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