Examination of Witness(Questions 1-19)
RT HON
NICHOLAS BROWN
MP
WEDNESDAY 6 NOVEMBER 2002
Mr Marshall
1. I am sorry we are starting late as a result
of the fire alarm in this building. Perhaps it just shows how
you are going to set the place on fire; and perhaps it is also
more particularly pertinent since the topic over which this incident
arose was called `Control of Major Accident Hazards', so perhaps
it is an appropriate time for you to be here this morning. But
welcome, and thank you for agreeing to stay. You know what the
intention of the meeting is. This Committee, and the House of
Commons generally, protects the scrutiny position as strictly
as we possibly can, and we do look gravely upon any breaches of
that scrutiny position; and, as you know, your Department and
you personally did transgress that strict rule, that we try to
ensure is applied as strictly as possible. So if we turn immediately
to that. We were told by your Department, in September, as you
know, that a debate had been arranged in European Standing Committee
A for 15 October, so that that would avoid the need for a scrutiny
reserve at the Environment Council two days later. You then wrote
to the Chair of the Committee on 9 October to say that the debate
had been postponed, but you gave no explanation for that. We have
now had a subsequent formal notification of the outcome of the
Council, a letter which I think you signed on 30 October, which
the Chair of the Committee may or may not have seen, I certainly
have not seen it, and other members of the Committee have not
seen it. So perhaps, for the record, you could tell us what actually
happened at the Council on 17 October; and, since you knew that
a Common Position was likely to be agreed then, why did the debate
not go ahead as planned, for 15 October?
(Mr Brown) Yes; let me say, from the
outset, Chairman, that I want a good working relationship with
the Committee, as does the Department for Work and Pensions. As
you know, responsibility for the Health and Safety Commission
and the Health and Safety Executive has been newly allocated to
the Department. I actually think it is the right home for the
Commission, that is my personal view, and so I hope that this
is an arrangement that will endure, and it is essential for the
future that the work of the Commission and the Executive, including
the advisory work it does for the Government on matters of European
Union competence, is properly integrated into the Department's
work. Now I said I want a good working relationship with the Committee,
I do, and the Committee is due an apology; you have not had the
hearing that you wanted, and for that, on behalf of the Government,
I apologise. The duties were new to me, and when I saw the hearing
scheduled I knew at once that I had not been briefed on the negotiations,
nor was I the Minister that had heard the advice, it was not clear
to me who the Committee wanted to see, whether you wanted to see
what I assumed then was my predecessor, who I assumed then had
heard the advice, or whether you wanted me to come along; and,
frankly, I could do no more than repeat what the Civil Service
advised me, because I was not the Minister at the time who conducted
the negotiations. So I postponed the meeting so that I could get
myself properly briefed on it, and also explore which Minister
you wanted to see. I quickly discovered that the negotiations
on this were further advanced than I thought, and also that the
previous Minister also was not the Minister who heard the advice,
and so you would have to go back to the original Minister, who,
of course, was no longer a member of the Government, who had set
the negotiating brief. I then looked through the issues themselves,
and it was pretty clear that what the Committee was seeking to
explore was why the British Government's negotiating position
was for a higher tolerance level into specific areas. In other
words, the Committee was arguing from the point of view of the
protection of people working in the industries and not taking
the opposite view, which is the burdens on business approach;
and I have a lot of sympathy with the approach that the Committee
was taking. But I have to repeat to you, I was not the Minister
who heard the original advice, and therefore I am not in a position
to interrogate it retrospectively. It then became clear to me
that the matter was drawing rapidly to a conclusion, and indeed
that the United Kingdom position was not commanding a great deal
of support amongst other Member States; and there was an opportunity
to achieve the outcome that it seemed to me that the Committee
was seeking, in other words, a lowering of the threshold, a tightening
of the protective position for workers in the industry, that being
the point of view that other Member States were advocating. And,
in order to bring the matter to a conclusion, a conclusion which
it seemed to me that the Committee was seeking, I cleared scrutiny
so that this could be settled under the Danish Presidency, a Presidency
that is friendly to the United Kingdom. And it seemed to me that
that was within the derogations that the Cabinet Office advice
allows to Ministers, and I rather hoped that the Committee would
be pleased that I had secured something that the Committee wanted
and that was not the original negotiating position of the United
Kingdom. However, once again, I do apologise to the Committee
that you did not have the scrutiny debate. And can I, Chairman,
just to conclude the points I want to make—and all of this
has been set out in writing to the Committee, you have been kept
informed at every stage, and I accept that is not a substitute
for a debate and the Committee has the right to demand a debate
if it wants one—there are three things that I would like
to suggest. The first is, it is clear to me that there was a delay
between the meeting of the Committee on 13 February, which was
when you examined the proposals and asked for the explanation,
and our getting back to you, on 23 May. Now that is a three-month
gap, it is before I became the Minister, but I am responding on
behalf of the whole of Government and not just for my stewardship
of these affairs, and we need a mechanism to make sure we are
progress-chasing these things, when the Committee asks for something
you should get it promptly, and then to put arrangements in hand
in my office to make sure that we are progress-chasing the Commission
and the Executive. It also seems to me that we need to review
the way we, as a Government, handle these European negotiations,
which involve drawing on the expertise of the Health and Safety
Executive. I think the structure that we have currently is correct,
in that the Executive reports to an independent Commission; but
when conducting an international negotiation, I think it is necessary
to be protective of ministerial input, and I intend to review
precisely how that happens. And there is a third point I want
to put to the Committee. My initial reluctance to do the debate
was because it was going to focus on technical issues, on which
I had not been briefed, and do not have, for my own general knowledge,
a competence that I could share with the Committee, and I do not
suppose many Members here do. Issues like this will occur again.
