26.A process can be seen as opaque or secret simply because it is not well understood. Ms Lambert agreed that lack of understanding may indeed contribute to the perception that Council decision-making is non-transparent, and said: “Everybody needs to do their best to explain it a bit more.” She pointed out that “multinational negotiations are almost by definition more complicated than the British parliamentary system with limited parties.”
27.While all legislation must be formally agreed by the Council, the great majority of legislation is agreed without any debate at all at Ministerial level, having been previously negotiated by officials in the Council’s preparatory bodies, working groups and Coreper, working to instructions from their respective Ministers. It has been estimated that most decisions (around 70%) are in practice made before reaching the Council level and are proposed by Coreper for adoption as ‘A’ items.
28.Ms Lambert stated that UK Permanent Representation to the EU (UKRep) officials act “totally within the mandate” conferred on them by Ministers. Mr Lebrecht identified chains of “accountability […] from Brussels [UKRep] to Government to Parliament”. This was supported by Dame Margaret Beckett, who considered that UKRep officials were “meticulous” about keeping Ministers informed on negotiations. The Rt Hon Owen Paterson MP, former UK Minister and Secretary of State, disagreed, recalling an instance where an official appeared to come under pressure to take a position that differed from the ministerial instruction. He added that, in his experience as a Minister in Council, “a vast amount of points were decided ‘off piste’” in Coreper.
29.Dr Hagemann considered that the new Council Rules of Procedure and more formalised voting were increasing the extent to which matters came to Council:
“[the consequence of] the fact that more issues have to be recorded and taken by vote in the Council is that the ambassadors or the permanent representatives have said that they see more final decisions being pushed to Ministerial level. Whereas before there was an impression, at least, that most decisions were simply nodded through by the Ministers but the real negotiations happened between the ambassadors, that is not necessarily the case any longer.”
30.Dr Hagemann confirmed that, when acting in its legislative role, the Council meets in public and the votes of all those present are placed on the public record:
“It is an important development that we have the records. For example, last week there were a number of Council meetings. You can go in and get the vote sheets. All the Governments have their positions recorded. Last week for example, quite a number of the Governments had concerns with some of the proposals that went through and therefore explained their positions in the voting, in what we call the public statements. That is an important development in terms of transparency. It is not necessarily the case that we are seeing more disagreement than previously, but we now have it on record. Whether this is a good or bad thing is, of course, something that can be discussed, but it certainly means that we are able to get the information about what Governments have actually voted on.”
31.Nonetheless, it appears that Coreper’s role in trilogue negotiations, without formal recourse to the Council of Ministers, has intensified in the light of the increase in the number of informal first reading agreements between the Council and the European Parliament (EP). The Government’s evidence indicates that this may be the case, and that the development can have an impact on the transparency of negotiating positions:
“There are criticisms that the OLP lacks transparency, particularly as a result of the increasingly common use of informal trilogues. Where the Presidency decides to negotiate with the EP on the basis of a General Approach agreed at Council, the basis for negotiations is clear. … Where the Presidency decides instead to secure a mandate for trilogues from Coreper, the document is not public.”
In contrast, the European Parliament always publishes its mandates for trilogue negotiations, however those are arrived at.
32.We note that the Council Rules of Procedure focus on transparency at the ‘final’ stage in the decision-making—the Council, when it is acting in a legislative capacity—and that transparency requirements for the preparatory bodies are less extensive. The Council Rules of Procedure state that working groups and Coreper may publish their agendas in advance, along with other documents, such as information notes, reports, progress reports and reports on the state of discussions which do not reflect individual positions of delegations. In practice, the timing, content and availability of such documents is not consistent across each preparatory body and is discretionary. Furthermore, non-disclosure solely on the ground that it revealed the individual positions of Member States is not in conformity with the ruling of the Court of Justice in Access Info (see para 13).
33.Dr Hagemann told us that the Council Rules of Procedure, revised in 2009, had increased transparency but that they were applied inconsistently. She noted that some Council configurations—such as Justice and Home Affairs and General Affairs—“have had a culture of traditional diplomacy”. As a result, they “very much still operate in that atmosphere of negotiations rather than sticking to the formal rules.” She considered that the Council Secretariat would like to see stricter implementation “of the internal rules of procedure as they are already written, such that the voting records are followed and the procedures are followed in greater detail.”
34.These differences may arise because, as is clear from the accounts of those directly involved in negotiations, different Council configurations approach their legislative role in different ways. Mr Lebrecht noted that the Environment Council tended to give a broad negotiating steer to Coreper while the Agriculture and Fisheries Council tended “to get more into the detail than some other Councils.” Sir Edward Davey, who had sat on the Environment Council, agreed that Ministers in that Council “tended to focus on big policy issues”.
