Examination of Witnesses (Questions 1-48)
BARONESS WILCOX, LIZ COLEMAN, PETER HOLLAND AND NICHOLAS
11 MAY 2011
Right, Minister. Thank you for coming this afternoon. As you know,
we have a number of questions to ask you. The first question relating
to this Council Decision concerns the fact that you provided us
with the Explanatory Memorandum on 7 January, saying that, in
its request to the Commission, the United Kingdom included a caveat
concerning the opinion of the Court of Justice. This, of course,
was to allow the UK to withdraw from the request for enhanced
co-operation beforeand I emphasise "before"the
Council Decision was adopted. Can you explain what you meant
by the word "before", because the actual issue was whether
the Member States could withdraw after the Decision was adopted?
It is paragraph 24 of your Explanatory Memorandum, and do feel
free to ask those people who wrote it, if you feel like it.
That is very kind of you. One tries to be prepared, as all good
Guides, and then discovers that the one question you get asked
straight off is the one thing that you cannot find the paragraph
Well, that is why we are here, you see. We are the Scrutiny Committee.
Yes, I know you are, absolutely. First, can I just thank you,
Chairman, and members of the Committee, for asking us to come
along and explain ourselves? As this is a technical issue, I
thought it would be helpful for me, as you can see, if I brought
with me Peter Holland, who has been Director of International
Policy in the Intellectual Property Office since 2008, with responsibility
for international and EU affairs; Liz Coleman, head of the patents
policy division at the Intellectual Policy Office, and she has
advised on the EU patent and other matters to do with that since
2000; and Nicholas Fernandes, the legal adviser for the Department
for Business, Innovation and Skills, and he has been advising
on the European Union patent, as well as other intellectual property
matters, for the past 10 years. I hope that you will allow me
to defer to them if I think that they can give you a clearer answer
But bearing in mind, of course, that under the principles of accountability
the Minister is responsible.
I do fully understand that, but I do not want to delay you because
I do not expect you want us in the room for any length of time,
just to answer the questions.
Well, not any undue length of time.
So what is the answer to the question?
On the answer to the question, as I understand the question that
you have asked, if I can do it in the order that I worked in,
that will answer you, I think. We had the policy cleared across
Government for enhanced co-operation; that was important for us
to go forward. We were then cleared by the House of Lords Scrutiny
Committee to go forward. We knew that 10 March was a critical
date for us, and we had to take a decision as we had not yet finally
heard whether you were going to withdraw your objection or not.
Therefore, we then went ahead as we had not yet received the final
answer to the letter that we had written to you. It was a decision
that we took because 10 March was when the vote was going to be
taken and we were very keen to make sure that we were in at the
beginning, rather than having to withdraw from that Decision.
After all, we had waited 40 years to get that far, and it seemed,
as we had cleared from our own legal side, that we could withdraw
at any time. That is the reason that we went ahead: we believe
that we have clearance to withdraw at any time now to make sure
that we have things exactly as we would like them. I know that
that is not your view.
Q6 Stephen Phillips:
In your answer, you referred to the withdrawal by this Committee
of its objection. Now, what did you mean by that? Do you understand
what this Committee does?
Yes, I think I do. Do you want to
Q7 Stephen Phillips:
No, forgive me Minister. Mr Holland can give his answer in a moment,
and no doubt he advises you, but what do you understand this Committee
Do you want me to read out what your Committee's requirement is?
Q8 Stephen Phillips:
Tell me what the scrutiny reserve is.
What I was concerned about clarifying was the fact that this Committee
did not believe that we would be able to withdraw once we had
Q9 Stephen Phillips:
I understand that.
That was the legal advice that you had been given. We took our
own legal advice
Q10 Stephen Phillips:
I do not want to interrupt you, but we will come on to that in
We found that in actual fact we feel we can, and we are still
confident that we can, so that was the reason that we went ahead.
I have to say that I would not take lightly going against this
Committee. I would not. I am here to say that I am sorry that
I had to do so.