I do not want the unsatisfactory position of either the issues
not being addressed, or even of having to come along here and
say to you what has been said to me, and then to have yourselves
respond probably on the basis of briefings that have been put
to you. And I wonder, and perhaps it is something that the Committee
would like to consider, rather than decide now, if the Committee
would like formal presentations from the professional advisers
to Government, in other words, from the Health and Safety Executive
officials, directly to the Committee, not in an adversarial setting
but just so that you can hear the same advice that is being given
to Ministers, without any impact on your right to decide on a
debate. Having heard the advice, you might decide you wanted a
debate, you might decide you wanted a debate even more, or you
might decide there was no need for it. Now if that would help
the Committee, actually to hear the advice to Government, then
I am happy to explore whether we can offer that, and in future,
when issues, which are of a technical nature, come to be debated,
perhaps we could all hear the professional advice first.
2. You know the procedures of this House, perhaps,
as well as anyone, in view of the previous position you held,
as Government Chief Whip; you will know that this Committee asks
for a debate and not a particular Minister. How does that procedural
position of ours fit in with the explanation that you have given
for the postponement of the debate? The debate could still have
gone ahead and another Minister could have—
(Mr Brown) There would not have been very much to
debate, as it has turned out; but, in any event, the fact of the
matter is, you should have had the debate you are entitled to,
but you should have had it before the summer recess. Now I am
afraid that is all before my time as a Minister. I can do no more
than to apologise to the Committee because you did not have the
debate; in my opinion, you should have had it before the summer
recess, but it is pretty hopeless, my being just given the duties,
to ask me to come along and explain something on which I am not
briefed, whose standing I have no knowledge of. And, once I had
examined the issue, it seemed to me that the better thing to do,
to respond to what the Committee actually wanted, was to bring
the matter to a conclusion under the Danish Presidency.
Jim Dobbin
3. Just for the record then, do you agree, Minister,
that the Government has a particular duty to maintain the scrutiny
reserve when there is an outstanding debate recommendation?
(Mr Brown) In principle, yes, but in these particular
circumstances I am absolutely certain that I was right not to.
It would have been an odd position to have the United Kingdom
isolated just on those very narrow reasons, particularly when,
by agreeing, we could get something that the Committee had actually
said it wanted. Of course, I agree with the general principle;
the truth is, we should have had the debate earlier and then there
would not have been a problem, in other words, the debate should
have been had before the summer recess, then there would have
been no problem with clearing scrutiny, and actually I think the
Committee would have been satisfied with the way in which the
negotiations were going as well. As I understood the thrust of
the Committee's argument, you were arguing for a lower threshold,
a tighter threshold, perfectly properly, in my opinion, for the
protection of people working in the industries.
Mr Connarty
4. Welcome to the Committee. It was, in fact,
impressive that when you were a Secretary of State we never had
to have your Department in for breaches of scrutiny. In your present
role, I just cannot understand what your perception was of what
this process of debate was about. There seems to be a misunderstanding
among Ministers whether the debate process is one where the Government
pushes through its legislative position it wants to take to Council,
or whether, in fact, it is part of the scrutiny process. And could
I ask you, just simply, how do you regard Standing Committees
of this Committee, are they scrutiny, or are they, in fact, legislative?
