Select Committee on European Scrutiny Minutes of Evidence

Examination of Witnesses (Questions 20 - 32)



  20. The fact that the Council requires unanimity I would say reinforces my point in that it is important to get a good degree of consensus with the Scrutiny Committee before that position is reached because obviously if you have already made a provisional agreement then you could put yourselves in an intractable position if you did wish to change your position as a result of consulting with the Scrutiny Committee. What would be the situation if this Scrutiny Committee called for a debate on a particular document when you had already reached a provisional agreement on that document? Secondly, in relation to the European Parliament, whilst obviously Parliament can give opinion it does not always give opinion on everything and very often, unless Parliament feels as a former European parliamentarian, unless Parliament feels particularly strongly about an issue, it might not give an opinion at all.
  (Angela Eagle) The important thing to remember is that we are trying to pursue agreements which are in the United Kingdom's interests on important issues to do with Justice and Home Affairs in a heavy workload in a timely fashion. At the moment some of the instruments are so large that if you do not agree a part of the text while the Commission is coming up with other bits of the text, there just will not be time, for example, in the December Council to agree absolutely everything from scratch around the table with 15 states. What people are trying to do with provisional agreement is agree some of it and then get on to the next bits as you go along so that you are in a position where you can try to come to an agreement at the December Council. There are only so many hours in the day. The provisional agreement does not stop you from re-opening the issues that you have agreed if something important comes up. It is an attempt to work through the texts and see the lie of the land and get as much consensus around 15 states as possible so that you know where you are instead of leaving all of that work with all of the rest of the instruments to the end, to the day of the final Council. It is not an attempt in my view to have a sneaky parliamentary override without calling it that. In a provisional agreement, as I have said and continue to say and said in my letter, there are chances to re-open issues when things come up. It is a way of trying to deal with the workloads. I do not regard use of the veto, which is what we would have to get to if you were holding things up, as a victory unless it is something really important. We try to get ourselves in a position where we are not the country holding things up. We are happy, if that is the circumstance we find ourselves in, but when we are trying to work with other European Union countries to speed up the process which is in our own interests, for example, on a common European asylum policy, we are in the forefront of speeding that up after the deaths of the Chinese in the lorry. We were in the forefront of trying to create trans-European immigration protocols that would assist us in battling against the human trafficking. It was more of an issue for us than a lot of other European Union countries to speed that process forward and then to say at the end, "Sorry, we do not agree to it. We cannot approve it for the next six months and because Parliament is in recess and we have had a general election", was not, we considered, and my predecessors considered, a viable way forward. It is a question of trying to maintain all the balls in the air and keep everybody happy and also to allow appropriate time for parliamentary scrutiny. What we are not trying to do is avoid parliamentary scrutiny, but we have to try to work closely together to try and look at things in a timely fashion. I hope that the move towards project management, giving more advance notice of what we expect to be coming up at future Councils, will give us a way to do that in practice.

Mr Cash

  21. Minister, could you agree with me that in fact part of the problem is that some of the other Member States do not have quite the same degree of European scrutiny, to put it mildly, and that to a certain extent our European scrutiny process is regarded as something of an obstacle and an inconvenience and almost an impertinence? The problem which has occurred on a number of occasions could have been resolved, and I would be grateful for your thoughts on this, if in fact we were involved in the avant-projet stage because it is only when we get locked into the formal proceedings that the timetable is accelerated in the way that can lead to the embarrassment that you are facing today? I am sure that you do not intend any contempt but the problem is that you get pretty close to it for reasons perhaps of expediency but sometimes the sheer pressure of time you find yourself overriding a scrutiny reserve, but surely the real problem is to try and sort out within the European Union as a whole a manner in which these things can be properly managed on the one hand so that the scrutiny committees of the respective Member States have an opportunity to consider these matters in the proper and measured timetable, which I suggest should take us back into the avant-projet stage, and secondly that the proper scrutiny which all other Member States I would have thought would want, should be encouraged?
  (Angela Eagle) I have said this about four times now, but I do not believe that I personally, or any of my officials, are in contempt of the scrutiny process. We do a great deal of work to attempt to get as much information as possible to the Committee. We do it pretty effectively mostly. Again, if you want me to take you through every single one of the 12 points at issue, which I have done in my letter, we can do that, but I think that there were reasonable things that justified all of that, as I said in my letter and as Barbara Roche told you in advance of the May Justice and Home Affairs Council. I do not agree that we are seeking in any way to override parliamentary scrutiny. As I said earlier before you arrived, Mr Cash, we are doing a lot more work with the clerks of this Committee and within the Home Office to try to bring about a more coherent way of examining the issues that come before the Justice and Home Affairs Council and in a more timely fashion and we are trying to make some improvements there.

