sets out the code for public access to European Parliament, Council and Commission documents. We on my Benches support transparency within the EU, better access to documents and freedom of information. I therefore very much welcome all the recommendations that the Select Committee highlighted. I also acknowledge the difficult task that the Select Committee had in striking a balance between, on the one hand, protecting the need for privacy when formulating policy, particularly when set against the need for legislators to act transparently and, on the other hand, enabling the public to properly scrutinise the activities of the EU. I agree with the principle that disclosure of documents submitted to courts by parties other than the European Parliament, the Council and the Commission, referred to in the report as "the institutions", should be excluded from the scope of the regulation altogether. This should be governed by the courts where, ""such courts have, or are likely to have, and operate appropriate mechanisms enabling third parties to apply for and obtain access where necessary"." However, as the report points out, this provision needs to be further defined as to which courts this applies to. Does it apply to the European Court of Justice and the Court of First Instance exclusively or does it apply to any court anywhere in the world? If it is the latter, what would be the procedure if the court did not have mechanisms in place for granting access to documents? On 6 April, the Government acknowledged that problem in a letter from the right honourable Caroline Flint, the then Minister for Europe, to the noble and learned Lord, Lord Mance. Will the Minister update the Grand Committee on whether the Government feel that this issue has been clarified? Do the Government accept that, by failing to define which courts are being referred to in Article 2(5), we are in danger of sending to court appeals which might not have received a sufficiently robust appeals process? The application of Article 2(5) is limited to documents submitted to courts by parties other than the institutions. Does the Minister accept the report’s argument that this is an "obscure exception"? How is it proposed that these documents would be treated if the exception remained? As the report points out, the wording of Article 3 of the proposal— ""The definition of a document accessible to the public would expressly cover retrievable information held in a database; but would otherwise be limited to documents ‘drawn-up by an institution and formally transmitted to one or more recipients or otherwise registered, or received by an institution’"—" is open to a worryingly wide range of interpretations. In its current format, it "would not be justifiable". Will the Minister reassure the Committee that this part of the proposal will not become a vehicle for preventing the transparency that the EU so badly needs? The committee stated that, although it recognised the need for privacy of internal discussions, ""Member States act as legislators when negotiating in the Council, and legislators normally act publicly"." In the light of that, how are the Government seeking to strike a balance in this area? What is their justification for, ""seeking a particularly high level of protection for negotiating positions during the legislative process"," when the European Parliament is of the opinion that all such legislative material and exchanges should become generally open to public scrutiny? The Select Committee also recommends that the proposed regulation is right to retain the qualification that disclosure may be required by reason of an overriding public interest. The European Court of Justice found that there was no general need for confidentiality in respect of legal advice given to the Commission. Why are the Government again seeking greater protection and confidentiality, especially as the Select Committee found no need for it? I echo what the noble and learned Lord, Lord Mance, and other noble Lords have said about the Minister. I have very much enjoyed my outings with him in debates and at Question Time; they have been a privilege. I wish him the very best for the future.