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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 544-i House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE EUROPEAN SCRUTINY COMMITTEE
CONCLUSIONS OF THE EUROPEAN COUNCIL ANd COUNCIL OF MINISTERS
Wednesday 16 May 2007 SIR STEPHEN WALL, GCMG, LVO Evidence heard in Public Questions 1 - 27
USE OF THE TRANSCRIPT
Oral Evidence Taken before the European Scrutiny Committee on Wednesday 16 May 2007 Members present Michael Connarty, in the Chair Mr David S Borrow Mr William Cash Mr James Clappison Mr Wayne David Nia Griffith Mr Greg Hands Mr David Heathcoat-Amory Kelvin Hopkins Mr Lindsay Hoyle Mr Bob Laxton Mr Anthony Steen Richard Younger-Ross ________________ Witness: Sir Stephen Wall, GCMG, LVO, gave evidence.
Chairman: Sir Stephen, welcome back, in a sense, because you did us a great service in your previous government incarnation in helping us with European scrutiny and I recall your evidence at that time. We are very grateful to you for coming along. It has been suggested, and we have agreed, that I will try to introduce this session by saying a bit more about what the inquiry is about so that we start off the proceedings by giving some people a little knowledge. Those who come from the public, they may wish to also know a little about yourself, so I will slightly embarrass you by telling people about some of your outstanding career. As I know, you had an outstandingly distinguished career in the Diplomatic Service. In addition to the senior post Sir Stephen Wall held in our embassies around the world, he was the Private Secretary to the Prime Minister between 1991 and 1993. Sir Stephen was the United Kingdom Ambassador and Permanent Representative to the EU from 1995 to 2000 and Head of the Cabinet Office European Secretariat from 2000 to 2004 where, as I remarked, I thought he did sterling work in making people conscious of their duties in the departments on scrutiny of European business. Now a word about our inquiry. The European Council is made up of the Heads of Government or Heads of State of all 27 Member States, together with the President of the European Commission. The European Council must meet at least twice a year and its purpose is, in the words of the EU Treaty, to "provide the Union with the necessary impetus for its development and to define general political guidelines for the EU". In addition to the European Council there is a Council of Ministers. It meets in what are known as various "formations" reflecting the main policy areas. For example there is an Agricultural Council, a Justice and Home Affairs Council and so on. The members of these Councils are the Member States' ministers for the particular policy area, for example the Transport Secretary represents the UK on the Transport Council. After every meeting of the European Council the Head of Government or State who holds the Presidency issues the Council's conclusions. These are often long and they always deal with major issues. The conclusions do not have legislative force, they are politically binding on all the Member States and play an important part in shaping the direction of future action by the EU. Despite the importance of the European Council's conclusions, this Committee, and the House of Commons more widely, does not see a draft of the conclusions and has no opportunity to question the Prime Minister about the draft before he commits the UK to those conclusions. Similarly, we do not see and have no opportunity to question the government about the draft of the conclusions of the Council of Ministers, so we decided to conduct this inquiry into the arrangements for the preparation, consideration and approval of the conclusions of the European Council and the Council of Ministers. Can I start off by asking Wayne David to lead off with a question to you, Sir Stephen. Q1 Mr David: Thank you, Chairman. Sir Stephen, I wonder if I could begin by also welcoming you here to this Committee and to thank you for your extremely helpful written evidence. The evidence concentrates on the significance of the European Council's conclusions, and I am sure there will be ample opportunity to enlarge upon that, but I was wondering if we could begin by asking some other questions. To begin with, I am wondering if you could tell us whether the European Council has always had conclusions. Secondly, why did it decide to have conclusions rather than, say, policy statements, why specifically conclusions? Thirdly, do you believe that having conclusions, as we do have, is entirely appropriate when we have a European Union of 27 Member States? Certainly the argument was much clearer when there were just six Member States but, given the size of the Union now, is it still appropriate in your opinion? Sir Stephen Wall: Thank you, and thank you, Chairman, for your welcome. I think I am right in saying that the European Council has always had conclusions. Certainly Ted Heath, as Prime Minister, attended one of the very early meetings of the European Council because it was President Pompidou who invented the European Council. Up until that point there had been no format ready for the Heads of Government of the six, later the nine, to meet and, indeed, it was considered very controversial because the European Council had no standing at that stage as one of the European institutions, but certainly in 1972 when Ted Heath went to Paris, before Britain even joined the European Community, there were conclusions. I am not sure whether they were called conclusions but they were effectively conclusions in an agreed statement of the Heads of Government, which was the first time that the term "European Union" was used in a European document agreed at that level. The idea at that stage, of course, was the European Council was entirely informal and the conclusions, therefore, although they were agreed, were issued on the Presidency's responsibility, but very quickly, and certainly from the time I was more intimately involved in the 1980s, the European Council conclusions were agreed by all the Heads of Government by consensus or they were not agreed