Considered in Grand Committee
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 resist 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”,
“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.
I congratulate the committee on an excellent report which I have read because I now have all the time in the world to read reports. In a previous incarnation, my perusal or close examination of these reports was normally done on a Monday or a Friday in the Eurostar, but this time I was able to read it at my leisure. I have only one point to make on the report which I will do in just a moment, but before that I want to seize the opportunity of this debate to record my thanks to the Law Lords in general and to the noble and learned Lord, Lord Mance, in particular, who have made such an extraordinary contribution to the work of Sub-Committee E and the Select Committee. I have had the privilege of sitting alongside the noble and learned Lords, Lord Hope, Lord Scott, Lord Brown and then Lord Mance. How fortunate we and our predecessors have been and how greatly we will miss having a Law Lord chairing Sub-Committee E and contributing to the work of the Select Committee.
I am happy to note—I hope it is true—that the noble and learned Lord, Lord Mance, will be immortalised in the painting commissioned from Sergei Pavlenko. It will depict, so we are told, the last judgments of the Law Lords, which has an awesome and biblical ring to it. I do not think that the Government will be able to tell us whether the Almighty’s nihil obstat was sought and obtained. Through the noble and learned Lord, Lord Mance, perhaps I may offer my warmest thanks to all the noble and learned Lords who have given the committee the benefit of their incomparable wisdom and expertise and, I would add, their energy, patience and very good humour. On a more personal note, I will always treasure the central and inspiring role played by the noble and learned Lord, Lord Mance, in the committee’s delivery under his guidance of the crucial chapters in our Lisbon treaty impact assessment report. It was a quite extraordinary and exemplary piece of work which contributed hugely to the informing of the House as it debated the ratification of the treaty. I wish him well, along with all his fellow noble and learned Lords who are now to become Justices of the Supreme Court when they move across the road. Again, I thank him warmly.
I have but one observation on the report because the subject of access to EU documents has been of great interest to me throughout my chairmanship of the European Union Committee. Anybody who has been to any of the joint meetings of the Commission, the Parliament and national parliaments in Brussels will have heard questions put repeatedly to the Commissioners, particularly Commissioner Wallstrom, about how to get better access to EU documents. From the national parliament point of view, some considerable progress has been made, but this report approaches the subject in a much more detailed and important way. What I want to comment on is the part that relates to how much confidentiality is required for the conduct of legislative negotiation. As the noble Lord, Lord Roper, will know very well, this is of particular concern to the committee as the chairman deals with departmental Ministers all the time. It is an issue, and has been for some time. I note that some of our recent correspondence on this has been duly recorded and examined.
There appears to be a bit of a stand-off between the member states and the European Parliament which can only be accentuated by the extension of co-decision. Articles 4(3) and 4(4)—perhaps this is an oversimplification because I am not a legal expert—seem not fully to meet the requirements of either the former or the latter, with extensive protection favoured by the one and maximum transparency by the other. The report notes at paragraph 38 that:
“The Government appear to be seeking a particularly high level of protection for negotiating positions during the legislative process and that this is not reflected in the current wording of the proposal”.
The committee concludes, very sensibly, that the current and proposed regulations are right to retain the qualification that disclosure may be required,
“by reason of an overriding public interest”.
That still begs the question of what constitutes “an overriding public interest”. It is not easy to decide. My plea to the Government is that they must be vigilant in ensuring that we do not get to the point where officials and Ministers feel compelled to put nothing in writing during the negotiating process. There will be huge and continuing pressure from the European Parliament on the issue of access to documents related to negotiations. The previous European Parliament was terrier-like on this issue and I have no reason to believe that the new Parliament will be any different. This is something that needs careful monitoring.
The committee made a very convincing argument in relation to legal advice given in the context of a legislative proposal. The report persuades me that the Government ought not to be seeking a higher level of protection for legal advice than is afforded by the present regulation, as interpreted by the European Court of Justice in the Sweden and Turco cases. These are delicate issues of balance and the committee’s report will be very helpful to those seeking to achieve that balance. I am sure that the Government will take good note of its conclusions, and I hope that the other member states and the institutions of the European Union will do likewise. I very much support the report and congratulate the committee on its production.
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 Commission. 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.
