15 EU- Russia relations and Georgia
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| Council Decision on the independent enquiry into the conflict in Georgia
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| Legal base | Article 13(3) and 23(1); unanimity
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | Minister's letter of 16 January 2009
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| Previous Committee Report | HC16-iii (2008-09), chapter 16 (14 January 2009); also see (29944) —: HC 16-xxx (2007-08), chapter 18 (8 October 2008)
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| Discussed in Council | 2 December 2008 Economic and Finance Council
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| Committee's assessment | Politically important
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| Committee's decision | Cleared (decision reported on 14 January 2009). Further information now provided
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Background
15.1 The background to this Council Decision is set out in our
previous Report on this topic.[75]
As the then Minister for Europe at the Foreign and Commonwealth
Office (Mr Jim Murphy) put it in his 12 September 2008 Explanatory
Memorandum:
"On 7 August Georgian Armed Forces attacked Tshskinvali
[sic], the de facto 'capital' of South Ossetia. Russian armed
forces reacted with massive force, widely condemned as disproportionate,
including by the EU, NATO and G7 Foreign Ministers. Fighting continued
between 8 and 12 August, when the EU and Organisation for Security
and Co-operation in Europe (OSCE) brokered a ceasefire."
The Council Decision
15.2 This Council Decision deals with the establishment and funding
for an independent inquiry into the conflict in Georgia. The decision
to establish it was agreed at the General Affairs and External
Relations Council on 15-16 September 2008.
15.3 As the Minister for Europe at the Foreign and
Commonwealth Office (Caroline Flint) noted in her Explanatory
Memorandum of 15 December 2008, the terms of reference for the
inquiry include consideration of "the origins and course
of the conflict in Georgia while having regard to international
law, including the Helsinki Final Act, humanitarian and human
rights law and accusations made in this context including allegations
of war crimes".
15.4 The Minister said that a Swiss diplomat, Mme
Heidi Tagliavini, who had served as the UN Secretary General's
Special Representative in Georgia from 2002 to 2006, had been
asked to head the inquiry. The Minister fully supported the inquiry
and the appointment of Mme Tagliavini. The Minister said that
there was still confusion over how the conflict between Georgia
and Russia started and that both sides continued to accuse the
other of human rights abuses and war crimes; this investigation
would help establish the origins and course of the conflict and
also identify those who should be brought to account for their
part in the conflict.
15.5 The Minister noted that Ms Tagliavini would
have "complete discretion over the inquiry's procedures and
methods of working as well as the contents of its final report",
which would be delivered to the parties to the conflict, the EU
Council, the Organisation for Security and Co-operation in Europe
(OSCE) and the United Nations. The terms of reference would, the
Minister said, be sufficiently wide to permit it to examine events
that occurred after the initial outbreak of fighting — "(such
as ethnic cleansing and accusations of war crimes)" —
but without the inquiry taking on a judicial or quasi-judicial
character; it should "rather focus on findings of fact in
order to provide information should there be a need subsequently
to examine accusations in more depth". The mandate was set
to expire on the 31 July 2009, though it would be open to the
Council to extend it if necessary.
15.6 The Minister noted that the budget for the period
of adoption of the Council Decision to 31 July 2009 would be €1.6
million (£1.2 million), which would be met from the Common
Foreign and Security Policy budget, to which the UK currently
contributes approximately 17%.
15.7 Finally, the Minister said that she expected
this Council Decision to be agreed at the Economic and Finance
Council on 2 December 2008
15.8 The Committee noted that it had:
— already
received a letter of 1 December 2008 from the Minister, alerting
it to the plan for this Council Decision to be adopted at this
Economic and Finance Council and saying that, given the pressing
need to launch this investigation, she might need to agree the
Council Decision at that Council, before scrutiny had been completed;
and
— responded on 10 December, saying that
it had no objection per se to what was proposed in the
circumstances that the Minister described; however, in anticipation
of a subsequent Explanatory Memorandum, it asked her to explain,
in that Explanatory Memorandum, why, when the decision was taken
10 weeks earlier to set this Inquiry up, it was not possible to
have written to the Committee sooner, so that it could have had
the opportunity to have cleared the decision in principle ahead
of the ECOFIN meeting, rather than be presented with a fait
accompli.
15.9 The Committee said that it was accordingly puzzled
as to why there was now no such explanation, nor mention of her
earlier letter, in her Explanatory Memorandum; and also as to
why, in an Explanatory Memorandum of 15 December 2008, she should
refer to an expectation of a Council Decision being adopted on
2 December 2008. We said we were left with a disturbing impression
of muddle and disorder. We therefore asked the Minister for an
explanation, encompassing both our earlier request and this latest
issue.
15.10 In the meantime, we cleared the Council Decision,
on the understanding that the Minister would inform the Committee
of the outcome of the inquiry and what further action was proposed
at the end of the mandate.
