28 March 2012
A report by the UK House of Lords Select Committee on the European Union is highly critical on the way the "Solana Decision" amending the code of access to EU documents was agreed in July last year. The report will be the subject of a full parliamentary debate on the issue.
The Decision to amend the 1993 code of access to documents was rushed through the Council by what is known as "written procedure" - it was discussed and agreed by COREPER, the committee of senior representatives of EU governments, and formally adopted on 14 August 2000. The planned decision was covered extensively, with the full-text of documents, on the Statewatch website from 26 July onwards.
The "Solana Decision" (which is still in force until replaced by a new code of access) excludes permanently from access all documents concerning foreign policy, defence and "non-military crisis management" and any document mentioning them (whether classified or not).
The Select Committee were sent an "Explanatory Memorandum" dated 14 August:
"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)."
The Committee sought clarification from the Foreign Office (FCO) Minister responsible, Mr Keith Vaz and:
"The Committee concluded that the Minister had failed to provide 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 was expected."
The Committee set aside a day for the Minister to attend but he declined.
The report examines whether the "Solana Decision" was necessary in the light of the ongoing discussions on a new code of access and concludes:
"Whether the Decision produced a more secure legal environment is debatable.. 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."
Citing Statewatch's evidence to the Committee the report says it was clear that a proposal would be on the table from 30 June onwards and that drafts were circulated on 12 and 17 July. However, the Minister, in a written response to the Committee, claimed that:
"it was unclear what the Presidency's intentions were. The text was only available in French."
The Committee's report is scathing. First it says there is a "long established practice" that they receive some foreign texts and:
"the existence of a document only in a foreign text is not a satisfactory reason for not depositing the text" (emphasis in original)
As to the failure to consult the Committee before the decision was agreed in COREPER on 26 July the Minister claimed that:
"We... submitted an EM explaining HMG's actions shortly thereafter. Administrative delays meant the EM was not forwarded to the Committee until 14 August."
The Committee comments:
"One might ask what degree of communication there was between UKRep [UK government representative in Brussels] and FCO officials and when officials, and indeed the Minister, first addressed the issue of parliamentary scrutiny."
The Minister also stated that:
"we submitted an explanatory memorandum on 14 August. I recognise this gave Scrutiny Committees very little time to respond formally."
To which the Committee responds:
"The fact is that the Committee has no time to respond, formally or otherwise."
The Committee's report concludes:
"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."
Source: Access to documents: the Council Decision of 14 August 2000, Select Committee on the European Union, HL Paper 31, 20 pages, £5.60.
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