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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.

5.51 pm

Lord Dykes: 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.



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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

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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.

6 pm

Lord Astor of Hever: 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

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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,

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

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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,

In the light of that, how are the Government seeking to strike a balance in this area? What is their justification for,

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.

6.08 pm

The Minister of State, Foreign and Commonwealth Office (Lord Malloch-Brown): 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

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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

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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

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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.

6.20 pm

Lord Mance: 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.



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