Examination of Witnesses (Questions 1-19)
LORD BACH,
MS HARRIET
NOWELL-SMITH
AND MR
EDWIN KILBY
1 JULY 2009
Q1 Chairman: Lord Bach, welcome to the
European Scrutiny Committee. You may wish to introduce your team
for the record.
Lord Bach: Thank you. On my left
is Harriet Nowell-Smith, one of the Ministry of Justice's legal
advisers, who I am sure will be able to help the Committee over
some of the legal issues arising. On my right is Edwin Kilby from
our international directorate.
Q2 Chairman: You did make a request
that you be allowed to make an opening statement. That is not
normally the practice of the Committee; we are an inquisitorial
Committee and have our own line of questioning. We have decided
that you can on this occasion make a short opening statement.
Lord Bach: Thank you very much.
I am very grateful to you and to members of the Committee. Can
I address the problems over scrutiny straight away? Let me say
that it is clear that mistakes were made and that has led to problems.
It is clearly regrettable that your Committee, Mr Chairman, did
not have sufficient time to give meaningful scrutiny to the first
reading deal that was reached by the Council and the European
Parliament. I want to take this opportunity to apologise on behalf
of my Department for this. I also want to be clear that what we
say in the rest of our evidence it not an attempt to avoid blame
but an explanation as to what happens. We do our best to adhere
strictly to the guidance on the parliamentary scrutiny process
and I believe our reputation as a Department is pretty good in
that respect. On 18 February, the Transport Committee of the European
Parliament adopted its report containing its proposed amendments
to the draft Directive. Let me be clear: we do not normally refer
reports of this kind to the parliamentary scrutiny Committees.
The reason is that the amendments these reports propose typically
change and change significantly before they are adopted by the
plenary. It is an entirely different matter once the Parliament
has agreed its amendments in plenary session and adopted its Opinion.
That is a significant stage in the process and we send you the
Opinion with our comments on it. When there is a first reading
deal, the European Parliament does not agree its amendments until
after the deal has been made informally. The plenary votes on
a compromise package of amendments that are finalised between
the institutions. The requirement sensibly set out in the guidance
is, in effect, that we should alert the Committee, your Committee,
when it is clear that, the words used, "significant progress"
has been made towards a first reading deal. On this occasion,
the judgment was made that the gulf between the amendments proposed
by the Transport Committee of the European Parliament and the
text agreed within the Council was so great that it rendered such
a deal highly unlikely. It only became apparent that significant
progress might be made towards a first reading deal during the
week commencing 20 April. For the first time, it seemed that the
Parliament might be willing to change its position on the question
of repeated minor discharges. This was followed by the late series
of meetings of which of course you are aware. I wrote to you on
24 April to inform you that the matter was going to be discussed
in a series of meetings the following week, and again on 29 April
to inform you of progress. As matters turned out, therefore the
original judgment in my Department about the likelihood of a first
reading deal proved to be wrong. We accept that in view of the
limited time that this left to reach a first reading agreement
before the European Parliament elections, we should have made
the Committee aware of the issues raised by the European Parliament's
Transport Committee at an earlier stage. This, coupled with the
pressure to do a deal quickly at the end of the term of the last
European Parliament, is what led to problems in this case. I hope
that what I have said demonstrates that, although this proved
to be a misjudgment, it was one based on the information available
to us at the time and it was not of course in any sense a deliberate
withholding of information. The combination of events that conspired
to cause the difficulties encountered here are unusual. Nonetheless,
I have asked my officials to be more alive in the future to the
possibility of first reading deals in the future. I have something
to say on the substance of the issue, but I think I have troubled
the Committee for long enough with my opening statement. Thank
you for allowing me to make it.
Q3 Chairman: Thank you very much.
Some issues, I am sure, will come out in the questions. I still
need to get further into the psyche of your Department or your
advisers to understand why we came to the situation where we have
to call a Minister before this Committee. We take a very strong
view and hold the scrutiny reserve as a precious parliamentary
tool. It is not taken very lightly by this Committee when it seems
to be blatantly overridden, as I have to say on this occasion
I believe it was. Can you possibly go further and explain why
the Committee was not informed in February when the Parliament's
amendment was published on 24 April, which was four days before
the compromise text was adopted at COREPER? It is as if your Department
does not think we are capable of understanding the mechanisms
of first reading amendments and that we cannot be trusted with
this information to make our own assessment about its seriousness
but that lies only in the domain of COREPER or your Department.
