Select Committee on European Scrutiny Minutes of Evidence


Examination of Witnesses (Questions 1-19)

MR BEN BRADSHAW MP, MR SIMON WATERFIELD AND MS FIONA WALTERS

24 JANUARY 2007

  Q1 Chairman: Good afternoon. Welcome, Minister. You might want to introduce your team before we start and, if you do not mind, then we will just go straight into questioning?

Mr Bradshaw: Thank you very much, Chairman. Simon Waterfield, on my right, is from our Fisheries Division and Fiona Walters, on my left, is from our Parliamentary Division and we are at your service.

  Q2  Chairman: The first topic we want to deal with and the one for which originally the Committee suggested we call you in is the problem of ministerial overrides of scrutiny reserves. The most recent information we have from the Prime Minister's EU Adviser, who supplied the statistics, was that Defra has a higher proportion of scrutiny overrides than any other comparable department. Also fisheries has been a particular problem area, which is sensitive for a number of members of this Committee, including one instance where a debate recommendation was outstanding when a decision was agreed to by yourself. Can you explain why this should be so in Defra and how you, or your team, intend to improve matters?

  Mr Bradshaw: I can tell you, Chairman, that I think, since those figures were considered and which were for the first six months of the year, it is no longer the case that Defra is the worst government department and certainly we regret any instance in which we have to override scrutiny. I have prepared for the benefit of your Committee a useful table, which with your indulgence I am happy to pass round to your members, which lists every example of override which happened over 2006 and gives a brief reason for it, which I am happy to go into in more detail.[1] It may also be helpful for your Committee to be aware that we submitted about 170 Explanatory Memoranda in 2006, of which approximately 108 were legislative proposals, and during 2006 we used the parliamentary scrutiny override seven times in the Commons and eight times in the Lords. Five of the overrides in the Commons were on fisheries proposals and three of the overrides in the Lords were on fisheries proposals. If you compare that with 2005, when a similar number of EM were submitted, Defra Ministers used the parliamentary scrutiny override 16 times, so more than twice as many times in 2005 as 2006, in the Commons, and 14 times in the Lords; four of those were related to fisheries and two in the Lords were related to fisheries. I appreciate that Committees are naturally unhappy when overrides happen, but the record for 2006 is a considerable improvement on 2005. The reasons for overrides, which I think we have communicated on before, basically are three-fold. One is that we send you an EM, to which then you have further questions, which then we have to go back either to the Commission or to the devolves or to other government departments, to try to get answers or clarification on, and that does not always arrive in time. Another issue is parliamentary recesses; if a document arrives in a parliamentary recess, that can mean sometimes that you do not get the opportunity to scrutinise it in time. In a small number of cases, particularly on Defra issues which are not only issues of general EU competence but also issues of devolved subjects, on fisheries and agriculture and environment, we need to work closely and sometimes it takes some time to reach an agreed position not only with other government departments but also with the devolved administrations. That is a brief summary of why unfortunately it has been necessary in that small number of cases to have a scrutiny override.

  Chairman: If you do not mind me saying so, you are a former member of the Committee, you know how the Committee works and when the Committee decides that something has to be debated it is clear that we are saying that, in any debates we have, every Member of Parliament has a right to attend. We are given that responsibility, therefore, because we think of the seriousness of the subject to the whole of Parliament. To take a decision when that debate is outstanding is not something that many ministers would choose to do; in fact, all the time I have been on this Committee, which is eight years, it is a matter which happens only very, very infrequently. It says something not just about your priorities vis-a"-vis this Committee but the whole Parliament, and that I think is what the concern is in the end. Though it is getting better, I think it has to be very important for ministries and ministers to be able to say to their colleagues "There is an outstanding parliamentary debate on this issue and therefore I cannot override the scrutiny reserve." Having done so, obviously, we would not wish to see it happen again. Mr Robertson, you wanted to come in.