The 15th report of this Session of the European Union sub-committee on access to documents, which we are considering today, is a valuable one. It is an example of one of our sub-committees preparing a report during the period in which co-decision between the Council and the Parliament is going on. It is important, particularly in view of the questions that have been raised already, that this document has been held under scrutiny. We will want further answers from the Government before the committee lifts its scrutiny.
My purpose in intervening today is primarily similar to that of the noble Lord, Lord Grenfell, who was my predecessor as chairman of the committee and has already referred to the remarkable contribution made by the noble and learned Lord, Lord Mance, as chairman of Sub-Committee E and a member of the Select Committee. I echo that. He made a central contribution, as the noble Lord, Lord Grenfell, said, in the preparation of our report on the impact appraisal of the Lisbon treaty.
The noble Lord, Lord Grenfell, referred to the central contributions that came from Sub-Committee E, but I remember also the discussions in the full Select Committee when the noble and learned Lord, Lord Mance, was frequently very helpful in finding language that would reflect these issues appropriately. He was also responsible for the preparation of the reports of his own sub-committee, and reference has already been made to one of those. The report that we debated in the House on the initiation of EU legislation is one that has had the most impact both inside and outside this House, and was a good example of a report that helped people to understand the processes and workings of the European Union.
I was interested to hear earlier this month from the senior adviser to the European Union Committee of the Czech Senate. When it needed advice on institutional matters, it would turn either to the judgments of the German constitutional court or to the reports of the House of Lords. The latter has benefited very greatly in recent years from the diligence and wisdom of the noble and learned Lord, Lord Mance. During the year that I have been chairman, I have very much appreciated the opportunity to work closely with a Law Lord and to realise the skills and talents that they have.
As has been said, the noble and learned Lord, Lord Mance, is in fact the 12th Lord of Appeal in Ordinary to chair Sub-Committee E. Law Lords have provided the chair continuously since Lord Diplock held it from 1974 to 1977. They have made an absolutely invaluable contribution to the quality of the work of the House of Lords European Union Committee. As has already been said by the noble Lord, Lord Bowness, and others, whatever view one may take about the creation of the Supreme Court, the end of this tradition is certainly a substantial loss to the House.
This is also, I think, the last occasion on which we shall see the noble Lord, Lord Malloch-Brown, at the Dispatch Box replying to a debate. Although Europe has not been at the centre of his responsibilities in the Foreign Office, he has frequently replied to the debates of the European Union Committee and we have very much appreciated the interest that he has shown in its work and reports. This is therefore a day of regrets at departures but, more importantly, of enormous gratitude for the contributions that have been made to our collective work.
It is a great pleasure to follow the previous speakers in wholeheartedly supporting the commendations and thanks to the noble and learned Lord, Lord Mance, for all the work that he has done. Although I have had less acquaintance with, and less direct knowledge of, that work compared with colleagues who have had more years of experience in that regard, I can testify to the huge contribution that he made, particularly in the latter stages of the European Union Select Committee. That was referred to by the noble Lords, Lord Roper and Lord Grenfell. Without his contribution, we could not have made the progress that we did on what was, thanks to the chairmanship of the noble Lord, Lord Grenfell, and other members of the committee, a very remarkable report. It is lengthy and profound, and it had a considerable impact on the progress of the Lisbon treaty Bill in the Commons. It was in the background; none the less, it played an important role.
I very much agree with most of what the noble and learned Lord, Lord Mance, has said today, and so there is no need for me to be lengthy in my comments other than to commend the report from these Benches and to hope that the noble and learned Lord’s Motion to consider will eventually be approved after further discussion.
We are now at an important stage with the start of the new European Parliament and the question of what will happen to the further ratification steps. We think mainly of the Irish referendum but other countries are still to put the final seal of approval on the ratification process. That usually happens with presidential signatures, but there is also the necessary and important—presumably primary—legislation to come in the Bundestag before the general election in September. It will be interesting to see the terms of the Bill when it is eventually published. I am not sure of the date because there is the summer holiday to contend with as well. Subject to that and to, I hope, the ratification process eventually being completed, with the Lisbon treaty starting to function in the European Union there will be the very important transparency priority for the future of the Union. There will be a new European Parliament with in many ways a different kind of membership and, we hope, more openness on the part of the other institutions. The Commission has tried to lead the way in these matters and it needs support and thanks for that.