Q11 Stephen Phillips:
I am grateful for that, because that is the first time you have
apologised. What is the scrutiny reserve and how does it work?
Let me give you a full detailed answer to that.
Q12 Stephen Phillips:
Perhaps we can deal with it in this way: without consulting your
notes, are you able to tell this Committee what the scrutiny reserve
Okay. "No Minister of the Crown should give agreement in
the Council or in the European Council to any proposal for European
Community legislation or for a common strategy, joint action or
common position under Title V or a common position, framework
decision, decision or convention under Title VI of the Treaty
on European Union."
Q13 Stephen Phillips:
That is what it says. Are you reading that for the first time?
I am reading it; I am reading it to you.
Q14 Stephen Phillips:
Are you reading it for the first time yourself?
Do you mean have I understood that that was the situation before
I read it out?
Q15 Stephen Phillips:
Let's come on to that in a moment. Are you reading that for the
first time yourself?
I have read this out before.
Q16 Stephen Phillips:
Are you reading that for the first time to yourself?
No, I have read this to myself before.
Q17 Stephen Phillips:
Right, so what is the scrutiny reserve?
The scrutiny reservethat which I have just read to you,
Q18 Stephen Phillips:
What does it mean? What is its effect?
I think I could only but repeat it to you. It has been written
Q19 Stephen Phillips:
Well, would you agree with me that what it means is that the Government
cannot go off to a European Council and agree a document that
this Committee maintains under the Scrutiny Reserve and which
has not yet been debated either in a European Standing Committee
or on the Floor of the House of Commons? That is what it means,
Well, yes. If we have good reasons to have to go back and look
again, and if we have good reasons to override it, then we would
do so. We would come here and we would try and explain to you
why we had. In fact, I think in the exchange of letters that we
have had, we have always tried to be very clear about what it
is we are doing, and always try to keep in mind what we are doing
for Great Britain.
I know a lot of people on this Committee have been
at this a lot longer than I have, trying to get a European patent
through. When it came to the legal decision as to whether we thought
that we would be able to withdraw, our legal advice was that we
would, so the Government took the decision that this was such
an important moment that this was a decision that we would taketo
override, with just cause.
Stephen Phillips: Perhaps
we will come back to that in due course.
I would simply like to add to that the fact that, as you said
at the beginning, we have been at this for 40 years. In this context,
some might interpret that as suggesting that, for you and the
Government, this was a holy grail, sufficient to say, "Well,
it doesn't really matter what the European Scrutiny Committee
thinks about this. We will just go ahead anyway. If they ask us
to come along, we can explain it afterwards." That is possibly
a reasonable interpretation of what happened.
Q21 Mr Clappison:
Just briefly, following on from what Mr Phillips was saying, I
appreciate, Minister, your good motivation on this and that you
wanted to do the best for the country, but frankly, all Ministers
think they are doing the right thing when they take decisions,
so every time a Minister overrides the scrutiny reserve they can
come along and say the same thing. The effect of that is to weaken
Parliament, because the purpose of the scrutiny reserve is to
ensure that Parliament at least has a say on European decisions
on European law before they are taken and is not presented with
something as a fait accompli.
I will come to the point of whether it is possible
for us to withdraw, but that is a bit of a red herring as far
as the scrutiny reserve itself is concerned. It is just no answer
to the breach of the scrutiny reserve to say, "Never mind,
we can withdraw from it later," is it?
We take the work that this Committee does very seriously. We thought
long and hard and took advice as to whether this was a moment
for us to go forward for this opportunity, and with the advice
we were given, we felt that, legally, we would be able to withdraw.
It is not our intention even to hope that we would have to withdraw.
One hopes that this will go forward. It is an opportunity
for Great Britain and the other member states to be able better
to compete in the world for patents, which cost us an enormous
amount of money to translate into other languages within the European
Community. We are a member of the European Community, as Mr Clappison
well knows. Therefore, this is an opportunity for us to do something
within the European Community that is of enormous benefit to Great
Q22 Mr Clappison:
All Ministers come along and say that sort of thing about every
decision they take. This is preserving Parliamentary democracy
and Parliamentary scrutiny, and, as far as that scrutiny is concerned,
whether or not we are able to withdraw is not an excuse for breaching
the scrutiny, is it?
