Secrecy is universally appealing. And understandably so: it conceals what individuals and organizations care most to protect: “the dangerous, the shameful, the source of power”. Yet, even in democracies there often seems a legitimate need for at least some secrecy in decision-making. Where does the need for secrecy come from in the European Union and how must it be reconciled with the democratic aspirations of the EU?
By Vigjilenca Abazi, Nik de Boer, and Maarten Hillebrandt
These questions were addressed in an interdisciplinary workshop organized by the Amsterdam Centre for European Law and Governance on Thursday 20 June. The workshop brought together scholars from across Europe focused in particular on the democratic concerns that the use of secrecy brings. In the current political context of leaks, privacy concerns and an unprecedented technological capacity to store data, the question of what place secrecy has and should have in democratic societies is more pressing than ever.
What is Secrecy?
One of the primary goals of the workshop was to discuss more thoroughly what we mean when we talk of secrecy. Claire Birchall (King’s College London) made a convincing case of how secrecy should be analyzed beyond the dichotomy of secrecy and openness. In her Keynote Lecture entitled “Postsecrecy”, Birchall elaborated on the different meanings that are given to secrecy in different fields, ranging from anthropology to history or political science. There is no overall definition but secrecy can be seen as intentional concealment.
Beyond the understanding of the notion as such, secrecy paradoxically contributes to the creation of a public – “there is someone who wants to know” – there is a subject that unifies because it is excluded from the inner circles of secrecy.
Birchall emphasized that transparency should not be about bringing more data out in the open, but about achieving an engaged public concerned with maintaining both security and democracy.
Bureaucratic Secrecy: a necessity?
The first session looked more closely into how secrecy arises in the context of European governance, particularly in relation to the role of the Council in its legislative but also executive capacity. James Cross (ETH Zurich) presented his research about the point at which censorship appears in the EU.
The workshop benefited greatly from direct insights of an experienced official, Bart Driessen (Legal Service of the Council). In his exposé, which aimed to “debunk some myths” about the debate on openness and secrecy, Driessen elaborated in detail on the Council arrangements for protecting sensitive information.
Frank Hage (University of Limerick) talked about Council transparency practices. He argued that a certain degree of access is required for purposes of accountability. However, from his research, he concluded that vast differences exist in the manner in which the Council deals with these requirements. A prominent example is provided by the vast differences in the timing of disclosure between different legislative processes. Moreover, the Council’s register, which is difficult to navigate for non-experts, can be seen to form an obstacle in the divulgence of information.
Security and Secrecy: Intrinsically linked?
Security is the most often invoked reason for keeping secrets in a democracy. Some of the secrets in this field, such as keeping secret a military plan or intelligence report are perceived as legitimate secrets. Nonetheless, concerns arise that in areas where it is of vital importance for citizens to be informed about the course of action taken, they remain uninformed and cannot develop a public debate. In the second session, two particular points of security and the EU were addressed: law enforcement intelligence and secret evidence.
Intelligence agencies play an important role in security, mostly by gathering and sharing information in order to identify threats and inform how to address them. In this respect, trust and reciprocity are two essential pillars in the area of intelligence cooperation. Monica den Boer (VU University Amsterdam) pointed out the key systems through which information is gathered and shared in the European Union. Den Boer also raised the question to what extent accountability underpins all these developments.
In a similar manner, yet linking the discussion of intelligence more directly with secrecy, Claudia Hillebrand (Aberystwyth University) portrayed the most recent and pressing issues steaming from intelligence.
A key question and one that directly affects citizens is the use of secret evidence in criminal procedures. Whether the use of secret evidence should be allowed requires one to make a difficult balance between ensuring security and taking measures effective for that purpose on the one hand, and safeguarding the fundamental right of individuals to a fair trial on the other. Maya Lester (Brick Court Chambers) gave a highly insightful perspective on this issue in which she drew on her experience as a main representative on leading cases before the Court of Justice of the EU while linking her practical experience to her scholarly writings on the topic.
European Democracy: What place for Secrecy?
Against the background of the issues raised throughout the day, the aim of scholars working on transparency, democracy, and accountability was to raise critical points and questions that should be elaborated in-depth in the future.
Daniel Naurin (University of Gothenburg) spoke about the reasons for transparency and secrecy in EU decision-making. He argued that while transparency may be essential for reasons of accountability, he hesitated whether this should go beyond access to documents after the conclusion of decisions, to also include real-time access to ongoing negotiations. Such access, he pointed out, entails costs which must be taken seriously. Instead of opening up its negotiations, the Council should focus on justifying and explaining its decisions. For this purpose, publicity is in fact more important than transparency: the Council may publish all the documents it wants, but if this information is not picked up by the media and debated by the public, this activity is futile.
Nicolas Levrat (University of Geneva) agreed with his colleague and argued that much more than transparency, democracy requires publicity. “Public actors performing public activities require publicity”. Too much transparency, he argued, makes the actor disappear, leaving only its parts visible. In this respect, Levrat signaled a need for caution about what goes into the Treaty. The Lisbon Treaty freely mentions transparency and democracy without much conceptual precision.
Finally, Deirdre Curtin (ACELG) sought to steer away from questions of transparency and publicity, to look at the wider picture. Today, the Council and the Member States wield an unprecedented amount of executive power that takes many forms. Power is wielded with high salience, impact and visibility but, Curtin held, is not matched by a sufficient democratic infrastructure. She illustrated this argument with the example of Council limité documents, a category of policy documents that does not fall under the security regime, but which is nonetheless withheld from the public. This forces parliaments to discuss such documents behind closed doors. That way, she argued they get “sucked into the EU’s secrecy regime”.
The question of how secrecy should be addressed in the EU and how it is to be reconciled with its democratic aspirations, yields no easy answers. More transparency is not always a solution, yet at the same time many scholars voice concerns about the democratic nature of the EU. The scholars present at the workshop agreed that the political structure of the EU – a supranational body, not a state – further complicates the picture and that the EU still retains elements of a diplomatic rather than a fully democratic structure. Addressing the issue of secrecy and its relation to democracy in the EU thus requires further study from an interdisciplinary perspective.
Vigjilenca Abazi LLM, Nik de Boer LLM, and Maarten Hillebrandt MSc are PhD Fellows at Amsterdam Centre for European Law and Governance.
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