at all. There was a meeting, I think, under the Greek Presidency in the 1980s where no conclusions were agreed because of disagreement on the substantive issues. I do not think, therefore, there is magic in the term in that conclusions represent the agreement, the agreed view of the Heads of Government on the particular issues which they debate, and in that sense the conclusions are still a valid instrument. I think it is still right that the Heads of Government should meet because there is no other court of appeal from lower councils, as it were, if there is disagreement. It is also right that the Heads of Government should set the strategic goals of the European Union and that has to be recorded in some form and the conclusions basically are the way in which those views are either agreements or the view about what should happen next in the European Union, because quite often that is what the European Council is doing, it is calling on the Commission and the Member States to do certain things, that is the way in which those views are formulated. Q2 Mr David: If I can ask something and elaborate upon that. In your written evidence you seem to focus on 2002 as being quite an important year in which the process developed, how significant would you see that? Sir Stephen Wall: I think it is very significant. Up until that point the whole process was a very bizarre process because the preparation of the conclusions was done entirely in secret by the Presidency country and, as I said in my written evidence, unless you could get a bootleg copy from a friendly soul in the Council Secretariat, no delegation, other than the Presidency delegation, saw them before 5 o'clock or 6 o'clock in the morning on the second day of a two-day European Council. Then as officials we used to meet around a table in whichever hotel the Prime Minister was staying and we would go through the conclusions, we would mark a copy with the things we liked and the things we did not like and then we would meet the Prime Minister at 8 o'clock in the morning and go through it and the Prime Minister with the Foreign Secretary would agree, "These are the points we need to raise". Therefore, quite often every Head of Government was going into a meeting where quite important elements of agreement were being set out in the draft copies having had one hour, if that, to look at them. It benefited the Presidency, it benefited the European Commission working with the Presidency and it benefited the Council Secretariat. It was not to the advantage of the Member States, it was pretty unprofessional and the 2002 changes were part of quite a long process of pressure for reform from a number of countries, including the United Kingdom, to try and get something which was more transparent and more workable. Q3 Mr Cash: Sir Stephen, good afternoon. Between 1990 and 1993 I hope that some of the discussions between yourself and the Prime Minister when these things were being mulled over before conclusions were published would not in any way, I am sure, have referred to the reaction of the British Parliament by certain Euro-sceptics as to what the outcome might be. Leaving that aside, I am interested in the constitutional hierarchy between the European Council and the Council of Ministers because, as you point out in your most interesting evidence, which I think will become quite an important document as the first time we have actually had an insight into this from within, you say that the conclusions bind the Member States politically, you then go on to say there is room for dispute over how the conclusions are translated into European law, which I am very interested in, as you know, and also you say the European Council conclusions are not themselves legislative documents. I know that you understand very well that this can present certain problems because inevitably, I suppose, the impact of a Presidency conclusion can either interfere with or invade or override decisions which otherwise would have been presented to the Council of Ministers within the constitutional/institutional framework of the European Union. I do not want to ask a detailed question but simply to ask you to react to that, because I think there is a kind of, shall we call it, an opaque situation there which is not really in the interest of the transparency which most people would demand in a democracy which is giving effect to legislation affecting so many people, 400 million I think. Sir Stephen Wall: Broadly speaking, I think you have got two kinds of discussions at European Council, Head of Government level. One is where the Heads of Government are themselves negotiating in detail on the terms of an agreement, say a change to the treaties or an agreement, as was done under the last British Presidency, on the UK rebate where effectively they are negotiating the treaty changes or, in the case of a budget agreement, they are negotiating the detail of it, the figures they negotiate down to the last euro. In the case of a budget deal, if so reached, it still has to be translated into legal form and therefore people can try and --- Q4 Mr Cash: Which it has not been yet and I put a question down on this only today. When are we going to see it? Sir Stephen Wall: I do not know but obviously there is room for some argument between the European Council and final adoption. The other area is where the European Council is looking at an issue which has already been debated somewhere else. For example, in the context of the various European Councils on economic reform, the whole question of energy liberalisation came up time and again and the European Council was able to agree on formulations which basically said, "We must make progress on energy", but there was never sufficient agreement at that level to do more than that and in the end the detail had to be thrashed out in the Council of Ministers at lower level before agreement could be reached. What I am arguing is that although the European Council can be prescriptive to an extent, in my experience it does not overlay or take the place of the work of the substantive functional Councils. There was