The reason the Committee gave was that withdrawal was not possible
at all in their view.
Q23 Mr Clappison:
No, the Committee said that it wanted to hold a document for scrutiny,
unless it clears it from that. What the Committee was saying was
that it held it under scrutiny, because it wanted it to be debated
in Parliament. A concern that the Committee also expressed was
whether it is possible to withdraw, okay? That is a secondary
point. The first point is that the Committee held it under scrutiny,
which meant that it wanted to debate whether it was possible to
withdraw, but the Committee expressed its concerns as to whether
it was possible to withdraw at all. Now, is it your view that
it is legally possible to withdraw? What is the basis for that
and what is the basis in treaty law for that belief?
Yes, it is possible for us to withdraw. The European Union treaties
are actually silent, as you know, on withdrawal from enhanced
co-operation. This does not mean that the treaties prohibit withdrawal
from enhanced co-operation. The Government's view is that withdrawal
is allowed under the EU treaties. The Commission's statement in
the minutes of the Council on adoption of the decision of 10 March
is declaratory of the position under the EU treaties that the
treaties allow for withdrawal from enhanced co-operation, and
this is entirely consistent with the rules on enhanced co-operation
and has been accepted by the Commission, the Council and the member
states. I cannot say often enough that we would not have come
to this decision lightly. I know you say that every Minister would
say that, but in this instance our difficulty was that our legal
advice was not the same as your legal advice.
Q24 Mr Clappison:
With respect, it is nothing to do with legal advice. It is a question
of scrutiny in the first instance. The legal advice was a point
that the Committee, as a scrutiny Committee, drew to your attention.
However, this is not a question of legal advice; this is a breach
of scrutiny reserve. I understand that you are doing it for a
good motivation and so on, but I have to say that from our point
of view that is simply not good enough.
Q25 Stephen Phillips:
I do not want to interrupt James, but it is important not to elide
these two distinct points. We can come on to discuss the basis
for your legal advice and whether it is correct in a moment. The
point that Mr Clappison is putting to you, Minister, is that the
document was under scrutiny. Now, it seems that the Committee
takes a different view from your advisers in relation to the proper
construction of the Treaty on the Functioning of the European
Union, but that is entirely irrelevant to the fact that the Committee
had the document under scrutiny. In your answers a moment ago,
you said, "Well, we take a different view on the law and
we thought our view was right, and that entitled us to override
scrutiny." Now, is that the position that you want to adopt
in the face of this Committee, given that the two issues are entirely
distinct and that the first is irrelevant to the fact that scrutiny
I suppose I was rather thinking what would have happened if the
UK had not participated.
Stephen Phillips: Again,
that is the decision of 10 March and we can come back to that.
Could I intervene at this moment? I really have to stress one
point. As Stephen Phillips developed in his analysis, and as we
know very well, and hope you do, the whole object of the scrutiny
reserve is that no Minister, under the Standing Orders, is allowed
to make a decision in the Council of Ministers while it is still
under scrutiny reserve. What goes with itthis is the crucial
element, which James Clappison was referring tois the democratic
question whether the matter will be debated in the House of Commons.
If Ministers say, "We think that we are right,
and it has 40 years of development and therefore it goes without
saying that this has to go through," none of that is relevant
in the context of the necessity under the Standing Orders of Parliament
to require a debate if we say that there should be one. It is
not just an option; it is the democratic right of Members of Parliament
to be able to debate this either in European Committee or on the
Floor of the House. The Government is not entitled to take a view
as to what the merits are until the matter has been decided by
the debate that has taken place in Committee or on the Floor of
the House. It is about debate; it is not about decision.