  22. If I may say, with respect, you have not answered either of the questions I have put to you.
  (Angela Eagle) I am just dealing with your points. I am not going to sit here and be accused of contempt without giving you an answer.

  23. That is the very point I am trying to make. I did not accuse you of contempt. In fact, I went rather in the other direction. I suggested that it might not be so much a matter of contempt as a problem which is inherent in the manner in which European business is dealt with not only in this country but throughout the community as a whole, and that actually the problem you have got is that you find yourselves being pressurised into overriding scrutiny reserves because of the rather inefficient manner in which European business is dealt with. If we were brought back into the avant-projet stage and we were able to consider matters as it were in draft before there is a jam, then, as I said and I would like an answer to this question, would you not agree that it would take some of the pressure off you? Would you not also—and this is the second point—agree that that it would be rather a good idea if other Member States had perhaps a rather more effective scrutiny process? I am not going to single any out but there are a number who have got good scrutiny processes and there are others who by any reasonable standards could be described as having next to none. That puts pressure on you as well. I am trying to be generous in this if I may and suggest that if you look for procedural ways round the problem you have got, you would not find yourselves sitting here being asked these questions.
  (Angela Eagle) I do not think it is for me to comment on the scrutiny processes of other members of the European Union. You can have your opinions on it and so can I but I do not think it is an issue for us. We have to try to make our scrutiny systems work in the most effective way. Again, before you arrived I did say that the United Kingdom, the Netherlands and Denmark tended to be the countries that had the most scrutiny reservations and there are scrutiny reservations, for example, still on the provisional agreement for the framework decision on human trafficking on which we have reached a provisional agreement but have five scrutiny reservations including the United Kingdom still attached. There are two issues here: an increased workload because of the Tampere agenda which is wholly new, and we are seeking to put in place new structures in Justice and Home Affairs. On top of that we have had the terrorism incidents which have led to another European-wide agenda on anti-terrorism measures and money laundering measures and measures which are trying to protect people in the European Union from threats of terrorism. That all adds to our workload and we have to try to create ways of ensuring that this Committee can have proper and effective scrutiny. I am looking at issues in draft where that is possible and may well be helpful, but we also have to realise that the methods of producing directives and bringing forward work on Justice and Home Affairs area are already slow. What we are trying to do and what the Government has been trying to do is to push the Justice and Home Affairs agenda along on issues such as common European Union asylum policy. We are looking at 2003 before we will be in a position to have a common European asylum policy. That, where there are clear benefits to this country in putting that in place, is already slow, so there are tensions in trying to move forward things in a timely manner which may not be assisted by looking at things in draft. There are plenty of opportunities through the process for draft directives to be changed. What we have got to do is try to ensure that we work together in a timely fashion so that scrutiny can play its proper role in our system.