one particular occasion in October 2002 when President Chirac sought to do that and he sought to get the European Council to agree that the Agricultural Reform Package, which was due to be decided in 2003 in the Agricultural Council by Qualified Majority Voting, should be postponed, taken as part of the overall negotiations on future financing at a later date and, therefore, agreed by unanimity. It was a way of ensuring that reform happened on terms acceptable to the French Government rather than the French Government potentially being overruled by Qualified Majority Voting. In that meeting of the European Council Prime Minister Blair opposed Chirac and he was the only person to successfully oppose him, but I do recall, I think accurately, that when the Conclusions appeared the following morning, they were still slightly closer to the Chirac view than to the Blair view, so there had to be a further argument in which Tony Blair got the Conclusions changed to reflect the fact that these were decisions on agriculture that were to remain the prerogative of the Agriculture Council. As it happened, in the following year we did succeed, with German support, in getting a very significant reform package through by a majority vote. Q5 Mr Clappison: We get a statement from the Prime Minister to the House of Commons when this has all been discussed when he comes from the European Council. In the process which you have described to us which is rather involved, I will put it that way, what chance is there for parliamentary scrutiny at any point in that before these decisions are reached? Sir Stephen Wall: As far as I am aware there is none in terms of any opportunity for parliamentary scrutiny of the document itself because, as I understand it, the document is regarded as being a confidential document between governments. It is a question of whether, now that the document appears three or four weeks before the European Council and is distributed among 27 Member States, that is sustainable. As things stand you are right, there is no opportunity for the scrutiny. I guess it is open to Parliament where there is a big issue which is known to be up for discussion at the European Council to call on the Government to set out to the House what its stance is going to be at the European Council. That was done before Maastricht, as I recall, the Government set out pretty clearly what its stance on the negotiations was. Q6 Mr Cash: Not very clearly. Sir Stephen Wall: Set it out anyway, fully. There is not, as I am aware, either any tabling of the council conclusions or opportunity for scrutiny. Q7 Kelvin Hopkins: I too read your paper with great interest and some astonishment, I might say. It offers an extreme contrast with the turgid verbiage of European documentation. Sir Stephen Wall: Oh dear! Q8 Kelvin Hopkins: That is meant as a compliment. Why does the European Council have Conclusions rather than minutes of what is said at the meeting and, indeed, are there any minutes at all? Sir Stephen Wall: This goes back to the original idea of the European Council, which was that it would be a fireside chat, it would be informal. Certainly from the 1980s onwards that became impossible and the Conclusions therefore became much more formal in terms of being agreed by everybody. The system is still structured to try and preserve two things. One is the ability of Heads of Government to talk pretty freely, including in the case once of President Chirac using a rather rude word to Margaret Thatcher, without that being instantly known to the world. Also, it is constructed so that the Heads of Government are enabled to take decisions because the only adviser that they have sitting at the other end of the room is the Foreign Secretary, they do not have lots of officials who say, "Do not agree to this, do not agree to the other", so the idea is if you lock these men and women in a room at that level they will be able to take decisions rather than, as sometimes happens in other councils, getting it referred back for further debate. That is also why the system was devised, and I think again pretty much from the word go, of having a rather indirect method of note taking. There are representatives of the Council Secretariat who do sit in the room and who take notes and every 20 minutes or so come out of the Council room where the Heads are meeting, they go to a separate room where officials from each of the Member States, who are known as the Antici group after Mr Antici, who was the first of the breed, go into that room and the person concerned from the Council Secretariat says, "This is what has gone on in the last 20 minutes" and on the basis of his or her notes gives an account, which is already obviously not a verbatim account, because it is based on the notes that have been taken, of what has transpired. The representatives of the national delegations sitting in the Antici room as it is called, in the old days on pen and paper, now with their laptops, write down what the representative of the Council Secretariat tells them. That is transmitted up to the delegation office where people like me in a previous incarnation would have said, "Oh God, the French have slipped one past us on X or Y". There are a few members of each delegation ‑ I am sorry this is very important, this is how it works ‑ who have a red pass which enables them to get into the room where the Heads are meeting. You go down to the room and if it is not too late you say to your head of Government or Foreign Secretary, "They are trying to slip one past us, this is what they are trying to do" and then they can stop it happening or occasionally it will be too late because by the time you know what has happened at least 20 minutes, probably more, have passed between what was discussed and you all know that it was discussed. Q9 Kelvin Hopkins: Could there be some system like the Cabinet where minutes are taken, there is a 30‑year rule so they feel confident that they can speak freely? Sir Stephen Wall: It was always alleged that the Council Secretariat made a tape of the proceedings. I cannot put my hand on my heart and say that