Select Committee on European Scrutiny Minutes of Evidence

Examination of Witnesses (Questions 1 - 19)




  1. Minister, welcome to the European Scrutiny Committee. This is our first evidence session in the new Parliament and so you are the first Minister to visit us. Unfortunately, we invited you to come not in the best of circumstances because frankly the Committee has been concerned for some time now about the performance of your Department in getting us information when we require it and answering our questions on time. The Committee thought that instead of exchanging letters (as you are aware there has been some exchange of letters which have been quite frank in putting the Committee's concerns) we should have an evidence session in order to come to a better understanding of what our requirements are in scrutinising that on behalf of Parliament and what we expect from our departments. I will repeat something that I have been repeating for some time now: that we who scrutinise do so to assist Parliament and assist Ministers because all too often we can inform Ministers how their departments are performing better than maybe they have been told their departments are performing, so we take our role of scrutiny very seriously and I hope that is appreciated. I also hope that by the end of today's evidence session we are able to have a better understanding of what both our responsibilities are. With those few introductory remarks you are welcome to introduce your team and make an introductory statement before we go on to questioning.

  (Angela Eagle) Thank you very much, Chairman. It is a pleasure to be here. I am sorry that it is not under slightly more propipitous circumstances but I hope that we can deal with all of those issues today and move forward into the new Parliament with a greater mutual understanding of the issues that are involved in getting documents to you in a timely fashion and trying to keep in touch and to some extent ahead of developments in the Justice and Home Affairs Council in Europe which are clearly also speeding up because of the terrorism agenda. It is important that we are able to liaise properly and work together as we move forward. I should like to introduce the people who are with me. On my left are Lesley Pallett and Peter Wrench. Lesley is from the European International Unit. Peter is the Deputy Director-General of Immigration and Nationality Directorate who deals with European issues. On my right is Richard Westlake who is also in the European and International Unit. They do a lot of the detailed work in the working groups and with Justice and Home Affairs issues. I should like to make a brief opening statement but before I do I just want to draw the Committee's attention to a slight error in my letter of the 6 September which has been brought to my attention. In paragraph 10, where we are talking about the opinions on home affairs and the Explanatory Memorandum and the opinions for scrutiny with respect to the Europol agreement that had been currently brought about with the applicant states, there is a sentence in paragraph 10 which says that three opinions have been deposited with the Scrutiny committee and that the Explanatory Memorandum is in preparation. I am told that you have not had the three opinions deposited but they are arriving tomorrow with the Explanatory Memorandum, so that is a slight error in that letter which I wanted to point out to you. Could I go on by saying that the Government is strongly committed to ensuring full and proper parliamentary scrutiny of Justice and Home Affairs business as my letter to you of 6 September reiterated. The May Justice and Home Affairs Council gave rise to particularly difficult timing and handling considerations. The combination of the prorogation of Parliament before the General Election, the likely delay before the Committee could be re-formed after the election, and the long summer recess meant that Ministers were faced with the choice of overriding scrutiny or else withdrawing their agreement to some proposals for five or six months. Had we done that we would only be dealing with this at the forthcoming November Council. The state of readiness of the various measures which were being submitted to that Council made some scrutiny overrides unavoidable. We do not intend to set aside the UK's Parliamentary Scrutiny Reserve except where it is, in the Government's view, unavoidable and we clearly wish to minimise those occasions. Barbara Roche's letter on the May Council acknowledged that in some instances there had been unacceptable delays in responding to points that this Committee had raised. I am committed to ensuring that the Department consistently provides you with timely responses. I would like to apologise at the outset that you have not yet received the explanatory memorandum I have talked to you about but reassure you that it will be with you tomorrow. More generally in my letter of 6 September we have undertaken to respond within three weeks to any points your Committee raises. We will provide either a full reply or, if this is not possible, a statement of the reasons why we need more time and when you can expect a full reply. We are monitoring performance across the Department to ensure that we provide you with explanatory memoranda within ten days of the deposit of the document to which they refer. Justice and Home Affairs work in the European Union has speeded up significantly in the light of the substantial anti-terrorist work programme which the Justice and Home Affairs Council has established. We will do all we can to facilitate early and effective domestic parliamentary scrutiny of the measures we are taking. We have provided you with reports of the discussions at the four Justice and Home Affairs Councils in September and October which have considered these issues. My colleague Bob Ainsworth I know is appearing before your sister committee next week to give evidence on the Framework Decision on a European Arrest Warrant and the Framework Decision on Terrorism. The Government will of course co-operate fully with this Committee too, to enable you to scrutinise quickly but thoroughly the anti-terrorism measures which we are committed to agreeing within the EU by the December Justice and Home Affairs Council. I know that you also have concerns about the Government reaching what Presidencies and Council press releases have sometimes described as "political agreement" while maintaining the UK Parliamentary Scrutiny Reserve. Presidencies are always keen to claim achievements and they tend to use the term "political agreement" in circumstances where a text has not been finalised. For example, they use it when the Council is considering only part of a text. They also use it when the Council has not yet considered the European Parliament's opinion, as it must under the Treaties. In both of these cases work on the proposal has clearly not been completed. We could go back at that stage if this Committee had particular difficulties with the text and still expect to have a dialogue that would result in changes. You raised this concern on two proposals, the Mutual Legal Assistance Protocol and the Framework Decision on Human Trafficking. In both cases the Presidency used the term "political agreement" even though there was clearly further work to do. As I stated in my letter to the Committee on 6 September, if the Committee had identified a new point of major importance on either instrument we would have been prepared to pursue it if we considered there were a realistic prospect of securing an amendment to the text. At the same time I acknowledged in my letter that it becomes more difficult to raise new points the further the negotiation process has gone. The key therefore is to ensure early and effective scrutiny; that is in all our interests. I look forward to a healthy and constructive working relationship between myself and this Committee over a further period and I hope that this session will enable us to establish more effective ways of working together.

