|
UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1231-i House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE EUROPEAN SCRUTINY COMMITTEE
EUROPEAN AGENCY FOR HEALTH AND SAFETY AT WORK
Wednesday 3 November 2004 RT HON JANE KENNEDY MP, MR STEVE COLDRICK and MR MALCOLM DARVILL Evidence heard in Public Questions 1 - 27
USE OF THE TRANSCRIPT
Oral Evidence Taken before the European Scrutiny Committee on Wednesday 3 November 2004 Members present Mr Jimmy Hood, in the Chair Mr Richard Bacon Mr William Cash Mr Michael Connarty Jim Dobbin Mr David Heathcoat-Amory Sandra Osborne Angus Robertson John Robertson Mr Bill Tynan ________________ Witnesses: Rt Hon Jane Kennedy, a Member of the House, Minister of State for Work, Mr Steve Coldrick, Head, Nuclear Hazardous Installations and Chemical Policy Division, and Mr Malcolm Darvill, Head, Better Regulation and International Branch, Health and Safety Executive, examined. Q1 Chairman: Minister, welcome to the European Scrutiny Committee. Thank you for accepting our invitation. We want to discuss with you the way that Scrutiny Reserves are treated and in particular the Scrutiny Reserve that you looked at at the Council meeting on 4 October. I would like to ask you why you lifted the Scrutiny Reserve. Jane Kennedy: Thank you, Mr Hood. I have with me Malcolm Darvill, the Head of the Health and Safety Executive Better Regulation and International Branch, who will assist me on this first point, and Steven Coldrick, Head of the Health and Safety Executive Nuclear Hazardous Installations and Chemical Policy Division based in Bootle, who will help me on the second issue. Why did we use the override? The committee will be aware of the history. You originally declined to allow it to pass through scrutiny because of the issues around Article 308 and you asked us to press the case, which we did. We strongly pressed the case for Article 137 in negotiations with the Commission but the Commission did not believe that Article 137 was sufficient for the Bilbao Agency. In the face of a contrary view shared by the Commission and, unfortunately, by all other Member States, we did not feel able to press the case for the use of Article 137 further in this case. It was therefore with great reluctance, given the circumstances that I have described in my letters to you and to their noble Lords on 29 September, that I felt it necessary to apply the scrutiny override. An efficiently functioning agency such as the Bilbao Agency does do very important work. Its dissemination of information and good practice is effectively beginning to drive up standards of health and safety in some of the poorer and new entry Member States which perhaps lack the resources and infrastructure of other and older Community members. I think this contributes to achieving a level playing field in the Common Market and benefiting its citizens, including UK nationals who opt to work on the continent. It was on this basis that the use of Article 308 would not appear to be unlawful. Q2 Chairman: Minister, the thing that is annoying us, and that is not too strong a word, is that this committee for some time now has taken the view that if ministers are going to override Scrutiny Reserves they had better understand that when they do so the consequence of that is that the committee will want them to come and explain the reasons for it. The difficulty that I find you have, Minister, is that you informed the committee that you agreed with them in the early part of the discussion when we said that we wanted to use Article 137 and then you overrode it. It would appear, and you are welcome to contradict me, that the issue of the Scrutiny Reserve took second place to other business on the agenda that day and that the government seems not to want to upset its negotiating position on something that is politically more important to it. That being the case, and that may be argued politically, from our position as a committee which scrutinises legislation on behalf of Parliament we are looking after the interests of Parliament when we put Scrutiny Reserves on to get things considered properly. We do not take too kindly to it when Scrutiny Reserves are overridden. It is bad enough that it has been overridden but it also appears that the government was agreeing with our views on it but sacrificed it for other issues on the agenda. That is something that we find unacceptable as a committee. Jane Kennedy: I hear what you say. We could have blocked the proposal, forcing it down the co-decision route. We had two choices facing us: to do that or essentially to join with the consensus on this issue in order to support the doctrine. That was the political judgment that we made. It was weighed against the need to progress more politically and economically important proposals to us at the time and there were other very weighty issues on the agenda. In that respect I do accept the criticism that you are making. There is not a lot I can add to that. Chairman: There is not a lot that I can add to my earlier comments either. I am sure you will discuss it with your civil servants, if not now, in the future, that when you are advised to override Scrutiny Reserves the committee do not take it lightly. We also do not