  Q3  Angus Robertson: Welcome, Minister, to the Committee. I want to ask a very specific question about Council of Ministers proceedings, because usually you are accompanied by the Scottish Executive Minister for Rural Affairs. You may be aware that this week saw the publication of a report by a former senior UKRep official, now Head of the Scottish Executive Office in Brussels, Mr Aron. He writes: "UK Ministers take the lead in negotiating on behalf of the UK whilst Executive Ministers simply watch proceedings from the sidelines. Unfortunate examples are where there is no seat for the Minister in the Council room during the meeting so they have to follow discussions from the salle d'écoute alongside officials." If you do not know the answer to the question, could you ask your advisers to help you with this, because I am certain that this will become a matter of public record. Has this ever occurred to the Scottish Executive Minister for Rural Affairs?

  Mr Bradshaw: It did not occur at all in 2006. Sometimes it occurs when, for example, in the end game of the fisheries negotiations, to reach agreement on a very difficult dossier, the room is emptied of everybody except one minister for each country, so no officials and nobody else. That has happened only once in my four years' experience. I suggest you put the same question to my colleague, Mr Finnie, because we work extremely closely, and I do not recognise accuracy at all in those comments that you have just quoted, Mr Robertson, of how we work together with our devolved colleagues during fisheries negotiations. Mr Finnie and I work extremely closely together. He is always in the room unless, as I say, the room goes down to one minister per country, and that has happened only once.

  Q4  Angus Robertson: To clarify this, you are confirming that there has been a case where Ross Finnie, the Scottish Executive Minister for Fisheries, has had to follow proceedings from the salle d'écoute; this is the Minister in question?

  Mr Bradshaw: If my recollection is correct, there has been one instance, in all of the Council negotiations that I have been involved in, where each country's delegation has been reduced to a single minister. That has required the Minister for Northern Ireland, the Minister in Scotland, the officials from Wales and any other devolved ministers from other EU countries also to leave the main negotiating area. That is the nature sometimes of negotiations, that negotiations come down to one person, one on one; so that situation is avoidable but, as I say, it has happened once.

  Angus Robertson: That is a `yes'?

  Chairman: I think it is a clarification, it is a detail and I would say that was much more than a `yes'. I think it was a very good explanation.

  Q5  Mr Heathcoat-Amory: Returning to the general issue of the scrutiny overrides, the performance of your Department actually is lamentable and it completely contradicts the assurances we are always given by ministers actually to involve national parliaments better. Can I draw your attention to the Amsterdam Treaty Protocol; this Protocol was designed, and I quote: "to encourage greater involvement of national parliaments in the activities of the European Union and to enhance their ability to express their views on matters which may be of particular interest to them." The same Protocol, which is now part of Community law, requires documents to be made available in good time and actually mentions a six-week minimum time period between a proposal being available to ministers and it being put on the agenda of a Council meeting. Is it that the European Union institutions, the Commission, and so on, are breaking this Protocol, or is it incompetence in your Department not to give us the adequate time to debate these matters before you take the decisions: which is it?

  Mr Bradshaw: My colleague, Fiona, will correct me if I am wrong. I think I am right in saying that of the examples which are in front of you here, of the overrides from 2006, there was only one where the reason for the override was the Commission breaking the six-week rule, and that was a relatively minor one. I will be quite honest with you, Mr Connarty, we always face a judgment, as a Department, as to whether an issue is serious enough, or we consider it serious enough, to expend capital and negotiating capital with the Commission and other Member States by holding it up until the next Council, which we would be perfectly entitled to do, and we do on some occasions, or whether we allow that one through. For the most serious, the reasons for override, in the cases certainly that we are discussing from last year, were either the fact that there were problems with recess or proroguing of Parliament intervening, or that the discussions within Government to reach an agreed position on an issue, such as the EU-Morocco Fisheries Agreement, or discussions with the devolved administrations, in this case Scotland, such as the Deep Sea Fish Species Agreement, were not resolved in time for the timetable of your Committee to enable that proposal to be scrutinised.

  Q6  Mr Heathcoat-Amory: Chairman, I am sorry, I do not think that is adequate. You have agreed that on one occasion the Commission broke the Protocol; is this Treaty law, negotiated and signed by the Prime Minister? You are telling us that they broke the law and you did nothing about it; so what weight do we put on all these assurances about the involvement of national parliaments? They are completely worthless, if our own ministers, in our own departments, do not object, and there is no indication that you did even object. Can you give us, in future, an assurance that when they break their own law you will refuse to agree to matters and it will be brought to the attention of this Committee?

  Mr Bradshaw: I think it would be wrong to describe it as a strict law, Chairman.