35.Professor Hix noted that the majority of decisions are taken by consensus, which in his view has a number of inadequacies for the transparency and accountability of decisions taken by the Council:
“it suggests that a decision is made in the shadow of a vote when discussions are going on in Coreper, working groups or even at the Council level and they have done a tour of the table. If it is clear that there is a qualified majority in favour of the outcome, the representatives of the member states on the minority side decide not to formally vote against; they either go with consensus or abstain. Under QMV, abstention does not count as a vote against.”
36.Professor Hix argued that consensus obscures differences of opinion between Member States and that amendments proposed should be available to the public, as they are in the European Parliament. Mr Lambert and Ms Lebrecht, however, warned that—given the pace of negotiations—it would be impractical for any amendments tabled in preparatory groups to be made public at the time they are proposed.
37.Mr Lebrecht noted that successful blocking minorities did not show up in the voting statistics, as the legislation was ultimately not adopted:
“Certainly during my time [as Deputy Permanent Representative], I can name three very big negotiations where we pulled together a blocking minority and held it to stop those dossiers getting through. Those dossiers do not appear in the statistics because they were not adopted, so by definition they do not appear. Actually, they were very good examples of the UK working with allies to stop something going through.”
38.Both Mr Lebrecht and Ms Lambert argued that the desire to reach consensus facilitated better policy outcomes. Ms Lambert explained:
“That is because the Presidency’s wish to get you as part of the consensus means that you can get improvements to the text. You use that leverage to get some improvements to the text that you might want. I cannot recall, during my time, that the UK ever voted in favour unless it got sufficient improvements to the text. You do not always get everything you want—it is a negotiation—but the consensus is actually helpful to get a better policy outcome.”
39.Mr Lebrecht considered that, in the absence of compromise, the UK “would not get…Europe-wide legislation that reflects what we want” and that as a negotiator he “safeguarded what Government really thought was important”. Dame Margaret Beckett said that she had never agreed to a measure that she thought “on balance was in any way against the interest of our country or of the relevant interests within our country” and noted that QMV had allowed the Government to advance its interests, including Single Market legislation.
40.Mr Paterson was more critical of the negotiation process, describing it as one of “trying to stop really bad things happening and damage reduction.” He pointed to the Common Agricultural Policy reform negotiations as an example where, in order to secure the package as a whole, both the UK and Germany “had to accept something that neither of us really wanted.”
41.Mr Paterson highlighted the importance of informal meetings in determining Council decisions:
“The real meetings of the Council were the bilateral meetings. I would go off with the German Minister or the French Minister and sort things out in private, or we would have a meeting with one or two others to go and see the Commissioner. Obviously, none of that was minuted at all.”
42.Mr Lebrecht told us that success in negotiations depended on the ability to build alliances. Sir Edward Davey also commented that “the way to do European politics is to build relationships.” He cited the example of “the like-minded group for growth”, which he created while a Minister at the Department for Business, Innovation and Skills. He explained that it led to progress “on a number of growth items—for example, the EU-Korea FTA (Free Trade Agreement), deregulation, energy and the digital single market—because we were caucusing and we were making coalitions, which Britain was leading.” Mr Paterson confirmed that he also “made a real point of working with allies on all sorts of different issues”, such as the EU’s response to the horsemeat crisis. Mr Lebrecht emphasised the importance of alliance-building in order also to block measures as well as to advance UK interests.
43.While alliance-building can be used to advance the UK’s national interests, it is also possible for others to build alliances counter to that interest. Mr Paterson warned of the danger of being on the losing side of alliance-building: “if you fail, the legislation is then imposed upon you.”
44.Dr Hagemann considered that, following the adoption of new Rules of Procedure in 2009, there is evidence of an increased willingness to acknowledge and formally record differences of opinion (often done through so called “minute statements” as well as to vote against a proposal):
“[…] when votes are taken, Acts are adopted more readily when a sufficient majority has been found, not necessarily when everyone is on board. Yes, that means that some governments may not see all their concerns being addressed in the final text of the Act, but this formalisation has … meant that some governments are more ready to put on record their policy statements, as well as a vote against the majority. They are coming out more explicitly as having concerns or outright disagreement with a text. Previously, they may not have felt that they needed to express that disagreement but had gone along with what the majority consensus resulted in.”
45.Dr Hagemann contrasted the approach of the British and French governments. While the UK was more ready to vote against a proposition or abstain, occasionally submitting statements to explain its position, France often made use of public statements but rarely expressed its concerns through its vote.
46.The Fourth Money Laundering Directive (see Box 1) is an example of such statements being used. The Directive was eventually adopted by consensus, but differences of opinion underlying the final consensus vote were recorded in public Declarations by four Member States (Austria, Czech Republic, France and the UK).