take it too kindly when our other recommendations and decisions are treated in such a way that we do not think they are seen to be important to those who are advising you. It is not just a criticism of you as Minister and your decision; we hope the civil servants will get the message as well that we value very much the scrutiny process and when we put Scrutiny Reserves on we want very good excuses when they are lifted. Q3 Mr Cash: Minister, it is not just a question, as you put it, of whether or not there was a political difficulty that you faced on that day. The real problem, and I suspect other members of the committee may agree with me, is that the committee is continuously stating that the European Union is supposed to be a community based on respect for the rule of law. Our objection to what you did is not only that you took the action you did in overriding the Scrutiny Reserve but that you also engaged in activities which were unlawful in doing so. It is simply not possible for us to accept that the legal base was the appropriate legal base and it is the unlawfulness of the activity which is also a very serious matter and which cannot simply be jeopardised by the pecking order of political decisions that are to be taken on a given day in the Council. That is really the problem. It is a fundamental issue of principle as well. Jane Kennedy: I will just re-state that we did take a different view from the rest of the Commission. The rest of the Commission did not believe that Article 137 was sufficient. We could not persuade any of the other Member States or the Commission that our view was right. They had different legal advice and they held their position. We could not sway even a single one of the other Member States on that. Therefore, the Commission believed, based on the legal advice that they have had, that their decision was completely lawful and we in the end concurred, that that was the majority view and that in taking the decision that it took it was not acting unlawfully. It was an extremely unusual position for me to find myself in. Q4 Angus Robertson: Minister, did you find yourself in agreement with the legal advice that was put by the other Member States? Jane Kennedy: The advice that I was given, - and, Malcolm, feel free to contribute if you wish - and particularly the legal advice, was that Article 308 should not have been used in this case and that there was a case for the other article to be used, but we could not persuade the other Member States of that. Mr Darvill: The HSE lawyers were of the view that although it was not there when the Bilbao Agency was first set up, since that time we have had the Amsterdam(?) Treaty when what was the old Article 118 was amended to 137 and the additional clause, which in our view would have authorised the agency, was inserted. Our lawyers were of the view that that was the correct legal base, so we are completely at one with the committee. Q5 Angus Robertson: So despite the fact that the legislation made under Article 308 requires unanimity, and despite the fact that the regulation could not have been adopted if the UK Government had withheld agreement, and despite the fact that the UK was in a strong position to insist on the use of appropriate legal base, one decided to join the consensus regardless of legal advice? Mr Darvill: Yes. Q6 Mr Heathcoat-Amory: This is very serious because you have done something unlawful. By "you" I mean the Council has. It is also something greater than a discourtesy to this committee because we received a letter from the Foreign Secretary on 2 March of this year when he said, "We will only support the use of 308 in cases which meet the requirements of the Article". It is clear from the letter that he is referring to the government as a whole, not simply the Foreign Office. We have received an unqualified assurance, in fact, that this would not happen and he did not qualify his statement in that letter by saying, "In cases, if we are under political pressure, we might consider it". That was an absolute assurance to this committee from the Foreign Secretary on behalf of the government. Almost immediately after that we have you breaching that. I think this is extremely serious because there is no question that there was another article. The legal advice is unambiguous and even an untutored eye like mine can quite easily see that 137 could have been used. My question to you, Minister, is: what are you going to do about it now? You can under Article 230 refer the matter to the European Court of Justice and I think you should do that because again the treaty is quite clear on this. We have a rule of law. It can be referred to the European Court of Justice if something unlawful has happened either by the Council or the Parliament or by a Member State. This has happened. What are you going to do about it? Jane Kennedy: First of all can I reassure the committee that I was very disappointed to send the letters that I sent to use the override. I was aware of the Foreign Secretary's letter to the committee, so I took the step in the full knowledge of the situation I would face in the committee and the step that I was taking. It is with nothing but regret that I took the decision. If you will