Select Committee on European Scrutiny Minutes of Evidence

Examination of Witness (Questions 140 - 150)



  140. They are not at all.
  (Sir Nigel Sheinwald) I do think times have changed and moved on. The role of the national parliaments in the European Union was one of the issues highlighted at Nice, it is one of the issues highlighted again in the Laeken Declaration and I myself have confidence that the issues of the scrutiny process, the wider issues of future national parliamentary involvement will be big issues for this Convention and for the IGC and beyond. Maybe that is part of the learning process of the last decade. I think there will be a bit of reluctance, I imagine that you would share this view too, to be too prescriptive about the way other national parliaments go about their scrutiny process. One of the inhibitions in the last decade has been to avoid harmonising something on which, if put to us, we raise the flag of subsidiarity and say that is not a matter for a binding rule. This is something for you to discuss with your colleagues. As for reporting arrangements, there will be, as you know, a national government representative—Peter Hain, and his alternate will be Baroness Scotland—and you will have the two members of the House of Commons, the national parliamentary representatives, and my understanding, although the rules of procedure have not been adopted, is there will be a very high level of transparency about the proceedings of the Convention.

  141. Is there a draft of those procedures available?
  (Sir Nigel Sheinwald) I do not know.

Mr Tynan

  142. If the Convention can learn from best practice then we believe that scrutiny reserve is one that our government will look at seriously and our Committee will look at seriously. I would like to address the question of the "provisional agreements" that have been reached that seem to be coming more common within the Council at the present time and I would like to explore whether agreements being reached could be reopened up for discussion and for examination and if that is the situation, that it is possible to do that, are there any examples at the present time where you could say this has happened?
  (Sir Nigel Sheinwald) As I said earlier, I am not sure this is genuinely an expanding term. It has been used in a number of cases in the past nine months, only in the Justice and Home Affairs area, this term "provisional agreement". I explained the circumstances in which it arose in December. I am not sure that it is an issue that is going to grow significantly, that is the reason which I think is underlying our discussion, which is that our Government, and the other governments concerned, our aim in all of these circumstances is to avoid a situation where there is a conflict between the political priorities of the Presidency and member states on the one hand and the state of affairs on scrutiny and the national parliaments on the other. That is something which we try to avoid and which is a resolution passed by Parliament and which our own internal rules in Whitehall point very clearly to. As I say, I am not sure it is helpful to write down too many rules for this term "provisional agreement", which exists for particular reasons. Normally in the other areas of business you have "political agreement" and you have what is called a "general orientation", in English that would be general approach. These are the terms more widely used in Pillar One in Community legislation, before the point of adoption of a common position. There may have been instances in a very small number of cases where the term "provisional agreement" has been used and where there has been subsequent unpicking, but I am not aware of any.

Angus Robertson

  143. Moving on to questions about UKRep and its relationship with devolved authorities. You will be aware that ministers from Scotland, Wales and Northern Ireland do not attend 88 per cent of Council of Minister meetings and in terms of working group representation, civil servants reporting to the Scottish Executive, the Welsh National Assembly and the Northern Ireland Assembly do not attend 98 per cent of working group meetings, obviously UKRep does the rest, can you explain how the relation is between UKRep and the different evolved authorities and give us some concrete examples of what works well and what needs to be improved?
  (Sir Nigel Sheinwald) I can speak about that from experience here. Again, I would make the obvious point that the key to understanding the role of the Devolved Administrations and the policy- making process lies in those relationships in the United Kingdom and in the policies and the various mechanisms which are in place for involving Devolved Administrations in decision-making and in the formulation of the United Kingdom's position on the proposals going through the machinery here. That, in a way, is the bigger answer to your question. As far as working groups go it does not follow that you can attend all working groups, that is by no means the case. There are 140 people working in this building, about 80 doing a substantive policy jobs, we cannot cover every working group, the working groups will be covered by United Kingdom departments, UKRep or a mixture of the two, it is not only done from here. What I can tell you is something about the relationship between UKRep and the three Devolved Administration offices which are now here in Brussels. They formally come under the UKRep umbrella but have a great deal of autonomy in their day-to-day operations. We live by the requirement in the Government's Concordat with the Devolved Administrations and in the memorandum on EU Affairs that we have to work within a single United Kingdom negotiating line. That is something which the devolved administrations have to work within as well, otherwise it would be easy for our partners and competitors in negotiations to divide and rule. We work within that, but ensure that we get the best of both worlds by involving Devolved Administrations in policy making back in the United Kingdom. Here in Brussels two out of the three Devolved Administrations offices have sent representatives to working group meetings in addition to officials from Cardiff, Edinburgh and Belfast who have attended them, so that does happen here as well. It has not happened in the case of the Northern Ireland Executive Office yet because they have only been officially established for three or four weeks, but I am sure that will happen too. We certainly encourage that. There is a relationship of greater transparency and mutual support between UKRep and the Devolved Administration offices here. The heads of those offices attend my regular meetings and we are extremely open with them in every way. UKRep derive advantages ourselves from the information which they pick up and the lobbying which they do.