  2. I welcome those words, Minister, and we were grateful for your letter of 6 September. There is an understandable wish to agree anti-terrorism measures quickly but would you agree that proper scrutiny processes become even more important when we are taking measures which affect long established principles of criminal law and procedure?
  (Angela Eagle) Yes. I think it would be silly not to accept that and it is therefore important that we stay in very close touch, certainly my officials and your clerks, so that we can anticipate and be ahead as far as possible of the proposals that are coming out of the Council and the Commission on these important issues. There has been an agreement at heads of government level to aim for reaching agreement at the December Council and clearly that will be a focus for the work that we will be doing in the Council and that implies a faster timetable than anything we have seen before with respect to European Union business. So we have to work closely together to ensure that although we have a speedier process it is no less effectively scrutinised by your Committee.

  3. We welcome that as well because, especially when we are changing our United Kingdom laws through secondary legislation, it becomes even more important. I am sure you would agree with that.
  (Angela Eagle) Sure. Scrutiny is a very important part of the process, especially so with terrorism.

Mr Marshall

  4. You, Minister, have referred to the speeding up process and to the December deadline. Does this mean that you foresee yourself being in the position over the next two months of perhaps having to override our scrutiny reserves again with a view to expediency, and how would you intend to resist that urge?
  (Angela Eagle) First, my colleague Bob Ainsworth is the one that is dealing mainly with the terrorism issues because he deals with trans-national crime and I think your sister committee has already asked him to give evidence on the terrorism agenda, so that they can have early sight of what is going on. I would say that we do not override parliamentary scrutiny lightly at all. We seek to avoid it. We certainly do not do it for reasons of expediency. I think it is important that we try to work together, particularly on the terrorism agenda, as the Chairman has said, to achieve a fast effective putting in place of protections which were called for after the outrages of 11 September, but ensuring that we have appropriate scrutiny. We have to work together to see how we can best arrange our business and your business to facilitate that.

