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Memorandum submitted by Rt. Hon Margaret Beckett MP, Secretary of State for Foreign and Commonwealth Affairs

 

Thank you for your letter of 7 February in which you asked for written evidence on the arrangements for the preparation, consideration and approval of Conclusions of the European Council and the Council of Ministers. You also wrote to Hilary Armstrong asking for a Cabinet Office contribution to your inquiry. As agreed by FCO officials and your Committee Clerks, attached is a Government response incorporating FCO, Cabinet Office, DWP, DTI and Home Office views.

 

You asked that the written evidence focus on two case studies; the JHA passerelle and the Informal Meeting of Employment Ministers 18-19 January. These issues are covered in the attached papers. I hope these are useful to your inquiry. You have also recently requested additional information on the conclusions of international organisations.

 

I am copying this letter to the Chairman of the Lords EU Select Committee; the Clerks of both Committees; Tom Hines, FCO Scrutiny Co­ordinator; Tammy Sandhu, FCO Parliamentary Relations Co-ordinator; and to Les Saunders at the Cabinet Office European Secretariat.

 

The role of Conclusions in the work of the Council of Ministers and the European Council

 

1. Conclusions are an important part of the work of the Council of Ministers and the European Council. They have no formal legal status, and their role and purpose is not defined in the Treaties nor in the Council Rules of Procedure. Instead, a way of working, broadly understood within the institutions and Member States, has been established over time.

 

2. There are three basic forms of Conclusions, each with its own method of preparation and a different political status.

 

A. Presidency Conclusions.

 

3. Presidency Conclusions are the least formal of all the "Conclusions", are not legally binding and can be on any subject. Their only role is to serve as a public summary of a discussion that has taken place between Ministers. As such they are sometimes used by the Presidency as an output from informal meetings of Ministers (often called "Informal Councils" although they do not have Council status). Whilst broad themes of informals will be part of the Presidency programme the actual focus of the topic for discussion may not be determined until just before the meeting. Outcomes will vary according to the wishes of the Presidency - who may or may not choose to prepare Presidency conclusions.

4. They are rarely negotiated with delegations, or agreed by them. Instead their content is solely the responsibility of the Presidency (though the Commission is often consulted, and sometimes the Presidency Troika). They are normally only shown to delegations on the day of the Council meeting and often only at the end of the meeting, when they are made public.

 

5. Presidencies will often use their Conclusions to highlight what they see as particular aspects of a discussion for example, to bring out a particular theme of their Presidency or in the case of "informals" to place the discussion in the context of more formal deliberations going on elsewhere. However Presidency Conclusions do not represent a position of the Member States or the Council, and if the Presidency seeks to portray them as such Member States routinely object, particularly where there are substantive differences in view.

 

B. Council Conclusions.

 

6. These set out the policy position of the Council of Ministers on a particular issue. A draft is drawn up by the Presidency, with the help of the Council Secretariat and sometimes in consultation with the Commission. This is normally presented to a Council Working Party between two and four weeks ahead of the meeting of the Council at which the Presidency wishes the Conclusions to be adopted. The text is then the subject of detailed negotiation between delegations in the Working Party and in COREPER. Many sets of Conclusions, particularly in the area of external relations, are agreed at this level and passed to the Council for adoption as 'A' points (ie they are adopted without discussion because they have been pre-agreed). However where agreement on one or more points of substance cannot be found at this level, negotiations on the text will continue at Council. Council Conclusions are adopted by consensus between the Member States

 

7. Council conclusions are not legally binding but constitute a political commitment on the part of Member States. The initial drafts of the Conclusions are not systematically shared outside the Council, and the UK is bound by rules and obligations to respect confidentiality. They are not normally released to the public until after the final text, which is made public has been adopted. Even when these documents are made public the positions of individual Member States are normally excised.

 

8. The Council is generally cautious about adopting Conclusions on issues where a Commission legislative proposal is already being discussed.

 

C European Council Conclusions.

 

9. The European Council is not a legislative body and does not take legally binding decisions. Its Conclusions are a particular form of Presidency Conclusions. But they have a special status, consistent with the European Council's role, set out in Article 4 TEU, in shaping the EU's internal and external policy agenda;"...The European Council shall submit to the European Parliament a report after each of its meetings and a yearly written report on the progress achieved by the Union". The endorsement of European Council Conclusions by Heads of State and Government gives them a particular political resonance. Many of the highest profile decisions the Union takes (for example on future financing or enlargement strategy) are set out in European Council Conclusions. Any European Council Conclusion which needs to be implemented through a legal measure must be followed up through the appropriate normal decision making procedures under the Treaties or by Member States themselves. The rules governing the preparation of the European Council Conclusions were regularised in the Annex to the Seville European Council Conclusions. The established practice, building on those rules, is as follows:

 

- The Presidency produces a draft annotated agenda giving the headline topics for discussion approximately six weeks ahead of the European Council. This draft is discussed at COREPER and then adopted by consensus at a General Affairs and External Relations Council (GAERC) about 4 weeks ahead of the European Council. Normally the Presidency draft is changed to take into account the priorities of other Member States. The draft-annotated agenda is classified as a LIMITE document, but the final agenda is made public at the GAERC. The General Secretariat has described LIMITE documents as: "Documents whose distribution is internal to the Council, its members, the Commission and certain other EU institutions and bodies."

 

- The Presidency then produces successive drafts of the European Council Conclusions (i.e. about 3-4 weeks before a European Council) aiming to narrow the differences between Member State views. These are discussed at successive COREPER meetings before being put to the GAERC which meets at the beginning of the week in which the European Council is held. These drafts are all classified LIMITE.

 

- Taking into account the debate amongst Foreign and Europe Ministers at the GAERC, the Presidency produces a final draft of the European Council Conclusions at the European Council itself. These are discussed in detail by Heads of State and Government. Foreign Ministers are present and contribute to the debate. The final text is adopted by consensus and normally published on the Council Secretariat website the same day. Presidencies are increasingly determined to ensure that only subjects actually discussed by Heads of State and Government feature in the Conclusions themselves.

 

The relationship between different kinds of Conclusions

 

10. Key elements of Council Conclusions and Presidency Conclusions are often used to prepare the ground for European Council Conclusions, both to ensure that the Ministers responsible for a particular policy area have an opportunity to consider the issues before Heads are asked to opine and to identify potential areas of conflict and disagreement with a view to finding solutions. This is particularly true of the Spring European Council, where a range of different Council formations make a contribution to reviewing progress on the Lisbon Agenda.

 

11. The Presidency, when drafting European Council Conclusions text, will often seek to incorporate language from Council Conclusions and, sometimes Presidency Conclusions. Equally where Member States are particularly attached to relevant language agreed in Council Conclusions they have a firm basis for which to push for a similar (though often shorter) text at the European Council. In the case of Presidency Conclusions it is normally relatively easy for Member States to resist borrowed language which they do not support, precisely because there is general acknowledgement that these texts are not politically binding.

 

12. Where language is borrowed from Council Conclusions, it is much harder for Member States to resist or strengthen language which they have agreed at Ministerial level, provided it is quoted in a balanced way, though it is by no means without precedent. Also, if a Presidency wishes, for political reasons, to pursue a more or less ambitious text at European Council, their control over the drafting process allows them to propose the text in the terms that they prefer to Heads of State and Government.

 

Roles

 

The European Parliament

 

13. The European Parliament has no formal role in the production of any of the three types of Conclusions, though EP delegations frequently attend Ministerial Informals and the President of the European Council makes a key note address to the European Parliament. The European Parliament has a range of instruments outside the legislative process, such as resolutions and own initiative reports, to put forward its views. The European Parliament President attends the opening sessions of European Councils.

 

14. The European Parliament has gained extensive legislative powers since the Maastricht Treaty of 1992. It is now a co-decider with the Council in 80% of EU law making. The key role of the European Parliament is therefore in the implementation of European Council Conclusions. This role ensures that although the European Parliament does not have a formal role in the preparation of Council Conclusions, its legislative power ensures that it does influence the Commission, as the initiator of legislation, as well as the Council.

 

The European Commission

 

15. The Commission has no formal role in the preparation of Presidency Conclusions although it is likely to be consulted by the Presidency. The Commission has a seat at the table at the individual Councils and during the preparation of Council Conclusions, but it cannot block their adoption. Where it does not support Council Conclusions it will normally make a public declaration to that effect. Both the Commission and Member States use statements to the minutes to clarify their national position of a particular issue, normally on legislative proposals but sometimes on Conclusions. The Commission does not consider itself bound by Council Conclusions, however, as any proposals they bring forwards will have to be agreed by the Council, the views of the Council do have a very significant impact on the future direction of Commission policy-making. Conversely as the President of the Commission is a member of the European Council achieving consensus within the European Council includes securing his/her concurrence with the text, as well that of all the Member States. The Commission considers it has a particular role in finding consensus.

 

The Council Secretariat

 

16. The Council Secretariat has a substantial role in drafting texts for both European Council Conclusions and Council Conclusions. However the role the Secretariat plays does vary according to the requirements of an individual Presidency.

 

Coreper

 

17. Coreper has a substantial role in discussing and, where possible, agreeing texts in advance for both the European Council Conclusions and Council Conclusions.