Box 1: Fourth Money Laundering Directive
The Fourth Money Laundering Directive1 was proposed by the Commission in February 2013 and adopted by the Council and European Parliament in May 2015. Its main objective is to further strengthen the EU’s system for prevention of money laundering and terrorist financing.
A timeline of notable developments in the Council is set out below:
Source: House of Commons European Scrutiny Committee
6 The Austrian Declaration included: “Austria remains highly critical of the current wording of Article 30 and does not support it. However, in order not to jeopardize an otherwise reasonable compromise text, Austria can accept the political compromise.” The Czech Republic declared its understanding that Member States would only be required to specify a minimum time limit for the retention of records on criminal activities, and not a maximum limit. The UK identified its ongoing concerns in relation to Politically Exposed Persons and the registration of trusts, and it set out its position that the UK’s Justice and Home Affairs opt-in applied and therefore that a JHA legal base should be applied. In the light of the terrorist attacks in January 2015, France called for further action to be taken in order to enhance the efficiency of the adopted rules.
47.The information the Council makes available is, as we have seen, discretionary and limited. Isabel Winnwa considered that ‘process’ transparency (during Council negotiations) is “quasi non-existent” for the public, as it “does not know what happens inside the negotiations, unless government representatives explicitly communicate it or something is leaked by the media” and limited for academics, given restrictions on access to documents:
“… often, the only way to get access to process information is to interview the actors involved. Documents such as position papers or detailed minutes are difficult if not impossible to get. Information on particular national delegations is generally masked.”
48.More information is given about the decisions which are finally reached by Council. Isabel Winnwa told us: “Council is moderately transparent with regard to its outcomes: legislation is published in the Official Journal and selectively communicated in national media or by national governments” However, her view was that “minutes or protocols are seldom made available and are often incomplete”.
49.It is clear from our evidence that there are real and significant tensions between the Council’s role as a forum in which Ministers from the Member States meet to decide or coordinate policies (a role which can be seen as analogous to that of the Cabinet) and its role in deliberating on, and adopting, legislative acts and laws in which it is conducting a role which is parliamentary in nature. It is also clear that the need to negotiate the interests of twenty–eight different Member States raises issues about transparency which are fundamental to the UK’s national interest and that there should be more transparency as regards the information provided by the Council and its working groups.
50.We share some of the concerns expressed to us about legislative acts ultimately adopted by consensus, which have not been debated in public by Ministers in the Council or where differences in individual Member States’ positions have not been recorded (for example, through the use of minute statements). In such cases, it is difficult to assess which amendments to the original Commission proposal have been ‘won’ in the national interest or ‘lost’. More transparency, particularly at the level of the preparatory bodies, might help to lift the lid on decision-making in the Council and reveal the extent to which legislation is simply nodded through by Ministers after negotiation by officials. There is scope for UK Ministers to provide Parliament with more information about, and explanation of, the actions they have taken on the UK’s behalf during this process.
52.For our part, we will monitor in the course of our regular scrutiny how well existing requirements are being met. Given the importance of the impact of EU legislation on citizens, we urge the Government to ensure the application of the transparency requirements to every ordinary legislative act.
44 Bjørn Høyland and Vibeke Wøien Hansen (2010), ‘Voting in the Consensual Council of Ministers’, June 2010. Other estimates range from two-thirds to 90%.
49 Q21 “A” points are agreed without debate, unless someone objects
52 85% of Ordinary Legislative Procedure files were concluded at first reading during the 2009–14 European Parliamentary term (European Parliament, website)
53 There appears to be increased recourse to Coreper ‘agreements’, without formal sign-off by the Council, particularly in agreeing a General Approach for negotiations with the EP. See, for example, of 6 April in which Coreper “agreed, on behalf of the Council” its negotiation position on the proposed Regulation on the European Border Guard; the European Fisheries Control Agency (EFCA) and the European Maritime Safety Agency (EMSA).
54 Ordinary Legislative Procedure — see Appendix 1
55 Minister for Europe ()
60 In evidence to our Scrutiny Reform inquiry in 2013, Professor Hix indicated that, historically, 90% of decisions in the Council were agreed by consensus. A recent indicates that this figure—which is constantly changing—fell to nearly 50% in 2015
61 Qualified Majority Vote (55% of member states, representing at least 65% of the EU population)
64 Qq 73 [Ms Lambert], 79 [Mr Lebrecht]
78 According to a recent , the UK was on the losing side (including abstentions) 12.3% of the time over the period 2009–15 (81 occasions) and on the winning side 86.7% of the time (810 occasions). In the remaining instances, it would have opted-out. British opposition to EU policies occurred especially on budget, foreign policy and foreign aid issues, on which there were more votes than in other areas. Nevertheless, the UK was not the most oppositional government in votes on internal market, legal affairs, transport, environment, employment, trade and fisheries.
80 Isabel Winnwa ()
81 Isabel Winnwa ()
24 May 2016