Select Committee on European Scrutiny Fourteenth Report


Legislative meetings of the Council in public

38. There has long been strong criticism of the fact that the Council of Ministers meets almost entirely in private, despite much of its work being legislative. In 2002 we stated that the Council legislating in private was not simply objectionable in principle, but also had specific and harmful effects: it was impossible for national parliaments and electorates to hold Ministers to account if it was not clear how they had acted in the Council; it was easy for Governments to blame 'Brussels' for decisions they might themselves have agreed to; it could result in deals which no Government fully accountable to its own Parliament would have agreed to; and it made the Council, and thus a great part of the EU's activity, largely invisible to citizens. We welcomed the fact that the UK Government was in favour of the Council meeting in public when legislating.[58]

39. The European Council decided at Seville in June 2002 that there would be more Council meetings in public, but the Council still normally legislates in private.

40. We therefore strongly support Article I-24(6) of the Treaty, which provides that:

'The Council shall meet in public when it deliberates and votes on a draft legislative act. To this end, each Council meeting shall be divided into two parts, dealing respectively with deliberations on Union legislative acts and non-legislative activities.'

Article I-50(2) repeats that the Council shall meet in public 'when considering and voting on a draft legislative act'.

41. Professor Ingolf Pernice argued that this 'will change the character of this body profoundly. Ministers will have to express themselves and argue under the direct control of the media, the national parliaments and constituencies, but also of the people and press of other Member States. This will give strong incentives to more intensive public discourse on European matters Europe-wide and underline the Ministers' collective responsibility.'[59] Professor Edward noted that 'It would be less easy to strike deals by which Member State A supports Member State B on one project on condition of reciprocal support on another, unrelated project'.[60] Several submissions referred to the greater ability national parliaments would have to hold their Ministers to account.[61]

Public meetings in practice

42. What we sought to establish during our current inquiry was how public meetings of the Council when legislating would work, and whether there were ways in which the requirement to meet in public might be evaded in practice. There are four areas of concern: defining the business covered by Article I-24(6), and the possible transfer of the real debate into informal settings, into COREPER[62] or into the European Council.

43. The Foreign Secretary told us he had not yet given much thought to the implementation of Article I-24(6).[63] However, Professor Dashwood, drawing on his experience as a former Director of the Council's Legal Service, expected proceedings to take the following form:

'When a legislative proposal is first submitted by the Commission, there will be a public Council debate, in which the measure is introduced by the competent Commissioner and Ministers give their initial reactions. It is obviously desirable that such reactions be coordinated as far as possible. Detailed negotiations will take place, as under present arrangements, within the competent Council working parties and COREPER. It will then, as now, be a matter for the political judgment of the Presidency and of COREPER as to whether, at a given moment, a further debate by Ministers would move matters forward; the [Treaty] seems to require that such debates be public. To be consistent with the spirit of Article [I-24(6)], the meeting at which the Presidency compromise in its final form is debated and agreed in substance, must take place at the Council, not COREPER, level; in the co-decision procedure, that would apply at both first and second readings, and following any conciliation.'

He suggested that the Council agenda could be divided into three parts: 'Part A for the public adoption, without debate, of the A-point list; Part B for public debates on legislative acts; and Part C for policy discussions, where the Council would effectively be behaving like a Cabinet'. Only Part C would be in private, but this might form the whole agenda of some Councils.[64]

44. Professor Edward raised the possibility that the term 'draft legislative act' might not apply to the earlier stages of discussion of a Commission proposal, and thought that this should be clarified. As he pointed out, once a text reaches the final stage of deliberation and vote prior to passing into law, the general principles underlying the legislation have in most cases been agreed long before, and the public meeting might do no more than rubber-stamp a decision already taken.[65] It appears to us that the wording of the Article does cover the early stages of consideration of a text (though not any preceding Green or White Paper), and both the deliberations and decisions, but we agree that this should be clarified.

45. Professor Eeckhout observed that 'Whenever the Council wishes to deliberate away from the public eye it will simply need to avoid having a formal meeting'.[66] Alexander Stubb MEP told us that as a result of the decision made at Seville to increase the number of public meetings, 'many of the main decisions are now taken over lunches and in those lunches even civil servants are kept outside the room'.[67] The Foreign Secretary's view was that negotiations have to be in private 'because if the positions that people are taking and on which they then have to move are the subject of public focus it would be far more difficult to get agreement', and 'you cannot get the ebb and flow of detailed negotiation if it is done under television cameras'.[68] When we argued in 2002 for the Council to meet in public when legislating we recognised that 'any legislative system involves a combination of private negotiation and public discussion', but regarded it as essential 'that sufficient takes place in public for it to be clear what line has been taken by each Member State in the proceedings and where responsibility lies for the decisions made'.[69] We accept that some of the discussion of legislation will inevitably be in private, just as in national legislative systems, but we look to the UK Government to ensure that public discussion is not artificially restricted by shifting most of the discussion to informal meetings.

