Exposing Europe’s decision-makers to public scrutiny

Date: 18/04/1996

Just over 200 years ago, Tom Paine wrote that: “In the representative system, the reason for everything must publicly appear. Every man is a proprietor in government and considers it a necessary part of his business to understand.”

As ever, Paine, who was reviled by the British, jailed by the French and cheated by the Americans, was a man ahead of his time. His view is as true today as it was in revolutionary Europe.

Europeans feel increasingly cynical, powerless and frustrated about government.

They see public policy made under the anaesthetic of corporate influence, political information organised through spin doctors and a media which constantly feeds them a diet of pap and consensus.

People simply do not have the tools to participate in public life.

Many politicians would lay the blame for this disgraceful state of affairs with journalists, who, they argue, are increasingly obsessed with conflict and spectacle.

However, there is little doubt that the information crisis in Europe extends far beyond media news rooms. Even the most professional media filter will not solve the problem of political secrecy and administrative confidentiality which continue to deny people the right to know about the substance of government and laws that are made in their name.

For 15 years, the Council of Europe and the European Union have been making painfully slow progress towards granting citizens access to official information.

This fundamental right does not yet exist in European law.

Official information in Europe still remains, in principle, secret and confidential until a decision has been taken to the contrary. Most countries now have conditional access rules and, at the European level, codes of conduct have been adopted by the EU institutions to define the conditions under which information is made available.

In theory, interested people should have easy access to all information within the European decision-making process with, of course, appropriate exemptions for matters of national security and public safety. In practice, the current system of codes is inadequate and virtually useless.

The most secretive area of political life in Europe lies, not surprisingly, within the confines of the Council of Ministers, which acts as a legislator, adopting rules which are legally binding on member states through regulations, directives and decisions.

If citizens want to know what is going on, they must have access to the Council.

After considerable public pressure and a disastrous public relations performance during the ratification of the Maastricht Treaty, the Council finally agreed a code of conduct two years ago.

This code permits a very limited form of openness. Documents used in discussions leading up to legally-binding Council decisions are still kept secret. The public has no access to a general register of Council or Commission documents.

Although it has been agreed that a minimum of two public debates will be held every year, holding a discussion in public requires a unanimous decision by the Council and any country can veto such a move.

Naturally, it is one thing to promise access to information, but quite another for people to be able to actually get their hands on documents, no matter how dull they may be.

A profound lack of political will to open up the decision-making process to public scrutiny has led to a series of court battles. One of the first in the ring was The Guardian newspaper in London, which appealed to the Court of First Instance in Luxembourg after the Council refused to hand over minutes of meetings of justice, social affairs and agriculture ministers.

After a lengthy fight, The Guardian won.

The Court gave a clear warning to the Council that obsessive secrecy could infringe Community law and said that whenever refusing a request for information the Council must “weigh up the balance of disclosure against confidentiality”.

In spite of this clear direction that the public interest in disclosure should be a matter of priority, it appears no one was listening.

The Swedish Union of Journalists entered the fray against the Council last spring by requesting 20 documents dealing with Europol. At the same time, the journalists' union also asked the Swedish Justice Ministry and the Police Authority for the same 20 documents.

The result was, by any standards, an indictment of the climate of secrecy in which the Brussels mandarins work.

The Swedish authorities handed over 18 of the documents, while the Council agreed to release only four. The latter said, extraordinarily, that to release the other 16 documents would compromise public security.

Take it from me, the absurdity of this position is confirmed by an examination of the released texts, which shows them to be harmless.

Although it might be laughable to some, it appears European citizens would certainly learn more about what is going on in Brussels if the Council's code of conduct was operated by the Swedish police force.

The Swedish journalists are now taking the Council to the European Court of Justice and have won the support of Danish and Dutch governments, as well as their own, in their fight for greater openness. On the other side, the British and the French governments have declared themselves in favour of secrecy.

This line-up reflects the strength of different national traditions.

The admission of Sweden to the Union, for instance, has brought into play the Swedish law on public access to governmental documents which dates back to 1766.

By contrast, the culture of secrecy in France and particularly the UK is well established and changes are slow and painful in the making.

Just how much more pain we can expect is revealed in the British response to the European Court of Human Rights in Strasbourg, which recently condemned the UK for forcing a journalist, Bill Goodwin, to reveal his sources of information.

It was the latest in a series of legal defeats which has exposed the UK's failure to fulfil its obligations under the European Convention on Human Rights.

The British government's response has been typically robust. A paper is now circulating which suggests that members of the Council of Europe should agree to clip the wings of the court.

It is with this in mind that journalists from all over Europe are travelling to Dublin next week for a meeting to prepare a model EU-wide law of access to official information.

The 26 April meeting will take place in a country which, after a number of high-profile court cases involving investigative journalists, now has a freedom of information law in the pipeline.

At the same time, the Council of Europe's council of ministers is considering an addition to the European Convention on Human Rights to guarantee the citizen's right to know.

This initiative is long overdue.

It is clear that, as things now stand, neither the European Convention on Human Rights nor European Community law provide a sufficient legal basis for wringing information out of those who want to deny us access.

Until this is remedied, the project of European unity will remain flawed and incomplete, and there will be little hope of rebuilding citizens' confidence in the EU.

Aidan White has been the Brussels-based general secretary of the International Federation of Journalists since 1987. He is also chairman of the European Commission Information Society Forum working group on democratic and social values.