Dr. James Cross:

I thank the Chairman and members for the invitation. I will address the issue of transparency and speak on the research I have done on this topic in the European Union and the Council of Ministers in particular.

Let me set out the context and what we mean by transparency, which will give members a grounding in the concept that will help the discussion. The definition in the literature is that transparency is the availability of regime relevant information. It is about the link between the internal politics of the European Union institutions and outside audiences, be they citizens, the media or indeed national parliaments. There is an idea that there should be an ideal level of transparency that would allow outsiders to monitor the internal politics of any institution. This ideal would give us information as outsiders about what is said at any given meeting, who said it, when it was said, why it was said and, probably most importantly, where information on all of the above can be found or, ideally, easily found. The second point is that transparency on its own is not enough. It is certainly a prerequisite for accountability but it does not guarantee it. Just because we have information does not necessarily mean that decision makers will be held accountable. It is certainly a prerequisite for doing so.

What is the EU's regulation on transparency? It is the famous Regulation (EC) No. 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents states that all EU institutions should release all records relevant to the decision that they make and do so in a timely fashion. When one reads it, one thinks it will lead to a very transparent decision-making process, but in Article 4 of the regulation, the exceptions are listed. Most of the exceptions are pretty reasonable. There are exceptions to transparency when it might affect: the public interest regarding public security, defence and military matters, international relations, the financial, monetary or economic policy of the Union or a member state; the privacy and the integrity of the individual; commercial interests; court proceedings and legal advice and inspections, investigations and audits. There is also this idea that transparency can be denied when it is in the interests of protecting the institutions' decision-making processes. That is a broad exception and it is used all the time to deny access to information.

How is this regulation being applied over time? This is a figure taken from some research I did with a colleague that was published in 2015. Members can see from the slide the position on Council transparency over a period. The graph shows the percentage of documents that existed that were released at any given time. Our first dotted line is when the Regulation (EC) No. 1049/2001 is agreed. It came into force in May 2001. As members will see, there is a significant drop in censorship over time at this point which we can relate to the regulation.

As we move from 1999, there is a decrease in the level of censorship and thus an increase in the level of transparency. It only goes up to 2010, but I have no reason to think the picture has changed too much. We see that, on average, between 80% and 90% of the documents produced by the Council are released. This gives the impression that it is quite transparent, but I argue that that is probably not the case in practice. We have access to the documents, but whether they are useful is an open question.

The second graph indicates the number of days between a document being drafted and being released. Again, the first two lines indicate where the transparency regulation came into effect. We can see that at this point there is an increase in the timeliness of the release of information. Therefore, we certainly had more timely access to records by 2001. However, as we move through the years between 2001 and 2010, we see that, on average, there were still probably about 300 days between the drafting of a document - when it was available internally - and when it was publicly released. As members can imagine, if takes 300-odd days, on average, to gain access to information, it will not be very useful in trying to keep up with negotiations that are current.

What have been the overall effects of the 2001 regulation? We certainly have more information than we had before, but as we have seen, records are not supplied in a timely manner. As an outsider, this makes it really difficult to follow what is going on in the institutions.

A second issue is that records fail to explicitly link the positions taken at meetings with the individual delegations that take them, that is if the positions taken are recorded at all. If we look at the documents released, usually they are just drafts of the legislation under consideration, without much information on the positions delegations are taking. That is problematic also.

If an outsider wants to find information on ongoing discussions at the Council of Ministers, he or she must go through the document register which is Byzantine in nature. I spent the time doing my PhD battling with this website and still do so today. It is not intuitive. It is difficult to navigate for someone who does not have the time and patience to go through it. In practice, the level of Council transparency is not very high, despite the fact that all of these documents are available.

Moving to the Ombudsman's recommendations, the good news is that the Ombudsman has flagged a lot of these issues. The Ombudsman's report points out that records tend to be released after negotiations have finished when it is too late to do anything about a decision. It also flags the overuse of the LIMITE status of documents, a way the Council it uses to keeps documents to be used for negotiation purposes only away from the public eye until a decision is taken. The Ombudsman has flagged that there is inconsistent recording of delegations' positions. Therefore, even when someone gain access to a given document or record, it does not tell him or her which delegations are taking which positions. I have spoken about the Byzantine nature of the document register. On the basis of these findings, the Ombudsman recommends that the Council take a more systematic approach to recording delegations' positions and needs to develop clear criteria for the use of LIMITE status and review documents given LIMITE status before negotiations conclude rather than looking after the fact at releasing them.

What is my reaction to the report? If implemented, would the recommendations actually improve the position? It is important to note that there might be positive and negative effects. Let us suppose we increase the level of transparency such that the Council gives better access to records and has better systems for recording delegations' positions. Potentially there are positive effects because the increase in the level of transparency will increase the potential for publicity, for example, by outside media taking an interest in proceedings. This, in turn, will help to advertise the decisions being made in a timely fashion and provide potential for accountability on the part of decision makers. It would go some way towards addressing the potential democratic deficit about which we often hear in EU decision making.

Another potential effect of increasing the level of transparency is that when actors take positions and know they will be on the record, they will generally be more credible. Therefore, it would be harder to back away from position taken publicly. Perhaps that is something we want.

There would also be negative effects. Increasing the level of transparency means that when decision makers are in meetings, they will know that there is a potential audience monitoring ongoing negotiations. This would provide incentives to grandstand and take artificially extreme positions because they would be playing to a domestic audience. This, in turn, could make reaching a compromise difficult. If we want to have an efficient EU decision-making process, we want reaching a compromise to be easy.

Another effect is that it could push the real negotiations outside the committee room. If decision makers know that proceedings of a meeting will be on the record, what tends to happen is that they will broker a deal outside the room beforehand, go in and announce it. Therefore, the quality of deliberations in the room can suffer.

What about having less transparency or maintaining the status quo? It would have the opposite effect. If there was less transparency, there would be no potential audience and fewer incentives to grandstand. This would be good and make reaching a compromise easier and there would be delliberations of better quality. The negative effects also involve the opposite. Less or no transparency means no potential publicity, no accountability and less democratic decision-making. These are the things to consider when taking a position on transparency in negotiations at the Council and in general.

What can I conclude? The 2001 regulation has certainly worked. The Council is more transparent than it was. Is it transparent enough to hold decision makers accountable for the decisions they make and the positions they take? I would say almost certainly not, given how the system is run. Should the level of transparency be increased or should we pursue or advocate for increased transparency? As I said, there would obviously be trade-offs and it would depend on one's perspective of them, but, in general, I argue that increased transparency would be better because it would provide for accountability. We will always have exceptions in place. That will allow for extreme situations where one needs to protect the decision-making process, but, in general, the Council should be encouraged to be more transparent and provide information on ongoing decision-making processes in a timely manner. It is important to note that on its own transparency is not enough. Just because we have access to information does not mean that citizens will become more engaged. It is potentially the case that it could happen. If someone is interested, he or she can find this stuff, but that is not a solution to the problem of the democratic deficit.