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Access to EU Documents (EU Committee Report)

I thank the noble and learned Lord, Lord Mance, for initiating this debate and for allowing the Government the opportunity to respond to the committee’s report on the proposed recast of the access to EU documents regulation. To pick up his reference to swans with regard to Ministers and Law Lords, I note only that the fine swans-cum-Law-Lords of ours will find that their new pond is even closer to St James’s Park and other fine birds. I wish that we still had Lewis Carroll to record this fine condition; I fear that no poet today will quite rise to the occasion. I am grateful to the committee for its detailed consideration of the issues, and I am pleased to note that the Government share its view on a number of points. I am also grateful for the points that have been raised today. I hope that I can immediately dispose of three of the noble and learned Lord’s concerns. The Government are not arguing for diminished transparency. Our position is based on the need for balance and allowing the institutions to function effectively. Let me also say a word about the use of limité sanctions. We respect the Council’s limité classification. However, the Government await the Lords’ EU Select Committee report on the scrutiny of co-decision dossiers; I understand that it will make a number of suggestions on the issue. My noble friend the Minister for Europe looks forward to receiving the report and will consider any recommendations made by the committee. I would also reassure the noble and learned Lord that, on the issue of whether the UK is arguing for the disclosure of third-party submissions, as the then Minister for Europe made clear in the committee’s evidence session in March, negotiations continue at an early stage and member states’ negotiating positions will evolve as they proceed. As the committee recognises in the report, our concern is not against institutions’ pleadings per se, but that the substance of third-party pleadings can often be obtained from the content of institutions’ pleadings. Noble Lords know that we are keen to protect those third-party pleadings. The broad argument I want to convey this afternoon is that the Government, like the committee, have long supported openness and transparency. While I agree with the noble Lord, Lord Dykes, that perhaps this is not earthquake territory, we hope that at least a brisk breeze of openness has blown through government information in recent years. I mention the Freedom of Information Act, the Data Protection Act and the environmental information regulations, which have transformed access to information in this country. At the EU level, the UK presidency in the second half of 2005 saw a number of measures proposed to promote transparency, including deliberations in Council of co-decision dossiers, the European transparency initiative and so forth. However, there is a need for balance, as I think noble Lords have acknowledged in the debate, to ensure the effective operation of the institutions and the EU decision-making process. That is why the Government continue to take a pragmatic view on each of the points raised in the review by championing those areas where we believe the proposals should go further to promote transparency and exercising caution where we believe they may impede the effective operation of the EU’s policy-making. The Government’s position is guided primarily by our own freedom of information legislation debated in this House almost a decade ago. In that legislation, each request is dealt with on a case-by-case basis by subjecting most exemptions to a public interest test. It is this balance that has been the Government’s basis for their position on the specific issues addressed by the Commission in its proposal and by the committee in its report. It is the question of balance that lies behind our wish to ensure a sufficient level of protection on negotiating positions and working papers in Council. We recognise that the public may be interested in such documents; indeed, much information is already made public, such as Commission consultations on proposals or the Government’s communications on our position when negotiating objectives and updates as negotiations proceed. However, we also think that it is in the public’s interest that decision-making should be based on frank advice and that policies should be allowed to develop freely. We believe that if space to develop policy is not preserved, innovative thinking is likely to be stifled; I noted the remarks of the noble Lord, Lord Grenfell, in that area. We welcome the committee’s recognition of this in its report. We remain concerned that discussions between member states may be forced out into the corridors, away from the Council negotiating table. We would not necessarily want sofa government in the corridors of Brussels. The key stages of negotiations and the end result are of course publicly available, but it is not necessarily helpful that every stage of the steps in between could be open to scrutiny. The committee advocates that the withholding of legal advice should be subject to a public interest test, but the Government are concerned that this may impede the effective operation of the institutions. The Council needs frank and open legal advice in order to make informed decisions. This requires a high level of confidentiality, and the regulation must give particular recognition to lawyer-client confidentiality. The High Court recently confirmed that the equivalent Freedom of Information Act exemption is heavily weighted in favour of protecting the confidentiality of legal advice. We would support a similar interpretation in the regulation. I am assured that the Turco judgment, which has been referred to—I speak hesitantly here in front of a Law Lord; I hope that I dare offer an opinion on this—creates a presumption that certain legal advice will be disclosed routinely. We do not think that the ECJ judgment strikes the right balance and we agree with the committee’s view that the Turco judgment went further than the provisions in the existing regulation. Greater clarity is therefore needed of the position of legal advice on the proposal. Reference has already been made to the earlier hearings with my right honourable friend the then Minister for Europe. Those hearings were clearly lively. The committee raised a concern about the exclusion of court documents held by EU institutions and questioned whether that exclusion applied simply to the Court of First Instance in the ECJ or more widely. The noble Lord, Lord Astor of Hever, returned to this very important point today. The Commission has since clarified that the exclusion would apply to documents held by the institutions from all courts, including courts of the EU but also others, such as the WTO court. The Government share this Committee’s concern that, if this exemption were to apply to all courts, there would be a risk of a reduction in transparency. The Government are therefore considering their position on this aspect of the proposal, and my noble friend the Minister for Europe will keep the committee informed of progress. The committee raised a concern about the exclusion of documents not formally transmitted or registered from the scope of the proposal. The Government share that concern and firmly believe that the broad definition of the term "document" should be retained and that the disclosure of drafts should be considered on a case-by-case basis. Noble Lords will also be aware of the Government’s concern about the potential disclosure of documents originating from member states and held by the institutions without the consent of the member state involved. This regulation is principally designed to provide access to the institution’s own documents. Member states’ own freedom of information legislation should principally govern access to member state documents. If, for example, someone wants to see a UK document, they should apply using the UK’s domestic legislation. This is consistent with the principle of subsidiarity, avoids conflict between national and EU law, and will achieve the same ultimate outcome, as member states will be able to take a reasoned view on public interest grounds. However, under the current proposal, member states will not be able to rely on an assertion of whether or not to disclose without clear justification, and the applicant will be informed of the member state’s reason for opposing disclosure. The applicant will then have recourse to challenge the reason before the courts. We think that this would bring the same ultimate outcome and, we hope, would satisfy the committee’s concerns. In conclusion, I thank noble Lords for their kind words about me. It has been a pleasure to appear in front of this Committee. I sometimes find such appearances rather daunting because I, along with the great British public, find some of these issues very hard to understand. The ratio of preparation to time in front of noble Lords is sufficiently high that, although it has been a great privilege to appear here, I confess to some relief that this is the last occasion on which I shall have to do so. I look forward to sinking back into my pond. May it be relaxing and not require the need to defend European directives in the future, important though they are.