this tape exists because no Member State was ever allowed access to it, but if there was ever a dispute about what had happened, and sometimes there is a dispute about what has actually happened in the European Council, because quite often the final version of the Conclusions produced on the basis of the last morning's discussion does not appear until everybody has gone home, then the Secretary‑General of the Council, now it tends to be the Deputy Secretary‑General Solana is one Secretary-General, will come to the Committee of Permanent Representatives where these issues are raised and say, "I have consulted the tape and I can tell you that this is what was decided". In my experience that is always accepted because the alternative is to take it back, if you really dispute what was decided, to the Head of Government level and on the whole people do not want to do that. Q10 Mr Steen: Can I say, Sir Stephen, I remember you in your different incarnation and you always treated us with very great respect and tremendously helpful information and today is also another example of it. Also I want to thank you for your hospitality, which I remember very well. Can I ask you whether it is correct, and it may be that it is publicly known but I do not know if it is, as far as you know, has there ever been a vote in the Council of Ministers, and am I right in thinking if there has not been it has always been by agreement? Sir Stephen Wall: In the Council of Ministers at lower levels than the European Council votes are taken. The European Council operates by consensus, but in 1985 when Margaret Thatcher as Prime Minister was opposed to the establishment of an intergovernmental conference on treaty change, the then Italian Prime Minister in the chair of the European Council did use the voting procedure to get agreement that an intergovernmental conference could be called because that was a matter for simple majority and none of us officials had seen this coming. We should have done, but we did not see it coming. If I remember rightly, Margaret Thatcher and I think the Irish and the Greeks, maybe the Danes, were out‑voted by the rest. I think I am right in saying that is the only example of a vote being taken and it was a procedural vote rather than a substantive vote, they could not pass the substantive treaty changes except by unanimity. Q11 Mr Laxton: Just coming to the Council of Ministers, you said a moment ago that below European Council level minutes are kept. Are they minutes or are they Conclusions from the meetings of the Council of Ministers? Also, how are those Conclusions or minutes arrived at or is it almost a replica of the up at 4.30 or 5.30 in the morning meetings in a hotel and looking at notes and Conclusions? Is it a quite separate arrangement? Sir Stephen Wall: It is because generally speaking even the European Council itself is now better prepared in the sense that the draft Conclusions are presented by the Presidency several weeks in advance and are debated at official level and, if necessary, at ministerial level and therefore on the whole the government is not taken by surprise by a last minute bounce. In the Council at ordinary ministerial level, as it were, the whole of the Council is prepared by officials over a period of months and with discussion by ministers during that period because most of what the Councils are doing, the foreign affairs ministers and the General Affairs Council is slightly different are basically legislating and they are debating and adopting legislation. There is no question of a bounce because the legislation would have been under discussion for months, if not longer. If it is agreed effectively, if it is all gone through without disagreement, then it goes to the Council of Ministers as an A point, in other words it simply goes through without discussion. If it still needs to be discussed and negotiated by ministers, it goes as a B point until they reach agreement. Insofar as the Conclusions appear, those Conclusions reflect an extended process of negotiation. The minutes themselves do come out, but from my recollection several months, if not longer, after the event and do not really have much bearing except as a kind of record. The way Member States vote is made public, I think I am right in saying pretty much straight away, but the actual to-ing and fro-ing of discussion does not appear until later and in my experience nobody, including successive British governments, took much interest in the minutes therefore because by the time they appeared it was very much ancient history. The General Affairs Council is a bit different. Q12 Mr Laxton: The general affairs and the foreign affairs. Sir Stephen Wall: The Foreign Affairs Council being foreign ministers, but it is called the General Affairs Council because in theory it is supposed to have overall responsibility for the co-ordination of EU policy, something which in practice you cannot really now do. Very often the foreign ministers in the General Affairs Council are saying things about the state of the world, there are making a statement about the Middle East, say, and therefore their Conclusions, which are political documents, do appear straight away and, again, they will have been discussed in advance, they would have been discussed particularly, let us say, on the Middle East in the Political and Security Committee where all the officials from all the Member States are represented, all of them acting on instructions from their ministers. Nobody freelances on this, no representative of any national government goes in except on instructions sent from their capital. Insofar as agreement may be reached in advance of the meeting with ministers, it is only reached at referendum to the ministers and on the basis of instructions from ministers. Q13 Mr Heathcoat-Amory: Sir Stephen, you have been describing from a position of immense personal experience a process of bargaining between Heads of Government with consequences which are very great for all of us. We know that the European Council meetings are politically binding on Member States, so although technically it is