  Q7  Mr Heathcoat-Amory: It is a Protocol; it is part of the Treaty?

  Mr Bradshaw: Yes, exactly; and certainly, if we felt that the subject was worthy of objecting to, we would do so. As I say, the only one, with the exception of the December Council, on quotas regulation, which I think the Committee acknowledges is a special case and always has been, given the timetable of the Fisheries Council, the scientific advice and the Commission's proposals, was, I think it was, the oil-seed rape one, the persistent organic pollutants issue. That was one where we felt no other Member State was objecting to it coming to that Council, and sometimes we have to strike a balance as to whether we think an issue is worth objecting to, or whether, on balance, it is not controversial, no other Member State is going to object to it in its substance, so our kicking up a fuss, if you like, is not going to achieve anything and would expend goodwill and negotiating capital with other Member States and with the Commission.

  Q8  Mr Cash: Minister, as a former co-member of this Committee, what the Chairman said at the beginning is important, because we know that you know exactly how all these things operate. You have heard us, and you have taken part in proceedings in the past regarding fisheries questions when you were sitting in the position as a member of the Committee. It is a question not just of timing, or recess, or consensus, it is substantive issues, and the bottom line is that some are more important than others, and I think it would be foolish for anyone to take a position on the override when the Minister could explain afterwards, unless it was a matter of importance. What worries a lot of us is simply that we know you know what the ball-game is, so when there is fiddling, or manoeuvring, or deliberate readjustment of timetables from within the system, you know what is going on. For example, to take an instance of the Council Regulation establishing EC Financial Measures for the Implementation of Fisheries Policy, both Committees, so it is not just the Commons, it is the Lords as well, are considering the matter. It says, I think disingenuously, "These issues did not become clearer until late in the negotiations and there was insufficient time for the Committees to consider this information." Quite bluntly, I do not buy that. You know what is going on, your officials know what is going on, it is a tricky question, and, to put it bluntly, in my opinion, it is organising timetables in a way which does not give the parliamentarians in the House of Commons who are going to consider these matters in Standing Committee, which includes all those Members other than us and including us, the opportunity to ask questions. I think that demonstrates a failure at the heart of Government, which is to give due regard to Westminster and too much regard to what is convenient for the purposes of the European Commission at the expense of, in this case, British fishermen. What is your comment on that?

  Mr Bradshaw: I think you have chosen a very helpful example, if I may say so, Mr Cash, and indeed you could have chosen the one below it, on the European Fisheries Fund. You are right, these are both issues which have been around for a long time, and, in fact, I must have done certainly more than one scrutiny debate on the European Fisheries Fund. The reason these are good examples that you have chosen is that often when negotiations, the end-game of negotiations, if you like, revolve around money, and the European Union Member States, as a group, are deciding on how much or how big a fund should be, or how much should be expended, those decisions really are made in the end-game of negotiation, involving the ministers at the Council meeting. I do not think it would be fair to suggest that we had not kept the Committee informed of the progress of those negotiations, which, as I say, had been going on not for months but for years, and the UK Government position on them had not changed, our position had been consistent all the way through. Really at every turn of the debate, if you like, if we were not communicating then scrutiny debates were being held and I was being held to account not just by members of this Committee, but any Member, as Mr Connarty reflected earlier, is entitled to attend. Sometimes we cannot be certain ourselves. You may think that we know what is going on, or our officials know what is going on, or what other governments' positions are, but, as somebody who is a very experienced politician, I am sure you will appreciate that negotiation often can be about not revealing your full hand until the last minute, particularly when you are talking about establishing building coalitions, blocking minorities, qualified majorities, and so forth.

  Q9  Chairman: One final question lies unanswered, I think. You have made your excuses. I am not sure that the Committee is in a position to assess whether those excuses are valid reasons or not, and I am sure when our officials read the script they will go and check to see whether, in fact, in all of these situations, as you say, the UK position had not changed and there was nothing to report which was different. I am sure the officials will do that assessment. How do you intend to improve matters? It is not good enough to say it was a very bad year last year and it has been just a less bad year this year. Statistically, you are still worse than any other department of a comparable size.