(Mr Brown) The Committee is a substitute for scrutiny
by the House. Nobody takes it more seriously than I. I used to
be the Government Chief Whip, I understand the process well enough;
indeed, I helped set up the Committees after the 1997 election.
Now I have already, on behalf of the Government, apologised to
the Committee, because you did not get the debate you were entitled
to. It is my view that that debate should have taken place before
the summer recess. I can do more; except I can say this. The set
of circumstances is unique; to have had three Ministers deal with
the issue in the space of nine months is—
5. I think we have been told, in fact, you would
not find it was unique. Ministers come into new briefs, and, in
fact, the summer period was available, the whole of September
and most of October was available to brief yourself on the issue.
Basically, you denied all Members of Parliament, because anyone
can go to that Standing Committee, their right is to come along
and question the position taken by our Government, which was,
in fact, to put in more danger, as far as we were concerned, people
who worked with certain chemicals. Now I do not know how much
has gone out from what you have decided in the Council, to let
people know that we may have got a better position, I am not actually
aware of what position we have agreed; but can I just make the
point, it is the fact of the denial of the right of Members of
Parliament to come to that Standing Committee, on behalf of maybe
people in their constituency, or people in their workplace organisations
from which they came, to put the Government under scrutiny, to
get the Government to justify its position. If you could not have
justified that position then it would have been quite clear the
Government should have come along and said, "We're changing
our position." But that was denied to Parliament, that is
what is concerning us, as a scrutiny Committee, more than the
substance, for the Minister?
(Mr Brown) I am entirely on your side on all of that.
We have written to the Committee, and you have an explanation
of the eventual outcome of this, and, indeed, reviewing the file,
the Committee has been kept up to date by correspondence; but,
I agree with you, that is not satisfactory, if you want the debate
you are entitled to the debate. I think, more than that, you are
entitled to an informed debate, and what I am offering the Committee
is this prospect of exploring whether we can actually get the
technical advice that is presented to Ministers presented to yourselves
as well, so that before you decide on the debate you are actually
as well briefed as a Minister; now that is something I offer for
the future. There are two other things I can say for the future
as well. This will not happen again, as far as the Department
for Work and Pensions is concerned; this is the new home for the
Commission and the Executive. As I have said before, I think the
arrangements are right, I think they will endure, I intend to
review the procedures to make sure that the Committee's requests
are dealt with promptly, and certainly within time, and certainly
we do not find ourselves in the position we find ourselves in
now. Let me say something else though. It was very clear to me
that what the Committee was concerned about, as I have said to
the Committee before, was the thresholds to which working people
were being exposed; of course, the Committee should have been
able to debate that, and, once again, I apologise on behalf of
Government that the Committee could not. But I did secure the
result that it seems to me the Committee wanted. The Committee
was arguing that the Government was going for too tolerant a threshold;
the eventual outcomes, as the Committee knows, I think I am right
in saying that, that all this has been reported to you, are much
more to the result the Committee wanted. Now we could have either
put in a reserve, a scrutiny reserve, or got the result the Committee
wanted, and I thought the better thing to do, in the national
interest, was to wrap up the negotiations, to secure the result,
or something closer to the result the Committee wanted, and to
get this settled under the Danish Presidency. It was the last
chance to do so, remember.
Miss McIntosh
6. Perhaps we would have the opportunity to
question the Minister before he has to leave. Could I return the
Minister to his letter to us, in which he says: "The circumstances
and timing affecting this proposal are both unusual and unfortunate,
and I hope that the Committee will understand the reasons for
the actions I will need to take." Clearly, the Committee
did not understand, and that is why the Minister is before us
today. But there are very strong reasons for the House and the
Committee insisting on a scrutiny reserve; and I put it to you,
Minister, that, in the letter that you sent us, the justification
for your willingness to agree this in the Council, on the grounds
that the UK had secured improvements, really is the purpose of
why you are here, surely, for the House, through this Committee,
to decide whether, in this case, or not, sufficient scrutiny had
applied. The scrutiny procedure has been in place now for 25 years,
it is well understood by yourself and in other Member States,
and particularly by the current Presidency. What we are asking
you today is whether you are seriously suggesting that an essentially
procedural reserve would have jeopardised our position on the
substance of the document? If we can just stay with the past for
the moment, I take it you are making a commitment for the future,
but we feel very badly let down, and I think the country will
feel very badly let down, that you overruled a scrutiny reserve?