  5. What is the reaction of your fellow Ministers in the Justice and Home Affairs Council when they see a British scrutiny reserve? Do they shrug their shoulders and say, "That is the British Scrutiny Committee again"? It appears to be a bit like that when a British Minister indicates at one of the Council meetings that despite the reservations that this Committee has he is prepared to ensure progress is made by lifting the scrutiny reserve very quickly. What is the response of your European peers?
  (Angela Eagle) All my European colleagues have issues with scrutiny in their own legislatures and it is slightly different in different countries but I think it is unfair for you to give the impression, which I think your question hints at, that we override scrutiny reserves .

  6. Fourteen times in a matter of days is a bit much.
  (Angela Eagle) We would firstly say it was 12.

  7. I will not quibble about two.
  (Angela Eagle) It is 12. When you look at the lists it is 12 and we can go through them one by one if that is what the Committee wants. As I said in my opening statement, you have to look at the context that we all found ourselves in and my predecessor found herself in, in May when I was safely ensconced at the DSS, looking at a huge programme of end-of-Presidency business. If you look at the agenda for the main Council there were 35 "A" points. I have spent five years in Government visiting and being on many of the Councils in the European Union and I have never seen 35 "A" points on an agenda before. It was a particularly packed agenda. It was the end of the Swedish Presidency, just at the time when this Parliament was prorogued, and the advice from the Clerk to your Committee was that it was unlikely that there would be a new committee and a new Parliament until October. In the event, and uniquely, Parliament managed to set up its committees faster than it had ever done before but the assumptions were that we basically had a six-month gap within which there would be no chance to scrutinise because of the juxtaposition of the prorogation, the general election, the summer recess and the amount of time that it takes to set the Scrutiny Committees back up in a new Parliament. On the Justice and Home Affairs agenda we have the Tampere agenda and we were at the end of the Presidency. There was a great deal of discussion with the clerks of the Committee to keep them informed about the issues that were likely to be subject to parliamentary scrutiny override and it was done with only the most extreme reluctance. I would not want you to go away with the idea that we are cavalier in any way about scrutiny overrides because that would be quite wrong.

  8. Could I just say that we are not attributing any personal blame to you. We realise the changes which have been made consequent upon the general election. Perhaps just as a response to part of what you have said my understanding is that this Select Committee can meet in the recess if there is sufficient business for it to do, and the Committee was established prior to the summer recess, so the Committee could have met during August to discuss these things.
  (Angela Eagle) That is a matter for the Committee. We would be happy to facilitate meetings at any time.

  9. Maybe it is a point you should bear in mind in future. Just because we were in recess does not stop the Committee meeting. You refer to other European countries having a similar scrutiny system. How frequently do they impose scrutiny reserves as compared to the United Kingdom?
  (Angela Eagle) I have just been given a note here. I will tell you the essence of it. The Netherlands, Denmark and the United Kingdom are seen as having the heaviest scrutiny reserves in the European Union. Clearly we are dealing with different systems and different systems of scrutiny and they are not always comparable. Those are the three countries, and clearly we are one of them, that have scrutiny reserves that come up the most often in the Council.

  10. Could I move on to a topic that you mentioned in your letter of 6 September and is probably a more positive contribution to the proceedings of the Committee? In your letter to the Committee you mentioned that the United Kingdom had been arguing for a project-management approach to Justice and Home Affairs business. Can you explain clearly to me what that actually means and how it would help the situation and how far the principle has been progressed?
  (Angela Eagle) We are faced with a situation with the Tampere agenda where the United Kingdom has been trying to push forward progress on a whole range of issues and the Committee will be well aware of the extent of the Tampere agenda and the issues that come up. It is a very heavy legislative load since it is a new area of concern for the EU. The Third Pillar area is a relatively new area, as you will be aware. The idea is that we want clearer management by the Presidencies saying what proposals will come forward at what times so that we can try to anticipate and give information to our scrutiny committees about the processes in advance. Again, being quite new to the Justice and Home Affairs area, we seem to be slightly behind the game at the moment and having Presidency texts appear, not always in ways that we have anticipated, which we then scramble to catch up with, so that if we could have a more coherent process with knowledge ahead before Presidencies actually came up with texts and the Commission came up with texts for us, bearing in mind that we are pushing them to make progress in this area, then we would be more ready to deal with it in an efficient way. We are making these suggestions within the European Union to see if we can get a more predictable path of evolution for some of the issues that we are keen to push.