It does seem to be putting Parliament in a very diminished role
in all of this. Why did someone override the parliamentary role
in such a way?
Lord Bach: It certainly was not
our intention, Mr Chairman. I am going to ask Mr Kilby to answer
your question.
Mr Kilby: Thank you, Lord Bach.
Mr Chairman, I am bound to say I do not recognise that characterisation
of what happened, with the greatest of respect. We of course first
saw the report of the Transport Committee of the European Parliament
in February, as you know.
Q4 Chairman: For the record, could
you give us the exact date?
Mr Kilby: I believe it was 24
February but I am sure I will be corrected if that is not correct.
I am advised it was 18 February. The report contained a number
of amendments, some of which were acceptable, some of which were
very clearly not. The assessment was made at the time that the
gulf between the amendments contained in that report and the position
adopted by the Council was such that it would be very difficult
indeed to foresee a first reading deal. That remained our understanding
and our impression until, it must be said, half-way through April,
just a couple of weeks before the flurry of meetings at which
first reading deal was finalised; indeed, two weeks before we
are given to understand that there was a meeting between what
is known as the trilogue—the Council, Commission and the
Parliament.
Q5 Chairman: We will come to the
trilogue and its role very shortly.
Mr Kilby: During that time, we
understand that the Parliament showed no sign of flexibility,
so even at that stage the likelihood of a first reading deal seemed
very small and so it was only at the very end of the process that
it became clear that the Parliament was prepared to be flexible
and to back down on the subject of repeat minor discharges. As
Lord Bach has said, it is clear that what we did, how we judged
this, proved to be false. I hope the Committee can accept that
on the basis of the information we had, we had reason to take
the view we did, that it was not likely that there would be a
first reading deal. That is why we did not come to the Committee
earlier than we did. The other thing I would like to add is that
as a normal course we do not invite the scrutiny of these Committees
to look at European Parliament Committee reports. That is not
to say that we cannot invite the Committee to do so and certainly
we should if there is good reason to do so but those reports contain
amendments which typically change quite significantly before they
are finalised and become part of the Opinion of the European Parliament.
Those reports typically go through a number of different iterations
before they are finalised. Sometimes they include contributions
from other Committees within the European Parliament. With the
greatest respect, I venture to doubt that the Committee would
find it helpful to spend time, as a matter of normality, looking
at all the amendments that a particular Committee proposes. It
is of course a different matter when the Parliament adopts its
Opinion; then we have an important stage in the procedure when
we have the final version of the amendments put forward by the
Parliament and we can all see where we are.
Q6 Chairman: When was that opinion
reached by the European Parliament?
Mr Kilby: That was when the plenary
decided it in April.
Q7 Chairman: You say 24 April was
actually the date of the European Parliament reaching finalisation
of it?
Mr Kilby: Wednesday 29 April was
the last COREPER meeting before the plenary session of the European
Parliament and that was when it agreed and the Parliament finally
voted on their Opinion at plenary session on 5 May. They agreed
to accept on that occasion.
Q8 Chairman: We obviously have a
different view and there will be some questions later about the
process. When we all know that what happened here was that an
agreement by all 27 countries was overridden by an appeal from
the Commission to the European Court of Justice on the overarching
decision about criminalising pollution at sea that was against
the wishes of all 27 countries, then it is a significant matter.
If in the Transport Committee of the European Parliament's submission
there was a proposal to extend even that judgment beyond what
seemed to be agreed at the time, then I would have thought that
was a significant enough amendment being proposed to notify this
Committee. You do say, Lord Bach, in your letter of 15 May in
the second paragraph: "I regret that we did not send you
the European Parliament's Transport Committee's report and recommendations
for amendments to the text when they were published in February
[...]" and then you go on to justify that by saying "notwithstanding"
et cetera. That is the kernel of this, that a decision was taken
within the Department that you knew better, as ministers in the
executive, than we did as the people who have the parliamentary
duty to hold you to account. That was a decision that brought
this about today. I have to say, despite the explanation, that
I am not convinced that what you did was correct.
Lord Bach: I agree that that is
the kernel of this issue, that we did not let you know what the
Transport Committee had said. The reason why we did not was because
we knew that we would never, never have supported what the Transport
Committee said. It was completely way out, as far as we were concerned.