allow me, in terms of the use of Article 230, I will take that away and look at that. I do not want to give you a snap response here. I am not going to say yes or no at this point because I want to consider what you have suggested. The position we are taking at this moment is that it is too far down the track in terms of process in terms of the development of the legislation through the Commission for us at this last minute in the case of this particular regulation to be arguing on the legal basis. Therefore, we need to engage with the Commission itself to find a better way of resolving these matters, particularly from our point of view and my responsibility as Health and Safety Minister, because of the probably busy time that we may face. We need to find a way of making sure that we do not end up in this situation ever again. It is certainly my desire and intent to try and find a different way and get the Commission to appreciate that this is not the way that we intend to proceed in the future. Q7 Mr Heathcoat-Amory: Chairman, I am sorry; that is completely inadequate. Your department and the government more generally and this committee all agree that something unlawful has happened. They have adopted a directive under an illegal base. There is a provision for taking this to court. You have had plenty of time to think about this. You have got officials on either side of you. Can you now give us a slightly better response to my suggestion rather than saying, "It is all very regrettable and we hope the Commission will do better in future"? That is completely inadequate. We want something done about this and we want you to tell us what you think the government is going to do. Jane Kennedy: If you press me for an answer today on the use of Article 230 I will say that we will not go to court on it because our preferred approach at the minute is to try and work with the Commission to resolve this before we get into this situation again. Q8 Mr Heathcoat-Amory: What do you mean, "resolve" it? It has already happened. Jane Kennedy: We had a view, and the committee shared that view, about the use of 308. We believed that was not the appropriate way to go, that there was an alternative that was in our view the preferred legal alternative. There was not another single European Member States that shared that view, not one, and not one that we could shift to seeing it from our point of view. Our view was that to allow it to go ahead was better than to prevent it because of the important role that the agency can play. Q9 Mr Tynan: Minister, you seem to misunderstand the Scrutiny Reserve. This committee does not put a Scrutiny Reserve on lightly. We understood that the government was in a position where they were accepting the fact that the Scrutiny Reserve was in place. Under the circumstances you say you had two choices. I would suggest you had only one choice and the choice was to stay with the reserve. My concern is for the future. In similar circumstances in the future what would you do with a Scrutiny Reserve from this committee, because if you simply have a choice and decide to take a decision that as far as you are concerned the decision of this committee is non-operable, that you will then put in place a change in the position, then that greatly worries us. The future is the issue I am concerned about. The legal base is a serious issue, but the fact that we are in a position today where we have a minister before us, we had a Scrutiny Reserve and you breached that Scrutiny Reserve certainly worries me for the future conduct of yourself and any future discussions in the Commission. Jane Kennedy: I am chastened by the experience I had. I cannot and would not want to enter into speculation on future decisions. Clearly you have the stated position of the government in the letter from the Foreign Secretary. I will need to bear that very heavily in mind should I ever find myself in this position again. Q10 Jim Dobbin: Minister, this is a very straightforward question and you have probably alluded to it in the responses you have given. Would you agree that it is essential for the Commission in proposing legislation and the Council in adopting it to act lawfully? Jane Kennedy: Yes. Q11 Jim Dobbin: And do you think they acted lawfully in this case? Jane Kennedy: What our view on that be, Malcolm? Mr Darvill: Quite clearly the European Commission considered they acted lawfully and 24 other Member States thought they were acting lawfully. Q12 Mr Cash: I doubt it. Mr Darvill: As soon as we saw the proposal, the very first minute we saw that it was proposed to carry out this amendment to the founding regulation under 308, we knew we had a battle on. We were aware of the committee's interest in this issue, so the first time it was discussed at a social questions working party UKREP raised this matter and put it on the agenda and we argued every time thereafter. There was simply no response whatsoever from the other Member States. In fact, I think it is fair to say that we irritated the European Presidency, ----- Mr Cash: Good. Q13 Mr Tynan: Before you caved in? Mr Darvill: ----- the Dutch, in continuing to pursue it. There was no sympathy whatsoever. Q14 Jim Dobbin: Can I just follow up on