  Mr Steen: Can I first of all say that I do recognise that the Government has a job to do and it is an awful nuisance to have a committee holding you up and you have got work and you have got priorities and you have got pressures. Obviously the scrutiny reserve is a further piece of bureaucracy which slows down your progress and you have got to fit in the whole of this reference and getting clearance and everything else with your programme. The first question is this. Is it too difficult? I have been saying this to the Chairman for some time. Is this Committee in the way of you getting on with the job? I think that is an important aspect of whether you can work with us. I think we should be honest: it may be too difficult. Perhaps we should change our terms of reference. The second point is that I joined this Committee because it was the one committee of the Select Committees as far as I could see that has teeth. They may be false but at least they are there. If we are going to do our job, which is difficult enough, and there are papers coming at us at all times, day and night—some arrived at nine o'clock this morning because we could not get them before—then we have got to be able to deal with it. I am just wondering whether we can and whether you can. I think we should be perfectly honest about this. If you tell us that it is all impossible and we say, "We quite understand" to the Government, we can adjourn.


  11. I should tell you, Minister, that that is a minority of one view on the Committee.
  (Angela Eagle) Could I say that I am also a Member of Parliament and have served on many committees in this House prior to being in the Government and I think it is one of the strengths of our system that we have scrutiny and I am committed to ensuring that it is as effective a process as we can make it within what are often quite difficult timings. The first thing to say is that I would be devastated if you adjourned and I do not particularly want your teeth to be false. The important thing that we need to understand is the pressures that we are all working under. I know that the Committee has some important points about the Department's failure to get certain responses to it, which in my view were unacceptable, and I know that Barbara Roche felt the same way. We have since looked at our procedures and tried to amend them. I would also ask the Committee to consider the workloads that some of the people that are providing you with information that you require are also under, and sometimes things have been lost in the system. We are trying now to get much more of a monitoring process in the system so that if something has gone astray in the works, which is essentially what happened, I understand, we can chase it. More liaison between the Clerk of the Committee and the people who deal with you on the Home Office side will ensure that we can more effectively chase these things. I also think that some of the people that were responding to letters kept not sending them because more enquiries came in and so they kept the letter because they wanted a fuller response and so nothing went out when in fact what would have been better would have been a response to the first letter and then go off and do the work on the subsequent enquiry. I think it is just that people need to understand what is happening and the workloads and the requirements and I think there is a better understanding of that now. I would always be keen to increase it even further.

  12. Thank you very much for that answer. Can I say in a spirit of constructive suggestion that you obviously have a very complicated department dealing with complicated issues. Is there a way, some form, which could be adopted—you may not want to share it with us—in which Government Departments could work so that we could ease the problem you clearly have? Is there any way that there could be an exchange between the Clerk and your people as to a timetable of how things look in the next six months?
  (Angela Eagle) Certainly we would be happy to give you an outline in as much as we know. We have already given the Committee outlines of what we expect to be before the December Council. Because of the terrorism agenda we know far more than we normally would in a Presidency what is going to be there because the focus is on getting agreement at the Council on 6 and 7 December. Perhaps I can say to you again that in my experience working within the European Union on the Council we usually have two main Councils per Presidency. We will have had six in the Belgian Presidency and some of this is about the extra workloads that have been caused, and also a desire to speed up as we move towards the Lacken Summit to make progress on the Tampere agenda which has been going too slowly for the United Kingdom's interests in our view. This is bound to put some pressure on. When we spend all our time arguing that, we are then in a very difficult position if we say, "Oh, but we cannot agree any of it. You have speeded it up but we cannot agree any of it." I would far rather be able to agree without any parliamentary scrutiny reserves at all and I want to work with the Committee to try to ensure that we can bring that about.

