13 EU Accession to the European Convention
on Human Rights
| (32123)
10817/10
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| Council Decision authorising the Commission to negotiate the Accession Agreement of the European Union to the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR)
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| Legal base | Article 6(2) TEU and Protocol (No 8); Article 218(8) TFEU, unanimity; consent
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| Department | Ministry of Justice
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| Basis of consideration | Minister's letter of 20 December 2013
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| Previous Committee Reports | HC 83-xxi (2013-14) chapter 13 (20 November 2013); HC 83-xiv (2013-14) chapter 16 (11 September 2013); HC 86-xxix (2012-13) chapter 4 (23 January 2013); HC 428-xiv (2010-12) chapter 6 (26 January 2011)
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| Discussion in Council | Not applicable
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background and previous scrutiny
13.1 An outline of the history, scope and substance
of the European Convention for the protection of Human Rights
and Fundamental Freedoms (ECHR) and developments to date in the
process for accession of the EU to the ECHR are set out in our
previous Reports.[78]
13.2 In our Reports in September and November, we
reported on the most recent development in that process. After
the agreement of a provisional Accession Agreement in early April
in the "47+" Council of Europe negotiating group, the
Commission had referred the agreement to the Court of Justice
for Opinion pursuant to Article 218(11) TFEU, on whether the "agreement
envisaged is compatible with the Treaties". The Article
requires that where the "Opinion is adverse, the Agreement
envisaged may not enter into force unless it is amended or the
Treaties are revised". The Commission had decided to do this
before publishing EU Internal Rules which will be needed to regulate
internal arrangements for EU and Member State participation in
the Council of Europe. Before the summer recess, the Government
had provided us with a copy of the Commission's request to the
Court for an Opinion, requesting our comments to be provided by
the October deadline for the Government's intervention in the
proceedings.
13.3 Although it has been our intention for some
time to hold an evidence session with the Secretary of State for
Justice (Chris Grayling) on the provisional Accession Agreement
and process at an opportune moment, the Minister informed us by
a letter of 4 November that as the Commission's request was confidential,
he would not be able to provide evidence on any of the documents
or matters under discussion before the Court. He asked us to assess
whether an evidence session would be useful at that stage or better
left until the publication of the Commission's proposal on Internal
Rules (which the Government anticipated would be after the Court's
Opinion has been delivered, though an estimate of this date has
yet to be provided by the Court).
13.4 In the conclusions of our last Report in November,
we asked the Minister to clarify the precise basis on which confidentiality
of the documents was asserted by the Government. We said that
given that the accession of the EU to the ECHR is an issue of
the highest political and legal significance and of considerable
public interest, the need for transparency and accountability
in respect of arguments being advanced by both the institutions
and the Government was paramount. It would therefore be helpful
if the confidentiality of any documents before the Court in that
process were not just asserted, but precisely substantiated to
Parliament, given that competing public interest principles were
in play. We considered that simply to state that confidentiality
attaches to documents "subject to litigation" was not
sufficient; especially as non-party access to court documents
in the English legal system, particularly in the field of judicial
review, has been expanded since 2006 to meet the need for "open
justice". As confidentiality of court documents has become
the exception rather than the rule in our own and many other national
legal systems, we asked the Minister to explain why the reverse
situation applied at EU-level. We said that we would reserve our
view on the timing of an evidence session until we had received
the required response from the Minister.
Minister's letter of 20 December
13.5 The Secretary of State for Justice writes to
say:
"Although there is no confidentiality rule
contained in the Court's Statute or its Rules of Procedure, there
is no general right of access to the Court's files and the Court's
case law underlines its expectation that pleadings remain confidential
to the proceedings before it and should not be disclosed, irrespective
of the fact that there is no express rule.
The Court's approach to the disclosure of pleadings
has been informed by its consideration of the public access to
documents regulation (EC 1049/2001). Article 4(2) of that Regulation
provides that the Court must refuse access to a document where
its disclosure would undermine the protection of court proceedings,
unless there is an overriding public interest in disclosure. The
Court has held that the exclusion of judicial activities from
the scope of right of access to documents is justified to ensure
that the exchange of arguments by the parties to litigation and
the deliberations of the Court take place in an atmosphere of
total serenity (see joined cases C-514/07 P; C-528/07 P; C-532/07
P). As a result, the Court has found that it is appropriate to
allow a general presumption that disclosure of court documents
would undermine the protection of proceedings.
Since the Court's approach is not limited to
a particular type of proceeding, our understanding is that it
applies equally across the range of proceedings that may come
before it."
Conclusion
13.6 We thank the Secretary of State for Justice
for clarification of the case law on which the Government relies
in asserting the confidentiality of the Commission's request for
an Opinion from the Court pursuant to Article 218(11) TFEU.
13.7 We are aware of this case law but would point
out that:
a) there is only a presumption of confidentiality
which, as the Minister says, can be rebutted by an overriding
public interest in disclosure; and
b) it is also apparent that the EU courts
are now more open to partial disclosure of institutional documentation,
albeit non-court documentation, relevant to the accession process.
We refer the Government to the recent judgment in the case of
Besselink v Council of Europe (12 September 2013)[79]
where the General Court required the Council to reconsider partially
disclosing the accession negotiating mandate (pursuant to Article
4(6) of Regulation No 1049/2001) in accordance with the proportionality
principle.[80]
13.8 Nevertheless, we recognise that holding an
evidence session under the constraints of the confidentiality
which the Government attaches to the relevant court documentation
and without sight of the Internal Rules would not be entirely
satisfactory. We would therefore be grateful if the Minister could
tell us when he has further information from the Court of Justice
on when it expects to deliver its Opinion (and following from
that, when the Commission might publish the Internal Rules).
13.9 In the meantime, we should also like to be
kept informed of all other developments in the accession process.
78 See headnote. Back
79
See T-331/11: http://curia.europa.eu/juris/documents.jsf?num=T-331/11. Back
80
Examination of partial access to a document of the European Union
institutions pursuant to Article 4(6) of Regulation No. 1049/2001
must be carried out in the light of the proportionality principle:
Case C-353/99 P Council v Hautala [2001] ECR i-9565. Back
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