still subject to directives and regulations which must be debated and passed, nevertheless the thrust of European policy is decided by this process of bargaining and negotiating in private. To the outside public this is exactly what is wrong with the European Union. How do you reconcile this with a democracy? Do you know of any other democratic, or supposedly democratic, organisation that reaches decisions in this way? How do you think this can be improved because, of course, the European Convention had as its aim to ventilate the system and bring it closer to the people and make it more democratic and that clearly has not happened. How would you reform it? Sir Stephen Wall: One of the reforms that was discussed at the time of the convention was the idea of first of all having the last stage of negotiation of Council meetings other than the European Heads of Government in the open and voting taking place with members of the public present. I was personally in favour of it but I never thought it was more than demonstrative because the bulk of the negotiations would still have taken place in private. I think there is a real issue here because there are real negotiations on matters of national interest between governments and, at the end of the day, there are winners and losers in that. Obviously it is harder to negotiate in some respects if you are doing it in public than if you are doing it in private. Therefore, there is some merit in having a private negotiating system, rather as in the United Nations. Although the Security Council meets in public, very often the real negotiation on the text of a resolution in the Security Council has been done behind closed doors beforehand. I do not think there is an easy answer to that. If you imagine Margaret Thatcher negotiating in public on the Fontainebleau deal on the British rebate rather than behind closed doors, it obviously becomes harder to get an agreement because everybody's position is publicly exposed and can you make that last minute manoeuvre in either direction which you may need to clinch the deal. The Committee suspended from 3:01pm to 3:18pam for a division in the House Q14 Mr Heathcoat-Amory: Just a supplementary, if I may. Sir Stephen, you just now drew a parallel with the United Nations where negotiations are often done behind closed doors, but the United Nations is an inter-governmental body founded on the principle of the sovereignty of nation states, whereas the European Union is a supra-national law-making body whose directives and regulations are binding on citizens in all Member States, so it is a completely different animal, therefore the Conclusions reached by the European Council in private have immense legal consequences and the public feel entirely disconnected from that. It is just not open and democratic and I know it worries the Member States, I am not sure it worried Brussels quite so much. Do you have any ideas of how this could be changed, about how the public can be involved, how it can be opened up and, therefore, people can have more confidence in open decisions openly arrived at which they feel some ownership of? Sir Stephen Wall: I think there is a distinction between those Councils that do legislate and the European Council which does not legislate, although it does take important policy decisions. I certainly think it would be possible to open up the business of the Council of Ministers so that members of the public are present when negotiations are taking place. It would be an inhibition on member governments concerned for the reason that sometimes it is easier to make compromises by not having to do it in the full air of publicity, but I agree with you, there are obvious gains, one of which I think would be that it would demystify the process. I often felt when I was sitting in the Committee of the Permanent Representatives, which likes to surround itself with a lot of mystery because it makes the members of it seem more important than we really were, but if people were present they would see that this is not very mystifying, that this is the kind of process of negotiation which most people in one form or another are quite familiar with, people making trade-offs between various interests in order to try and reach an agreement acceptable to everybody. You could do the same thing at European Council level, but quite a lot of the time the discussion is about future policy and where it is not about future policy but is about the nitty-gritty of negotiation it is not strictly legislative, although I accept that the outcome very often does translate into law. You could do the same thing on the basis that the original concept of the European Council, that this is the fireside chat, has long since disappeared because you self-evidently cannot have a fireside chat among 27 people sitting around a table larger than this table with interpreters and so on. Q15 Mr Hoyle: I think we have already touched on this, Sir Stephen, but just to push it a little bit further. Could the Commission or the Presidency manipulate the preparation of the European Council's Conclusion to get binding commitments to a policy, for example on the environment, before it has been properly considered by the Environmental Council? I know you have hinted about these meetings in smoke filled rooms where officials are kept out and we get red cards to bring people in, but what really goes on, and have you got a hard example of where this has happened? Sir Stephen Wall: I think it is harder now because the Conclusions of the European Council are put on the table by the Presidency and are negotiated on in advance and, therefore, the Head of Government knows what is going to hit him or her when they go to the meeting. I can think of one example from the time when I worked for John Major where the French and the European Commission put into the European Council Conclusions money for Algeria which had not been discussed at all, and we were opposed to it because we thought at the time it was not the right way to help Algeria. I cannot remember the details, but that was certainly an attempt to put something in at