That is the question that is really troubling us,
because it appears to meI was not quite prepared for this
when we started out on this sessionthat you really do believe
that the Government has the right to override the Committee simply
because it is a matter of what you perceive to be the national
interest. Actually, there is a place called Parliament with elected
Members of Parliament who gather together for the purposes of
making decisions like that and calling the Government to account.
Issued by the Department of the Clerk of the House in April 2010,
I can tell you that it says that "for 'special reasons',
provided that the Minister explains those reasons to the Scrutiny
Committee at the first opportunity after deciding to give agreement.
In practice, Ministers usually inform the Committee in advance.
If a proposal is awaiting consideration by the House, the Minister
must inform the House at the first opportunity after giving agreement."
I hope very much that you would agree that we actually had.
But the question is, what were the special reasons?
The special reasons were that we had no way of influencing the
actual gathering as to telling them that we needed to delay to
be able to come back and to discuss further as to what the law
was on this for us. We had the date of 10 March and that was the
date on which we would either have to withdraw or vote. This was
an opportunity for us to stand alongside the usual things that
you already knowthat common patent has been subject to
negotiation since the 1960s. Here was the date, here was the time,
this was the moment when we would go forwardwhen 25 out
of 27 countries were going to sign together.
We took with us a strong caveat. We were worried
about the Patent Court, and so the reason for us going ahead was
that we wanted to be part of it on behalf of Great Britain. The
policy had been cleared across Government for us to take part
in enhanced co-operation. We made it very clear that not only
could we withdraw at any time, but that we had a special caveat
in it about the Court. In establishing the Patent Court, the European
Court of Justice should not take on wider powers. So, the reasons
that we would give, from the special reasons that I have just
read out, which are available under the scrutiny reserve resolution.
That is how we felt we could at least go forward and sign. I cannot
say often enough that it gives me no pleasure to sit here and
have to explain why it is that I have taken a decision against
this Committee's advice. I would not like to think that I would
have to do so again, but in that circumstance I felt that it was
in the best interests of our country because we had the legal
ruling that it was not binding. It is not binding; it will be
over a year before we even get to the point whereby it would be
binding. There is ample time for debate during the months to come.
Q28 Stephen Phillips:
Minister, you wrote to the Committee on 9 March, the day
before the Council decision. I am sure you have a copy of your
letter with you. Did you at any stage in that letter refer to
either the scrutiny reserve resolution of the House of Commons
or to special reasons, or identify what those special reasons
Do you want me to read the letter again?
Q29 Stephen Phillips:
No, I do not. I want an answer to a simple question. You have
said you were entitled to override scrutiny because there were
No, no, no. Not, "I have said". I have read, and I
hope that minutes are being taken. I have read to you from your
own papers. I have read that to you; I have not invented it.
Q30 Stephen Phillips:
Forgive me, but inherent in that answer is the suggestionthe
factthat you gave no consideration to whether you were
able to override the scrutiny reserve at all; you just did it.
You are now seeking to justify that subsequently on the basis
that there were special reasons, is that right?
I say in the letter, "I am writing to give you advance warning
of the possibility that the Government may need to override parliamentary
scrutiny on a proposal for a Council Decision authorising enhanced
cooperation in the area of creation of unitary patent protection."
Q31 Stephen Phillips:
Right. Let's go back over the two questions that I have just asked
you because they are important. Is there any mention anywhere
in the letter of 9 March of the existence of special reasons entitling
you to override the scrutiny reserve?
The letter goes on, "The UK strongly supports the creation
of a European patent system that delivers real benefits for business.
We see enhanced cooperation as the only viable way forward, and
it would be extremely regrettable if we were unable to support
the authorising Decision at the Competitiveness Council on 10
In my previous letter of 16 February I explained
that we had sought and obtained assurances that the UK could withdraw
from the request for enhanced cooperation, and we are confident
of our ability to withdraw. The option of postponing the Council
Decision was not available to us, although we did discuss the
possibility of postponing the decision with the Commission, other
Member States and the Presidency. Reopening the text of the decision
itself was also not a viable option given the risk of further
amendment and debate, which might have held up progress."
