MINISTERIAL BRIEFINGS ON THE THIRD PILLAR

  87.    At present there are no structured arrangements for examining Ministers prior to or after a Justice and Home Affairs Council meeting. After each meeting of the Justice and Home Affairs Council the Government provides a short statement to both Houses of Parliament of what occurred by way of a written answer to a question which is published in Hansard. This is a purely factual account of the proceedings and does not indicate the Government's policy stance on the matters discussed. In the past the House of Commons Home Affairs Committee received a short report of the proceedings at Justice and Home Affairs Councils. This practice has, however, recently been discontinued.

  88.    In its response to the Committee's 1993 Report the Government emphasised its commitment to co-operating fully with the House of Lords. The Government made it clear that Ministers would be ready to offer briefings on matters of particular interest to the Committee. Whilst agreeing that briefings should be held mainly in public, the Government stated that for certain business confidential sessions might be more appropriate. Although the Committee did take evidence from the Home Secretary and Home Office officials during the course of its enquiry on the Europol Convention[33], it has never invited the Home Secretary or another Home Office Minister to appear before the Committee to brief it before or after a Council meeting.

  89.    Little evidence was received from witnesses on this matter. Justice, however, supported the suggestion that the Government should be required to provide a written report on the outcome of Justice and Home Affairs Councils and to supply copies of the texts adopted. In addition they suggested that the Committee should go further and ask the relevant Minister to appear before the Committee to answer questions both before and after a Council meeting (Q 103).

  90.    The Home Secretary welcomed the suggestion that the Government should provide written reports on the outcome of Justice and Home Affairs Councils and that the appropriate Government Minister or officer should appear before the Committee to give an account of what had occurred at the Council. He regarded this as being valuable both to the Executive and to Parliament (Q 300).

The practice in other Member States' Parliaments

  91.    In the Netherlands it is standing practice for one or both Chambers of the Dutch Parliament, after having received and read the documents for a forthcoming Council meeting, to ask the Minister to appear before the competent Parliamentary Committee to brief the Committee on the matters to be considered. In most cases a written report of the meeting is printed and made available to the general public. After a Council meeting the Dutch Government sends a written report of the meeting to Parliament which is published (pp 110, 86-7). In Austria, once the Main Committee of the Nationalrat has commented on a Third Pillar proposal, the relevant minister has to report on what occurred at the Council meeting at which the proposal was discussed[34]. Where the EU Committee of the Bundesrat has commented on a proposal, there is no equivalent obligation imposed on Ministers to report on what occurred at the Council. Both the Nationalrat and the Bundesrat receive the minutes and press releases of Council meetings (pp 74-5).

  92.    The French Assemblée Nationale commented that although Ministers have not to date been examined by the relevant Committee on Third Pillar matters there is nothing to prevent such an examination. Article 6 bis of the Ordinance of 17 November 1958 (as amended) envisages the possibility of Parliamentary committees demanding to hear ministers. The only information received on the outcome of Council meetings is the summary of the Council meeting as it appears in the diplomatic telegram (p 80). In Germany the Federal Home Affairs Ministry regularly reports to the Bundestag both before and after Council meetings on their political focus and results. Under Article 43 paragraph 1 of the Basic Law, the Bundestag and its committees may require any minister of the Federal Government to appear before them. In practice, a high-ranking civil servant of the appropriate Ministry is always available to provide information. Ministers and Permanent Secretaries are required to appear before committees on matters of particular importance or of far-reaching political significance (p 83).

  93.    In Sweden, the Minister who will attend the Council meeting appears before the Riksdag Committee the Friday before the Council meeting to inform and consult with the Committee on the matters on the Council's agenda. After every Council meeting, the Government is required to submit a report to the Committee on what occurred at the meeting (pp 89-90). Hearings of Ministers and Government officials on Third Pillar proposals are very common in Finland. In practice, hearings of Ministers take place before the Grand Committee whilst hearings of officials and experts occur before the specialised committees. It is also possible for Ministers and officials to be heard in a plenary session of Parliament. The Government must furnish Parliament with a comprehensive written report within a few days of any Justice and Home Affairs Council meeting. The Minister is questioned on the report when he next appears in front of the Committee. Sometimes the Grand Committee may decide to call the relevant Minister immediately (p 77). In Denmark the Government submits a mandate for negotiation to the European Affairs Committee (EAC) and negotiates in the Council on this basis unless there is a majority against its proposed line. Ministers appear in front of the EAC before Council meetings. The relevant Minister forwards the minutes to the EAC within a week of the Council meeting. If an issue is of political importance the Minister may be called to report orally and then respond to questioning (p 12).

Opinion

  94.    Effective Parliamentary scrutiny of the Third Pillar depends not only on Parliament obtaining documents in good time but also on it having the power to question Ministers and officials on important matters both before and after Council meetings. It is only if Parliament has such a power that Ministers can be made accountable for their actions in the Council.

