UK House of Commons European Scrutiny Committee report on new code of access
The UK House of Common Select Committee on European Scrutiny published a short report on 21 November on the EU's proposed new code of access to documents.
The Committee had raised with the Foreign Office (which is dealing with the issue in the EU) the issue of the lack of consultation by the Commission before it drew up its proposed new code. Keith Vaz, Foreign Office Minister, regretted the lack of consultation by the Commission but cites a conference held in the European Parliament in April 1999 - this was a conference organised by three groups in the EP (PSE, Greens and ELDR, Liberals), the European Federation of Journalists and Statewatch.
The Minister's defence of the "Solana Decision" is less than convincing. He offers no reason why the decision had to be taken in mid-summer without consulting any parliaments or civil society (7.11). Nor does he say why the existing code of access (in place since 1993) could not be used until a new code comes in next year.
The Select Committee report removes any doubt that the "Solana Decision" is not temporary:
"The Minister also says that the Commission has issued a statement, promising to adjust its own rules to bring them into line with those of the Council, and noting that in the light of the Council's decision it might have to amend its proposal for a Regulation on access to documents under Article 255. Although the new Regulation under Article 255 is subject to the co-decision procedure, it is likely that the Council Decision will form the basis for the Council's Common Position on the Regulation."
The report also observes that the House of Lords Committee has put oem very pertinent questions to the Foreign Office:
"The House of Lords Select Committee on the European Union considered the Decision on 4 October and has "expressed grave concern at the high-handed manner in which the Government appears to have proceeded in this matter." It has not cleared the document but sought a detailed explanation in writing from the Minister on a number of points:
Twenty-Seventh Report of the Select Committee on European Scrutiny, 21 November 2000
POLITICALLY IMPORTANT: NOT CLEARED PUBLIC ACCESS TO EU DOCUMENTS
Draft Council Regulation regarding public access to documents of the European Parliament, the Council and the Commission.
Draft Council Decision amending Council Decision 93/73/EC of 20 December 1993 on public access to Council documents and Council Decision 2000/23/EC of 6 December 1999 on the improvement of information on the Council's legislative activities and the public register of Council documents.
Legal base: (a) Article 255(2) EC; co-decision; qualified majority voting
(b) Article 207 EC
Department: Foreign and Commonwealth Office Basis of consideration: (a) Minister's letter of 15 August 2000
(b) EM of 14 August 2000
Previous Committee Report: (a) HC 23-xiii (1999-2000), paragraph 7 (5 April 2000)
To be discussed in Council:
Discussed in Council
(a) No date set
(b) August 2000
Committee's assessment: Politically important Committee's decision: (Both) Not cleared; further information awaited
7.1 The European Commission and the Council have been applying a joint code of conduct on public access to documents for more than five years. The European Parliament adopted a similar system in 1997. Under Article 255 of the Amsterdam Treaty, the Commission is required to submit a proposal on the general principles and limits, on grounds of public or private interest, governing the right of access to documents of the three institutions. The draft Regulation which we consider here (document (a)) should come into force before 1 May 2001.
7.2 When we first considered this proposal, on 5 April 2000, we approved the general position the Government proposed to adopt, but asked the Minister for a sharper analysis of it and, in particular, to assess the impact of the exceptions proposed.
The Minister's letter
7.3 The Minister of State at the Foreign and Commonwealth Office (Mr Vaz) apologises for the delay in replying, saying that it has taken some time to collect the necessary information from Whitehall and the Commission. He provides some detailed comments but prefaces these by noting that they should be seen in the context of the Government's overall policy. This is to take, he says, "a very forward stance on openness issues in general and this is no exception".
The list of exceptions in Article 4
7.4 The Minister says that these are broadly consistent with the existing régime on public access to EU documents set out in the Code of Conduct and Article 4 of Council Decision 93/731/EC on public access to Council documents. Some of the additions are sensible and necessary for achieving other objectives of the EU for example, an effective EU military capability. He adds:
European Security and Defence Policy documents
7.5 With the introduction of ESDP documents, the Minister emphasises that it will be necessary to provide "watertight" protection to intelligence material and other sensitive documents received from third parties, such as NATO. At the time of writing the issue had yet to be discussed in the context of the draft Regulation, but see paragraph 7.14 below.
Consultation carried out by the Commission before it adopted the draft Regulation
7.6 The Commission did not produce a consultation document, but the question was discussed at a conference in the European Parliament in April 1999. The Commission has assured the Government that comments made by the representatives present were taken into account in preparing the draft legislative proposal. The Minister says that the Government encourages the Commission to consult as widely as possible before it issues proposals, and is disappointed that it did not do so on this occasion.