We had understood the concern of the Committee was that we could
Q32 Stephen Phillips:
The answer to my question is no; there is no mention of special
reasons, is there?
Well, we had not realised that it was necessary to refer specifically
to the wording "special reasons" in the answer. If you
feel that we should have done, I apologise for that and we will
try to get it right for next time.
Q33 Stephen Phillips:
So is your evidence to the Committee in fact that you did give
consideration to the scrutiny reserve, and that you thought there
were special reasons entitling you to override it?
Could I ask you a simple question? Supposing you had abstained,
would that have affected the qualified majority vote?
Well, it would in that we would not have been in it.
Yes, but you had the option of abstention.
I do not think that would have been sufficient at that time.
So, come what may, you were determined to go ahead, irrespective
of whether the whole question of debate in the House of Commons
Oh no, Chairman, no. We had to ascertain first and foremost that
we would be able to withdraw. The important thing was that we
were able to withdraw.
Q37 Stephen Phillips:
I want to come back to that legal question in due course. Now,
under the Standing Orders of the House of Commons in relation
to public business, where the scrutiny reserve is overridden,
the Government, or the responsible Minister, is required to give
notice to the House through this Committee at the first opportunity
after agreement has been given in Council overriding the scrutiny
reserve. When did that happen?
On 13 April.
Q38 Stephen Phillips:
Do you consider that to have been the first opportunity?
Sorry, 17 March, I apologise. No, they wrote on 13 April. I am
sorry, you wrote to me on 17 March and I replied to you on 13
April. I have a son of my own who is a QC, so I know all about
not trying to put words into the mouth of a QC.
Q39 Stephen Phillips:
I do not want to put words in your mouth. I want to get
If you are trying to tell me that the only information you had
was 9 March, that would not be right, and 13 April is when we
responded to your letter of 17 March.
Q40 Stephen Phillips:
Right. On 9 March, you wrote to us and said it may be necessary
to override scrutiny. We have already discussed whether or not
you made any mention of special measures entitling you to do so,
and I have your answer in relation to that. On 10 March,
you gave assent to the decision in Council on behalf of the Government
of the United Kingdom. Under the Standing Orders of this House,
without this Committee having to write to you, you are then obliged
to give notice to the House of Commons that the scrutiny reserve
has been overridden. Did that happen?
I suppose we are depending upon the fact that we wrote on 13 April.
Q41 Stephen Phillips:
That is a letter from you that begins, "Thank you for your
letter of 17 March," addressed to the Chairman of this Committee?
Q42 Stephen Phillips:
So it is a response to Mr Cash's letter, isn't it?
Q43 Stephen Phillips:
So in fact, again, the answer here is no. You did not comply with
the Standing Orders of the House of Commons and you did not, at
the first opportunity, give notice to the House of Commons through
this Committee that you had overridden the scrutiny reserve.
Well, in actual fact I think that you wrote before Who
Mr Clappison: Can I just
come in on that point?
I am sorry; I am trying to get the dates all right here.
Q44 Mr Clappison:
Could you get the dates right first, and then, when you have the
dates right, could you answer this simple question? Do you think
that the way you have responded to this Committee meets the requirements
of Standing Orders, which you have just heard?
Possibly, yes. So we informed on 9 March, and the letter here
on 3 March. This letter here. So is the answer yes or no? Looking
at it like this, it does not look very good.
Mr Clappison: That is
Minister, one thing that is troubling members of the Committee
is that we have been going around a number of questions over the
last half hour. Minister, if you would be kind enough?
Chair: We have been going
through these questions for half an hour so far. There is an increasing
thought occurring to some of us that maybe you have not prepared
yourself very much for this session. Given the circumstances and
the requirements of Standing Orders, that is, to say the least,
regrettable. We do not seem to get an impression that you know
on which dates the various actions took place or that you quite
understand the nature of the scrutiny reserve, or indeed what
lies behind it, which is the democratic requirement for debate
if we suggest that that is what is required in the interests of
our parliamentary process. You say you have apologised, but you
have also gone on to indicate that you thought this was justified
in some fashion.