There would have been no agreements between the Council, on which
we of course are represented, and the Parliament if it was on
the basis of what the Transport Committee had said because it
was completely unacceptable to us. It was only when the European
Parliament came round to the view that they should compromise
and do what the Council in effect wanted that this deal became
possible at all. Now, we accept in hindsight that we should have
perhaps had a bit more forethought and let you know what the Transport
Committee said in February, and that is the reason for my apology
on behalf of the Department, but in fact it was, as often these
reports are as I understand it at that stage, so different from
what the eventual result was that that is why in the normal course
we did not send it to you.
Q9 Chairman: Rather than ask a question,
let us accept that you realise this did not give sufficient time
eventually, when the final first reading became quite clear, for
this Committee to scrutinise the amended text. I think we agree
on that. Can I ask why then did you not consider asking for a
pause in the timetable in Brussels to allow for proper parliamentary
scrutiny? You did not seem to consider standing up for us as your
Parliament at that time and asking for time for proper scrutiny
to take place back here.
Lord Bach: With great respect,
I do not think that is entirely fair. The European Parliament
was, as I understand it, in its last session before it rose for
its elections. We were taken I think slightly by surprise that
the deal was able to be done but it was done in the circumstances
where Parliament was about to rise and not to sit again until
after the 4 June elections. It was in those circumstances that
this first reading came upon us much quicker than we anticipated
that it would. I look to my colleagues to see whether that is
a fair judgment.
Q10 Chairman: Given that what has
resulted overall is something that our Government did not want
in the beginning and, if the Parliament did not get its way by
the time it went into election, I would have said there was quite
a serious consideration that it might have been useful to kick
it into the long grass until the new Parliament came in because
what we have is something we did not want in the beginning and
what we have now is something that, quite frankly, we are not
that happy with at the end.
Lord Bach: Mr Chairman, here I
have to disagree with you. The compromise that was reached was
something that we did want from the beginning and we are more
than happy with. Perhaps I can ask Harriet Nowell-Smith to explain.
Q11 Chairman: We had the compromise
after the European Parliament's Transport Committee pushed the
Directive further than you wanted. Your compromise is better than
what they originally proposed.
Lord Bach: I really ought not
to use the word "compromise" because what happened was
that the European Parliament agreed what the Council were content
to have, which in fact was a million miles away from what the
Transport Committee had suggested, and it was absolutely in line
with Her Majesty's Government's policy.
Q12 Chairman: We might get into the
substance of that later. Can I ask a final question about the
procedures? What procedures have your Department now put in place
to stop a similar oversight from being repeated?
Mr Kilby: I think we can say that
we have all learnt from this experience and my Minister has instructed
us as officials to be more alive in future to the possibility
of first reading deals taking us by surprise in the way they have
done on this occasion. That is point one. We will endeavour to
be more alert to these possibilities in future. Point two is that
we are about to embark on an additional programme of training
for all those concerned with European business so they understand
better the parliamentary scrutiny process. This is something we
do on occasion and the next series of training courses is about
due. It is something that we do hope that the clerks from this
Committee will participate in; we have already mentioned this
to them informally. That is something we will be undertaking after
the summer as we run into the autumn.
Chairman: I am sure the clerks to this
Committee will be happy to improve the knowledge of the executive
at any time.
Q13 Jim Dobbin: Lord Bach, the proposals,
as the Chairman indicated, were of a national criminal nature.
A number of Member States, the figure we have is around 19, intervened
against the Commission because of that, which is why we are pretty
upset about the way this proceeded. In your view, and I am asking
for your opinion really, do you think this was a suitable proposal
for a first reading deal negotiated in an informal way like this?
Put another way, as matters turned out, do you think speed was
of the essence and speed was achieved at the expense of public
accountability in the adoption of this actual Directive, and that
is really where the pressure came from?
Lord Bach: No, I do not think
it did as far as the policy was concerned because the policy that
the first reading led to was a policy that was absolutely consistent
with our policy and had, as I say, very little to do with what
had been proposed by the Transport Committee some months before.
Could I ask Harriet Nowell-Smith to say why that is so?
Ms Nowell-Smith: The amendment
that was ultimately accepted in our view did not make substantial
changes to the criminal offence that was in the amending Directive.