that? You have responded and given your view on how the Commission saw this legally, but it is not the Commission whom we have asked the question. It is the representatives of the British Government and it is a straight question: do you think this was lawful? Jane Kennedy: The advice I have received from legal advisers to the Health and Safety Executive, even as late as yesterday, was that 308 was not appropriate in this case and that Article 137 would have provided a more sure legal basis for this particular regulation. I cannot put it any more strongly than that. Q15 Mr Bacon: Just to be absolutely clear, I would invite you to put it more strongly, that the view of the British Government was that this was unlawful. That is what you basically said, is it not? Jane Kennedy: The view of the British Government was that Article 308 was not necessary to be used in this case. Q16 Mr Bacon: What was done was unlawful. That is the view of the British Government from what you were saying. Jane Kennedy: I have said that the legal advice to us was that Article 308 was not necessary. Q17 Mr Bacon: You actually said earlier, Minister, that you were too far down the process - and I do not want to put words into your mouth - to start worrying about the legal implications of this. The word "process" has several meanings. One of them is to do with the whole point about it being done lawfully through the correct procedures and the correct process. Surely it is the case that if as a representative of the British Government your clear legal advice is that something is unlawful, to come and say, "I was disappointed to have to break the law, especially because I was aware of the Foreign Secretary's letter and his attitude to the Scrutiny Reserve, but really that is simply what I had to do and I hope it will not happen again", is really rather inadequate, is it not? Jane Kennedy: What I was suggesting as the course of action we are taking at the moment is that our officials are exploring with the Cabinet Office European Secretariat whether the UK should not be making a more general approach to the Commission under the Better Regulation case that can be made. We could, for example, suggest that it needs to emphasise that when proposals are being developed within the Commission, proposals for new or amended legislation, they should conduct at that stage a critical examination of the legal base upon which that regulation has been proposed. Q18 Mr Bacon: Is it not the whole point about Article 308, and perhaps you can confirm this, Minister, that Article 308 can only be used when there is no other legal base? Jane Kennedy: That was my understanding. Q19 Mr Bacon: What is it about 137 that is inadequate? It is plain on its face, as Mr Heathcoat-Amory said. Jane Kennedy: I can only tell you that the other Member States and the Commission took the view that because the Bilbao Agency - and correct me if I am wrong on this, Malcolm - forms an advisory role rather than a regulatory role they did not believe that Article 137 was sufficient in what it says to cover the role of the Bilbao Agency. Q20 Mr Bacon: Because it was advisory? Jane Kennedy: That is as I understand it. Q21 Mr Bacon: The phrase "encourage co-operation" would not cover "advisory"? Jane Kennedy: That is why we felt that Article 137 was appropriate. Q22 Mr Connarty: Can I possibly take time out for the committee to reflect on the seriousness of what has just been discussed and move on to health and safety at work and risks to the wider society? What is the government's general policy on controlling through EU legislation the risks from the workplace to the wider society? How does it play off the competitiveness of industry against the broader safety issues? Mr Coldrick: Seveso 1 and Seveso 2 directives ----- Jane Kennedy: Do you want here a general discussion? Q23 Mr Connarty: I want you to answer the general question first. Basically, how does the government play off the competitiveness of industry against the broader safety issues? I am sure the Minister, and hopefully advisers, will have been following the work of this committee very closely because it is of interest to you, but I have noticed that the Confederation of British Industry criticised Parliament recently for being asleep on the job when it came to looking at the regulations that were made in Europe that affected British industry adversely. We had the Director of the CBI here to discuss that topic only a few weeks ago, so the question I am asking is obviously very relevant at the moment. How does the government balance out the competitiveness of British industry and the implementation of EU safety regulations? Jane Kennedy: In formulating a response to European legislation the government would not only consult across government but also outside of government on the impact of any legislation coming out of Europe. In particular, obviously, we are interested in the impact on business competitiveness. Mr Darvill: Under the new arrangements on worker protection, before any proposal becomes a directive the European Commission will use the new social partners co-decision route whereby they put the matter to the social partners, which are the European representatives of the CBI and the