European Scrutiny Committee - Minutes of EvidenceHC 591-i

House of COMMONS

Oral EVIDENCE

TAKEN BEFORE the

European Scrutiny Committee

Tobacco Products Directive: Scrutiny Override

Wednesday 17 July 2013

Anna Soubry MP and Andrew Black

Evidence heard in Public Questions 1-96

USE OF THE TRANSCRIPT

1.

This is a corrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.

2.

The transcript is an approved formal record of these proceedings. It will be printed in due course.

Oral Evidence

Taken before the European Scrutiny Committee

on Wednesday 17 July 2013

Members present:

Mr William Cash (Chair)

Andrew Bingham

Mr James Clappison

Michael Connarty

Julie Elliott

Nia Griffith

Chris Kelly

Stephen Phillips

Jacob Rees-Mogg

Henry Smith

________________

Examination of Witnesses

Witnesses: Anna Soubry MP, Parliamentary Under-Secretary of State, Department of Health and Andrew Black, Programme Manager, Tobacco Policy, Department of Health gave evidence.

Q1 Chair: Minister, thank you very much for responding so quickly to our request to give evidence. We understand you have to leave by 2.45. Before we begin, I would like to remind you that the draft Directive remains under scrutiny, and that the Committee does intend to recommend a debate. Indeed, we probably would have done so already, if the Government had been in a position to provide the information we requested in our first report on the subject sooner. The purpose of today’s session is to deal specifically with your decision to override scrutiny by agreeing a general approach on the draft Directive on tobacco and related products at the Health Council on 21 June.

Let me say at the outset that we take a decision to override scrutiny very seriously indeed, especially when it concerns a proposal of such importance. You will be aware from the reports we have produced that we consider that insufficient information was made available to the Committee to enable it to scrutinise the Commission’s proposal, and, more importantly, the Government’s position before the general approach was agreed on 21 June. Negotiations on the draft Directive appear to have proceeded at unwarranted haste, given its far-reaching implications for the internal market and public health. Why was it necessary to proceed so quickly? What assurances can you give to us that you were able to consult UK stakeholders on the implications of the draft Directive and the Government’s negotiating position in the short time available?

Anna Soubry: Thank you very much indeed. Obviously, it was of concern to me that we were in the position that we were in. We had, of course, notified both this Committee and indeed the House of Lords Scrutiny Committee, asking for scrutiny waivers. It is of some importance-and I hope you would agree-that a waiver was received from the Lords Committee, but of course not from your Committee, Mr Cash. Your reason was that there was a lack of time to consider in full the Government’s position on the Directive. That was the primary reason for not granting the waiver.

I will cut to the chase and tell you the position that we were in. Events were moving pretty fast, and, when we got over to Luxembourg, we knew that this Directive was going to be debated. Of course, we are aware of the Government’s policy in relation to tobacco. We were in a position where the Government had not made a public decision or announcement on whether or not it was going to proceed with what is called standardised packaging of cigarettes, which I hope you are familiar with. None of that had been put into the public arena, and it was in the process of a write-out to all the various parts of Government that these things have to go to.

If I am being very blunt with you, Mr Cash-I always hope to be honest-it was of concern. I suppose I can understand why it is, but it remains of concern to me that one sends out, as one has to do, letters to various Government Departments seeking this clearance, and unfortunately some are not as quick as others. That is a matter that, at some stage in some place, we ought to debate. It does mean that one cannot get on with making a decision as to policy and so on and so forth.