  Mr Bradshaw: I think you will find we are not, Chairman, when the figures for 2006 are finally published; you are correct in saying, I think, for the first half of the year we were. That is to do partly with the fact that so many long-standing fisheries items, rather like London buses, all came along at once. As I said, we have improved dramatically since 2005. We have more than halved the number of scrutiny overrides, partly as a result of the efforts which have been put in by Defra staff; we will continue to try to improve. We will consider certainly the suggestion that Mr Heathcoat-Amory has made, about whether we should be less reluctant to insist on the six-week rule, but as I indicated, quite fully, I think, in my response to him, these things are always a balance, that in the end one has to make a judgment as to where one thinks the United Kingdom's best interests lie. I hope that, if you ask to see me in a year's time, in front of your Committee again, we will be able to show further improvement.

  Q10  Chairman: Thank you. We will move on to our second topic, on which we informed you we would take evidence. I first wrote to Lord Rooker on 25 October about making a link between whaling and the proposed concessions between the Community and Iceland, and you and I have exchanged a number of letters on this matter since. In your latest letter, of 11 January, which we have before us, you drew attention to Iceland's request to extend these tariff concessions to include whale meat, breaching the International Convention on Whaling not only by recommencing whaling but also by wanting to sell it in the EU. What is the latest position on this issue?

  Mr Bradshaw: The latest position, I am pleased to inform the Committee, is that, thanks to an eagle-eyed Defra official, who spotted the inclusion of whale meat in this trade agreement, we raised our concerns, and I would like to thank the Committee as well for raising this as an issue with me and with your fellow committees in the European Union; the Commission had not spotted this. When it was drawn to their attention, they were as concerned as we were about it and they have successfully persuaded Iceland to withdraw any reference to whale meat from this agreement, in the last few days. We are grateful to you for your input and we are very pleased with the outcome.

  Q11  Mr Borrow: Minister, on the broader issue of trade preferences, I think in an earlier letter to us, at the back end of last year, you said that you did not see the issue of trade preferences being one which should be used directly in terms of Iceland's policy on whaling. The Committee are somewhat puzzled as to why that should be the position of Defra?

  Mr Bradshaw: I can understand the Committee's puzzlement, Chairman, and I raised exactly the same questions, because I do not think anybody can be left in any doubt of the UK's very strong anti-whaling position. We were in the forefront of international diplomatic protests against Iceland when it resumed that commercial whaling, in disregard of the international moratorium. We led an international demarche. I summoned the Icelandic Ambassador. The Committee may be interested to know that there has been a sea change in media opinion in Iceland since the resumption of commercial whaling. The main Icelandic newspaper, which used to be fairly supportive of the Government's position on whaling, is now highly critical. The Government itself is divided. There is quite a heated debate in Iceland, sparked partly by the international protests which we led. When I asked the question "Is there any more we can do?" thinking, in this respect, of the trade preference, the very strong advice, from our lawyers, other government departments, DTI and FCO, was that not only would it be not sensible but also not legal to try to block a trade agreement because one disagreed with an aspect of a country's domestic policy. It is also worth pointing out to the Committee, I think, that Iceland has a significant trade deficit with the European Union so we benefit from the liberalisation of trade with Iceland. As I say, when we spotted this rather surprising and bizarre inclusion of whale meat in the list of items that they wanted included in the agreement, which would have been illegal under international law, it is illegal to trade whale meat under IC's law, thankfully we spotted it. It would have been very embarrassing if we had not and if it had gone through and we had signed up to such an agreement, so I am extremely thankful to the eagle-eyed official in my Department who spotted it, who has done not only this country but the EU a great service.

  Q12  Chairman: I think we would all echo that. Our original concern obviously was on whaling and we still have that concern. The point made by Mr Borrow, you chose to write back and say that an Environmental Council would be raising bottom trawling as the main point of interest. It did seem to us at that time—I know that legally, as you said, we could not do anything to stop them—that the idea of just putting it to the side for some other issue did strike us as being not appropriate. I think we have reflected probably Parliament's very, very strong majority feeling that we should do everything possible to stop whaling by Iceland or any other country. Why did you choose that other item rather than choosing to keep the whaling issue on the agenda at the Environment Council?

