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.
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.'
Our witnesses almost all shared that view, although not all regarded
remedying it as a priority.
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  (though
in practice votes are rare).
These are welcome changes, but they do not address the fundamental
20. That the Council legislates in private is not
simply objectionable in principle but also has specific and harmful
- 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.
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';
- 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
21. We therefore welcome the fact that the UK
Government is in favour of the Council meeting in public when
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.
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)?'
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
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).
The Swedish Prime Minister (Göran Persson) advocates 'public
debates... at the beginning and end of all legislative procedures'.
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
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:
'The picture I have always had in my own mind
is rather like the UN Security Council. Quite a lot of the negotiation
on a difficult resolution goes on in the corridors, but there
is nonetheless a substantive public debate. It is not just for
form's sake, and people see the voting.'
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,
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,
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'.
- The system whereby the Council agrees without
discussion 'A points' already negotiated by officials in COREPER
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'.
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.
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.)
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.
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.
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.
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.
We would support this if it resulted in more open supervision
of the Commission's exercise of its powers.
32. A new EU regulation providing a right of access
to documents came into operation in December 2001.
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.
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.
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
30 e.g. Q. 284. Back
Q. 284. Back
e.g. Q. 212; Ev 167, 187. Back
QQ. 132, 293; Ev 94. Back
QQ. 298-9. Back
ESC, 2001-02, HC 152-xvii, Q. 24. Back
Q. 288. Back
Q. 285. Back
Ev 112; letter from the Prime Minister and the German Chancellor
to the Spanish Prime Minister, 25 February 2002; Q. 131. Back
Q. 402. Back
Preparing the Council for enlargement, S0044/02, 11 March
Ev 112; Q. 402. Back
FCO paper (undated) setting out the Government's views on Preparing
the Council for enlargement. Back
Letter to the Spanish Prime Minister, 6 March 2002. Back
Q. 131. Back
Q. 402. See also Q. 285. Back
Preparing the Council for enlargement. See paras. 88-91
below for co-decision. Back
Q. 286. Back
QQ. 288-9. Back
The Committee of Permanent Representatives. Back
Q. 402. Back
Ev 94; letter from the Swedish Prime Minister to the Spanish
Prime Minister, 6 March 2002. Back
Paras. 88-91 below. Back
Q. 471. Back
House of Lords, Select Committee on the European Communities,
3rd Report, 1998-99, Delegation of powers to the Commission:
reforming comitology, HL Paper 23, paras. 15-16. Back
COM (2001) 783 final, January 2002. Back
European governance: a White Paper, p. 31. Back
Q. 293. Back
Q. 471 (Jens-Peter Bonde MEP). Back
Q. 67. Back