(Mr Brown) The alternative would have been to put
the reserve in when we had secured the result that was satisfactory
to the Committee, in fact, better than the Committee thought was
going to happen, and that we did not bring it to a conclusion—
7. That is for the Committee to decide.
(Mr Brown) The Committee had expressed its view, and
we did not bring it to a conclusion under the Danish Presidency.
Although, of course, I accept the thrust of what you are saying,
I do not want to quarrel with you on this question of Committees'
scrutiny rights, because I am wholly on your side on that. But
I am in a difficult set of circumstances, I had just got the brief,
there was a choice between bringing the matter to a conclusion
or putting in the reserve, and it was clearly in the broader national
interest that we bring the matter to a conclusion, without quarrelling
with people who are, after all, some of our closest friends and
allies in the European Union.
8. One of the reasons that you are suggesting
this will not happen again, presumably, is because the House will
now be sitting for two weeks in September, so there will be that
extra time?
(Mr Brown) No, it is more than that. I want to make
sure that we properly integrate the Health and Safety Commission's
and the Health and Safety Executive's work into the more conventional
way in which things are done within the Department for Work and
Pensions. I think it is a logical place for the Commission to
be, I think this will be its permanent home. There will clearly
be issues like this that will arise in the future, although not
in this way, when dealing with European Union matters, and I want
to make absolutely certain that the Committee gets its explanation
and its right to scrutiny in a timely way, so that there is no
question of things being jammed up against a deadline. If this
debate had taken place before the summer, we would not be in this
position now; and, in my view, that was when it should have taken
place.
9. Do you think, Minister, that part of the
difficulty of the timing of it was the transfer to a new Department
of this very big responsibility?
(Mr Brown) I certainly think that the changes that
have taken place within Government, a combination of events rather
than any one event, have led to this outcome. Remember, I got
these responsibilities just before the party conference season,
a debate was scheduled for the second day the House came back,
and, in order to get myself fully briefed for a debate, I asked
for it to be postponed. In retrospect, it might have been better
if I had not done that. But there is a whole series of decisions
that were taken, with perfectly correct intentions, but whose
cumulative effect has led to this unfortunate outcome.
Mr Marshall
10. Could I just come back to the fundamental
point, Nick, and that is this. We have heard the explanations
that you have given, but the fundamental criticism that we are
making of you and the Department is not the negotiating position
that you successfully achieved but the fact that you cancelled
the Standing Committee meeting; that is the fundamental criticism.
We have heard what you have had to say for that; but I think that
is the fundamental reason that we have got you here today, because
that is, we consider to be, a clear breach of the scrutiny reserve
position. Perhaps you could just dwell a little longer on giving
us the reasons for that decision?
(Mr Brown) I am going to end up repeating myself,
Chairman. I got these duties late; the original reason for postponing
it was so that I could brief myself on the highly technical issues
that you wanted to discuss, remember, the original meeting was
scheduled for the second day back, and also to clarify which Minister
you wanted to cross-examine on the subject. As I say, my original
thought was it would be my predecessor that you wanted to ask,
but I quickly discovered, after having postponed the debate, I
have to say, that he had not heard the negotiating brief either,
and it was his predecessor that had set the negotiating brief
and, presumably, would be able to explain it to the Committee
and say why he made the decisions that he did. It is perfectly
right for the Committee to cross-examine this, but, as events
then moved on, and often Ministers are faced with things when
Parliament has come back, although, of course, Ministers are here
before Parliament reassembles, it was clear to me that there was
a possibility of bringing this to a conclusion and getting the
result the Committee said they wanted, or, to be fair, getting
something that is closer to the result the Committee wanted. And,
under the Cabinet Office guidance, it is my view, and I accept
the Committee may quarrel with it, but it is my view that I had
sufficient room for manoeuvre to clear it, and I thought that
was the right thing to do, and proper, in the broader national
interest.
Angus Robertson
11. Minister, welcome to the Committee. Can
I pick up on two things that you have said. One, that you believed
that you were acting in a way that would find satisfaction amongst
the Committee. You also said earlier, with regard to a debate,
that you thought that there would not be much to debate. Do you
not accept that this is not something for Ministers to second-guess
but is actually something for members of this Committee and Members
of this House to decide?
(Mr Brown) I cannot say this again. I am on your side
with regard to scrutiny, it would be odd if I were not, given
all the previous tasks that I have carried out in Government,
and that is why I am saying to the Committee that there are things
that we should do better for the future. To be honest, Chairman,
we are going round in circles. I have apologised on behalf of
the Government. Let me say again, I think it would have been better
if the scrutiny committee had been held either with the Minister
who was setting the negotiating brief or at least before the summer
recess, so that you would have had the debate in time for what
they call the `end game' in the negotiations in the European Union's
forums. But that did not happen, and so I am left with two decisions,
neither of which is going to be perfect, but I think I made the
better of the two decisions.
