Examination of Witnesses (Questions 20-39)
LORD BACH,
MS HARRIET
NOWELL-SMITH
AND MR
EDWIN KILBY
1 JULY 2009
Q20 Kelvin Hopkins: There was a fair
amount of discussion before anything actually happened, in other
words, between all interested parties—Member State governments
and others?
Mr Kilby: Yes, so it would appear.
Q21 Chairman: Can I push slightly
the question of trilogues? The trilogues are not only informal
but they are confidential. Given that the trend and the wish of
the public whom we represent here in this Committee is for more
openness in something like this where it is extending criminal
law, whether the deal and the amendment and the finessing of that
by the Government is better than they would have expected in relation
to what came out of the European Parliament's Transport Committee,
does it not worry you that such an important area of criminal
law is done in a confidential hidden Committee, quite frankly,
into which you have no real input as a government? I believe it
does not contain a guaranteed representative of our Government,
nor do we know what goes on in those meetings. Trilogues are not
an attractive part of the first reading process.
Mr Kilby: Mr Chairman, the final
decision would be made publicly through COREPER, in which of course
the UK does participate. It cannot be made without the approval
of COREPER and the UK is very well represented in that Committee,
I assure you. What the trilogue was doing in this case, and I
assume in other cases like it, was exploring what the possibilities
were in relation to dealing with this matter in a relatively streamlined
way. Clearly there was a wish, particularly on the part of the
presidency, to conclude this matter during that presidency, and
that is why they would have been exploring with the European Parliament
whether there was any flexibility. It seems that their negotiating
skills were a great deal more effective than some of us thought
they might be.
Q22 Mr Bailey: Just to follow on
the theme of trilogues, is this process used very often? Has it
been used in the formulation of any other policies or in this
particular time frame?
Mr Kilby: First reading deals
are quite common in the context of co-decision and obviously there
would need to be some sort of conversations between the institutions
in order to ascertain whether they are possible.
Q23 Mr Bailey: You are saying trilogues
are quite common?
Mr Kilby: Yes.
Q24 Mr Bailey: How does that allow
the Government to follow the course of the negotiations, or governments
because presumably it happens where other Members of the EU have
a direct interest as well? What is the feeling within the scrutiny
processes of other governments on this particular model of process?
Mr Kilby: Can I perhaps preface
my response to that question by saying that on the whole we seem
to be able to manage first reading deals without running into
serious scrutiny problems. That is not to say that it does not
lead to last minute timetabling difficulties and certainly on
occasion we have been very grateful for the flexibility and responsiveness
of this Committee in understanding some of the realities of negotiations
approaching the end game, if I can put it that way. As far as
trilogue discussions are concerned, the Members States are represented
by the presidency. That reports back to the Council, which involves
all the Member States, either direct to COREPER or to other formulations.
One of the formats is what we know as a Counsellors'meeting, which
is members of our permanent representations who are responsible
for these particular areas of business. You should not have the
impression that there is no input from Member States because there
is.
Q25 Mr Bailey: I am still not clear
where the normal national parliamentary scrutiny process can intervene
in such circumstances. Is there a facility before a trilogue takes
place? You said you have been grateful for the flexibility of
this Committee. What has happened on previous occasions?
Mr Kilby: For example, we have
learnt on previous occasions that a text is going to be put to
the European Parliament by way of a compromise in sufficient time
to enable us to pass it to the Committee for it to consider it
at its weekly meeting. Timing has sometimes been tight, I will
not pretend otherwise, but that has usually been the case. I am
bound to say that none of us dealing with these matters in the
Ministry can remember an example of such tight timetabling as
occurred in this case.
Q26 Mr Bailey: Can I move on to the
timetabling because in your letter of 15 May you said that the
timetabling was "not of our making, nor within our control,
and was undoubtedly influenced by the Presidency's wish to secure
a deal before the dissolution of the European Parliament for the
June elections". I would not have thought it beyond the imagination
or the wit of officials or politicians to realise that actually
might be the case. Certainly it is quite logical for parliaments
of any sort to want to clear their decks prior to an election.
Would it not have been possible to take some sort of steps in
order to anticipate that that would have enabled this Scrutiny
Committee to carry out its constitutional function?
Lord Bach: Perhaps I could just
say that I think there is something in what you say, Mr Bailey,
if I may say so. I think there might have been a bit more thinking
by my Department into Britain's thinking that this is the last
session of the European Parliament and therefore they may want
to take some action on things that otherwise we did not think
would come anywhere near a first deal. I do not think that is
the real reason for apologising to the Committee, which I think
is because of the Transport Committee's views not being passed
to you in February, but a bit more anticipation I hope will take
place in the future if this ever arose again. It is unfortunate
that this deal, as it were, did not come to you in time for you
at your weekly Committee meetings to be able to form a view on
it, as you should have been able to do.
