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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