  95.    The opportunities available to the Committee to question Ministers and officials before Council meetings depend on the Committee receiving information on the matters to be discussed in good time. We have already discussed this matter in the context of the timing of deposit of documents and the provision of Council agendas.

  96.    The Committee considers the information currently provided to Parliament on the outcome of Justice and Home Affairs Councils totally inadequate. It does nothing to defuse criticism of the lack of transparency under the Third Pillar. We have been impressed by the evidence received from other Member States on the obligations imposed on their Governments to report on the outcome of Council meetings. We believe that the time has come to set down formal procedures for reporting on the outcome of Council meetings. The opaqueness of the decision-making process under the Third Pillar, coupled with the possible consequences for the individual arising from measures adopted in the Council, reinforces the need to ensure greater transparency in this area and for the formulation of special procedures for reporting on the Justice and Home Affairs Councils. We recommend that the Government should be obliged to provide Parliament with a detailed written report on the outcome of a Justice and Home Affairs Council meeting within two weeks after each meeting. The report should indicate the matters discussed and the stance adopted by the Government in the negotiations. Where possible the text of proposals adopted at the Council should also be supplied. Following receipt of the report, the Committee could decide whether or not to invite the relevant Minister or officials to attend a public meeting of the Committee to answer questions arising therefrom. A full transcript of the proceedings could be taken and the report, together with the evidence from the Minister, published as a report of the Committee to the House.

  97.    This is not a radical proposal. A precedent already exists in relation to European Council meetings. After each European Council the Minister of State at the Foreign and Commonwealth Office is invited to attend a public meeting of the Committee to answer questions on the outcome of the European Council meeting but does not provide the Committee with written evidence. A full transcript of the proceedings is taken and is printed as a report of the Committee[35]. We believe that the introduction of a similar practice in relation to Justice and Home Affairs Councils would introduce a welcome degree of transparency into proceedings under the Third Pillar.

THIRD PARTY ACCESS TO THIRD PILLAR DOCUMENTS

  98.    In the Community Pillar the existing practice is that any document deposited with Parliament for scrutiny is normally made public as part of the democratic process. The arrangements for the Third Pillar are, however, more restrictive. During the course of the enquiry many witnesses commented on the difficulties they had experienced in obtaining copies of Third Pillar proposals either directly from the Council or the relevant Government Departments.

  99.    The Home Office commented that Council Decision 93/731/EC of 20 December 1993 on public access to Council documents[36] placed real constraints on the Government's ability to provide the public with copies of Council documents. However, the Council Decision did not impose any constraints on Parliamentary scrutiny and the Home Office welcomed the Committee's initiative in sending Third Pillar documents to interested bodies for comment. The Home Office regarded this as an integral part of the scrutiny process and saw no difficulties arising from this practice.(QQ 24, 30, 40, 42).

  100.    Mr Fortescue outlined the Commission's policy in relation to Third Pillar proposals prepared by it. He commented that as soon as the Commission had adopted a text which had some real status it would automatically make this available to the European Parliament and to the public. The Commission were more hesitant about placing preliminary work in the public domain. To do so would not make sense as the Commission would not have sufficiently developed its thinking on the subject being considered. Drawing attention to the changes to the existing Third Pillar structure contained in the draft Amsterdam Treaty, he commented that more legislation was likely to be initiated by the Commission once the new Treaty entered into force, and given that the Commission's instincts were probably more open and transparent than the Council had traditionally been, more documents were likely to be in the public domain earlier than at present (Q 239).

  101.    Justice indicated that the Home Office provided no information on Third Pillar proposals and never distributed Third Pillar texts or its Explanatory Notes on the grounds that they were intended only for Parliament and subject to the same restrictions as the documents themselves. They drew the Committee's attention to the Government's policy on public access to Third Pillar proposals, which appeared to be based on whether or not the Committee had decided to conduct an enquiry into a proposal. They regarded the Government's policy as being inconsistent and difficult to justify as a matter of logic. They were critical of its interpretation of the Council Decision and commented that the Government's reluctance to be more open appeared to rely on the argument that since the Council had laid down restrictive rules on direct access to its documents, Member State governments must do the same in regulating access to documents passed to them and deposited for Parliamentary scrutiny. In their view, the Government's interpretation placed an entirely Governmental gloss on a Council document which made no reference to Parliamentary scrutiny. The only reference to Parliamentary scrutiny was contained in the accompanying Code of Conduct[37] which related to both Council and Commission documents[38]. Justice commented that the availability in practice of "unofficial" texts which circulated at non-governmental level made a nonsense of the contention that confidentiality would be breached by making them a matter of public record (pp 21-3, QQ 53, 57, 59, 66, 73, 100, 102, 112).

