Select Committee on European Union Second Report


8th REPORT, SESSION 2000-2001: ACCESS TO DOCUMENTS: THE COUNCIL DECISION OF 14 AUGUST 2000

Response

GENERAL

  The Government thanks the Scrutiny Committee for this Report. We, like the Committee, support the maximum possible openness in the conduct of EU business. That is what we are seeking in the new arrangements for access to EU documents now under negotiation.

  We also take our scrutiny obligations seriously. We are committed to keeping scrutiny procedures under regular review with a view to improving them. We regret that on this occasion our procedures did not satisfy the Committee. We will seek to provide both Scrutiny Committees with timely information on developments in this area in the future.

  The Government's response to each of the Committee's specific comments is set out below:

THE DECISION

  While there may be little disagreement that highly classified defence and military documents should not be publicly available, the suddenness and the timing of the adoption of the Decision were, and remain, controversial. The circumstances in which the decision was adopted and the potential implications for the proposed new freedom of information regime for the Union's institutions (a draft Regulation has been brought forward pursuant to Article 255 TEC—the proposal is the subject of the Committee's Report, Public Assess to EU Documents) have excited the European Parliament and interested parties. (paragraph 1)

  We recognise that the speed of the adoption of to the existing Decision on public access to Council documents has led to criticism and understand fully the Committee's concern about the manner in which they were adopted. However, we can reassure the Committee that actions taken over the summer will not have a negative effect on the on-going negotiations on the draft Regulation on public access to Council, Commission and European Parliament documents. As Mr Vaz said his letter of 7 November. "We will be reviewing all of the access provisions during the negotiations on this draft Regulation and will continue to push for our dual objective of maximum openness—providing the public with the greatest possible access—whilst providing adequate protection to the most sensitive documents."

THE SCRUTINY PROCESS

  Pursuant to its scrutiny obligations, the Government submitted an Explanatory Memorandum dated 14 August (the EM). It dealt with the Decision as if it were a draft. No document was supplied with the EM, though the decision was adopted on the same day (14 August) as the Minister responsible, Mr Keith Vaz MP, apparently signed the EM. (paragraph 2)

  At the time of drafting the Explanatory Memorandum, the Decision had yet to be adopted and was therefore still a draft. The Minister responsible received the EM on 4 August 2000 and after careful consideration of the text signed it the same day. Unfortunately, as Mr Vaz said in his letter of 18 December, administrative delays in the FCO meant that the EM was not forwarded to the Committee until 14 August. We apologise for this error and will endeavour to improve our internal procedures so that similar difficulties do not occur in the future.

  The EM briefly sets out the background to the Decision and justification for urgent measures. What the Government's EM failed to make clear was:

    (a)  why the existing exceptions (which include the protection of the public interest) under the Code of Conduct were inadequate;

    (b)  whether the existing procedures (especially the confirmatory application) caused difficulties;

    (c)  why consultation, even abbreviated, with the European Parliament and national parliaments was not possible.

    (d)  the implications for the draft Article 255 Regulation, in particular to what extent the Treaty permits an exclusion of a class of documents.

  The Committee sought clarification of these matters.. The Committee concluded that the Minister had failed to provide a sufficient or convincing explanation and considered inviting the Minister and senior officials to attend to give oral evidence. The Minister said that he would be happy to meet the Committee. . . "But I would not be able to add significantly to the information provided here". The Minister and his officials cannot have been under any misunderstanding as to the level of detail that had been expected. And the Minister's final words give a clear message that no useful purpose would be served by their attendance to give evidence. The Committee has therefore decided to prepare this Report setting out the Committee's findings and conclusions in the light of the information that has been made available. (paragraphs 3 and 4)

  Mr Vaz gave what he considered the most comprehensive answers possible to the Committee's questions. The Government regrets that the Committee did not think it answered their queries fully enough. Mr Vaz sought to remedy this by providing further information on these issues and the specific questions raised above in his letter of 18 December. We welcome the opportunity to add to that information even further in this response to the Committee's Report, and in the recommended debate.

