Michael Healy-Rae (Kerry, Independent)
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On behalf of members, I welcome Dr. James Cross from the UCD school of politics and international relations. We had a really interesting and good engagement with the European Ombudsman, Ms Emily O'Reilly, a few weeks ago and we have spoken to fellow parliamentarians about an initiative from the Dutch Parliament on demanding more transparency in the context of Council and institution documents. Dr. Cross has done some interesting work and research in this area, so we are looking forward to the engagement today.

Before we commence, I must advise the witnesses that by virtue of section 17(2)(l) of the Defamation Act 2009, they are protected by absolute privilege in respect of their evidence to the joint committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person or body outside the Houses or an official either by name or in such a way as to make him or her identifiable.

I invite Dr. Cross to make an opening statement and then we will have a question-and-answer session.

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.

Michael Healy-Rae (Kerry, Independent)
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We really appreciate Dr. Cross's contribution.

Gerard Craughwell (Independent)
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I thank Dr. Cross for coming before us. It was a most interesting presentation. If those of us on the outside looking in and arguing for greater transparency had access to every document related to the European Union, would we be able to cope? It is my view that we probably would not. From Dr. Cross's use of the website, is it meta-searchable? Can we cross-reference one search word to drag documents from the different parts of the European Union? Is such a facility available? If it was, what would the pick-up be? I know that Dr. Cross studied for his PhD, but what about the nerds and keyboard warriors sitting in their bedroom late at night looking for things to prove once and for all that it is all a conspiracy and that "they" are out to do us one way or another? I know that the Ombudsman has worked hard on the issue of transparency, but having attended European meetings, I can say that given the sheer volume of documentation produced - as I see Dr. Cross nodding his head, he obviously agrees with me - a person would need to be able to zone in on a specific topic just to follow it to hell and back. Dr. Cross said it all for me when he said that on its own transparency was not the solution to the problem of the democratic deficit.

The democratic deficit is the current threat to the European project. If we had every document under the sun, conspiracy theorists would still believe something was being held back. When one is negotiating, one has to hold documents back. Has Dr. Cross come to any conclusion as to how this will serve the public? Moreover, does the public actually care?

Terry Leyden (Fianna Fail)
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I welcome Dr. Cross to the meeting and thank him for coming. He has put a lot of work into this matter. I can only offer my own practical experience. It has been some time since I was in the Council of Ministers but I had responsibility, delegated by the Government, for the Single European Act, SEA. At that time, I was not fond of too much transparency and scrutiny. The British Government was represented there at the time, and we went around the table to deal with issues.

The situation then was that one went to Brussels the night before a Council meeting. One would be briefed by the Irish ambassador and the advisers from each Department relevant to the negotiations. The talks could concern an educational matter, such as recognition of qualifications. They could concern telecommunications or freedom of movement of goods and services. All sorts of derogations would be discussed. The United Kingdom Government worked very well with the Irish Government on issues in regard to which we were basically in the same situation. We worked together to get results. Frankly, I do not know if too much transparency would be of great benefit to the member states. However, I understand circumstances have changed and there is far more transparency now. The late Dr. Garret Fitzgerald once said to me that when writing his memoirs he was sorry he did not keep all the documents from European Union negotiations during the Irish Presidency of the EU Council. I said to him that nobody would want to read them, quite frankly, because they are boring documents, and there is an unbelievable amount of material. I understand there is a bit more transparency now.

I do not know whether audio or visual recordings are made of meetings of the Council of Ministers. Dr. Cross might be able to answer that. I do not know whether such recordings available, which would be very transparent. Many county councils, including Roscommon County Council, now record their entire meetings. What happens at that level is very transparent, and it has changed the structure of the council. I was watching a meeting the other day, and I was quite impressed by the contributions of the members when the cameras were there and the meeting was being published online. What is happening there now? I do not know the current situation. I was in Brussels when Dr. Cross was completing his PhD.

This is an interesting and complex area. People want more transparency. That said, different countries have different approaches. In the case of some Scandinavian countries, everything is agreed in discussions with Ministers before they go to Brussels. There are no doubts about their decisions. Denmark is one of the countries with very strong views. What the Danish Government does and does not do is very transparent. That is just my observation and I would like to hear Dr. Cross's views.

Bernard Durkan (Kildare North, Fine Gael)
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I thank our guest for carrying out the study, and for the presentation of his information. My question concerns the benefits of total transparency in this area versus the negatives. While it might contribute to democracy in one sense, it might create problems in another. It has been suggested from time to time over the years that the more transparency is required, the less people in executive positions are inclined to take decisions and put their name on the line. Is there a danger that a greater degree of transparency might slow down what is an already relatively slow process at European level? Would the bureaucrats that we regularly complain switch from moving slowly to not moving at all?