Q27 Mr Bailey: Just to conclude,
briefly, hopefully the lesson of this particular fiasco will be
learned and perhaps a process will be incorporated prior to the
next European elections?
Lord Bach: I agree with you in
every word except I think the word "fiasco" is putting
it just a little bit high, given what we are talking about, but,
yes, I very much hope that whoever is the minister at the time
of the next European parliamentary elections who is in my position
will not have to face your Committee, Mr Chairman, again in the
same circumstances.
Q28 Chairman: I think "fiasco"
is probably quite mild compared with the language that might have
been used if certain members of the Committee had not been on
the Floor of the House at this moment.
Lord Bach: I could not possibly
comment!
Q29 Mr Borrow: I just want to come
back to this issue of first reading agreements and when or when
it is not appropriate to use that mechanism and really ask if
there are proposals to create criminal offences and penalties
for them, is there a cut off where we say we are quite happy to
go with first reading agreements for legislation up to a certain
level of importance but not above that? I would like some feel
that if you were pushed into a corner in the future there would
not be occasions when you would just say, "Hey, lads, we
are not moving at all. We are going to make sure that we have
parliamentary scrutiny cleared before we go along with a first
reading agreement and rush through things at the last minute".
We cannot simply say, "The presidency wants first reading
agreements with the parliaments and therefore there will be no
parliamentary scrutiny because there is not time for it".
There needs to be some measure of the importance of parliamentary
scrutiny when you just say that if it is delayed for six months,
it is delayed for six months.
Lord Bach: Of course this is a
Pillar 1 subject matter, which means that it is subject to qualified
majority voting, so that we can make our position clear, I suppose
but we can certainly be out-voted on it. I am going to ask Harriet
to speak about this.
Ms Nowell-Smith: We have some
confidence, though, that if the European Parliament were to attempt
to create a truly new criminal offence at the last minute, they
would not succeed. As you have mentioned already, there were 19
Member States intervening in the ship-source pollution case before
the European Court of Justice. We feel I am sure as strongly as
you do that the Community does not have competence to create criminal
offences wherever it might wish to and we guard the competence
question very zealously. Also, the question of parliamentary scrutiny
is something that Member States feel very strongly about and in
the creation of new criminal offences, the timetable would have
been dramatically slowed down if that had been the case.
Mr Borrow: I will be honest, Chairman,
that I am not totally convinced because I would have expected
in this situation to have said we are not prepared to go along
with that procedure because we were one of the 19 that was not
happy.
Q30 Chairman: I wish to move on to
the actual content of the Directive, but I do think that the general
feeling is that, despite the skills and negotiating abilities
and despite the fact that the Government thought at the beginning
that it was contained in the original Directive, the amendment
has clearly underscored something and there will be debates in
the future, maybe in the Court, as to exactly what this has added
to the Directive because I think those behind the Directive amendment
had another vision in mind. If the original Directive contained
the necessary words that could be interpreted, then why did they
push it so hard? It has to be because they thought that this would
strengthen the Directive in the direction they wished to go beyond
what was in the original Directive. Whether we had a compromise
or not that we think was skilful, it has moved new words into
the Directive that were not there before. I think that is the
problem that will remain and we will not know whether it was significant
until a case is brought and we are in a difficulty in listening
to the interpretation of the Court to tell us whether this addition
was significant or similar to what was originally there. That
is always the way with laws. We do not know what people have in
mind until the case is argued in court. For us, it is quite clear
that eight weeks existed in which this Committee's role could
have been respected and we could have been sent the amendments
with the arguments, with the logic, as to why you did not think
that would result in the first reading deal on that basis. That
would have given us our role as a parliamentary scrutiny Committee
without hindering your role as members of the executive who have
to do the negotiations. I think there are lessons to be learnt
here so that we are not in this situation in the future. If people
just agree if there is time, even if the information might be
more than you think we need because you have already worked out
that it will not result in a deal, you must respect this Committee's
role to be involved because we speak for Parliament and we speak
for the people of the country. This is separate from the Government's
role in carrying out the executive actions on behalf of the people.
We could all have watched this process from inside the tent rather
than as we did watching it from outside the tent.