Mr Clappison: That is
what worries me.
Chair: That is really
what is concerning us. It is not a question of whether a Government
Minister thinks it is justified; it is a question whether the
procedure has been followed. It is very difficult to know where
to go next, because it is obvious that you are not fully prepared
for this session just by the answers that we are receiving. That
is rather disturbing to us, actually.
We understand that you come from the House of Lords,
and therefore you are not so familiar with the rigour of scrutiny
that we are used to in the House of Commons, but that does not
alter the fact that, as a Government Minister, you have signed
off something that effectively has precluded debate. That troubles
us a great deal. Speaking for myself, I think a lot of this responsibility
lies in a lack of control over the decision-making processes in
your Department, which may be your responsibility, but I also
feel that your advisers have fallen very short in helping you
to come up to the standard of accountability that we in the House
of Commons would expect. I hope that you will make that point
very clear to your advisers when you get the opportunity to do
so. There is a sense that there are other questions that we would
like to ask. Is there any one in particular? Otherwise, I would,
frankly, be happy to draw this to a conclusion and allow the Minister
to go away and reflect on the matter and to decide whether there
is perhaps an opportunity for us to look at it again.
Q46 Nia Griffith:
If I could come in on this, obviously there is a range of opinion
on the Committee about where the European Union might be going,
but there is an agreement about the importance of the role of
scrutiny with this Committee. On several occasions, we have tried
to ask you whether there was any possibility of the decision being
postponed, but there does not seem to have been any willingness
on your part to engage with the Committee or to sort out means
of communication with us. Nowadays, with so many modern means
of communication, we would have thought there would have been
some response back in some way to get some feedback from this
Committee before proceeding. It seems to us that it has almost
been a snub to the Committeea decision to ignore the Committee
when there could have been opportunities to contact the Chair
or to ask for appropriate opportunities to discuss the matter
before any ministerial action was taken.
Chair: We get the slight
impression that it was a snub not just to the Committeeif
I may say so, Niabut to the House of Commons.
Nia Griffith: Absolutely.
That certainly was not my intention in any way at all. Of course,
I will go back and talk to my officials. There was not a possibility
to postpone. I had been going to Brussels for many weeks on this,
so I made it very clear and checked over and over to see whether
there was a chance, and there was not.
Chair: May I make a suggestion,
Minister, which is simply this
One of the reasons is because the Hungarian Presidency absolutely
wanted to have it there and then.
Chair: Well, we understand
I know you do. Sorry, I was trying to answer the question clearly,
and that is the truth. There was no opportunity for us to postpone
and there was no consideration taken of anybody wishing to postpone.
I think the impetus had got to the point whereby everybody really
was so delighted they had got to this point, and we just could
not get any support for postponement.
We know from other sources that the Hungarians had been extremely
keen to see this go through during their Presidency, and I am
increasingly getting the impression that that came ahead of
Well, that was an impression I was getting. I think it best if
we adjourn these proceedings and maybe come back again when you
have had a chance to look at the matter and reflect.
If you give me the opportunity, I would be extremely grateful.
There is no doubt that we were most concerned with the fact that
we could not withdraw. I really thought that the Committee was
most worried about that, but in actual fact I can now see the
Committee is most worried about the democratic nature of the way
the decision was taken and the fact that the Committee should
not be overridden without good cause.
I thought that we had everything here to describe
it well to you, and in fact I would have made some opening remarks
to have done so. I do apologise. I am sorry if we have wasted
your time, and I will go and talk to my officials. If you are
minded to give me the opportunity to return, I would be extremely
grateful, and I would be able to come back then with what I hope
would be a clear picture of what actually happened. I think you
know the reasons why, but I will address what went wrong and also
I will think clearly and carefully about how we would ever go
forward on something like this again. It has been a lesson for
me, that is for certain. Thank you.
Chair: Thank you very