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G6-G8-Prum: Behind closed doors - policy-making in secret intergovernmental and international fora

01 September 2006

Policy-making in EU institutions has its problems when it comes to getting access to the documents (positions, proposals etc) which shape and influence the final text. But when it comes to more shadowy gatherings it is even more difficult. Recently Statewatch applied to the UK Home Office for copies of the documents adopted at the G8 Ministers of Justice and Interior meeting in Moscow on 16 June 2006 (G8 = USA, UK, Germany, France, Italy, Russia, Canada and Japan). The request was not for the background or operational documents but formally adopted policies - that is, adopted by the UK government and seven others.

The response was outright refusal. The Home Office declared that the documents - which they admitted holding - were "exempt from disclosure" under the Freedom of Information Act (FOIA). "Exempt" because disclosure would "prejudice relations" between the UK and G8 and:

"jeopardise the free and open exchange of information within G8"

Further they argued that the FIOA exempts "confidential information obtained from" another state.

But the information emanated from a meeting in which the UK was a partner. Moreover, surely we have a right to know what policies are being agreed to "in our name"? Statewatch has lodged an appeal.

A similar issue arose of the meeting of the "G6" (Germany, France, Spain, UK, Italy and Poland) of Home/Interior Ministers in Heiligendamm, Germany on 22-23 March 2006. The meeting agreed "Conclusions" covering a series of justice and home affairs issues (including police access to the planned Visa Information System, EURODAC - asylum-seekers fingerprint database, the "principle of availability" of all data being held by state agencies to every other agency in the EU).

Statewatch obtained a copy of the "Conclusions" and put them on its website. This led the House of Lords Select Committee on the European Union to set up an inquiry.

Giving evidence to the Committee Statewatch said:

"there is no formal requirement to publish an agenda or minutes, there is no system of access to documents, there is no process of public consultation or impact assessment"

And as to the position after the meetings take place they are:

"utterly lacking in the rudiments of accountability as understood at national or EU level"

The Committee took the view that although it "would certainly be desirable" for the agenda and papers to be published before the meeting - as they are arranged "months in advance" - it "would not wish to hamper frank exchanges of views in advance of the meeting". However, it did recommend that the results of G6 meetings "should be fully publicised by the Home Office [and] a written ministerial statement should be made to parliament".

Statewatch said in evidence that the Schengen Convention agreed by five EU states (Belgium, Netherlands, Luxembourg, France and Germany) and the recent Prum Treaty (the same five plus Austria and Spain) were "set in stone" so that any other member states joining up could not change "a dot or comma". Thus the Committee observed that:

"Intergovernmental groupings of this type, which lack the basic democratic requirements of accountability and transparency have in the past led to the Schengen agreement and the Schengen Convention. Neither EU citizens, nor their representatives, nor indeed those Member States that were not originally part of the Schengen group, had any say on these policies of fundamental importance. They were presented with a fait accompli"

It should be remembered that the 1990 Schengen Convention was never discussed by the five founding members' parliaments or civil society nor were the hundreds of implementing measures in the Schengen acquis. Between 1990 and 1996 all the remaining EU members (then 15) joined up except the UK and Ireland (who signed up to part of it). Under the Amsterdam Treaty, on 1 May 1999, the Convention and the acquis were integrated into the EU.

On 27 May 2005 the Prum Treaty was signed by Germany, Spain, France, Luxembourg, Netherlands, Austria and Belgium (Italy has since said it wants to join too). It covers a series of justice and home affairs issues including the "exchange of information" (in effect, the "principle of availability").

For example, Articles 2-12 allow direct access by the law enforcement agencies in the other participating states to their databases on DNA, fingerprints and vehicle registration on a hit/no-hit basis (if there is a "hit" the file is provided).

On the Prum Treaty the House of Lords Committee said:

"This to our mind is a perfect example of the dangers of a small group of Member States taking steps which pre-empt negotiations already taking place within EU institutions"

A view borne out in practice as working party after working party in the Council of the European Union (the 25 governments) refer to the Prum Treaty in their discussions as if it is already part of EU law.

Tony Bunyan, Statewatch editor, comments:

"It goes without saying that we have an absolute right to know the content of measures after they are adopted in intergovernmental or international fora.

Moreover, the idea that measures should only be subject to scrutiny after they have been adopted cannot be squared with meaningful democratic accountability - by this stage they are set in stone.

Accountability in a democracy means parliaments and people knowing in advance the agenda and the documents circulated for discussion so that they can make their views known before the meeting takes place."

Sources:

1. "Behind Closed Doors: the meeting of the G6 Interior Ministers at Heiligendamm", House of Lords EU Committee report.

2. G6 Conclusions:

3. The Prum Treaty

This article first appeared in Statewatch bulletin, vol 16 no 3/4.