When we got to Luxembourg, we knew that events had moved quite swiftly among the various people who were attending as to the final Directive, and we also knew that things were going to be very, very tight when it came to the vote. We knew who was broadly in favour of certain parts of the Directive, who was opposed to other parts, and all those things, as you might imagine. There was one particular feature of the Directive that concerned all of us; it was in relation to Article 24. We felt it was extremely important that we play a full role to ensure, frankly, that our Government and any Government of whatever colour was able to retain powers to determine its own future policy on tobacco. The position we were in was that, if we did not play a full part and did not take part in a vote-as you can imagine, there were numerous negotiations involved with other member states-the grave danger was either that the whole Directive could be lost, and we did not think that that was right, because it did not concur with Government policy, or we would be in a position whereby we would find ourselves unable, as a nation, if we so chose, to introduce standardised packaging or other measures that went beyond the European Directive.

That was why, given the situation that we faced, the decision was made, as I have explained. I apologise profusely. I wish it had been other. I believe, as much as one ever can, in doing all the things that you should do. However, we were in a position whereby I certainly took the view we had no option. It would have been wrong to lose the Directive, and even worse for us to find ourselves in a position where we were unable to determine our own policy on tobacco.

Q2 Michael Connarty: Minister, you used the phrase "lose the Directive", as if directives only have one life and can suddenly be killed off. If that was the case, I think many of us here would applaud a number of directives that could have been killed off, but were not. The reality is that they are never killed off. You do not lose a directive. It might in fact slip out of the badge that the Irish presidents can wear, because they want to get it through in their presidency, but it does not go away because you take the trouble to respect Parliament and consult Parliament. It would still be there after we were consulted. What do you mean by "lose the Directive"?

Anna Soubry: I will explain.

Michael Connarty: Do you mean, get the chance to do it in your term of office?

Anna Soubry: In mine?

Michael Connarty: Yes.

Anna Soubry: Not at all. I am sorry. Mr Connarty, do forgive me. It is not about my term of office at all. I can assure you that I do not seek some personal legacy.

Q3 Michael Connarty: What do you mean by "lose the Directive?"

Anna Soubry: If you would be so good as to let me finish-

Michael Connarty: I would like an explanation.

Anna Soubry: I will give you an explanation, but please do not personalise this. I have not come to this place for some third career, I can assure you.

Q4 Michael Connarty: What the Irish presidency was seeking was that they could say they did it in their presidency.

Anna Soubry: That is perhaps another matter, but let me try to answer your question. First of all, of course, we did have the waiver from the House of Lords. It is unfortunate, I accept, that this Committee felt that it needed more time. I understand that. We wanted a directive on tobacco, and it is fair to say that the majority of the member states agreed it was right to have a directive on tobacco. Whether or not the Irish saw it as some badge of honour for them, I cannot comment. Frankly, I found the Irish Health Minister’s attitude towards these matters quite refreshing, and I think many of the discussions that we have had at our meetings have been extremely good and very helpful.

However, we wanted to come to a conclusion and a decision, and I think that was only right and fair. You say it would have come back, but we could all go on like that. It was the Article 24 point that was the most important, if I may say so. We felt it was very important that we should protect our position as a Government so that we could-if we had so chosen-make a decision as to whether or not to go forward with standardised packaging. That was absolutely the view that we all took-absolutely. Forgive me, but if you go back and look at what I said, and what I had said the British Government was prepared to accept and not accept, absolutely at the front of all that was this point on Article 24.

Q5 Michael Connarty: You therefore thought it was more important than consulting Parliament, which is your duty. This Committee is set up to be consulted.

Anna Soubry: Mr Connarty, we did consult you. We did consult you, but you felt you needed more time.

Michael Connarty: Correct.

Anna Soubry: We did consult you and the Committee in the House of Lords. They felt they did not need more time; this Committee did. It was to protect the sovereignty that we took the decision on Article 24.

Q6 Michael Connarty: So it was not anything to do with losing the Directive.

Anna Soubry: Had we not been a player in that, and if we had not been a voter in that, there was a real danger that we would be in a position whereby we could not introduce any further measures or indeed legislation, had we so chosen, on standardised packaging, for example.

Q7 Michael Connarty: You have not answered the question. You did not answer the question about losing the Directive, because you appear not to have accepted that the Directive would run on. It may have come into another presidency, but it would still have been there.