the last minute which hopefully nobody would notice and it would go through, or even if they did not like it, it was quite hard in the atmosphere of the European Council for one person to say, "I won't go along with this". I am afraid I cannot remember now whether John Major did or did not, but it is obviously much easier if something is being discussed at official level to raise various objections than if it is being done at the higher level. It is much harder for a Presidency in cahoots with the Commission to do that now. Presidencies will, of course, keep some things in reserve. I think I am right in saying that in 2005 the British Presidency did not put some of the figures into the draft Conclusions until the very last minute, in other words they were keeping their own room for manoeuvre open, both as Presidency and in terms of the British interest. On the whole, I would say it is much harder now for the Commission in particular working with a Member State to try and put forward and put through some pet project. Q16 Mr Hoyle: You mentioned one that nearly slipped through and it was interesting how it was picked up on. Is there one which you can think of that went through and it was too late? Sir Stephen Wall: Not precisely of the kind but it is a slightly different example and, again, it would not happen now. In the negotiation of the Amsterdam Treaty, a few weeks after the Labour Government came into power, Government negotiated at Amsterdam the British opt-out on frontier controls but also the right to opt-in when we wanted to do so, and the Spanish argued for a kind of veto for Gibraltar reasons and Robin Cook, in particular, argued the British case from the British seat and we believed had won the point, but the Dutch Presidency did not sum up very clearly and when the European Council Conclusions appeared subsequently the Spanish point rather than the British point was in the Conclusions. We fought it and tried to get it overturned but were not able to do so and the British Government faced a situation of was it prepared to take this all the way back to the European Council and in the end the Foreign Secretary decided not to do so. I think it was an example born as much of rather unusual inefficiency on the part of the Dutch Presidency rather than skulduggery on their part, but nonetheless. Mr Hoyle: That just gives an example, does it not, that it was a British/Dutch force that took Gibraltar and it took the Dutch and the Spanish to stop us getting the Conclusion through, so maybe there is some irony in that after all. Mr Clappison: I am tempted to suggest that it was a good job we had the Foreign Secretary to replace the place of Admiral Beamish, which I think was at about the same time. Mr Cash: That was Menorca, I think. Q17 Mr Clappison: Menorca, but that was the same war, I think, the war of Spanish succession. You have been asked about the European Council doing things off its own bat, can you think of occasions when the Council of Ministers has reached a decision and then the European Council has overturned it? Sir Stephen Wall: Off the top of my head I cannot think of such a case, no, but more often in the preparation of a European Council, and this applies particularly where a treaty is being negotiated, the General Affairs Council, the foreign ministers, will only be able to take things so far, in other words that there are a number of gaps, areas which are not agreed which can only be agreed at Head of Government level. As I say, off the top of my head I cannot think of an occasion where the General Affairs Council has thought it has reached an agreement and then to find the Heads of Government take a different view because in their case also the foreign ministers are not going to go to a meeting without having the position of their government in their minds. Each foreign minister is going to be putting forward the position of their government, so it would be unusual then for the Heads to take a wholly different view. Q18 Mr Clappison: Perhaps, Chairman, if I could enlarge on that a bit as well because we are now coming up to what we understand will be very important discussions in June at a European Council there and there is a slight element of mystery as to what the position is going to be as far as the UK Government is concerned and what would amount to significant constitutional change. I wonder if you have any views which you would share with us about what you would regard as significant constitutional change taking place in June? Sir Stephen Wall: I am no longer in a position to know what is in the mind of the --- Q19 Mr Clappison: From your experience? Sir Stephen Wall: I think the issue for the European Union, including obviously for the British Government, is how much of the Constitutional Treaty to keep and how much not to keep, and within that is the question of what was it about the original deal that made people think this was something which was constitutionally significant, ie qualitatively different from the traditional treaty change which we had seen before in the Single European Act, Amsterdam, Maastricht and Nice. My own view is that much of what was agreed in terms of the actual significant changes, ie things like those increases which were made in terms of majority voting, things like legal personality, the decisions to go along with those things were taken on a thorough appraisal of the British interest and that if a mistake was made, the mistake was one of misleading people. I think two things happened. People who were sceptical about the European Union thought, "Here is something which is a real constitution and something we should be nervous of", people who wanted a genuine constitution disliked it because they could see that this was kind of smoke and mirrors and it was not a real constitution, but the actual things we agreed to, I believe, were taken on the basis of a thorough appraisal and, therefore, I still believe those things represent something which is in our national interest. Obviously it would be for the government to take a decision as to what is both in the national interest and what is