It made something explicit that we had believed was implicit in
that offence all the way along. I say this with some confidence
because the original Directive 2005/35/EC expressly indicates
that it was intended to harmonise the implementation of provisions
contained in the MARPOL Convention; that is in the recitals and
in Article 1(1). I understand from the Department of Transport
that the MARPOL Convention does not distinguish between major
and minor polluting discharges. All polluting discharges as defined
in MARPOL, whether major or minor, are breaches of the Convention,
subject to some exceptions, such as to save lives at sea. The
definition and exceptions are for the most part preserved in the
Directive and are already implemented in domestic law. So from
our point of view negotiations around the words "minor discharges
that cumulatively pollute the sea" did not change the criminal
offence as it stood in the framework decision, in the MARPOL Convention
and in our domestic law. That is why we were able to accept it
at the last minute, so to speak.
Q14 Jim Dobbin: Could I come back
essentially in the wording of the question about the speed being
achieved at the expense of public accountability? There seemed
to be some acceptance of that, Lord Bach, when you indicated that
the European elections were pending and therefore the issue of
speed does come into it.
Lord Bach: I am now surmising
but I think it came into it in the sense that the Parliament wanted
to come to a decision on this and came to a decision on it, having
agreed the position with the Council so there could be a first
reading deal. I think it was the Parliament as such and its Committees
that, as it were, gave ground because of the time factor. Because
they needed to get the first reading through, or they wanted to
get the first reading through, they did indeed, from their point
of view, compromise appreciably from the position that their Transport
Committee had taken just a couple of months before. When we looked
carefully at what it was they were proposing, as Harriet has just
said, it did absolutely, as far as we were concerned, fit in with
our policy anyway. We were not giving anything away.
Q15 Chairman: Could I clarify something
before we move on? Was the UK one of 19 countries that originally
intervened against the Commission when the Commission went to
the European Court of Justice?
Ms Nowell-Smith: Yes.
Q16 Chairman: In other words, the
UK opposed the criminalisation of these acts; so our position
as a government was quite clearly against what the Commission
won in the ECJ?
Ms Nowell-Smith: That is right,
but we do accept the decision of the European Court of Justice.
Having made its decision, we operate on the basis that the Community
does have a very narrow competence to create criminal offences
where they are essential for protecting the environment against
serious problems.
Chairman: I make no choice as to whether
that is correct or not correct, but I just put it on the record
because I know that some of our members, who may not be here because
they are in a debate in the Chamber, would not wish to pass by
without recording that the UK's position was to oppose this in
the beginning. So what we have now is something that the UK as
a government did not want in the beginning. I knew that we were
one of the 19, as did most of the members of this Committee who
do not want to see the ECJ running the criminal decisions of this
country. It is on the record now. I move on.
Q17 Kelvin Hopkins: Question 3 is
a formal question and I read it without any elaboration. To an
extent you have discussed this already. Was there any discussion
between Member States or between them, the Commission and the
European Parliament about whether this was a suitable proposal
for a first reading deal and informal trilogue negotiations?
Mr Kilby: Evidently there were
discussions between the presidency and the European Parliament
which led to the series of meetings at the end of the process.
That was not something that the UK was directly party to, although
of course we participate through our Permanent Representative
in COREPER.
Q18 Kelvin Hopkins: I am obviously
interested, and unusually in this Committee I am something of
a Europe sceptic, in the genesis of these things when they cause
difficulties. Who has the idea first of all? Is it someone in
the Commission or is it one of the Member State governments? In
this case was it someone with grandiose ideas for the future of
the European Union? Where did these early discussions all start?
Mr Kilby: The idea for a first
reading deal, do you mean?
Q19 Kelvin Hopkins: Yes, and even
the idea of legislating in this particular direction, given that
it is causing controversy.
Mr Kilby: The idea of legislating
in this particular direction I think was initially raised by the
Commission. There is history. It does follow from a very serious
oil tanker sinking in 2002, a ship called Prestige which
foundered off the coast of Spain causing great environmental damage
and after that, as a mater of fact, it was the Council of Ministers
collectively that invited the Commission to bring forward a proposal
to apply sanctions to those responsible for causing or contributing
to pollution of the environment by shipping through what was characterised
as grossly negligent behaviour. So the answer to your question
is: the original idea was a political one that came through the
Council of Ministers.
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