Perhaps logically, the Council of Ministers remains slightly in the background in progress on these matters because of the early pre-legislative stages, which always make Governments very nervous. The then Minister for Europe, Caroline Flint, who left the Government for totally different reasons from those enunciated recently by the noble Lord, Lord Malloch-Brown—I do not make any comparison at all—revealed in the Minutes of Evidence all the nervousness of government about the revelation of documents at the negotiation stage. I quote what she said from page 2 of the Minutes of Evidence:
“I think in this debate that we need to be mindful about the difference in terms of the role and responsibilities of the Council and the ministers who are represented in those forums and the difference between the accountability of those individuals to their Member States in these negotiations and those of MEPs, who I think have an important role but a slightly different role”.
The noble and learned Lord, Lord Mance, then put the question—I hope he will forgive me for quoting it:
“Is the broad answer to the question I put that the Government does think it would seriously undermine the decision making process to make any sort of public disclosure of negotiating documents?”.
The Europe Minister’s answer was:
“I think it could contribute to that, yes. Inadvertently, it would lead to something that would not be very satisfactory and people would possibly find other ways to have these conversations and talks. It would not allow the candour that is necessary in these discussions and negotiations. I do not think that in itself would be helpful in terms of policy making”.
That is undoubtedly the position not only of the UK Government—this matter is still under scrutiny and has not been decided yet—but of a number of other Governments.
If we accept the logic that this is really only a legislative stage, and an early legislative stage under the co-decision procedure which the European Union Select Committee is now felicitously examining closely, that is much more acceptable to member Governments. Governments then have the ability to reveal, if they so wish, other pre-legislative negotiating positions that are developing. They often brief the press in that way, and there is no reason why that should not be a happy outcome. However, I am not totally optimistic that this will work well. It remains to be seen what will happen during this different process.
There is an obvious need to modernise this regulation, as the report implies. It is not enough for us to rely on the terms of Article 255, although that article is adamant about the need for modernising the regulation and is encouraging as a background. The sub-committee’s Recommendation 17 on page 8 says about the courts:
“We consider it appropriate, in principle, for the question of disclosure of documents submitted to courts to be regulated by the courts themselves, where such courts have, or are likely to have, and operate appropriate mechanisms enabling third parties to apply for and obtain access where necessary”.
That is a much easier matter for this Committee and other organs of examination to determine and, as far as I among many observers of these complicated matters can see, it is not producing much trial and tribulation at the moment.
I refer briefly to the exchanges on the relationship to the co-decision inquiry and the other matters that are dealt with in this report. Again, paragraph 61 on page 16 endorses Article 255, which I think is generally accepted; and summing it all up with great force in paragraph 77 on page 18, the committee says:
“We support a firmer obligation on institutions to establish direct access to the public of their documents and believe that there is scope for more proactive dissemination of information”.
One technical and technological suggestion is a subscription e-mail service. I imagine that other things could be tackled as well. Eventually, it may not be necessary for anyone to subscribe to it. I hope so, and the sooner the better.
Although the noble and learned Lord, Lord Mance, referred delicately and engagingly to a swan-song, I thought that I would go straight to Hollywood in total contrast and refer Members to the famous Cecil B DeMille definition of the ideal film: you start with an earthquake and build up to a real climax. No one would suggest that that would be appropriate for this committee report because it is—I am sure the noble and learned Lord would not mind us laymen who are not legal experts using the term—dry-as-dust stuff. None the less, it is very important for the background, and even if we get nowhere near to an earthquake in this matter, which would be totally inappropriate, we need Governments’ attitudes to change substantially and all the various institutions working together for the greater good to take a more adventurous approach. So much European legislation will depend on sensible consensus in the future rather than on perhaps some of the more classic manifestations of party political behaviour in the national Parliaments, although that can also play a role in the European Parliament between the different political groups.
I say that with some pleasure, reflecting as I do on the early 1970s when I was a Member, under the dual mandate system, of what was then a very weak European Parliament—the European Assembly to most people—with 184 Members and where sometimes the Commission did not even bother to attend, particularly towards the end of the week to what is now, having been created in Brussels mainly but also in Strasbourg, an increasingly powerful and important institution that I hope meets with the pleasure and approval of colleagues on this Committee. We see the genuine building-in of democracy at the European level and more effective liaison, we hope, with national Parliaments as their increased powers are built-in from the Lisbon treaty process. On that note, I hope very much that this Committee will support the suggestion of the noble and learned Lord, Lord Mance, that we approve this 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.
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.
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.
Committee adjourned at 6.26 pm.