Examination of Witnesses (Questions 1-19)
RT HON
JANE KENNEDY
MP, MR STEVE
COLDRICK AND
MR MALCOLM
DARVILL
3 NOVEMBER 2004
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
case. 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 Article 137 power 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 118a 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.[1]
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 State 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 would 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.
Mr Tynan: Before you caved in?
Mr Darvill: — the Dutch,
in continuing to pursue it. There was no sympathy whatsoever.
Q13 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.
Q14 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.
Q15 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.
Q16 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.
Q17 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.
Q18 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.
Q19 Mr Bacon: Because it was advisory?
Jane Kennedy: That is as I understand
it.
1 Letter sent to the Committee by the Minister. Back
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