politically sustainable and sellable in this country, but I am not qualified to make that judgment. Q20 Mr Clappison: Obviously we are familiar with the constitution which was lost as a result of the French and the Dutch votes but, as far as this country was concerned, we were promised a referendum on the basis of the constitutional changes which were taking place then. We are being told now the constitutional changes may be less than those changes so they can be dealt with on the basis of a treaty which will not require a referendum. What are the essential points that you think would be the ones which would trigger the need for a referendum? Chairman: It is a very interesting question. I am not quite sure that it is part of the scope of our inquiry, but very bravely done, James. I think we can leave that one for another debate, maybe when we have the Foreign Secretary here, we will ask her nearer the time. Mr Cash: It was a good try. Q21 Mr Borrow: Just to go back, Sir Stephen, we have got copies here of Conclusions from various European Councils and they are quite weighty, quite detailed. It has been suggested that is one of the demerits of the system, that they are too long and do include too much detail and do perhaps allow things to be slipped in that should not be slipped in,. What is your opinion of that? Sir Stephen Wall: I agree with that. There has been a not very successful effort to cut them down in size and one or two Presidencies have been more determined and more successful than others in that. Traditionally, one of the problems about European Council Conclusions is that there is a lot in them which has not been discussed by the Heads of Government, except when they come to discuss the Conclusions and one obvious thing that is supposed now to happen, but does not always happen, is that the Conclusions ought to be a reflection of what is discussed and not of the things that are not discussed, in other words, you have a debate on day one, Conclusions agreed on day two and the Conclusions ought to reflect what was discussed on day one, whereas a lot of stuff that is in them has not been debated in that way. There are times when the Heads of Government will want to say something about, let us say, the situation in Chechnya, or the situation in the Middle East where they personally will not have had the discussion, but the discussion will have been had by foreign ministers or officials, or both, but nonetheless they wanted to give it the weight of it being a statement by the Heads of Government rather than some lower body, in which case you can make the case for the statement being made even though the Heads have not discussed it. The problem is that once you have breached the principle then it is very easy to tack things on and unless somebody has a substantive objection, they tend to go through. It requires real discipline on the part of the Presidency of the day. They are the ones who set the agenda in that sense. Q22 Mr Borrow: What you are really saying is that officials, before the European Council meets, will come up with a lot of "Would it not be good if we made a statement on this and a statement on that", they are all non‑controversial so they are all nodded through at official level and then the Heads of State meet and discuss a few controversial things which should be the basis of the Conclusions and then tack on this big list of stuff which has all been agreed beforehand. Sir Stephen Wall: Yes. Chairman: I am becoming more attracted to minutes every minute. Mr Cash: We have dealt with some aspects of the lack of transparency and some of the opaqueness of the European Council and you have made a very compelling illustration of what goes on, certainly speaking for myself, I am sure the Committee were very grateful for this, it has never been heard of in this detail before. I think the word secretive comes to mind in this context for reasons that it can be to do with enormous issues which crash around the different interests of 27 Member States and some very, very important decisions get taken. In particular, first of all, do you agree that the process could be described as secretive, and I think you have more or less conceded that already? In particular, I mentioned that I put down a question today relating to the own resources decision which you mentioned in your evidence and also again this afternoon because we have not got the legislation for that yet and I have asked if the Prime Minister will provide it for us. The own resources decision taken in September 2005 which changed the rebate arrangement, as I argued at the time, and so did many others, as being significantly disadvantageous to the United Kingdom was decided by the Prime Minister at that meeting. That would be an example of something which I would have described as being within the framework of the European Council type discussions but, of course, it has direct bearing on the role of the Chancellor of the Exchequer. I wondered whether you would think that first of all the way in which this process operates gives the Prime Minister an overarching advantage as against members of the Cabinet and also the Chancellor of the Exchequer in matters within his purview, and in the light of your comments on Channel 4 in the last few days I wonder whether you have got any thoughts as to how Gordon Brown would be likely to react to the fact that this decision was clearly not taken with his full knowledge because everything it vindicated demonstrates that the advantage is 40‑love to the Prime Minister in a situation of this kind. Chairman: I think at the kernel of that there was a question about the secretive nature over there. Q23 Mr Cash: It was also a highly interesting significant illustration. Sir Stephen Wall: It is a secret or confidential, therefore secretive, if you like, process. I do not think there has been a European Council in my experience where a British Prime Minister of whatever party has taken a decision without other members of the government knowing the decision that was to be taken. Coming back to the Fontainebleau deal on the British rebate, Margaret Thatcher