Anna Soubry: I did not say I did not accept that, Mr Connarty. I said that we took the view that we wanted this matter to be resolved. Forgive me.

Q8 Michael Connarty: I am using your own words. You said in your first answer that you did not wish to "lose the Directive". Have we agreed now that the Directive would still have run on, and it would have gone into the next presidency and continued on? The second thing is that you took a decision, and it seems you said you took it yourself.

Anna Soubry: No, I talked to people.

Q9 Michael Connarty: You would overrule the right of Parliament so you could advantage your Government in some way, if you wanted to bring in legislation on packaging of cigarettes. That is what you are saying to us.

Anna Soubry: Forgive me, I did not. First of all, I did not make a decision without talking extensively to my team that accompanied me to Luxembourg, and I am grateful for the advice that they gave me. I bear the responsibility.

Q10 Michael Connarty: Civil servants, you mean?

Anna Soubry: Yes.

Q11 Michael Connarty: Civil servants are not accountable to us. It is Ministers.

Anna Soubry: No, I did not say that they were, but you said, "You took the decision yourself". I took advice. I take full responsibility for the decision I made, because I was the ultimate person, and the buck stops with me. I had no difficulty, because I took the very firm view that not just this Government, but any Government, would not want to be in a position whereby its hands were tied by a Directive that would preclude it from taking more actions, should it so choose, on standardised packaging, or indeed the amount of health labels and other matters on tobacco.

Q12 Chair: What was UKRep’s view? UKRep are the officials who are representative.

Andrew Black: Mr Cash, their view with relation to what?

Q13 Chair: The question. Were you receiving advice? We have just heard that the decisions taken by officials-

Anna Soubry: No, I took the decision.

Chair: No, wait a minute. It was taken in the light of advice from officials. It was also, you may know, something that is of interest to us, because we are doing a European scrutiny inquiry into European scrutiny. Part of that has raised the question of the role of the United Kingdom representatives, who are the people who do the negotiations between member states. They always get involved in all these matters, so I would be astonished to hear that UKRep had not expressed a view, and I would like to know what it was.

Andrew Black: I might provide some further explanation, Mr Cash, on that question. Certainly UKRep have been closely involved through the process of this whole dossier. The Minister at EPSCO was accompanied by the Deputy Permanent Representative in Brussels, and received advice on handling this particular dossier at EPSCO on the day in June. I am not really able to recall what specific advice was provided, but, of course, the Minister had to look at the wide range of issues and take a balanced judgment on a course of action to move forward with. Certainly, the range of factors was put in front of the Minister, and the Minister took the decision that she did.

Q14 Chair: She was effectively told by them that the circumstances in which all this was going on required her taking the action that she eventually took.

Andrew Black: I do not think officials tell Ministers to do anything, Mr Cash. I do not think that is the role of the civil servant.

Q15 Chair: That is almost a matter of opinion, actually. Have you ever watched Yes Minister?

Anna Soubry: Mr Cash, over the three years we have known each other, I take the view that you are a man of your own mind, and I might hope that you take the view that I am a woman of my own mind as well. Obviously I listened to the advice, but can I tell you what I really listened to? That was, if you like, the way that the votes were stacking up, and which nations were going in which direction.

Q16 Chair: Which UKRep would know about.

Anna Soubry: Whilst I have not been to many of these meetings, I have formed a relationship with a number of the key Ministers. For example, I knew the attitude of the Poles because I have spoken to the Polish Health Minister. I knew the attitude of the Spanish Minister; Spain was critical in this final decision, and indeed the Germans. Whilst I would listen to my officials, yes, I also had first-hand knowledge. I understood what I believed to be going on, and my view concurred with their view that this was critical. I make no apology for it. I took the view.

Q17 Michael Connarty: That is what worries me: that you make no apology for it. You ignored Parliament. You ignored our scrutiny reserve.