46. We noted in 2002 that 'The system whereby the Council agrees without discussion "A points" already negotiated by officials in COREPER will need to be reconsidered'.[70] Meetings of COREPER are clearly not covered by Article I-24(6), and several witnesses referred to this problem. For example, Damian Chalmers pointed out that in practice far more has been decided by COREPER than by the Council, that EU enlargement will mean that fewer agenda items can be discussed in the Council, that holding meetings in public might cause Member States to add 'extraneous matters' to the agenda or, conversely, to try to avoid important matters becoming 'B' items (for discussion), and therefore that 'careful consideration will have to be given to developing stronger central criteria for what matters should be placed as "B" items'.[71] However, it is difficult to see what those criteria might be. The Foreign Secretary's view was that COREPER should not meet in public 'because what COREPER is able to do in private is to broker deals', and that 'a lot of the "A" items by definition are uncontroversial'.[72] In this case we consider it best to wait and see whether use of COREPER results in important or controversial legislation not being discussed in the Council, and to seek action if that were to be the case.

47. There is also the possibility of legislation being referred upwards to the European Council, which is not covered by Article I-24(6). As we noted in 2002, although the European Council is not formally part of the legislative process, it sometimes gives directions to the Council of Ministers, or decides on matters referred to it which the Council has been unable to agree, and it therefore ought to meet in public when making decisions on legislation. The Minister for Europe (Mr Denis MacShane) then agreed with us.[73] During the current inquiry the Foreign Secretary stated that the European Council deals with the difficult issues which cannot be resolved by the Council of Ministers, and that 'It would simply, in my judgment, not be possible to reach agreement if you were doing that under the full glare of publicity'.[74] We accept that this will sometimes be the case, but it will be important that legislation is not referred from the Council to the European Council simply so that it can be dealt with in private, and we believe that, at the very least, the requirement for full reports on European Council meetings by the Prime Minister and the opportunity for sustained questioning of him will be increased.

48. It is clear that little thought has yet been given by the Council to how it would implement the requirement to meet in public when legislating. We are confident that legislating in public will have highly beneficial effects by making the Council more visible and its proceedings more transparent, and also, for our purposes, strengthening scrutiny by national parliaments and the accountability of Ministers. We note, as we did in 2002, that there are ways in which the Council might seek to minimise public debate, but we are not yet able to assess whether it will seek to do so and to what extent this might remove the benefits expected from Article I-24(6). We ask the Foreign Secretary to keep us informed of the Council's discussions on this matter, and suggest that he make a statement to the House on the subject when more is known.

Practical aspects

49. In 2003 we called for the Council to produce an official transcript of its public debates, on the grounds that this would make its proceedings more accessible and assist in making Ministers accountable.[75] Richard Corbett MEP considered that the Council might itself wish to do so in order to have an agreed and accurate record.[76]

50. Statewatch argued that 'a public meeting should mean just that: a meeting which the public can observe live on television, radio or the Internet or even attend (subject to the limited seating which can be made available)'.[77] It is certainly essential that the proceedings are not accessible only to those few people who are able to be physically present in Brussels at the appropriate time. Interested citizens will also need easy access to the relevant Council documents. We recommend that the Government press for public meetings of the Council to be broadcast and webcast and for there to be an official transcript.

51. The Federal Union noted that at present in the Council 'amendments and proposals arise for agreement during the meetings themselves and there have been occasions of genuine uncertainty about what is being proposed and discussed'. It wanted 'a more orderly legislative process', and particularly the publication of legislative proposals and amendments in time for analysis and scrutiny before formal decisions are made.[78] We and our predecessors in previous Parliaments have consistently criticised last-minute drafting,[79] and we agree that 'a more orderly legislative process' is needed. We share the Federal Union's view that public meetings of the Council when legislating will contribute to this.

Timing

52. It would be valuable to have a treaty requirement that the Council meet in public when legislating, but provision in a treaty is not necessary for the Council to do so; it could simply change its standing orders. We believe that doing so in advance of the Treaty being ratified would demonstrate more than anything else could that Member State Governments are serious about increasing the transparency of the EU's proceedings and 'reconnecting' citizens and EU institutions. We recommend that the Government press for the Council to start meeting in public when legislating in advance of the Treaty being ratified, and that it use the UK Presidency as an opportunity to achieve this in 2005.


58   HC 152-xxxiii (2001-02), paras 20-1. Back

59   Ev 125. Back

60   Ev 11. Back

61   e.g. Ibid.; Ev 100. Back

62   The Committee of Permanent Representatives. Back

63   Q 253. Back

64   Ev 50. Back

65   Ev 11. Back

66   Ev 31. Back

67   Q 190. Back

68   QQ 25, 253. Back

69   HC 152-xxxiii (2001-02), para 23. Back

70   Ibid., para 25. Back

71   Ev 104. Back

72   QQ 21-4. Back

73   HC 152-xxxiii (2001-02), para 25; ibid., vol II, Q 286. Back

74   Q 262. Back

75   HC 63-xxiv (2002-03), paras 14-15. Back

76   Q 192. Back

77   Ev 122. Back

78   Ev 100. Back

79   See e.g. HC 152-xxxiii (2001-02), paras 34-5. Back


 
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