 

Ministers in sectoral Councils

 

18. Draft Council Conclusions would normally be considered by the appropriate sectoral Councils. Council Conclusions are sometimes submitted to European Council, including at the Spring Council for discussion of the Lisbon Agenda.

 

Foreign Ministers

 

19. The GAERC has a substantial role in preparing the European Council Conclusions as well as producing its own Council Conclusions. Foreign Ministers are present at the European Council and contribute to the discussions. Given the important role played by Finance Ministers in pursuing economic reform, they have a key part to play in discussions of the Lisbon Agenda. This is reflected both in the preparation of Ecofin (Financial Council) key issues papers and in the Finance Ministers attendance at the Spring European Council.

 

Heads of State/Government

 

20. Heads of State formally approve European Council Conclusions, but normally only discuss matters on which agreement has not already been reached.

 

The intended purpose and actual effect of Council and European Council Conclusions

 

21. Conclusions and European Council Conclusions are an important tool in strengthening the role of the Member State Governments, collectively, in defining the policy direction and priorities of the European Union. The established practice of adopting Conclusions by consensus enables all Member States to contribute to their content.

 

22. The Presidency does play a particularly important role in defining the scope and content of Conclusions, but Member States can and do press the Presidency to pursue issues, and influence how they are carried forward, not on their agendas at the outset through Conclusions. The effect of Council Conclusions depends on the particular issues at stake and the balance of views and decision-making role, between the three main institutions. In the area of external relations they are the most commonly used mechanism for setting out EU policy,[1] in other areas their influence depends on their relevance to the policy debate, the Council's role in the overall decision-making process and the clarity of the message. Conclusions often have foreign policy declarations attached. However, these do not differ from other conclusions. If proposals for actions (eg Joint Action, Common Positions, Council Decision etc) arise from these, they will be put through Parliamentary scrutiny as usual. European Council Conclusions usually have a decisive influence on the future direction of EU/EC policy and provide the framework for future work from the Commission.

 

Merits of the Conclusions system and the opportunities for democratic scrutiny

 

23. The merit of the Conclusions system is that it gives a strong role to Member States collectively in defining the future direction of European Policy. This is particularly true in the second and third pillars, where the roles of the Commission and European Parliament are less prominent. In the Government's view, this is a cornerstone of the intergovernmental aspect of the European Union. From a UK perspective, we have traditionally supported a strong role for the Council and the European Council as the most intergovernmental of the EU institutions: the use of Conclusions allows a flexible vehicle for the Council to set out its agenda, and to take decisions, outside the formal decision-making and legislative procedures under the EU Treaties.

 

24. The UK Government addresses the general issues of scrutiny of policy making in the Council of Ministers and the European Council in the following way.

 

- Before each Council of Ministers meeting, the UK Minister responsible provides a written Ministerial statement, to inform Parliament about the business of each Council and the UK's position on agenda items. At your request, Departments have recently been reminded of the importance of providing comprehensive statements;

 

- After each Council of Ministers meeting, and after informal meetings, the UK Minister responsible again makes a statement, setting out the outcome, the nature of the discussion and our role in it. These written replies normally cover the adoption of Council Conclusions where these are dealt with as substantive points for discussion on the agenda;

 

- Separately the Prime Minister makes an oral statement to the House after each European Council, reporting the outcome. In addition the government frequently holds full debates in the House in the run up to the European Council;

 

- The Government presents a Command Paper to Parliament setting out the prospects for the EU each year;

 

- The Government deposits the Commission's Annual Policy Strategy and Work Programme in Parliament, together with Explanatory Memoranda;

 

- The Foreign Secretary gives evidence to the Foreign Affairs Committee prior to the European Council, the Minister for Europe gives evidence to the Lords Select EU Committee and Lords Sub Committee C after the European Council;

 

- The text of European Council Conclusions is deposited in the House of Commons Library immediately after each meeting;

 

- Conclusions often build on policy documents and subsequently give rise to - or are at least cited by - new policy documents that are themselves subject to scrutiny. Parliament therefore has an opportunity to scrutinise input and output.

 

25. At this point in time it is not evident to the Government that there are any areas where greater scrutiny is required. The Government has an obligation to respect the rules and practices of the Council about the disclosure of documents produced by the Presidency and the Council Secretariat, designed to facilitate discussions in the Council.

 

26. Ministers are fully involved in the preparation of Council Conclusions and take their responsibilities very seriously. The Government will, of course, take the views of the Committee into account and keep this issue under review.

 

30 April 2007

 


[1] And the Political and Security Committee also plays a key role in their adoption.