Anna Soubry: No. I make no apology, sir, for making a decision. I apologised at the outset.

Michael Connarty: To override the scrutiny.

Anna Soubry: Excuse me. I apologised at the outset to this Committee.

Q18 Michael Connarty: I am here to ask you questions. You are the one in error, not me.

Anna Soubry: Yes. I apologised at the outset to the Committee that things had happened in the way they had, and I wish that the Committee had been in a position whereby they could have given me a waiver.

Q19 Michael Connarty: So it is our fault.

Anna Soubry: No.

Q20 Michael Connarty: This is what you are doing. You are spinning it as if we should have given you permission when we had said you did not have permission. You could have had the scrutiny reserve raised. You decided not to.

Anna Soubry: I do not know why you are being so aggressive when I am trying to explain things.

Q21 Michael Connarty: You were asked here because you ignored this Committee’s scrutiny reserve. When I was Chairman of this Committee and it was a Labour Minister sitting there, they got the same treatment. The most important thing is Parliament’s decision, not the Minister’s whim. It is Parliament’s decision.

Anna Soubry: It was not a whim and I find that offensive. It was not a whim.

Michael Connarty: Analysis, then.

Anna Soubry: It was carefully thought out, and, of course, I considered the consequences. With respect, Mr Connarty, I am not stupid. I knew that I would be brought before this Committee, and I would have to account for myself. Frankly, I could have taken the easier option, couldn’t I? I could have said, "The Committee unfortunately has not had the time to give the waiver. I tell you what, I’ll butt out of this and I’ll abstain". Now, that is perhaps what you would want me to do, Mr Connarty, but I took the decision.

Q22 Michael Connarty: Yes, I would want you to do that, correct.

Anna Soubry: It was in the interests on two levels. I believe in making all provision that we can on tobacco to protect the public’s health when it comes to that. That is my view, and I believe it is my Government’s view as well. In the situation that we were in with Article 24, it would have meant that we would have as a Government-be it this Government or some subsequent Government-less control and less ability to determine our own policy. I would have thought you would have commended us for doing all that we could to ensure greater sovereignty for this Parliament.

Q23 Michael Connarty: The issue is not whether I support or do not support what has gone through. As I said, it would not have been lost. This Directive has been a long time coming. It may have come in the next presidency, but if it is the right thing to do, it would have been done. It is a question of overruling at this particular time. It is not about the content of it.

Anna Soubry: It is a principle.

Michael Connarty: As a Minister, you thought it was best to pass the vote in a particular way, regardless of Parliament not being happy that we had the full information to make that decision.

Anna Soubry: Well, yes.

Q24 Michael Connarty: The option was that it could have come on to another presidency, or it could have been carried by other members’ votes without you participating. It would not have been lost, but you ignored Parliament and that is the problem. The scrutiny reserve stands there for a purpose. It is not about Europe. It is about scrutinising our Government, and you denied us that position.

Anna Soubry: I do not think I denied it. With great respect, Mr Connarty, we did not deny it. I accept that it was not as quickly as we might have liked, but you were not denied. No, you were not denied. I am sorry, you were not denied. That would have been a much more serious matter.

Chair: We are going to move on, but there are matters which we have yet to consider.

Q25 Stephen Phillips: I just want to follow up a little on those points, but I want to see what we can agree on. You agree that this was your decision to override scrutiny, and you take full responsibility for it.

Anna Soubry: Yes.

Q26 Stephen Phillips: Before you took that decision, you took advice from your officials. Is that correct?

Anna Soubry: Yes, and I thought about it long and hard, Mr Phillips.

Q27 Stephen Phillips: I am sure you did. You also agree, as I understand it, with Mr Connarty that if the draft Directive had not been dealt with at that stage, it would have continued over to the Lithuanian presidency, yes?

Anna Soubry: If I may say, I do not think it is as simple as that. This was an important moment for us.