Mr Connarty

  13. I would vote for democracy every time. I am sure that frankly Hitler found the abolition of scrutiny very useful to a dictatorship but I think we still keep to the democratic one where there is a Parliament.
  (Angela Eagle) We would agree with that.

  14. So I do not endorse the idea that we should either adjourn or that our teeth are false, as you may find out in the next few months if things do not improve.
  (Angela Eagle) That will be exciting. I will be happy.

  15. Can I just say, Minister, that you have made light slightly of numbers and reasons but in reality five documents were overridden in the entire scrutiny reserve up until this latest meeting with this strange use of the word "provisional". You mention the word "political" and it does seem to me that this is just another way of overriding it and if you were a school in a league table we would be sending in the administrators to take over your stewardship in reality because it is not acceptable to this Parliament whom we represent that scrutiny should be treated this way. I have no doubt that it is discourtesy, I think contempt may be the word that I would put, the way your Department has treated the scrutiny process, for whatever reason, and they must be looked at within your Department. We as a Committee of this Parliament are not here to take excuses for what is happening within your department. Can I turn to the question of the use of this word "provisional"? It does seem that there is always a pressure on (and we have been to the Belgian Presidency too) to be seen to be doing something, to be taking a political position even though in reality Ministers have come with the scrutiny reserve of their Parliament removed and therefore this trick, it seems to be, of using the word "provisional" really indicates to your fellow Ministers that you are prepared to override the scrutiny reserve of your Parliament at some future date, either by an adjournment or some other way. Do you not accept that when this Committee, using the advice of advisers, looks at complex proposals, technical legal questions have to be clarified, where we consider for example that maybe human rights have been glossed over? Should you not address these concerns before coming to these provisional agreements because it does seem to me that we are in danger for the people looking at the European process and for us who are very supportive of that process, that somehow it is out of the control of the democratic institutions that the people of the United Kingdom elect? Every time that happens it undermines the credibility that we wish to have in the European process now that we are involved in it? Do you think that it is acceptable to us to use these devices like "provisional agreements" or "political agreements" to override the reserve in reality?
  (Angela Eagle) There were two issues upon which provisional agreement was given in these 12 that you mentioned. In both those cases there was no defined text. There was no scrutiny override, we did not override scrutiny, and had there been issues that this Committee brought before us on those texts we would have taken them back. There also was no opinion of the European Parliament on the texts either and so there was no scrutiny override and there were continuing chances had the Committee come up with issues for us to debate them. I do not accept the provisional agreement on a text that is unfinalised which the European Parliament has not pronounced on yet is in any way the end of a process. Therefore we did not override scrutiny on any of those things and our scrutiny reserves remained on these texts.

  16. I have seen your letter of 6 September. You did say the Government would be prepared to pursue it if you could say there was a realistic prospect of securing an amendment in the text. The reality is that from "political" or "provisional" it went through that the full position was accepted by the Council and became policy on these issues, so in reality it was indicating to your colleagues, and you say that your Department has this in mind and if something important came up you would in fact take that back.
  (Angela Eagle) There were no scrutiny reserves in those two issues. We maintained our scrutiny reserves and therefore, had the Committee come back to us with something we felt we could take back into the process that the European Parliament still had to pronounce, the texts were not finalised. They were still being worked on in the working groups. There is another example—