  24. Mr Cash has been customarily over-generous when he was giving his example because that certainly was the example pre-Amsterdam, that there were the countries who had fewer scrutiny processes who were always pushing for quick agreement. It is now written into the Treaty that there have got to be proper motives, proper scrutiny in these Member States, so therefore it should not be the case. That is why we are so determined that we defend the right of scrutiny in the United Kingdom; and we are watching other Member States because we have had reports in the past back from Ministers who say that they were isolated and then we find out later that there were five or six countries who were so-called isolated at the same Council meeting, so it was not so much isolation. There are plenty of examples that cause us concern to question what happens when our scrutiny reserve is dropped.
  (Angela Eagle) It is certainly the case that the Treaty of Amsterdam allows six weeks for parliaments to scrutinise particular directives or draft suggestions before they go on the Council agenda. We ought to be able to work together to make best use of that.

Roger Casale

  25. I do not believe that any discourtesy has been intended in terms of what has happened between your Department, Minister, and our Committee and, if I may say so, Chairman, those issues are beside the point. I think also that in theory we can all agree on the importance of effective parliamentary scrutiny. In practice clearly there are very great pressures on you which sometimes make that difficult and we are learning a bit about those this morning. As you said yourself, Minister, there are occasions, and in particular you have mentioned measures to have a common European asylum policy to tackle migrants who are claiming illegal migration, where Britain is out in front seeking to shape the European agenda and you have got to move fast. We have got to have a clear idea of what outcomes we want from the negotiating process. In that situation you may feel that to have a scrutiny reserve or the work of this Committee, if we are more influential and are more powerful and more effective, it could be something that is in practice holding you back when you are trying simultaneously to negotiate a common position on the basis of what you want, Minister, for this country with 14 other countries. I think that that is really what we want to hear about, not just the pressures of time but the pressures that come from trying, when you have a very clear position, to maintain that position when it is pushed and challenged by 14 other Member States. In that situation perhaps a Scrutiny Committee is just one more thing that is potentially holding you back. What do you do in that situation? That is a general point I would like to make, but I also would like to ask you a very specific question, which is, in the context of what I have put to you, can you give this Committee any examples of where the exercise of parliamentary scrutiny through this Committee has strengthened your negotiating hand in the European Council rather than in practice weakening and undermining it?
  (Angela Eagle) I do not think the Scrutiny Committee's reservations undermine and weaken. Sometimes there are handling and management issues around that and I think that they were unique at the main Council when we were at the end of the Presidency, where the Committee had not met for three weeks prior to the dissolution, where Parliament was prorogued and it was unlikely, we were told, that there would be a new committee set up for six months. It did not actually exist and it could meet through August normally but not when Parliament was prorogued and we were in a general election situation. At the end of a Parliament like that we could usefully look at how we could continue a scrutiny role because the Councils go on whether a parliament is prorogued or not and the business goes on. It might be useful to have a look at what it might be possible for the Department to do with the Committee in those circumstances. As I say, it may only happen at the end of a Parliament. If the Committee could meet in August during the recess then that might assist in future but that is only when the Committee exists because Parliament is not actually prorogued and we have not got a general election. There was a particular difficulty with the 12 overrides that we were discussing from the May Council. I am new to the Justice and Home Affairs area, having only been in post since the general election, and I have attended one hearing. I cannot say that parliamentary scrutiny had got in the way of making any agreements, particularly at that Council and I am not in a position to give you an example of where you have done Ministers a good turn but I certainly hope to be in a position to give many examples after a few more months in the job.

Mr Tynan

  26. Minister, I was heartened by your initial statement because I think we are trying to deal with the past as well as the future here and that is one of the problems that we have. We are dealing with a Minister who anticipated an override which was not acceptable to the Scrutiny Committee and we are trying to deal with that and move forward. I think what is important is that we have co-operation between the Justice and Home Affairs Department and this Committee to make sure that proper scrutiny does take place. Is there any mechanism that could be used so that, in your view, if an emergency situation arose, you are aware of issues that may be fraught with danger as regards having to override? Could a mechanism be put in place to avoid any friction on this in the future?
  (Angela Eagle) I hope that the move towards a more project management approach within the Council itself will give us all a bit more certainty about what is coming up when. We have already given the clerks a basic outline of what we expect at the December Council which you can now be looking at ahead of time so that we can try to get on top of the agenda with respect to that. I have put in place some new controls that I hope will ensure that you get documents or an explanation why there is not an immediate answer available within three weeks of your requesting them. I expect there to be much more close co-operation between the clerks of your Committee and the appropriate officials in my Department to deal with any problems that we may see on the horizon. I would be quite happy to see what could be done if there was a problem emerging to try to get a view of this Committee ahead of time rather than be put in positions that my predecessor was put in, in what I say again was a bit of a unique situation given a particularly heavy JHA agenda after this Parliament had prorogued.