  144. Can I follow up on that, you raise the issue of a Concordat which, together with the provisions on confidentiality, also guarantees, or is supposed to guarantee, a free flow of information, I am interested in the mechanics of that information, if we were to look at the issue of the European arrest warrant or changes in Justice and Home Affairs—and there is obviously a strong issue in Scotland with its separate legal system and a legislator with full responsibility in that area, including law enforcement—I am particularly interested in how the dissemination of information goes from UKRep, whether that is directly to the Home Office or whether the information is provided to the minister responsible in England and Wales and also goes directly from UKRep to the Scottish justice minister or via the Home Office?
  (Sir Nigel Sheinwald) I do not know the answer to that. I think that is a question better put to people in London because they are responsible for the circulation of documents, it is not done through here. The basic message is one of transparency and of working together. Jim Wallace has been to two meetings of the Justice and Home Affairs Council in my time here. He was present at one of the important discussions on the Arrest Warrant, in November, I think, of last year. In my contacts with ministers from the Scottish Executive and the other Devolved Administrations, I have never heard any complaint about the provision of information. All of the reports which we circulate on these issues, if we are doing a report on a COREPER meeting or a Ministerial meeting, automatically go to the Devolved Administrations. What I cannot answer about in detail is exactly the process by which the Commission proposals get to the Devolved Administrations; that would normally be handled in London.

Mr David

  145. You just mentioned and, of course, we have a number of instances now where Welsh and Scottish ministers, or should I say ministers from the Welsh Assembly and the Scottish Parliament, are part of the United Kingdom Government delegation and, of course, they are obliged, quite rightly, to represent the collective position of the British Government. There is contradiction in that those ministers are not directly accountable to the House of Commons, they are accountable to their own institutions, how do you square that circle of accountability?
  (Sir Nigel Sheinwald) It is not for me to square it from the Brussels perspective. The agreement between the Devolved Administrations and the United Kingdom Government is that there should be a single United Kingdom negotiating line. It is important, I cannot imagine any other way of our being able to support United Kingdom objectives if that were not the case. Where there are policy differences they need to be resolved at home in the United Kingdom. We can help here to ensure the Devolved Administrations and the United Kingdom Government have the right facilities when they attend the Council, and we can facilitate proper arrangements and conferring beforehand. I must stress that the UKRep role in relationship between the United Kingdom Government and the Devolved Administrations is one of facilitation, not conciliation; that has to be done by the lead departments in London. Not only have Devolved Administration Ministers attended the Council, they have spoken as the lead Minister for the UK if there has been no United Kingdom Minister present. This has happened. So in a variety of ways over the last couple of years we are seeing a development and an evolution of this practice. I have to say that in my experience of these, watching this first in London, and in the last 18 months from here, there have been very few problems with the management of devolution in relation to European Union issues here in Brussels. So far, touch wood, that has been the case.

Miss McIntosh

  146. How well do you think subsidiarity is working at the moment? Do you have a specific function as our permanent representative here to monitor how it is working? Do you have concerns and do you share those concerns with London?
  (Sir Nigel Sheinwald) One of COREPER'S jobs is, "To see to it that the following principles and rules are observed". Amongst those principles are the principles of legality, subsidiarity, proportionality and providing reasons for acts.