  102.    Statewatch outlined the difficulties they had encountered in their attempts to obtain copies of Third Pillar documentation. Because decisions on releasing Third Pillar documents required a unanimous vote in the Council, one Member State could prevent the release of a text. They argued that Third Pillar measures should be open to the same standards as a Parliamentary Bill and that proposals should be available to everyone in sufficient time prior to their adoption to enable a democratic debate to take place (p 34, QQ 138, 158, 181-3). The Law Society of England and Wales commented that although documents occasionally leaked out to the public there was no system or mechanism for obtaining Third Pillar documents. It was open to members of the public to request documents from the Council and the Member States but this presupposed that the public knew of the documents' existence. Given that the inter-governmental decision-making process was conducted behind closed doors it was difficult for organisations to know what was being discussed. Even where the public was aware of the existence of a document, the procedures for requesting documents from the Council Secretariat were cumbersome (p 104). Liberty commented that they would not have been aware of Third Pillar legislative proposals at an early enough stage to influence the process had it not been for the Committee's work in this respect. Although the Council had expressed its commitment to transparency in its 1993 Code of Conduct, the widely drawn exceptions constituted an excessive restriction on the application of the general principle that all documents should be made available to those affected (pp 107, 109).

  103.    Fair Trials Abroad suggested that a practical defect of the current lack of consultation with interested bodies appeared to be that no convention endorsed by the Council had yet come into effect because domestic concerns on the texts had prevented universal ratification. They floated the idea of creating an international panel of practitioners who could be consulted by Member State governments to look at problems that might arise in implementing Third Pillar proposals into domestic law and who could make public recommendations on which Member State governments could decide to act (p 98).

  104.    The Home Secretary was sympathetic to the need to make Third Pillar proposals available to interested organisations but reiterated the argument advanced by his officials that the Home Office was constrained from doing so by the terms of the Council Decision on public access to Council documents (Q 316).

The practice in other Member States' Parliaments

  105.    The Swedish Parliament indicated that, although it is up to the Government to decide what documents it wishes to make available to the relevant Committee, once a document has been submitted it becomes "official" under the Swedish Freedom of the Press Act and is, in principle, available to anyone who requests a copy. However, the Committee may deny such access if publicity would be deemed harmful to Sweden's relations with the Union or another State. The power to declare a certain document as "classified" rests with the Committee, not with the Government (p 90).

Opinion

  106.    We believe that there are no compelling reasons for restricting access to Third Pillar proposals save where that can be justified on the grounds of secrecy or confidentiality. Third Pillar legislation may have far-reaching implications for the citizens of the European Union and there is an overwhelming argument for ensuring that Third Pillar proceedings are conducted in a transparent and open fashion. We are not persuaded that there is a need to distinguish between the inter-governmental Pillars and the Community Pillar in this regard. We see the provision of Third Pillar proposals to interested parties as being an essential ingredient of the democratic process. Evidence provided to us by interested parties has made an invaluable contribution to the work of this Committee. Whilst we recognise that a distinction may have to be drawn between the first draft of a Third Pillar text and later drafts which might indicate the Government's or other Member States' negotiating stance, we see no reason in principle for refusing interested organisations access to Third Pillar texts. As we commented in paragraph 0 above, Member States' negotiating positions could be protected by blanking out the reservations recorded on texts before making them available.

  107.    We are alarmed that the Government's policy stance on Third Pillar documents appears to be dependent on what course of action the Committee has decided to pursue. Because of both time and resource constraints, the Committee and its relevant Sub-Committees can only report on a limited number of documents during a Parliamentary session. Whilst the Committee endeavours to comment on the most important Third Pillar proposals deposited, either by way of a detailed report or a letter to the relevant Minister, this is not always feasible. We agree with the view expressed by Justice that the Government's current practice in relation to public access to Third Pillar proposals is inconsistent and illogical and serves to prevent interested bodies from commenting on important Third Pillar matters. We recommend that the Government should consider making available to interested organisations on request the first draft of any Third Pillar document which has been deposited in Parliament together with any subsequent drafts which contain material changes to the original proposal. Whether the Government would wish to provide interested organisations with the accompanying Explanatory Note on the document is a matter for the Government to decide.

  108.    We note that, following a proposal from the United Kingdom Government, the draft Amsterdam Treaty contains a Declaration on Article K.6(2) providing for the publication in the Official Journal of the European Communities of draft Third Pillar initiatives "in accordance with the relevant rules of procedure of the Council and the Commission". We congratulate the Government for taking the initiative in bringing forward this proposal and for persuading other Member States of its desirability. We urge the Government to explore with other Member States the possibilities for publication of Third Pillar proposals in the interim period prior to ratification of the Amsterdam Treaty. We believe that such a step would go a long way to meeting the concerns of witnesses and ensuring greater transparency in the Third Pillar.