  27. I think there was much made of previous decisions by previous Ministers and there were reasons for that. Obviously, it is better that we work together because it is important that if there are problems we are able to deal with them together and we can give proper scrutiny .
  (Angela Eagle) We also need to focus our efforts particularly on binding legislation and the things on the agenda in Justice and Home Affairs that are going to lead to that. That is the most important issue for us to focus on together. Some of the other issues on the agenda are less important because they are depositing budgets or whatever. I would like a hierarchy of focus but it is certainly my intention to work as closely as possible with the Committee to ensure that we all know what is coming up in a timely fashion and certainly that you do not feel that you have been circumvented in any way.

Miss McIntosh

  28. Minister, if we can be positive and take this forward in the spirit in which you have given your answers, could I seek clarification on the arguments that you have put forward in your letter of 6 September relating specifically to Article 3 of the Protocol and the position of the United Kingdom and Ireland, particularly in regard to the directive involving mutual recognition. It would help the Committee enormously to know that in future if we showed goodwill and we were prepared to meet in August, should we find ourselves in these unhappy circumstances in future, but can you give the Committee a guarantee today of what the status of this Protocol is and that if it says that a reasonable period of time can be allowed for the United Kingdom and Ireland to consider a measure therefore Britain would not be left behind, and you would not use this as a reason for overriding scrutiny in future circumstances? I think that would help the Committee enormously.
  (Angela Eagle) My understanding, and this is part of the French package of immigration measures that were argued very strongly for by us in the aftermath of the Dover lorry deaths, is that this is in an area where we can opt in. We do not have to opt in to anything on immigration or visas. We wanted to opt in in this particular area because human trafficking not only puts people's lives at risk as we saw in Dover but is a particular issue for asylum in this country. We had pushed the French Presidency very hard to get agreement on these areas and my predecessor was faced with the prospect that, having done all of that, had she not overridden parliamentary scrutiny in this area, several things could have happened. Firstly, we would have spent a lot of time pressing in an area that is clearly in the United Kingdom's interests to reach agreement on only to say when we had brought it to agreement that we had to wait six months to bring it into effect. Secondly, because of our opt-outs in these areas of policy, had we held up the agreement by upholding the parliamentary scrutiny reserve in this context, the rest of the 14 could have gone ahead without us and therefore come to agreements which did not include this country or this country's interests when we had been pushing to get a common agreement. I think it was a particularly difficult area at a particularly difficult time, which is why the parliamentary scrutiny was overridden by my predecessor to come to agreement on the French Presidency immigration package in which that plays a part.

  29. But you have not given us a guarantee that you would not use that Article 3 again.
  (Angela Eagle) I would not want to. It would certainly be my approach not to if it could be at all avoided, but I think it would be wrong of me to sit here and say that there will never be circumstances like that again ever in the future, where those issues of national interest and the juxtaposition with a general election will not coincide. I think it was something that was done with regret and not with relish.

  Chairman: I was okay with the first half of your answer and I was prepared to accept it until the last bit.