  17. Can I stop you there? Why is it that it would appear that you felt you had to somehow agree something? Why not just keep the validity and the integrity of the scrutiny position entirely correct and say, "This has not been through the scrutiny process. Therefore we will not sign up to provisional or political or any other kind of agreement"? That would I think have maintained the integrity that the people of the United Kingdom expect from the scrutiny process.
  (Angela Eagle) The Presidencies are very keen to make progress on bits of the texts. We are keen because we are pushing faster progress anyway to try to be as helpful as possible. We are not in a position where we are removing the scrutiny reserve with provisional agreement. We are indicating that as far as we can tell at the moment you are happy with what is going on, but we are not actually saying, "We will not come and re-open any of these texts if our Parliament has a particular view on it, if the European Union has a particular view on it which then changes the text". A provisional agreement is what it sounds like. It is not, "We agree with this and we will resist any further changes" when clearly the process of refinement of the instrument has not come to a head.

Mr Hendrick

  18. Can I pursue this issue of the provisional agreement? The issue confronting many people on this Committee is clearly the degree of influence that we have in these matters. One of our colleagues described us as having false teeth. I think some of us would say in some respects we have no teeth and if the current practices continue that point would be pushed home. If I can give an example on this, in your letter of 6 September you say that if the Committee were to identify a new point of major importance on either instrument the Government would be prepared to pursue it "if we considered there were a realistic prospect of securing an amendment to the text, and provided, of course, that we agreed with the Committee". That almost sounds as if you have the right to make these decisions irrespective of what the Committee thinks and indeed if the Committee pursues the point you would have a look at it but would not necessarily take it into consideration, having already made a provisional agreement. If I can give an example of that practice, at the Justice and Home Affairs meeting of the 27 and 28 September agreement was reached on two documents: one on trafficking in human beings, and the other one extending the mandate of Europol. Those are two very important issues which in your letter you say you would only pursue it if there were a real prospect of securing an amendment as if the decision has already been made that it is unlikely that you could secure such an amendment. How do you explain that and does that not show, as my colleague Mr Connarty pointed out, a degree of contempt for this?
  (Angela Eagle) No. I do not have contempt for the parliamentary scrutiny process.

  19. I do not mean you personally.
  (Angela Eagle) Nor do I have contempt for Parliament. I am responsible and my ministerial colleagues are responsible for decisions on scrutiny overrides, not officials. I can assure you that I have no contempt for Parliament and no contempt for this process, but you also have to understand that we are in the position where we are negotiating with 15 Member States and we are trying to reach agreements. The later in a process that new things are brought to bear into the negotiations, the less people think you are serious, the harder it is for you to get agreement. We are in an area here where we have to reach unanimous agreement. We are not in a qualified majority voting part of the Treaties, as you well know. Therefore, if we are going to have credibility we have to be as timely as possible in introducing new issues. That is why it is important that we try to work more closely together with this Committee to raise issues of concern as quickly as possible. The later in the process that issues come up the harder it is for us with any credibility in either the work areas or at ministerial level to introduce issues. It is a timing issue to some extent. Clearly we cannot go on kamikaze missions and lose credibility and goodwill by pursuing points that we do not either agree with or that we do not think have a chance of building any kind of agreement on with the other nations . We have to have unanimous agreement. This is a process. Those of you who are negotiators and have been negotiators in the past will know that there are tactics involved in this. It is important therefore that we have this Committee's opinion as quickly as possible. The earlier we can feed it into the process the more effective we will be at pursuing any points that the Committee may wish to have. On the provisional agreement on human trafficking, for example, the framework decision, although there was provisional agreement, there are currently five scrutiny reservations remaining on that instrument of which the United Kingdom's reservation is one. It is not the end of the process when provisional agreement is reached. The Committee is searching for ways to make faster progress on its heavy workload by not leaving all agreement to the very end of the process but trying to have a sort of rolling agreement. This provisional agreement is what it says it is. It does not mean that we cannot re-open issues if the European Parliament has a view which perhaps changed the context or if this Committee had a view which changed the context, so I want to reassure you of that.

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