Exceptions applied in Nordic countries
7.7 We asked the Minister how the exceptions in the draft Regulation compared with those applied in Nordic countries, which the Commission described as models of good practice. In reply, he attached a copy of a leaflet from the Swedish Ministry of Justice which outlines how the access to documents régime works there. We shall place a copy in the Library.
7.8 In mid July, the French Presidency circulated an unofficial text of a draft Council Decision proposing amendments to Council Decision 93/731/EC on public access to Council documents and Council Decision 2000/23/EC on the improvement of information on the Council's legislative activities and the public register of Council documents. The objective of the amendments is to provide adequate security for European Security and Defence Policy (ESDP) documents.
7.9 In an Explanatory Memorandum of 14 August, the Minister of says that, as the Information Working Group had already examined the first applications for access to ESDP documents, the Council Secretariat was keen to push through amendments to the texts as quickly as possible. For this reason, the proposals were put directly to COREPER and not discussed at Working Group level.
7.10 The Minister describes three options put forward by the Presidency on the proposal for amending the 1993 Decision and two options for amending the decision on the public register. When these were discussed at COREPER on 26 July, a majority, including the Presidency, supported "Option 1(c)". This excludes from the scope of the 1993 Decision not just 'Top Secret' and 'Secret' ESDP documents, but also those classified 'Confidential'. Restricted ESDP documents will be treated like any other documents. In parallel, it was decided that the public register should omit all reference to these documents.
7.11 The Presidency also circulated a document stating that confirmatory applications for the release of Confidential and Restricted ESDP texts will be considered by the appropriate ESDP bodies. Applications regarding all other documents will continue to be considered by the Information Working Group.
The Government's view
7.12 The Minister comments on the position taken by the Government as follows:
7.13 The Minister also says that the Commission has issued a statement, promising to adjust its own rules to bring them into line with those of the Council, and noting that in the light of the Council's decision it might have to amend its proposal for a Regulation on access to documents under Article 255. Although the new Regulation under Article 255 is subject to the co-decision procedure, it is likely that the Council Decision will form the basis for the Council's Common Position on the Regulation.
7.14 The Decision was adopted by written procedure on 14 August and published in the Official Journal on 23 August.
7.15 According to press reports, a number of Member States would have preferred to maintain the existing procedure. The Netherlands, Finland, Sweden and, to a lesser extent, Denmark, are named. Members of the European Parliament, meeting in September, expressed concern at the proposal and at the way in which it had been presented, just before the summer break. The Legal Affairs and Citizens' Rights Committee voted in favour of recommending that the EP should file a complaint with the Court of Justice at the Council decision to "unilaterally change the rules on access to documents".
7.16 The Dutch Government has now formally appealed to the European Court of Justice (ECJ) to annul the Council's amending Decision of 14 August, on grounds that the Decision places undesirable restrictions on the régime governing public access to Council documents. In a Government press release, it says that the Netherlands has no objection to some papers being kept secret, but it does object to the fact that the Council Decision unequivocally excludes all such matters from freedom of information.
7.17 The House of Lords Select Committee on the European Union considered the Decision on 4 October and has "expressed grave concern at the high-handed manner in which the Government appears to have proceeded in this matter." It has not cleared the document but sought a detailed explanation in writing from the Minister on a number of points:
7.18 We understand that the Members of the European Parliament are concerned that the decision to restrict access to ESDP documents may lead to CFSP documents more generally being restricted. Our reading of the legislation is that it relates very specifically to ESDP documents classified Confidential and above, so we do not believe that these fears are well founded. The manner and timing of the introduction of the Decision, just before the summer break, certainly lay the Council open to criticism, and we shall be interested to see in what terms the Government responds to the Lords Committee on this point.
7.19 We ask the Minister to copy to us his reply to Lord Tordoff, the Chairman of the Lords Committee. Meanwhile we shall not clear either document.
18. OJ No. L 340, 31.12.1993, p. 43, as amended by Council Decision 97/705/Euratom, ECSC, EC of 6 December 1996, OJ No. L 325, 14.12.1996, p. 19.
19. OJ No. L 9, 13.1.2000, p.22.
20. OJ No. L 212, 23.8.2000, page 9.
21. Bulletin Quotidien Europe, 25 August 2000, page 3.
22 . Bulletin Quotidien Europe, 14 September 2000, page 6.
23. (20466) 10948/99; see HC 34-xxx (1998-99), paragraph 2.
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