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Access to EU Documents (EU Committee Report)

I thank all speakers, in particular the Minister, for all the hard work that he has just assured us—and shown us—that he has done on the subject. I will also mention the noble Lord, Lord Roper, and the noble Lord, Lord Grenfell, whose chairmanship of the European Union Select Committee, on which I had the privilege to serve, was inspiring, influential and knowledgeable. I thank noble Lords generally for their very kind words. The Lisbon treaty was mentioned. That was a very co-operative effort, with huge and valuable assistance from the committee, legal team and staff. I am sorry that I will not be able to follow it up here, but I will be interested to see how accurate our predictions prove. The theme of noble Lords’ speeches has been the need for a delicate balance—something that the committee fully accepts. The noble Lords, Lord Grenfell and Lord Bowness, and the Minister, Lord Malloch-Brown, emphasised that. It is clear that drafts—the subject of the evidence mentioned by the noble Lord, Lord Bowness—come within the present regulation. They might fall outside the proposed regulation. However, their disclosure would not be required if it would seriously undermine the decision-making process, unless there was an overriding public interest. I stress that, as far as we ascertained, there was little to suggest that the present position has proved vexatious. Of course, in the past two years there have been a number of European Court decisions. The Turco decision some two years ago was one, and it may have wider implications, as I suggested when opening the debate. I am particularly grateful for the questions put by the noble Lord, Lord Astor of Hever, and for the Minister’s response to a considerable number of questions. I suggest that the present wording achieves a balance. As the Minister mentioned, the Freedom of Information Act requires case-by-case consideration. That was precisely the approach of the European Court of Justice in the Turco case. That is what the court said, and it was right to highlight the fact that hitherto there has been a blanket approach to the disclosure—or non-disclosure—of documentation. The antidote to be found in its decisions is a healthy one. I do not believe that the court would apply the principle to absurdity. We must trust the force of argument. The considerations that the Minister has mentioned are ones that can and would be advanced if disclosure was sought unreasonably, and one must believe that they would find force in the right quarters—ultimately, even, in the Court of Justice. That applies in particular to legal advice. No one is suggesting that the Turco decision is a recipe for trawling through every conceivable piece of legal advice. In the case of disputes, as the noble Lord, Lord Bowness, said, that would be out of the question. There is a strong argument that, on a matter as fundamental as European Union and Community competence, the public has an interest in knowing what the advice is. There are other contexts in which competence and legal advice are discussed, but this is a much less controversial one. The Turco decision, which we fully accept involved a liberal interpretation of the language, was one of which we approved. This applies also to the decision-making process. Again, one comes back to the question of drafts, which I have mentioned. As for non-legislative documents, the Minister mentioned the proposed revision to allow member states to rely not only on regulation grounds but also on their national grounds for withholding documents. He suggests that that means that a UK document would have to be sought under UK freedom of information legislation if the UK Government relied upon that. As we have said in our report, while that may be a feasible line of argument, it does not seem to be clearly developed in the present draft, and the draft seems to have a rather muddled idea of how the invocation of national legislation would match and marry with the invocation of European legislation and who would decide what. It needs clarification. I conclude by mentioning another anthropomorphic myth involving swans, and I hope your Lordships will forgive the pun. In one form or another, the heroes in "Swan Lake" and "Lohengrin" were transformed. Then, I am afraid, they swanned off into history, and so, as the Law Lords transmute into Justices of the Supreme Court, must we, with some sadness but in the hope of not losing all contacts. Motion agreed.