Mr Cash
12. That, if I may say, is a very good moment
for me to come in on this issue, because you are—
(Mr Brown) You (—inaudible—opinion?)
anyway.
13. Do not talk rubbish, Minister, and certainly
not when you are sitting in front of a Select Committee; it does
not help, it will not help your position either. Very simply,
what you are saying is, "I know I was right," and, therefore,
in terms which I think amounts to a contempt of Parliament, as
well as of this Committee, you are saying that you know that you
were right. And what I would like to know is, who advised you,
in the circumstances, in the Cabinet Office and/or in your own
Department, because it appears to me that either you overrode
their advice, which I am sure was given in good faith, about the
problem of a scrutiny reserve; and I would like an answer to that
question, did you override their advice? And, if you did not,
what advice did you receive, and by whom?
(Mr Brown) No, I have not overridden the professional
advice of the Civil Service. I acted within—I have explained
this to the Committee already—the derogations that are clearly
set out in the Cabinet Office guidance, and acted in the broader
national interest as well. It is not a question of the advice
of public servants having been overridden.
14. You do realise how close you are to a contempt,
do you not?
(Mr Brown) That is a two-way thing. I am trying to
be candid with the Committee and to explain why I took the decisions
that I did. But if you are alleging there is any contempt of Parliament,
that is a very, very serious thing to say. And, frankly, I think,
Chairman, that if the discussion with the Committee is going to
go down that route then the honourable gentleman, if he is making
such a charge, had better make it plainly.
15. I said you were getting very close to it.
(Mr Brown) Well, frankly, that is a debating point.
Mr Marshall
16. Could I, perhaps, finally, Nick, ask you,
we would still like the debate to go ahead, we have had no indication
of when that is likely to be; could you indicate to us if any
arrangements have been made, are likely to be made, and, if so,
when the debate is likely to take place?
(Mr Brown) It is a matter for the Committee. If you
still want the debate, I am happy to have it. But I wonder if
it might not be better, since you have secured the results you
want, to sort of perhaps discuss amongst yourselves whether you
want to take up my offer of exploring further how we handle issues
of this kind in future. And, frankly, I do not see how a Minister—
17. That is not a matter for the Committee.
The Committee has requested a debate. Your Department previously
arranged a debate; you have subsequently cancelled the debate.
The position is, we would still like a debate to go ahead. I presume
your Department will go through the procedure that it went through
last time, in terms of arranging a debate, and we would anticipate
that, this time, you would not find it necessary to postpone it.
What we would like is a timetable which would indicate when the
debate is likely to be held?
(Mr Brown) Yes, of course, and we can arrange a suitable
date for a debate, if that is what the Committee wants; but it
would help me and the Department enormously if you said what it
was you wanted to debate. And, remember, this is done now.
Miss McIntosh
18. This is extraordinary. You have deprived
a Standing Committee, which has delegated responsibility, by your
Government, amongst others, and we had the Leader of the House
here yesterday to explore how we can improve even more the procedures.
You have actually taken away the one right we have to impose a
scrutiny reserve, unilaterally, possibly against advice, and I
am not satisfied on that point. You are very close, as a senior
colleague has said, to displaying contempt for the whole procedure.
And, now, the very bottom line is, we have requested a debate.
And I take this very seriously, Chairman, and I do not think the
Minister should leave this morning without, at the very least,
satisfying us on the point of when we are going to have a debate?
(Mr Brown) Yes, we can arrange for the debate, I have
already conceded that to the Committee. But I do not think it
helps to try to play politics with these issues; and the idea
that, somehow, you are saying that I have not been candid with
the Committee, I just think is very unfair.
Mr Marshall
19. I think perhaps we should draw this to a
close. The Committee's position is as it was previously. We have
requested a debate; a debate was arranged and it was cancelled.
The House will eventually decide on this issue, but, in order
to do that, we do need a debate to be arranged. And I would suggest
that that is the course of action that will follow, and the House
will decide whether that debate is worthwhile or not and necessary,
and it will not be an individual Minister or an individual Government
Department making that decision. So if I could emphasise that
that is the position of this Committee and will remain the position
of this Committee.
(Mr Brown) I am going to be in danger of repeating
myself here. If you need the debate, you can have it, but I really
do not think there is going to be anything that I am going to
be able to add to what has already been said to the Committee.
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