  Mr Bradshaw: I do not think one should belittle the importance, in environmental terms, of destructive bottom trawling, Chairman, but actually we raised both. We raised whaling and bottom trawling at separate Councils when they were the most topical issue, and indeed we got very strong support in the Environment Council when we raised the issue of whaling, although I am afraid that a stronger declaration by the Commission was objected to by Denmark. Both issues are very important. The only other important matter I think I ought to draw to your attention is that there is a difference between whaling and bottom trawling, in that whaling is not an EU competence whereas international fisheries is, so there is a slight legalistic difference there as well.

  Q13  Angus Robertson: We are all aware that Icelanders are fierce defenders of their national interest, having won the cod war, for example. What do you think are the reasons behind their change of heart on this issue which was raised, about the inclusion of whale meat and their withdrawal?

  Mr Bradshaw: I am afraid I do not have any information on that, Chairman, and probably it is a question which is best put to the Icelandic Ambassador or to the Icelandic Government in a letter. I do not know, for example, when this was drawn to their attention, whether there was any embarrassment, or even what their motives were for putting it on the list. What I do know is that when we raised it the Commission were also very concerned about it, they raised it with Iceland and Iceland agreed to withdraw it.

  Q14  Mr Cash: In the context of your explanation of the spotting by this official and our having raised it and the question of illegality, there is a very important underlying question here, I think you will agree, which is, there are circumstances in which national interest can prevail, and we know what the Icelandic people want most on the whaling issue. Do you agree that it is feasible, and sometimes desirable, to override the requirements of Section 2 of the European Communities Act 1972 in the national interests of the United Kingdom and/or, for that matter, any other country, in pursuit of their national interest, because there are circumstances which lead sometimes to disputes with this Committee or with Parliament as a whole? In principle, do you refute the suggestion that we could override Regulations and/or Directives in our own national interest?

  Mr Bradshaw: I am sure there are circumstances when we might consider doing so, Chairman, but I am not such an avid student of the various bits of European law to which the Honourable Member refers. Perhaps he could explain what Section 2, of whatever it was he was referring to, actually is.

  Mr Cash: Basically, it is that we accept treaties and obligations which arise under the European Communities Act 1972 which have been agreed in the Council of Ministers and through treaties. There are circumstances where, for example, it is clear that, short of arriving at a consensus, there is an option and that is to say, "No, we're not going to agree to this law."

  Q15  Chairman: Mr Cash, it is an interesting idea. I do not think really it is for this Minister to answer.

  Mr Bradshaw: I will try to answer it, if you like, Chairman. I genuinely believe that if one signs up to treaties one adheres to them.

  Chairman: I think we will move on from that. We wish to move now to measures agreed by the Council on total allowable catches, if you will, Minister; but still on whaling, if you wish, Mr Heathcoat-Amory.

  Q16  Mr Heathcoat-Amory: If I may, I would like to commend the Minister for the successful outcome to this particular spat over whale meat. I certainly believe that we should not allow trade liberalisation to get too contaminated by what essentially is a separate issue, particularly when it is illegal anyway, to import the meat; so I think that is good. Can I widen it slightly and suggest to the Minister that we have got a lot to learn from Iceland over fisheries conservation. I have been there numerous times and I am impressed by their rivers and the way they conserve their stocks. Is there a danger that the whaling issue could come back to be an impediment to what should be a very friendly interchange of information and practical conservation measures between Iceland, the Government there, and ourselves? Can I encourage you to build on this, and watch trade liberalisation but get together on marine conservation issues?

  Mr Bradshaw: Yes, and I agree entirely with Mr Heathcoat-Amory, Chairman. He is absolutely right, that although we have very, very strong and serious differences with Iceland over whaling we co-operate very well on a whole range of issues. The Icelanders own significant parts of our economy, in retail, Hamley's and some of our other favourite stores are in the hands of Icelanders, and we do learn and will continue to learn from their fisheries policies. We are in the process of reviewing our quota management regime, which you may be aware of, and I have also visited Iceland on a number of occasions and am very keen to learn from the best practice wherever we can find it internationally, including from Iceland.