The Minister's letter of 16 January 2009
15.11 The Minister begins her letter by saying that
her Explanatory Memorandum was prepared with the intention of
submitting it to the Committee at the same time as her letter
on 1 December, and regretting "that they became separated
and, as a result, the Explanatory Memorandum did not address the
points raised in your letter of 10 December." She continues
as follows:
"I understand your concern that it was not
possible in this instance for the Committee to have an opportunity
to see and discuss its contents before their submission to an
EU Council for decision. As you know we only exercise the option
of overriding the procedure with great reluctance and when all
other options have been exhausted.
"You note that it had been agreed to set
up an investigation ten weeks before the Committee received my
Explanatory Memorandum. In my letter of 1 December I stated that
'it was decided at the General Affairs and External Relations
Council on 15-16 September 2008 to set up an independent inquiry
to be funded by the EU'. That may have given the impression that
the decision was more 'cut and dried' at that time than was the
case. Had it been so we would certainly have set the procedure
in motion to seek comments from the scrutiny committees. In fact,
the decision was only taken in principle, with details to be settled
by negotiation between member states. This left open the wording
of the mandate, terms of reference, composition and exact means
of funding of the mission and these, after some informal discussions
between certain EU member states and the EU presidency were the
subject of intense negotiations between 22 October and 24 November.
It was only decided on 24 November that the mandate, terms of
reference and funding of the inquiry would be agreed by Council
Decision and that it should be funded from the CSFP budget.
"As you will recall from my Explanatory
Memorandum, the UK was determined that, if there was to be an
inquiry, the accusations of war crimes and violations of international
law which have been made by both Georgia and Russia should be
considered by it. I understand from my officials that the head
of the inquiry, Heidi Tagliavini, is in full agreement with this
and that at least a preliminary investigation of the claims will
form an important part of the work of her team. The inclusion
of this issue in the inquiry's terms of reference was the subject
of intense discussion over several weeks in October and November
and had our view on this point not prevailed it is possible that
the UK might not have been able to endorse the final proposal
for the inquiry.
"A key reason why I decided to override
the scrutiny procedure was that the Council Decision to establish
the inquiry, once agreed at working level, had to be submitted
for adoption at Council before the end of this year to enable
funds from the 2008 budget to be drawn on to meet some of the
inquiry's costs. This led to the decision to put it to the meeting
of Economic and Financial Council on 2 December. As you know,
we regard the right of Parliament to scrutinise EU decisions as
fundamental and fully respect the process in place for doing so.
However, had we invoked the process at an earlier stage on this
occasion we would have been inviting the Committees to endorse
a proposal without a mandate, clear terms of reference or an agreed
source of funding. Therefore, because of the nature of the ongoing
negotiations and the constraints on timing we were unable to submit
this document to scrutiny."
Conclusion
15.12 The Minister begins and ends her letter
by emphasising the importance that she attaches to proper parliamentary
scrutiny — exercising the option of overriding it "with
great reluctance and when all other options have been exhausted",
and stating that she regards "the right of Parliament to
scrutinise EU decisions as fundamental and fully respect the process
in place for doing so". She then argues that on this occasion,
were she to have "invoked the process at an earlier stage",
she would have been "inviting the Committees to endorse a
proposal without a mandate, clear terms of reference or an agreed
source of funding." She also maintains that budgetary constraints
obliged this Council Decision to be adopted on 1-2 December. We
find this unconvincing.
15.13 First, proper parliamentary scrutiny depends
on proper process; and the Minister still does not explain how
important correspondence between herself and the Committee —
the first on an issue of widespread interest and controversy —
became separated, nor what she intends to do to ensure that such
errors do not recur. We have the impression that a higher priority
is given, in terms of approval and other process aspects, to the
handling of Parliamentary Questions than to the handling of Explanatory
Memoranda and other scrutiny correspondence.
15.14 Secondly, we were under the impression that
the Government had long ago accepted that proper parliamentary
scrutiny of Common Foreign and Security Policy — where legislation
is, far more often than not, submitted only in draft form and
at the last moment — can only be achieved if the Minister
concerned keeps the Committee informed, by letter, ahead of the
depositing of what is by then essentially a fait accompli.
15.15 That only on 24 November was it decided
that the mandate, terms of reference and funding of the inquiry
would be agreed by Council Decision and that it should be funded
from the CSFP budget is, in our view, immaterial. How else would
these matters have been agreed and funded? In this instance, there
were key aspects of the inquiry mandate — particularly the
terms of reference — about which the House should, and could,
have been informed during discussion, so that it could have had
an opportunity to comment during the formative process in relation
to a matter of intense interest.
15.16 We also see no reason why this matter could
not have been submitted to the General Affairs and External Relations
Council on 8-9 December.
15.17 We shall have an opportunity for further
discussion when the Minister gives evidence on 4 February, at
which time we hope she will respond to these points.
15.18 In the meantime, we are reporting this to
the House both because of the subject matter and because of the
issues regarding the scrutiny of CFSP that arise.
75 See headnote: (29944) -: HC 16-xxx (2007-08), chapter
18 (8 October 2008). Back
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