Alternatively, they might move more quickly to seize the high ground on positions where it might not necessarily be beneficial to the member state. For example, my colleague made reference to Danish and Swedish positions on certain issues. Some years ago in this room I asked a delegation from Sweden how they reacted to a decision taken at the Council of Ministers. I found out that the Swedish Minister was mandated by the European affairs committee in his homeland. To my mind, that was not of any great benefit to the rest of the European Union. We must consider how the Union works, and whether it works for the benefit of the entire Union, having regard to each of the constituent bodies, or works at the behest of a member state and its own particular, perhaps parochial, interests. There would a danger of parochialism in those circumstances. In the course of his examination, did Dr. Cross find evidence that a member state could influence decisions taken at meetings of the Council of Ministers to a huge extent, above and beyond their status? I am worried about that, as I have previously expressed.

Dr. James Cross:

I will start with the questions of whether just having access to information is enough and what we do with all of this information. The status quois that the provision of records is almost like an information dump. The records are not well linked. The European Parliament is slightly better, in that one can carry out meta searches and find the areas one is interested in. The Council does not have this facility. It provides records in permanent document format, PDF. They are generally not searchable. They are available in a document register. Users can carry out keyword searches, but because it is not a very advanced document register, one invariably gets a thousand results for every search. It is hard to sort what is relevant from all the other information. It is almost as though by providing so much information the institution is becoming less transparent, because it is not clear what is relevant and what is not. That is definitely a problem, and I think the EU Council could do a lot better by having a more intuitive search function to help explore the information than it does now.

If the whole process was made more transparent, could it be misused? This recalls the famous image of the hacker sitting in his bedroom, looking to undermine the Union. I do not think there is that much nefarious information in the documents as they currently stand. Of course, the European Ombudsman is proposing to change that and wants positions to be better recorded than they currently are, and for the identities of those taking positions to be recorded. That could give more information to individuals with nefarious ideas. However, if the actors involved are taking positions that are against the public interest, that should be public information. The overall benefit of making the process more transparent probably outweighs the costs.

Moving onto Senator Leyden's observations, I note that there is a difference with negotiations at the highest level, for example, those pertaining to the SEA. Generally these are treaty negotiations and things like that. They are never going to be very transparent, and that is because room for compromise is needed. Access to that information will never be provided in a timely manner. I would not endorse doing so, because I think it would do more harm than good. It would open up issues that need to be negotiated in closed door settings, at least where high-level decisions are concerned. However, we are not just discussing those negotiations, but also negotiations over secondary legislation, which I would say is much less politicised but also has a very important impact.

A huge percentage of Irish legislation now comes from Brussels, as we know. We need information on how that was decided and whether our representatives fought the good fight, got their way and managed to influence people. We do not have that at the moment. We have no idea. It is difficult to hold decision makers accountable for decisions. That is true across the board whether one likes the decision or not.

On the question of whether Council meetings are recorded, they are. Anyone interested in such things can watch the proceedings of the European Council on its website. However, if this was actually done, it would show some of the positive and negative effects of transparency that I mentioned in my opening statement. The delegations will stand up and read out prepared statements. There is no deliberation going on. All the decisions have been taken outside of the room. This is just representatives standing up and reading out positions. Then there is a vote. However, it all is pre-ordained, almost. It is not very informative for anyone trying to follow how decisions are made.

It is a pity because in theory, providing public access to these meetings is a good thing. However, the effect is that decisions are taken outside of the room and then prepared statements are read out. That is probably part of politics at the highest level. Generally, what happens at the ministerial level is that much of the details have been threshed out by the working groups and the committee of permanent representatives, COREPER, beforehand. We know little about how those decisions are made in those contexts and having a bit more transparency around those meetings would be very informative.

The Scandinavians tend to be quite transparent. They are used to the process of transparency and would say it is a better way of running Government. The French have a different idea on transparency and access. As has been said, there are these different cultures of transparency in Europe. That is certainly the case.

On the costs and benefits on total transparency, Deputy Durkan is absolutely right. When decision makers know they are on record, they are sometimes more reticent to take positions than they would be in closed-door settings, which can be problematic. However, it can also be a good thing because at least we know the positions they are taking when they take them. The point is that there is a trade-off in this regard and one must figure out what is one's position on that. As for whether it can slow down negotiations, yes there is a lot of work extant suggesting that if transparency is increased, it can have a negative effect on the efficiency of decision-making processes. We are back to the idea that when decision makers know they are on record, they are more reticent to take positions. However, perhaps that is a good thing. Perhaps the EU to date has been too good and too efficient at making decisions and it is putting out legislation that has not been debated properly and of which the public is not aware. If the process was more transparent, and they were aware, then maybe these decisions might not be made. That is another thing that has to be weighed up. Efficiency has its costs as well. It can lead to legislation and decisions that do not reflect the will of the people and what the citizens would be interested in.

Michael Healy-Rae (Kerry, Independent)
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I thank Dr. Cross for all that engagement. It is appreciated. Every witness that comes before this committee brings his or her own information which we appreciate, and in the case of Dr. Cross that includes his research and the work he has put into the background to this. We have it on record now and that is important for reference in the future. We appreciate Dr. Cross's time. We will suspend the meeting now to allow Dr. Pat Ivory from IBEC to join us.