Secrecy at EU level is a challenge to democracy

The president of the European Commission, José Manuel Barroso, said recently: "More Europe does not mean more Brussels!" He did not say what more Europe does mean: more summits and less democracy.

It means more private executive decision-making in various high-level summits by national leaders – more Europe as a “safeguarded sphere”, safe from popular democracy. The new zeitgeist is thus anti-democratic, even though there is an indirect link through prime ministers to national electoral processes.

It has long been a myth that increasing centralisation is largely attributable to over-zealous Eurocrats in Brussels, Luxembourg and elsewhere. But it's also due nowadays to officials and ministers in London, Bonn, Dublin and the other capitals. The real democratic challenge is the lack of democratic accountability of national prime ministers in the European Council and other ad hoc summits. National parliaments are increasingly eclipsed by powers assumed
by national executives at European level.

Comparative research
And recent comparative research suggests the Dáil is one of the worst national parliaments in terms of exercising any democratic control over what is agreed by taoisigh in European Council and euro zone summits. If it is not clear who takes decisions, how and where, how can the executive be held responsible, to whom, and on what?

In the aftermath of the financial crisis, executive power is also increasingly being exercised completely outside the EU under general international law, avoiding to a very considerable extent supranational actors such as the European Commission, the European Parliament and national parliaments without effective democratic checks and balances.

British minister for Europe David Lidington in Berlin recently spoke of the “crisis of democracy” facing the EU. His solution – even more executive dominance, more power to more frequent meetings of the European Council.

And his reasoning? Only national governments are democratically legitimated and accountable.

He is not alone. It’s a view shared among the national governments, especially those whose parliaments are not engaged in a sustained struggle with them to prise out more information and debate. It takes no account of the real problems faced by parliaments keeping up with the acceleration of executive decision-making as well as its secrecy.

Parliaments struggle to exercise scrutiny over what their ministers agree in Brussels because of the working practices of both the European Council and the linked Council of Ministers and their secrecy rules.

Those national governments that concede to parliaments "non public" ("limited") documents tend to require that the relevant committees will study them in secret. In Finland alone the constitution provides unlimited access to information for the parliament. Yet many of the Finnish Grand Committee meetings are held behind closed doors.

Private sessions
The rules mean that even if governments give access to documents to their parliament (the Dutch government has done so recently) the latter must effectively hold private sessions. Dutch minister of foreign affairs Frans Timmermans admitted to the house of representatives recently that the internal rules of the council take precedence over national rules and so parliament was to keep the documents "secret" even though they are not classified at any level.

In most countries the rules on the dissemination of information allow for an "executive privilege" exemption. In the Netherlands, for example, the government is formally obliged to provide all information "unless such provision of information contradicts the interest of the state " – but the executive decides what is the "interest of the state".

The interest of the state is then that its parliament cannot discuss publicly unclassified information because of internal EU-level rules. Those rules are not legislative in nature, and so were never publicly discussed.

Moreover, the government co-agreed them at the European level without any prior discussion at the national level.

The public interest of the EU thus apparently does not include the interests of parliaments or of the citizens in publicity, or any balance between the interests of openness and the necessity for secrecy.

Yet an unfettered discretion for unnecessary secrecy is highly problematic in a democracy.

Why should parliaments accept unilateral executive control over so-called sensitive information which takes no account of relative values of secrecy and openness?

Parliamentary defiance in Europe may be needed to recalibrate a new means of pursuing the European project in public. This is the challenge for European democracy in the 21st century.

Deirdre Curtin is professor of European Law at the University of Amsterdam