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Select Committee on European Scrutiny Thirty-Third Report

2. OPENNESS

The Council of Ministers

18. The Council of Ministers is by far the most important law-making body in the EU, in some areas making law entirely on its own. And yet it meets in private when doing so. It has become common for it to be compared with the North Korean legislature, the only other body in the world which passes legislation in private.[30] In our view, it is only public unawareness that the Council legislates in private which prevents it being universally regarded as the affront to democratic principles that it is. The Minister for Europe observed that 'there is a growing recognition that for the Council of Ministers and the European Council itself, when legislating, to continue to do so in secret is simply indefensible.'[31] Our witnesses almost all shared that view, although not all regarded remedying it as a priority.[32] The secrecy about the positions taken by individual Member States in the Council is maintained in published Council documents, where country names are blanked out.

19. There have been some reductions in secrecy, including occasional open debates since 1992 on matters such as violence against women, a public register of Council documents and (since 1999) inclusion in the published Council minutes of Member States' voting records [33] (though in practice votes are rare).[34] These are welcome changes, but they do not address the fundamental problem.

20. That the Council legislates in private is not simply objectionable in principle but also has specific and harmful effects:

As already indicated, it is impossible for national parliaments (and electorates) to hold Ministers to account if it is not clear how they acted in the Council. For example, a Home Office Minister was recently unable to tell us why an amendment he had promised would be made to the European Arrest Warrant proposal had not in fact been made.[35] This is not primarily a matter of voting records, since votes are rare, but of how firmly governments argued particular points or pressed for particular concessions. The Minister for Europe told us that 'very often what you find is that nobody will own up to having opposed a decision or having supported a decision. There is a lot of hiding behind other people';[36]

Secrecy makes it easy for governments to blame 'Brussels' for decisions they may themselves have agreed to;

Private discussions in the Council result in deals which no government fully accountable to its own parliament would have agreed to; rather than balancing the interests of Member States, such deals may simply reflect the interests of governments;

Private meetings make the Council, and thus a great part of the EU's activity, largely invisible to citizens.

The Minister for Europe indicated that the great advantage of the Council legislating in public 'would be that European citizens would be able to see their Ministers making decisions on their behalf and therefore hold them accountable', as well as giving the EU at inter-governmental level a 'clear identity'.[37]

21. We therefore welcome the fact that the UK Government is in favour of the Council meeting in public when legislating.[38] We note that there is widespread support in the EU for that position, and that the matter is to be considered at the European Council in Seville on 21-2 June. Indeed, the head of the Cabinet Office European Secretariat and EU adviser to the Prime Minister, Sir Stephen Wall, told us that, whereas two years ago the idea of the Council legislating in public was controversial, there is now not a single Member State which does not support it.[39]

22. Differing views were expressed over exactly what should take place in public, and the paper by the Council Secretary-General (Javier Solana) asks whether the decision to meet in public should 'apply throughout the procedure or to certain stages only (policy debate, final deliberation with vote and explanations of vote)?'[40] The Government believes the Council should meet in public 'when adopting legislation', and Sir Stephen Wall said that the public meeting should be 'when it actually comes to the point of legislation, and I agree that what the point of legislation is is a slightly flexible concept'.[41] More recently, the Government has stated that 'We support complete openness when the Council is legislating. Contriving artificial stages (opening debate, explanations of vote) will encourage criticism that the real discussion is still behind closed doors (although in an EU of 25 plus, serious negotiation is likely in any case to take place more in informal meetings).[42] The Swedish Prime Minister (Göran Persson) advocates 'public debates... at the beginning and end of all legislative procedures'.[43] Another issue could be how the line between legislative and other activity is drawn. The UK Permanent Representative assured us that Council agendas already distinguish between legislative and non-legislative items.[44]

23. We recognise that any legislative system involves a combination of private negotiation and public discussion. In a national parliament, the public discussion takes place in a forum containing many more people than those involved in the private negotiations, and the legislation has to be explained to them and their assent obtained, whereas in the Council all those participating in the public discussion (or their officials) will have been involved in the private negotiations. The question is whether nearly all the discussion would continue to take place in private, either by design or otherwise, and therefore whether public sessions would be an uninformative formality. Sir Stephen Wall believed that this would not be the case:

We share the Government's view that all the Council's legislative proceedings should be in public. What we regard as essential is that sufficient takes place in public for it to be clear what line has been taken by each Member State in the proceedings and where responsibility lies for the decisions made.

24. The Council Secretary-General's paper, strangely, appears to confine the possibility of public meetings to legislation subject to co-decision,[46] whereas public meetings are even more essential for legislation not subject to co-decision (such as the Common Agricultural Policy) than for that which is. We emphasise that confining the public meetings of the Council when legislating to areas subject to co-decision would be totally unacceptable.

25. Several changes will need to follow if the Council meets in public when legislating:

Although the European Council is not formally part of the legislative process, it sometimes gives directions to the Council of Ministers, or decides on matters referred to it which the Council has been unable to agree. Consequently, as the Minister for Europe accepted,[47] the European Council will also need to meet in public when making decisions on legislation.

