EU: Statewatch application divides Council
01 March 1996
An application for access to documents on the "third pillar" by Statewatch's Editor, Tony Bunyan, has caused a split in the ranks of the Council of Ministers. The application followed-up the request for documents by John Carvel of the Guardian which covered the meeting of the Council of Justice and Home Affairs Ministers in November 1993. Tony Bunyan's application requested access to the reports agreed at the next two main meetings of this Council in June and November 1994. The application was made in order to establish what policies had been agreed in 1994 on policing, immigration and asylum, and judicial cooperation. The request covered 65 reports and access was eventfully given to 39 and refused for 28 of them.
The first application was made on 16 December 1995. The Council replied on 5 February 1996 agreeing to give access to 27 documents and refusing access to 38. On 11 February Tony Bunyan exercise the right to make a "confirmatory application" under the Code of access agreed in 1993.
The divergence of opinion among the 15 member states over how many documents to release first emerged at a meeting of the Working Party on Information, comprised of the Press Officers of the Permanent Delegations in Brussels ("confirmatory applications" used to be handle by the General Affairs Group, with the unfortunate acronym the "GAG" group). The representatives from Denmark, UK, Sweden and Finland said they were unhappy with the restrictive approach in the draft response to Tony Bunyan's application. Failure to agree at this level meant the matter had to be passed right up to the top for COREPER to resolve - COREPER is the body of permanent representatives of the 15 governments in the European Union who hold ambassadorial status, and its job is to try and reach a consensus view to put before the Council of Ministers.
COREPER discussed the issue on 6 March when a number of countries expressed the view that more documents should be released. Denmark and the UK opposed the draft reply from the Council's Secretariat as being too restrictive. Denmark went further not only wanting more documents released but stating its intention to make its position public by making a Declaration. The Council's Legal Service attempted to head off this move by saying that it could lead to a court case against the Council because the Danish Declaration implied they were wrongly applying the Code of Access - however a majority of countries supported the Danish determination to publish its Declaration while a majority also supported the proposed reply.
Denmark was asked to consider its position by COREPER. Its view had not changed by the time of the next meeting of a Council of Ministers which happened to be the Council of Economic and Financial Ministers. When this Council met on 11 March it agreed on the reply to be sent to Tony Bunyan with Denmark (represented by Ms Marianne Jelved, Minister for Economic Affairs) and the UK (represented by Kenneth Clarke, Chancellor of the Exchequer) voting against. The Danish Declaration supported the release of all the documents to Tony Bunyan after blanking out the opinions of Member states and references to third countries (see box). The Swedish and Finnish governments also issued Declarations in favour of greater openness.
What was refused and why
The Council replied to Tony Bunyan on 12 March 1996, three months after the first application. The overall result was:
First application: total 65: access given to 27 reports, refused for 38.
Confirmatory application: total 38: access given to 12, refused for 26.
The grounds on which access to 26 documents refused were three-fold. Three documents were refused for the "protection of the public interest (international relations)" covering "Relations with third countries" (2) and "Police cooperation with the Central and East Eastern countries". Four documents were refused for the "protection of the public interest (public security)" cove