THE CODE OF CONDUCT

  At first sight the exception providing for the protection of the public interest would appear to be sufficiently wide to cover documents dealing with (to use the Minister's words) "matters concerning the security and defence of the Union or of one or more of its Member States, or on crisis management," Further, the exception aimed at protecting the confidentiality of information supplied by other third parties as well as the "authorship" rule could also be pleaded in aid where the documents emanated, for example, from NATO, a Member State or a third State. Mr Solana, the EU High Representative and Secretary-General of the Council, is reported to have said that the restriction on access would affect only a very small number of highly-classified documents and almost all the documents concerned would come from outside the Council (normally either NATO or the Member States). (paragraph 7)

  Mr Solana is right to say that only a small number of documents will be affected, and that almost all of these will come from outside the Council. However, the successful functioning of ESDP is reliant on Member States sharing with the Council information on issues such as military deployments, military capabilities, and potentially even material from intelligence sources. As Mr Vaz made clear in his letter of 18 December, given the risk to human life involved with inappropriate or even careless handling of documents on issues such as these, Member States needed watertight protection from release. Although only a small number of documents would be affected, the Member States need reassurance that every document of this sort will be adequately protected.

  The Minister did not go into detail as to why the present exceptions did not provide adequate protection. Nor did he comment on the application of the exception or the authorship rule for documents originating outside the Council, though if the description attributed to Mr Solana is correct they would seem to be highly relevant. (paragraph 9)

  Mr Vaz did not go into the detail of the application of the exception or authorship rule for documents originating from outside the Council as this was a feature of the original Council Decision as agreed in 1993. We recognise that it would have been helpful to the Committee to recall this feature of the original Decision.

  Whether the Decision has produced a more secure legal environment is debatable. As was revealed in the media and in the evidence of Statewatch, the adoption of the measure within the Council was highly controversial. It is reported that two Member States walked out of the negotiations at one stage and that when a vote was taken three voted against and two abstained. The legality of the Decision has been challenged by the Netherlands in proceedings before the Court of Justice. The European Parliament has also brought an action against the Council. (paragraph 10)

  The amendments have indeed been controversial in some parts of the media. But we do not believe they are legally insecure in the substance.

THE CODE'S PROCEDURES

  The Minister did not, despite our request, offer any information as to what procedural solution had been examined. He did, however, appear to acknowledge that the confirmatory application was one problem giving rise to a need to change the Code's regime in the fundamental manner adopted by the Decision (ie the exclusion of classified security and defence documents from the Code's regime). Indeed it seems to us that it was essentially the procedures for applying the Code, rather than its substance (or lack of appropriate exceptions), which was the reason for the changes. (paragraph 12)

  It may have been more appropriate to look at other arrangements for the handling of confirmatory applications, but there was no opportunity to do this given the time constraint. The Presidency put forward amendments to the scope of the original Decision and did not present options for amending the handling procedures for sensitive documents. Given the time constraints, we agreed to the most legally secure of the options put before us.

CONSULTATION OF EUROPEAN PARLIAMENT, NATIONAL PARLIAMENT SCRUTINY PROCEDURES

  As regards national parliaments being informed of the proposal to amend the Code of Conduct, the Minister said that an Explanatory Memorandum was submitted on 14 August. He recognised that "this gave the Scrutiny Committees very little time in which to respond formally. But this was unavoidable given the amendments needed to be adopted quickly". But according to Statewatch's memorandum the proposal to "modify" the Code had been raised by Mr Solana on 30 June. A "Working Document" was available on 12 July, and a draft decision on 17 July. The Minister acknowledged the existence of a text on 12 July. But, he said, it was unclear what the Presidency's intentions were. The text was only available in French. (paragraph 13)