decided the moment to settle, there were Treasury officials in her delegation who did not like the decision that she took and it would have been open to them if they had wanted to to telephone Nigel Lawson and get Nigel Lawson to telephone the Prime Minister and try and stop her from doing so. Certainly, she was not taking a decision which other members of the delegation were not privy to. I was not part of the negotiation, I was no longer a civil servant in 2005, but I would be surprised if the parameters of the negotiation which Tony Blair as Prime Minister was conducting were not known to other members of the government, they were certainly known to the Foreign Secretary who participates as a treaty right in meetings of the European Council. Yes, the Prime Minister is the person on whom it falls to take the decision at the moment of settling, but I do not think it is secret from other members of the government. Q24 Mr Cash: It is pretty odd that we have not got the legislation yet. That was 18 months ago or something. Sir Stephen Wall: That is a slightly separate issue. It works both ways of course, it can be quite convenient quite often for people to know that ultimately the buck will stop with the Prime Minister and the Prime Minister is the person who ultimately will take the responsibility for the decision. Q25 Kelvin Hopkins: If the whole arrangement was set up on a much more sensible basis, a British basis if you like, with perhaps officials in the room sitting behind the prime ministers with a verbatim note taking recording and the meeting would break from time to time for formal agreements on the wording of Conclusions between the prime ministers, first of all, would that reach much more satisfactory Conclusions, and who would object most strongly to that? Sir Stephen Wall: Some of what you said does happen. What I described as happening at Amsterdam where the Dutch produced an inaccurate version of the Conclusions after the event is pretty usual and now where there is a really disagreed point, generally speaking Heads of Government would insist on seeing the final version in writing before they leave the room, partly based on previous experience. The only significant disadvantage of having officials in the room is the danger that you get a lot of people like myself whispering in the ears of our bosses with all of the reasons not to do something rather than the reasons to do it. There comes a point where decisions have to be taken and the assumption behind the European Council is that you have got 27 men and women who are the people ultimately responsible who have briefed themselves on the issues and are capable of taking those decisions. I think in a Union of 27 what you would lose by having people in the room in the sense I have described is probably not overwhelming. You could have a more transparent system that still preserved quite a lot of the privacy, you would not necessarily have to have officials in the room, you could, if you like, have a sound relay. The Anticis can sit in their room with a sound relay from the European Council so that you would know immediately what was going on, you do not have to have this time lag system of reporting that now goes on. There are various ways in which you could change it. Who would object? I think that people are quite attached to the old system. During our Presidency of the EU in 1998 when I was in Brussels, there was a move in London to try and have a note taker in the room because at informal meetings of the European Council of which there is at least one every Presidency, often there is a note taker allowed, so it was an idea that we would try and put that as part of the regular system for the future so that there would be a note taker for each delegation and maybe some more rigorous form of record than now exists. I was required as the Chairman of the Committee of General Representatives to put it to our partners and there was a lot of resistance to it. Part of that was based on dislike of change, part of it, I have to acknowledge, was based on not wanting to encourage a system whereby authority in these matters eked away from the Committee of Permanent Representatives on the one hand and the Foreign Affairs Council on the other and to prime ministers' offices and sherpas. As we know from the present discussions that are going on about the constitutional treaty, the sherpa system is already there in a form in the European Union. We are in an evolving situation in which, frankly, change is bound to happen. Q26 Chairman: May I conclude with one final question because obviously we are interested in the process and we thank you greatly for your submission and we intend, when we put the draft of this interview on the website, we will put your evidence on the website. We would normally put that on the website with our final report, but I think it is such a splendid document and, as people have said, it is such an insight, I am sure everyone would be interested in seeing it on the website as soon as possible. One final question, can you see any reason why draft Conclusions, particularly those general Conclusions that go to the European Council, should not be deposited for scrutiny by this Committee in the normal way since we are acting often as the gatekeepers for many other interests in Parliament? Do you think the draft Conclusions could be scrutinised by this Committee in the same way that we consider other proposals for legislation and other European documents? Sir Stephen Wall: Chairman, my answer to your first question is no, I see no reason why they should not be deposited and the second answer is yes, given the way the European Union now works at 27, I do not myself see a distinction between the classical form of scrutiny and scrutiny that could apply here given that there is time in the system, which there was not under the old regime, for scrutiny to happen and I cannot myself see any reason why it should not happen. Q27 Chairman: Thank you very much. Thank you for both your submission and coming along today, it has been very, very enlightening. Sir Stephen Wall: Thank you, Chairman. |