The Minister's oral evidence
27. The Parliamentary Under-Secretary of State at
the Home Office (Joan Ryan) appeared before us on 28 March 2007.
28. The Minister did not acknowledge that by taking
part in a "general approach" on the proposal before
it had been debated in European Standing Committee, she had acted
in breach, at least of the spirit, of the scrutiny reserve resolution.
The Minister stated that she was not of the view that the scrutiny
reserve resolution had been breached, but that "it is better
and preferable, wherever possible, to be in a position where the
Scrutiny Reserve has been lifted before even a general approach
is reached, and it is regrettable that this was not possible in
this case".[11]
29. In reply to questions about the warnings from
us over the scrutiny issues, the Minister said that our report
of 29 November 2006 (in which we had concluded that the Framework
Decision raised a number of issues of principle which ought to
be debated) did not suggest that she should not participate, or
that the UK should not participate, in reaching a general approach.[12]
Continuing, the Minister said that at the JHA Council on 4-5 December
"no approach was then forthcoming" and that matters
"did not seem to have reached the point that was expected".[13]
Reporting to the House on that Council, the Minister's statement
of 18 December said that "the Presidency, with the support
of the UK and a number of delegations, pushed hard for agreement
on the latest text". The Minister acknowledged receiving
our letter of 11 January 2007 (which said that the Minister's
statement left the impression that the UK would have agreed the
proposal, notwithstanding the fact that it was awaiting debate
in European Standing Committee and asked for an explanation as
to what consideration had been given to the scrutiny position),
but said that at the December JHA Council "at no stage were
we pushing for agreement as "political agreement"",
that there was "no question at any time that we would have
participated in a political agreement which would have ignored
the Scrutiny Reserve" and that "the strongest likelihood
was we would proceed to participate in the general approach but
no question of an agreement, and I made that absolutely clear".[14]
30. It was put to the Minister that our letter of
11 January 2007 did express concerns about reaching a general
approach before the matter had been debated, and that much earlier
than this the Government was already taking steps to press for
an agreement at the December JHA Council. In reply, the Minister
said that:
"When we talk about "agreement on the
text", that is in the common usage of the word "agreement".
It is not in relation to political agreement as a definition of
a final decision subject to the linguist lawyers at the European
Union. Perhaps I can say that maybe usage of the word "agreement"
has caused some confusion, and certainly, if that is the case,
I would apologise for that and it is regrettable and that is one
of things I will take back. When I mentioned issues such as working
with the officials and staff training and trying to better monitor
the match between our process here and our process in the EU,
that is precisely one of the issues I will feed in."[15]
31. It was put to the Minister that the end-point
of the discussions of this proposal came with the general approach,
because it was at this point that all the substantive issues were
settled, including the issue of prisoner consent. It was also
put to the Minister that she could not "have her cake and
eat it" by agreeing to a general approach and yet saying
that the scrutiny reserve resolution was being observed. In reply,
the Minister said:
"It is the case when you reach a general
approach that one would expect substantive issues to be agreed
upon around the Council table, or I think it would be very difficult
to be able to reach a general approach. So if as a government
we were not satisfied in relation to the issues within the proposal,
if others round the table were very dissatisfied, then I think
it would be difficult to reach a general approach, and I think
that was the case in December. But is still remains the fact that
when you reach a general approach, although there probably is
agreement around the table on substantive issues, it is still
subject to scrutiny reserve, the issue can still be reopened,
and there are examples where in fact this has happened. There
are not many, I agree. The reason there are not many is that the
likelihood is substantive issues are agreed upon, or there is
general agreement in the common usage of the word "agreement",
before a general approach would be reached at a Council."[16]
32. In reply to further questions, the Minister agreed
that her case was that a general approach was not "really
an agreement".[17]
Asked to explain what had been meant by the her Ministerial colleague's
statement at the European Standing Committee debate that "the
Government's position was to get a good agreement quickly, if
possible", the Minister said she assumed that what the Minister
(Gerry Sutcliffe)was suggesting on that occasion was that the
Government wished "to get to a good general approach as quickly
as possible".[18]
33. During her evidence to us, the Minister agreed
that, although the Government reserved the right to re-open a
text after a general approach had been agreed, in practice, the
Government would be prepared to do so only where the concerns
raised corresponded to the Government's own policy and where the
point had not previously been pursued.[19]
34. In reply to questions over the timing of the
general approach on the proposal, the Minister noted that the
proposal had been under discussion since January 2005, that there
was no "rush in the overall sense", but that matters
did speed up with the incoming German Presidency "in a way
we did not expect them to at that particular point in time"
and that, when agreement was not reached in December 2006, this
would not occur until Easter 2007, but that "it did then
move forward".[20]
The Minister added:
"Once those who had difficulties with [the
Framework Decision] found a way forward, everybody was very keen
to reach a general approach because, as Members will know, if
a general approach had not been reached then, after that period
of time, the possibility that this would all fall apart and different
Member States might find different problems, the moment might
well pass and that would have been very regrettable of itself
given the importance of this policy."[21]
35. In reply to the question of whether a period
of 11 weeks was sufficient time for the Government to have arranged
a debate, the Minister said that this was "an important point"
and agreed that this period "looks like a reasonable number
of weeks within which to get the debate timetabled and undertaken",
but added that the moving forward of the issue by the German Presidency
"became part of our timetabling difficulty". Questioned
further on the arrangements for the debate, the Minister said
that three dates had been offered, but that two were "impossible
for Home Office Ministers to make it to the debate" and that
the third date was one which was impossible for the European Standing
Committee to accommodate.[22]
The Minister's letter of 17 April
36. The Minister wrote to us on 17 April in relation
to another proposal (for a Framework Decision on combating racism
and xenophobia)[23] where
it was also expected that the German Presidency would seek a "general
approach" at a forthcoming Justice and Home Affairs Council.