  As Mr Vaz stated in his letter of 18 December, we were provided with the working document on 12 July, but we were not sure at that point in time what the Presidency's intentions for the text were. It was not until shortly before COREPER on 26 July that we discovered that the Presidency intended to vote on the basis of that text and adopt the amendments by written procedure. Had we been aware of their plans earlier, we would certainly have submitted the document to the Committees for scrutiny much sooner. Given the circumstances and time constraints we took a position in COREPER on 26 July and submitted the EM shortly afterwards. As we say above, Mr Vaz signed off the Explanatory Memorandum on 4 August but due to administrative delays the text was not forwarded to the Committees until 14 August.

  Taking the last point first, the existence of a document only in a foreign text is not a satisfactory reason for not depositing a text. While documents deposited in Parliament should be in English, there is a long established practice that the Scrutiny Committees will examine documents containing some foreign text, accompanied by a translation where it would help Parliamentary consideration. In cases of urgency the Scrutiny Committees are prepared to proceed on the basis of the foreign text alone. In such circumstances, the procedure agreed between the Committees and the Government is that officials of the Department should liaise with the Cabinet Office (which has a central responsibility for the scrutiny process) and the Scrutiny Committee Clerks. (paragraph 14)

  We note the Committee's views. The FCO did liaise with the Cabinet Office, and were advised to wait for public documents, which would be in English, to arrive before forwarding the documents to the Committee. This advice was based on the fact that the Committees were already in recess, and that the public texts would be waiting for them on their return. Had there been any indication of the speed at which the proposal would be processed, we would have discussed alternatives with the Clerks prior to the recess. We ensured that the documents were sent to the Committees once they were received here in London.

  Returning to the timetable of events, only in his letter of 18 December did the Minister accept that there had been a problem in submitting the EM. The text of the Decision, with amendments, was voted on (by simple majority) in COREPER on 26 July; "We . . . submitted an EM explaining HMG's actions shortly thereafter. Administrative delays meant the EM was not forwarded to the Committee until 14 August". One might ask what degree of communication there was between UKRep and FCO officials and when officials, and indeed the Minister, first addressed the issue of Parliamentary scrutiny. We can only wonder how, given this sequence of events, the Minister could sign an EM which was clearly out of date and then to say in his letter of 7 November: "we submitted an explanatory memorandum on 14 August. I recognise that this gave the Scrutiny Committees very little time to respond formally". The fact is that the Committee had no time to respond, formally or otherwise. (paragraph 15).

  We recognise, and regret, that on this occasion our procedures were inadequate and that the Committee were not in a position to respond.

IMPLICATIONS FOR THE DRAFT ARTICLE 255 REGULATION

  The draft Regulation will supersede the Code. The Minister described the Decision as "a temporary solution . . . taken under tight time pressures". The question is to what extent the adoption of the Decision, with its criteria and procedural approach, will fetter the debate in the Council on the draft Article 255 Regulation. The Minister has said that all the rules and procedures on access to documents will be reviewed during the current negotiations. He has also confirmed that ESDP documents will not necessarily be excluded from the scope of the Regulation, though adequate protection must be given to "the most sensitive documents". On the other hand, the EM indicated the likelihood that what was agreed in context of the Decision would form the basis for the Council's common position on the draft Regulation. (paragraph 17)

  We are pleased to inform the Committee that due to strong support in the Council from the UK and other like-minded partners for a full review of the current Council Decision as part of the preparation of the new Regulation, the Decision will not form the basis for the Council's common position on the draft Regulation. As Mr Vaz said in his letter of 7 November and 18 December, all of the access provisions and handling procedures are being reviewed during the negotiations on the draft Regulation.