TUC, to discuss if they come to an agreement for a non-legislative proposal, and it is only after that happens that legislation is proposed, so in a way the CBI and the TUC get the first bite of the cherry. They get an opportunity to examine any proposals way before officials and the government do. If there are questions of competitiveness they should therefore have been flagged up very early and the CBI should be aware of them and the CBI are never slow in bringing their concerns to us. Q24 Mr Connarty: Turning specifically to the government's assessment after doing all that, particularly the impact assessment on the implementation of Seveso 1 and Seveso 2 directives in respect of enterprises covered by Control of Major Accident Hazards, what impact assessment has the government done on those two particular pieces of suggested regulation from the EU? Jane Kennedy: I thought that the army and Northern Ireland had the most acronyms but I have learned differently. The two acronyms are the SEMA regulations and the COMA regulations of 1999. The Health and Safety Executive did prepare an impact assessment of them. Consultation on the proposed regulatory package included an impact assessment for the new COMA amendments and that has recently been completed. I do not know if Steve wants to add more to that. The relevant legislation for the planning and hazardous substances pre-dated the COMA regulations of 1999, so I understand that an impact assessment was carried out for those changes that COMA introduced but it was some time ago. Q25 Mr Connarty: Yes, in fact there was what was called a partial impact assessment, which I have here, and the conclusion in section 57 says, "There are no substantive competition concerns that arise from the amendments to the Seveso 2 directive in the three markets considered". It does in fact point out that there will be a substantial rise in the number of sites coming into the highest level of COMA regulations and, as the Minister knows, on the ground there are many things that are not taken into account, like the impact on developments that may fall within the new consultation distances that are thrown around the sites and the outstanding question, which I believe the government has yet to pronounce on, the fact that with these consultation distances basic planning blight will be increased by societal risk being taken into account rather than the risk to the individual, though I think the Minister would agree that there has been no death ever recorded of someone outside a chemical, a petrochemical or even an explosives factory in the UK from a major accident since the COMA regulations came intro being and yet we are talking about putting a substantial ring around chemical industries and other facilities that will impact adversely on the ability of outside organisations to develop for quite a considerable distance round about these chemical and other factories. Jane Kennedy: In the context that we are talking about now, which is calculating the impact on land use planning decisions and others, we are consulting on the implications of this and not expecting to receive the conclusions of the work that officials are doing across government on that until the spring of 2005. We are quite some way off before I will have a clear idea of what the advice to me is going to be. Q26 Mr Connarty: Could this committee have an assurance that that impact assessment, when it takes place, will genuinely talk to the stakeholders, not just to a very short list of people that were listed earlier but the people whose economic future will be impacted by these decisions? I understand in Germany, for example, that the regulation says that the consultation distances enter the factory gate and the regulation is about storage of materials on site and not about the blighting of surrounding areas. Jane Kennedy: I have certainly heard your comments in the committee today, Mr Connarty, and representatives of the Health and Safety Executive have also heard them, and I can give you an assurance that it is our intention that the consultation should be exactly that, a meaningful and very direct and open consultation focusing on the interests of those who are concerned about it. Chairman: Minister, I think we had better end the session by saying that I am sure we have both heard each other's comments on what we have been discussing today. The committee is very keen on looking at what we call the abuses of Article 308 anyway and I think the words you used were that you found it a chastening experience. It may have been a chastening experience but our gripe today is not just about your department but this issue in particular. We will be watching other departments as well and what they are up to and how they resist any further abuses of 308. I am sure we have got our point across to you, albeit pleasantly and diplomatically as we are renowned for. Thank you very much. Q27 Mr Heathcoat-Amory: Just on a point of clarification, Chairman, the Minister said she would kindly get back to us on the issue about taking legal action. Jane Kennedy: I thought you had already asked me that one, but yes, I will, and I will write back to you. Chairman: I am closing the session now. Thank you, Minister. |