  147. What is the document?
  (Sir Nigel Sheinwald) The Council Rules of Procedure, and the COREPER role is set out in Article 207 of the Treaty. It is quite normal that I or Bill Stow in COREPER, I would raise this- it may be more frequent in COREPER, (because the issue of subsidiarity crops up very frequently in a number of areas coming before COREPER), the internal market, and so on, those issues are regularly debated.. You asked how we are doing it, I would say that, again, looked at over the time frame that Mr Cash was inviting us to look at, over a period of decade or so, I think there has been a distinct improvement since the principle of subsidiarity was implanted in the Maastricht Treaty, strengthened by the protocol in Amsterdam and supported by a change of policy, if not yet a complete change of culture, within the Commission and the other Union institutions. The internal rules which the Commission have introduced since the Maastricht Treaty are helpful but they do not yet go far enough, I do not know whether the glass is half empty or half full. There are still cases where the United Kingdom has expressed concerns on subsidiarity grounds. This is patently an issue for the Convention along with the issue of competence, they are, of course, separate issues and our ministers, our Prime Minister and the foreign secretary have drawn attention to subsidiarity as one of the target areas in this Convention and in the IGC. There are a number of ways of doing that. Obviously one thing to consider is whether the principle and practice of applying subsidiarity is given enough visibility and depth in the treaty. At present there is a relatively short article in the treaty itself; is that the right way of doing it, or should you look for something which is more substantial and which will provide a clearer and fuller enunciation of the principles involved? Then there is the question of applying the principles. One thing that I am sure the Convention will want to look at is whether it is enough to leave the issue of subsidiarity to the institutions as they stand, to leave the prime area to the Council with the recourse of an appeal to the ECJ, or whether there should be some special body given this role. That is, you know, something which we have placed a question mark beside. We are not making blueprint proposals in Jack Straw's speech, but he raised the issue of whether there could be a role for national parliamentarians in a number of ways in deciding to rule on this issue of subsidiarity. Would that make a difference in having one body, one of whose key roles was subsidiarity? The Council and the Court have a number of principles that they need and priorities they need to apply; would it be better to focus on one thing? I am asking questions deliberately. As the Foreign Secretary made clear last week, we are not at the stage of proposals on the table, those are two of the important ones. I have to give the Commission credit-under Romano Prodi, they support stricter application of subsidiarity. It is very important to them as they look at the set of governance issues in the Convention and beyond. That is welcome. As I said, I think we need to look at a number of specific objectives.

  Chairman: We are running out of time and I am conscious we have somebody coming at 11.15.

Mr Davis

  148. At the outset you told us that part of your job is to influence the direction the European Union is moving. To do that you must have some idea about what would happen were you not successful about moving it in that direction. Would you share that idea with us?
  (Sir Nigel Sheinwald) I hope that will have emerged or have been inferable from some of the things I stated as our priorities. If we are not able to conclude enlargement negotiations, as the United Kingdom Government wants, as we put a lot of political muscle behind it in recent years, over the next year then I think that delay could seriously destabilise the countries of central Europe and seriously damage the European Union's reputation in wider Europe and beyond. That would be one effect of our failing to meet that British and, I am also pleased to say, wider shared European Union objective. If we do not advance the agenda which we started at Lisbon for economic reform and a new social policy for the European Union, then I think that our chances of improving our competitiveness and innovation and making an impact on the markets will be seriously reduced. If we do not have an effective European foreign policy, the United Kingdom Government puts a lot of emphasis on that, and make a great input on the political and technical levels, the public will be disappointed. I think that you will find that in places like the Balkans there is risk of instability, because the European Union is a key player in making things better after the period of conflict they have had. If we were not to succeed, there are real practical downstream implications.

  149. I was not asking what would happen if the European Union did not succeed. I was asking what would happen if the British were not successful in influencing the direction it would take.
  (Sir Nigel Sheinwald) Let me go back over the same examples, I think the European Parliament and the United Kingdom Government were the two parts of the machinery here which were the first to set the date of 2004 as a target date for the first wave of enlargement, I do not know whether the European Union meetings last year would have alighted on that date and that timetable if it had not been for our very strong support for accelerating the process. I am absolutely clear that there would not be the type of Lisbon process covering the economy, employment policies and sustainable development had it not been for the work the UK and the Portuguese government put in in the run up to the Lisbon summit two years ago. I am sure we would not be now debating a European Defence and Security Policy had it not been for our Prime Minister's initiative in Austria in October 1998 followed up by the St Malo Declaration with the French two months later. As you know, only a week ago the European Union decided on the first police operation, the first civilian crisis management operation under the emerging ESDP and again that was something which had a great deal of United Kingdom input to it. Lord Ashdown will be going out to Bosnia in a few months time himself and he is strongly behind it. I think these things would not have happened if the British had we not been behind them.


  150. Sir Nigel, I know we have been questioning you for an unusually long time, the time seems to fly in, and that is just what happened. I hope you have found our questions as interesting as we have certainly found your answers to our questions very interesting, they will be useful in assisting us in preparing our report. Thank you very much for coming along, it has been worthwhile.
  (Sir Nigel Sheinwald) If at any stage you, Chairman, or the clerks want to touch base with us on any of this, our phone lines and doors are, as you know, open. We mean that. There is a plan for Bill Stow, my Deputy, who has a great deal of practical experience on the co-decision process, to come and talk to the clerks.

  Chairman: Thank you very much.

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