Lord Bach: I absolutely take the
last points that you made, Mr Chairman, and I hope that the Committee
will be satisfied that we absolutely agree that the role that
your Committee plays is absolutely critical to our policy. On
this occasion we made a mistake, as I think I said in my letter
and today. We made a mistake. Hopefully, the results of this mistake
will not be harmful to British interests and the people whom you
and your colleagues represent in the future. We do not think it
will. We may be coming on to that a moment. We will try to make
sure that does not happen again.
The Committee suspended from 4.10 pm to 4.25
pm for a division in the House
Q31 Keith Hill: I will do the preliminary
part of this. While we have concentrated on the process by which
this last minute change was made by the European Parliament, at
the end we would like to look at the substance of the Directive,
and in particular, bearing in mind the somewhat convoluted process
by which the Directive emerged, beginning with the Commission
proposal and criminalisation, rejected by the Council, recourse
to the ECJ and as you say 19 Member States opposing an extension
of the criminal law. I think what we want to know therefore now
is: does the Directive respect the ECJ decision? You remarked,
Minister, in your letters to the Committee of 24 and 29 April
that the EP's amendment to criminalise was unnecessary, and that
seems to have been the UK view. But if the amendment is unnecessary,
how can it be consistent with the ECJ's judgment in annulling
the original framework decision on ship-source pollution that
the Community can only require Member States to introduce criminal
penalties where these are considered to be an "essential
measure for combating serious environmental offences"?
Ms Nowell-Smith: The Court ruling
in the environmental penalties case addresses whether or not a
criminal offence is essential to protect the environment, not
whether it is essential to the drafting of the Directive. As a
matter of good drafting, a Directive should not contain Articles
that do not have legal effect. So we agree that a superfluous
or meaningless amendment should not be in the Directive, but in
this case we and the European Parliament apparently had very different
interpretations of the scope of the offence. While we felt the
amendment did not add anything material, the European Parliament
did. The Government was content to make explicit what we regarded
as implicit to give the Parliament the confidence that the instrument
covered the scenarios it was concerned about. If you would like
me to take you through the detail now, I would be happy to do
so, or that may be a sufficient explanation.
Q32 Keith Hill: In a nutshell, do
you think that by accepting this unnecessary amendment we are
now extending the Community's competence over national criminal
law further than was agreed by the Court?
Ms Nowell-Smith: No. We very much
do not take that view because we think that the criminal office
that is in the Directive is essential to protect the environment.
We think that requiring Member States to criminalise repeated
minor discharges that cumulatively have a polluting effect is
essential to protect the environment. That is also what is required
by the MARPOL Convention and it has been in domestic law since
1996. We think that would have been required by the draft of the
Directive before the European Parliament's amendment. So we do
not think the amendment has any effect in the sense that it does
not create a new criminal offence. The amendment to cover repeated
minor cases that cumulatively pollute would have already been
covered by—
Q33 Keith Hill: So you think that
actually the EP amendment was already in the draft essentially?
Ms Nowell-Smith: Yes.
Q34 Keith Hill: But our view was,
as a government, that actually it was not the cumulative thing
but the substantive final discharge which really constituted the
criminal offence. Therefore, it was not the seriousness of discharges
which complied with that requirement and the essential measure
for combating serious environmental offences but actually the
final discharge itself which constituted the essential measure?
Ms Nowell-Smith: Current law does
not distinguish between major and minor discharges. We regard
them all as very harmful to the environment.
Q35 Keith Hill: But not equally criminal?
Ms Nowell-Smith: They are all
criminal offences.
Q36 Keith Hill: Minor discharges
are criminal as well as major discharges?
Ms Nowell-Smith: Yes.
Lord Bach: If they pollute.
Q37 Keith Hill: So you can have a
minor discharge which does not pollute?
Ms Nowell-Smith: Yes, and in fact
our domestic criminal offence covers the field domestically. In
the UK, minor and major discharges are treated as criminal offences.
We do not propose to take up the possibility created by the Directive
that we have administrative sanctions for non-polluting discharges
and criminal sanctions for polluting discharges. In the UK they
are all criminal offences.
Q38 Keith Hill: I think you have
probably just answered another question. I was going to ask whether
we were going to transpose this into national criminal law and
you are saying we are not because it is already in our national
criminal law.
Ms Nowell-Smith: That is correct.
Lord Bach: I think the Department
for Transport has taken the view that they do not need to transpose
it because it is already there. I know you have experience of
course of that Department.
Q39 Keith Hill: You are so right,
indeed. I was in my time the nation's shipping minister, a fascinating
activity as well. I remember in that period we were extremely
resistant to these extensions of European influence in these matters.
Ms Nowell-Smith: Would you like
me to give you the detail?
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