  The ability to exclude, in advance, a whole class or category of documents, whether First, Second or Third Pillar in origin, has serious implications for any scheme of access to EU documents. Whether under Article 255 it is permissible to adopt the same approach and legal technique for excluding classified ESDP and conceivably other documents from the scope of application of the Article 255 is at least arguable. The Committee, in its report on the draft Regulation, opined that Article 255 EC does not qualify the term "document" and the exclusion, in an article defining the scope of the Regulation, of a class of documents is not permissible under the Treaty. One of the arguments being advanced by the Dutch government in its action against the Council challenging the legality of the Decision before the European Court is that Community law, and in particular the wording of Article 255 TEC, precluded the exclusion of a category of documents from public access. The Minister has declined to comment on whether the legal technique employed in the 14 August decision in relation to the Code (ie the exclusion of a class of documents from the scope of the Code) might be adopted for use in the draft Regulation. (paragraph 18)

  The legal bases for the amendments to the Council Decision were the EC Treaty as a whole and in particular Article 207, plus the Rules of Procedure of the Council and in particular Article 10. We saw no reason why such amendments could not be legitimately made under those legal bases. The legal basis for the draft regulation is Article 255, and as the Committee rightly points out Article 255 does not qualify the term "document" but we do not believe that it logically follows that it is not permissible to exclude a class of documents under the Treaty. That said, however, as Mr Vaz made clear in his letter of 7 November, this does not necessarily mean that we, or the rest of the Council, believe that ESDP documents should be excluded from the scope. We are looking at a range of possibilities to provide adequate protection to sensitive documents.

NEGOTIATION OF THE ARTICLE 255 REGULATION

  It is sometime since the Minister gave the Scrutiny Committees any information about the process of the negotiations relating to the Draft Regulation on access to EU documents. If reports in the media can be relied on, there has been substantial discussion of the proposed Regulation both in the European Parliament and in the Council. The handling of classified ESDP material is only one of a number of aspects of the draft Regulation with which the Parliament has been closely concerned. And the UK has been described as being one of the "more secret partners". We expect the Minister to keep the Scrutiny Committees better informed of developments in this matter. We suggest that a Government that expresses commitment to greater involvement of national parliaments in the European legislative process as well as to openness and transparency ought to show a greater respect for parliamentary scrutiny. (paragraph 19)

  The draft Regulation on public access to Council, Commission and European Parliament documents is still being negotiated and the Council has yet to come to a common position on the text. The Government will continue to keep the Scrutiny Committees informed of progress on this dossier. Until recent months there has not been a lot of progress made in the Council; however, with the arrival of the Swedish Presidency, and the growing proximity of the May 2001 deadline for adoption, work on this dossier has increased considerably. Mr Vaz supplied the Scrutiny Committees with an update on the negotiations and the latest Presidency text when he wrote on 12 February. This document is not in the public domain, and there are not likely to be any public documents from the Council on this draft Regulation in the near future. However, in the interest of keeping the Scrutiny Committees informed of progress on this dossier, Mr Vaz sent this document to the Committee in confidence, and we will continue to keep the Committee briefed as negotiations develop.

  We are surprised that the UK has been described as being one of the "more secret partners". We have a good track record on openness in the EU. The UK's starting point is always that a document should be released unless there is a sound reason for not doing so. We are in the vanguard of those pushing to ensure that the new Regulation sets the most liberal regime possible, whilst giving adequate protection to genuinely sensitive documents.

RECOMMENDATION

  The Committee considers that the Council Decision of 14 August 2000 amending the Code of Conduct on access to documents and the manner of its adoption raises important questions to which the attention of the House should be drawn and makes this Report to the House for debate. (paragraph 20)

  The Government looks forward to this possible debate. We underline that the Council Decision of 14 August was a temporary solution only. The draft Regulation on public access to Council, Commission and European Parliament documents due for adoption in May this year will supersede this Decision. The Committee's Report on the draft Regulation was a welcome contribution to the debate and we note that this Report has also been recommended for debate. It would be useful to concentrate now on how the public's access to EU documents can be improved by the new draft Regulation. A timely debate in the House will be helpful in informing the Government's approach to this issue.


 
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