Mr David

  30. My first question is a very general one, Minister. Given that we are talking about Third Pillar issues here, Justice and Home Affairs, the involvement of the European Parliament is minimal to say the least and yet on a couple of occasions you have referred to the European Parliament. I would like to suggest to you that in this area of intergovernmental co-operation the influence of parliamentary scrutiny is of paramount importance and, of all the areas of discretion within the competence of the European Union and Member States, it is probably parliamentary scrutiny that is of critical importance. The second point is a far more specific one. I would like to quote to you the Cabinet Office guidance for Departments on parliamentary scrutiny of EU document status, that the effect of placing a scrutiny reserve should be to prevent the Presidency—that is of the EU—putting the item to the Council as an "A point". That is very specific advice from the Cabinet Office, but with regard to the Europol agreement on third countries that is precisely what happened. I would like you to explain how not only was the opinion of this Committee not sought but the advice of the Cabinet Office was pushed to one side. What are the exceptional circumstances which justified that course of action?
  (Angela Eagle) Firstly, we have been talking about asylum and you will know that that is First Pillar and therefore the European Parliament will have and does have vociferous opinions in its scrutiny on that. All primary legislation that comes out of the Third Pillar of the European Parliament has to be subject to consultation. It is not quite as hands-off as you might have suggested. Clearly I take all parliamentary scrutiny seriously and it is quite clear that in the provisional agreement the potential for the European Parliament, whether it exercises it or not, to have opinions (and we are actually awaiting their opinions) and to have an effect on the text that we provisionally agreed was there, so the potential for change is still the case. We do not have any control about how to draw up agendas on your point about A points. It is the Presidency that draws up the agenda and decides which points go ahead. There are all sorts of things I could quote in the Cabinet guidance as well about special reasons for overriding parliamentary scrutiny, but I will not. I think the document that you refer to is actually quite pragmatic and suggests things that might influence a minister's decision to override as well as making the suggestion that is made in paragraph 5.27. I think that the best way that we can approach all of this is to try to work together and keep each other as informed as possible about emerging circumstances so that we understand the position that we are all in and can try to get to a position where not only is there mutual understanding but things have been looked at in an appropriate and timely fashion.


  31. Minister, in drawing to close this evidence session, I had a number of questions to finish under the heading "departmental weaknesses" but we have covered most of those questions during earlier questions. Before I close I would like to ask you if you have any suggestions on how we can assist your department in the scrutiny process. Is there anything we can do our side to help you respond better?
  (Angela Eagle) I think the essence of this is the connection that there is and which exists between the clerks and my officials, and I think it is important if we can go away and look at the processes and think how they might be improved in the light of what is going on, and with the added burden and pressures that there will be with a terrorism agenda I think that we should write to you about some of the detail. I think that would be useful. I think myself that trying to move the EU institutions into more of a project-based approach and also being able to predict more effectively than we have done in the past what is likely to come up in future Councils will put us all a bit more in the picture so that we can try to work together to ensure that we do not get into the position that we did get into in May. I would also be interested in your views of what to do at the end of parliaments. Clearly the Committee has the potential to meet in recesses when it exists but it does not have the potential to meet at the end of a parliament when it is effectively dissolved, and yet EU business goes on. There is an issue there that we might sensibly look at.

  32. That happens at the end of every parliament but there is also the question, which I am sure you are aware of, at the end of presidencies, and this Committee does get concerned when Presidencies try to wrap up everything and they add onto the agenda in the last few weeks when sometimes scrutiny goes out of the window. We are very keen to keep our eye on that particular ball and make sure that does not happen as it happened in the past.
  (Angela Eagle) I think that is a fair point. Everything is always a rush at the end. It is the same for the ministerial box on a Friday afternoon, I can tell you, when everything suddenly appears from nowhere, and clearly a better way of timing the arrival of those kinds of things would facilitate all scrutiny and effective parliamentary scrutiny across the European Union.

  Chairman: Thank you for having this your first evidence session with the Committee. I will not ask you whether you enjoyed it or not but just to say this: I can remember when we had an Environmental Minister before us dealing with things he was doing at the end of a Presidency and I can assure you it was a more uncomfortable evidence session than we have had today. I hope some good comes from it and I am sure that now we understand each other better, if we can work together in line with what Mr Tynan said, with better scrutiny and better government, and one is not holed up on the other, if we can get it right, we will succeed. Minister, thank you very much.

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