  Q17  Chairman: Sometimes I think, Minister, that it is always after the event hindsight is a wonderful thing. I do think it was a Conservative Government which gave sole competence to the EU over our fisheries, which I think causes as much concern among Scottish Labour Members as any other party, as we know. As you say, when we sign treaties then we live by them, and often that is the problem, that we have signed the treaty regardless of the Government's political persuasion at the time. Can I move on to total allowable catches. When I was reading Sir Malcolm Rifkind today, in the House Magazine, I thought that was very interesting. On total allowable catches, Minister, if we can start with the way in which the Community agrees total allowable catches each year, this has long been a source of concern, as you know, because of its effect on parliamentary scrutiny. You have referred in your previous answers to the speed with which decisions come to the fore. We note that there has been an improvement in the case of deep-sea stocks and those in the Baltic, but not yet for the main stocks of interest to the UK. It does seem there is progress in the timescales for one sector but not for us. Is there a likelihood of an earlier discussion and conclusion, which would allow us to participate in scrutiny, in the next year's round, for example, in the stocks available and of interest to the UK?

  Mr Bradshaw: Chairman, we are always looking at opportunities to increase front-loading, which is this horrible term which we use to express bringing forward recommendations earlier. The difficulty with any of the species, if not all of the species, which are of main interest to the UK, is that also we want to make the judgment based on the latest available scientific advice on the spawning mass, and clearly that depends on the spawning season. Probably it is not possible for most of the stocks in which the UK has an interest to have the scientific advice for that year any earlier than currently is the case, and that does present us, as you rightly say, with a significant challenge in the autumn, where there is a very tight schedule between the scientific advice being published, the Commission coming forward with its proposals and the December Council. Although, as I am sure you appreciate, we do attempt, and I think at least for every year that I have been Fisheries Minister, to hold a debate on the floor of the House after we have received the first proposals, to give all Members of this House an opportunity to debate the issue before I go to Council.

  Q18  Angus Robertson: Turning to a little bit more detail on total allowable catches, your colleague, Ross Finnie, tabled an answer in the Scottish Parliament yesterday in detail about this, so it is a matter of record what has happened to the different species and on the days at sea. In his answer, interestingly, he says that some of these decisions were disappointing. Do you know what those might have been, disappointing for him, or what was disappointing for you?

  Mr Bradshaw: I think that what was most disappointing about the final result of this year's negotiations, in terms of days at sea, was that we did not feel that enough differentiation was made between the reduction in days at sea for our white-fish fleet, which generally uses a bigger mesh size, and the reduction in the smaller mesh-size fleet, which would include the Dutch beam trawlers, for example, which catch significant amounts of white fish, including cod as a bycatch. We have made the argument very forcefully in the past that, because of the reductions which have already been achieved in the UK fleet, amounting to about 60% in terms of effort on cod, it was time that the Commission turned its attention to other sectors in other countries which still had not contributed that level to the cod recovery programme. Having said that, we did manage to reverse the Commission's original proposal; their original proposal was to cut the small-mesh Dutch fleet less, significantly less, than ours and actually we ended up with ours being cut the least. Although we were still disappointed with that, it was a significantly better outcome than I think most people had dared to hope.

  Q19  Jim Dobbin: I think the Minister has touched on this area and the question really is about the days at sea provision and the limited period which appears to be on the agenda, which seems to have attracted as much attention as the TACs. Can you say why that was and can you explain the relationship between the two?

  Mr Bradshaw: The relationship between the two is that the TACs are about the total amount of fish that you are allowed to land of a particular species, and the days at sea are about the number of days that you are allowed to go out and fish, and fisheries management, whether here or in other parts of the world, generally is based on a combination of those two controls. Given the still very worrying state of the cod stock, particularly in the North Sea, around the UK coast, the advice from the international scientists for the fifth year running is that there should be no cod caught at all. The Commission came forward with recommendations for a 25% cut in both the days at sea and the TACs, and we ended up with a cut in the TACs of around 14% and a cut in the days at sea of between 4%/5% for our own fleet and 7%/8% for other countries' fleets. That gives you a broad picture, I think, of why the Commission felt it had to recommend that level of reductions and where we ended up. You are all experienced Members to know that wherever one ends up in these negotiations one tends to get criticised, by the fishing industry or by the environmentalists, for having done either too much or too little, so that can be a bit of a thankless task. I think we ended up with an outcome which was responsible. I think it would have been irresponsible and unrealistic to expect no further reduction in pressure on cod, given the still very parlous state of the stock and the independent scientific advice. Yet we did manage, again, I think, to fight for a relatively good deal for our own industry.


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