We have reported separately on the substance of that proposal.[24]
37. The purpose of the Minister's letter was to "clarify"
the position the Government intended to take at the Justice and
Home Affairs Council on 19-20 April in relation to that proposal.
The Minister explained that the German Presidency had been "working
hard" to address the UK's concerns, and that:
"The Presidency has also made it clear that,
in the light of the consensus now emerging among Member States,
it will not delay seeking a general approach on the text until
the next JHA Council in June and intends, instead, to capitalise
on that momentum. We therefore fully expect them to push for a
general approach this week as was emphasised to me by the German
Justice Minister in my own recent conversations with her.
"Against that background, as I have said
previously,[25] blocking
a general approach at this stage would seriously damage our relations
with the current Presidency, who have been very helpful on this
matter already, and may impact on future negotiations, to the
UK's overall detriment."
38. The tone of these passages indicate to us that
the Minister is aware that the "general approach" sought
by the German Presidency would indeed, constitute an agreement
on the proposal which would not subsequently be re-opened. The
Minister refers to the German Presidency as intending to "capitalise
on the momentum" by reaching a "general approach",
to "blocking" such an approach, and to the "serious
damage" which would be done to the UK's relations with the
current Presidency which "might impact" on future negotiations
if the UK did not take part in the "general approach".
Conclusion
39. We have recounted the history of this matter
in some detail, as we believe it important to show the fundamental
difference we have with the Minister over the scrutiny issue.
40. In our view, the question of whether an agreement
has been reached in the Council should not be approached in a
spirit which gives higher regard to form than substance and purpose,
but in a way which corresponds to common sense and the natural
and ordinary meaning of words. The Minister's frequent attempts
in her oral evidence to distinguish a "general approach"
from the term "political agreement" or "agreement"
in "common usage" shows that a "general approach"
cannot be explained otherwise than as amounting to an agreement,
and we think it significant, in this regard, that the formal minutes
of the Council should refer, in terms, to "an agreement on
a general approach". The evidence suggests to us that the
Government's concern was more with arguing a case than with demonstrating
any genuine acceptance of the purpose and principles of Parliamentary
scrutiny. In our view, the concept of the "general approach"
should not be used as a device for achieving substantial agreement
in the Council, whilst maintaining a fiction before Parliament
that no such agreement has been reached, because this would effectively
bypass Parliamentary scrutiny.
41. We are concerned that this case has shown
that the use of the concept of "general approach" can
undermine Parliamentary scrutiny in exactly the way identified
in relation to "provisional agreements" by our predecessors
and by our sister Committee in the Lords.
42. We consider that, in this case, the Minister
wilfully acted in breach at least of the spirit of the scrutiny
reserve resolution. We do not find it credible that there was
any realistic possibility of discussion being reopened on this
proposal once the Council reached a "general approach"
on 15 February, before the matter was to be debated in European
Standing Committee. It clearly was an agreement, however described,
reached after the reluctance of Poland had been overcome on the
very issue we had identified for debate. Revealingly, the Minister
concedes in her oral evidence that if a "general approach"
had not been reached at the time it was there was "the possibility
that this would all fall apart" and "the moment might
well pass". There is clearly a contradiction between seizing
the moment in order to secure agreement, whilst maintaining that
such agreement can subsequently be re-opened.
43. If a "general approach" were not
in reality an agreement on the substance drawing the discussions
to a close, the references by the Minister in her subsequent letter
us of 17 April to the supposed harmful consequences for the UK
if it were to "block" a general approach in relation
to the racism and xenophobia proposal would make no sense. The
letter indicates to us that the "general approach" on
that proposal would indeed amount to an agreement on the substantive
issues which could not be re-opened .
44. It is also evident from the Government's own
guidance to departments that the "general approach"
would not be reopened on this issue, because the Government did
not share our views on the issue of prisoner consent and because
the point was not new. In our view, it would have been preferable
if the Minister had made this clear from the start, rather than
referring to an abstract possibility which would never become
real.
45. It is also the case that the Government was
warned on three occasions of our views on the scrutiny issue,
but nevertheless chose to take part in a general approach on a
matter which was awaiting debate.
46. We are not convinced that there was any insuperable
difficulty in arranging for a debate in the 11 weeks between our
recommendation and the Justice and Home Affairs Council in February.
We express concern that the Government's business managers were
unable to set a date for the European Standing Committee within
the 11 week period and when it was apparent that there were at
least two Home Office Ministers who were sufficiently versed
in the matter to have moved the Government's motion in the debate.
47. We are also not convinced that there was any
pressing need to agree this proposal in February, as opposed to
April. We note from the Minister's evidence that the Government's
expectation was that the matter would be submitted to the April
Council, but that the German Presidency brought the matter forward.
In our view, the aspirations of a Presidency to accelerate progress
should not be allowed to take precedence over the right of the
House to hold Ministers to account and to debate proposals before
they are agreed.
48. In the light of the experience of this case,
we now make it clear that we reject any general proposition that
agreement to a "general approach" does not amount to
agreement for the purpose of the Resolution of the House on the
Scrutiny of European Business, or that the reaching of a "general
approach" is not subject to that Resolution. In a European
Union of 27, it seems to us to be quite unreal to suggest that
the reaching of a "general approach", after all the
bargaining of national positions there will have been, does not,
in fact, amount to substantive agreement.
1 