Council documents will need to be made available in unexpurgated form, and especially without the policy stances of Member States being blanked out. The Minister for Europe told us he would look at this, and that 'it would be hard to continue to argue that we should not do it'.[48]

The system whereby the Council agrees without discussion 'A points' already negotiated by officials in COREPER[49] will need to be reconsidered. As Sir Stephen Wall explained, 'if you are going to have votes on legislation then clearly you have to have a system where things are not just nodded through without the public knowing what it is that is being voted on'.[50]

26. We accept that the Council should normally meet in private when discussing non-legislative matters. However, Simon Murphy MEP and Richard Corbett MEP suggested that the Council could meet in public when discussing the annual reports of other EU institutions and agencies, and the Swedish Prime Minister's view is that 'important policy documents such as the Work Programme' should be debated in public.[51] We agree. In particular, we see no reason why the Council should discuss Court of Auditors reports in private. While it will often be appropriate for the Council to meet in private, the onus should be on the Council to justify doing so.

27. While the impact of the Council meeting in public when legislating should not be exaggerated, it would have several clear benefits, including a reduced ability of Member States governments to conceal their responsibility for EU decisions and an increased ability of national parliaments to hold them to account for those decisions. Support for the Council meeting in public for most or all of its legislative sessions will be a litmus test of governments' real attitude towards increasing democracy and accountability. If they do agree to it this will show that they are serious about increasing accountability and reconnecting citizens and EU institutions; if they do not so agree, it will be evident that they are not serious about it.

Other aspects of legislation

28. Other aspects of the EU's legislative process taking place in private are:

Working groups, which help to shape the legislation subsequently put forward by the Commission. (We have not considered working groups in detail in this inquiry.)

COREPER, the Committee of Permanent Representatives, which negotiates much of the EU's legislation; this is then agreed in the Council without debate (as 'A points').

The system of committees known as 'comitology', consisting of representatives of Member States and chaired by the Commission, whereby Member States exercise some control over implementing powers delegated to the Commission by the Council.

Much of the legislative process known as co-decision, whereby legislation has to be agreed both by the Council and the EP. (We consider co-decision later in this Report.)[52]

29. We heard some criticism of the extent to which officials rather than Ministers make decisions in these areas. Jens-Peter Bonde MEP stated that 70% of EU law is made by junior civil servants, and a further 15% by diplomats and others in COREPER.[53] Even if much of the work is delegated to officials, the important point is that Ministers should take responsibility for it; we certainly regard UK Ministers as accountable for the actions of officials in COREPER. However, we emphasise the need to change the system whereby legislation agreed in COREPER is approved without discussion in the Council if public sessions of the Council are to be meaningful.

30. Significant changes have already been made as regards the 'comitology' committees. When our Lords counterparts considered these in 1999 they found the system not only complex but opaque: there was no definitive list of comitology committees and their functions, activities and membership, and no systematic parliamentary scrutiny at either a national or Community level, and there was confusion as to rights of access to comitology documents. They called for enhanced involvement of the EP, simplified procedures and greater transparency, with the aim of safeguarding three main interests: the interests of people likely to be affected by implementing measures, major interests of Member States and the general interest in democratic legitimacy and accountability.[54]

31. Some changes have since been made. The Commission now produces an annual report on the committees, though the first — for 2000 — came out only in January 2002. The Commission has published a list of the 244 committees and adopted standard rules of procedure for them, and the new provisions on access to documents will make committee documents more available.[55] We congratulate the Government and the Lords Committee on their role in what has been achieved so far, but more needs to be done. The Commission has called for new ways of monitoring and controlling the exercise of its executive role, in which the need for the 'comitology' committees would be put into question and the Council and the EP would have an equal role.[56] We would support this if it resulted in more open supervision of the Commission's exercise of its powers.

Documents

32. A new EU regulation providing a right of access to documents came into operation in December 2001.[57] The availability of documents is clearly improving, with Commission minutes available for the first time and plans to make new drafts of legislative proposals available sooner to MEPs.[58] However, Statewatch criticised several aspects of the new regulation: the ability of Member State governments to veto the provision of documents supplied by them to EU institutions, its application only to the Council, Commission and EP rather than to all agencies and other bodies operating under EU auspices, and the effect of restrictive amendments made to the Commission's rules on classification of documents. It called for a Freedom of Information Act instead, imposing an EU-wide obligation to make information available, particularly through the Internet.[59] We sympathise with Statewatch's view (while recognising the effective use the EU institutions already make of the Internet), but, given how recently the regulation has come into force, we consider it necessary to see how it operates in practice before pressing for further changes.

30 e.g. Q. 284. Back

31 Q. 284. Back

32 e.g. Q. 212; Ev 167, 187. Back

33 QQ. 132, 293; Ev 94. Back

34 QQ. 298-9. Back

35 ESC, 2001-02, HC 152-xvii, Q. 24. Back

36 Q. 288. Back

37 Q. 285. Back

38 Ev 112; letter from the Prime Minister and the German Chancellor to the Spanish Prime Minister, 25 February 2002; Q. 131. Back

39 Q. 402. Back

40 Preparing the Council for enlargement, S0044/02, 11 March 2002. Back

41 Ev 112; Q. 402. Back