Q28 Stephen Phillips: Let us come back to why you believe a decision needed to be taken at that stage.

Anna Soubry: Good, because I would like the opportunity.

Stephen Phillips: As a matter of procedure, if no decision had been taken at that stage, the draft Directive would have been carried over to the Lithuanian presidency, yes?

Andrew Black: Mr Phillips, it was not a case of a decision being made or referred to another time. The Irish presidency put the issue on the agenda and drove forward the discussion. I think it was a matter for the Minister whether to take a proactive part. I do not think those discussions-

Q29 Stephen Phillips: Mr Black, I do not want to interrupt you, but I actually asked a different question. I do not mind whether you or the Minister answers, but as a matter of procedure, the draft Directive would have been carried over to the Lithuanian presidency. That is right, is it not?

Andrew Black: Yes, if they had picked it up.

Anna Soubry: If they had picked it up, but it would be a matter for the Lithuanian presidency.

Q30 Stephen Phillips: Therefore, Minister, in order to justify the decision to override scrutiny, you must demonstrate, must you not, that it was important to take a position, at the time that you did take a position, without abstaining. Can we agree on that?

Anna Soubry: Yes. I did not want to abstain.

Q31 Stephen Phillips: You have given two reasons, as I understand it, why you did take a position. First, you believe it was in the interests of the Government and of the United Kingdom to take all measures to deal with tobacco.

Anna Soubry: Absolutely right.

Q32 Stephen Phillips: Secondly, you wanted to preserve the position under Article 24 as it stood in the draft Directive.

Anna Soubry: Absolutely right.

Q33 Stephen Phillips: What indications had you had from UKRep, or any of your advisers, that either of those matters that led you to the view that you needed to take a decision at that stage would have shifted if the Directive had carried over to the Lithuanian presidency?

Anna Soubry: I did not think it would go over. I thought, "Now is the moment," and that was not just my view. It was also the view of my officials, and it was the view of all the Ministers I had had the opportunity to speak to. We were of the view that now was the moment.

Q34 Stephen Phillips: Why?

Anna Soubry: We did not believe that it would be taken over by the Lithuanians1. We thought that the Irish had taken such a strong lead on it that this was the moment when the nettle needed to be seized. I do not think there were ever suggestions that the Lithuanians would have wanted to take it up. Now was the moment. The Lords had given their waiver; this Committee said it had not had the time to do it. I was very concerned about Article 24, and I was very concerned about the need for a directive that would have an effect on tobacco and for the protection of this nation’s public health. I have no difficulty at all with that, Mr Phillips, because I happen to take that as a very serious matter. Looking at the terms of the Directive and the effect that it would have, it would lead to 65% of a cigarette package across the EU bearing health warnings.

Q35 Stephen Phillips: But at that stage, in fact, it was 70%, was it not?

Anna Soubry: No, it was negotiated down to 65%.

Q36 Stephen Phillips: In fact, when you wrote to this Committee on 11 June, when this was supposedly so important, it was 70%, down from 75%.

Anna Soubry: No, because we negotiated. The negotiations were going on during that very morning. In fact, we sat late; we went through lunch so that we could get a Directive out with as much support as we possibly could. We did that because, as individual Ministers representing our countries, we took the view that it was important that we had an agreement on such a serious public health matter. That is fair, is it not?

Q37 Stephen Phillips: I want to try to chase this one down. If it is such a serious public health matter-and you have made it clear that you consider that to be the position-the Commission’s original proposal was 75% of the surface area: a combined health warning and pictures and text. That was then reduced to 70%. You then go off to Brussels, override scrutiny, and, in fact, write to the Committee the following week and tell us that it is 65%. This does not really tally very well with your suggestion that you had to agree everything because you are so concerned about public health and the United Kingdom’s position with regard to smoking.

Anna Soubry: No, Mr Phillips, I think it absolutely proves the point that I was making.

Q38 Stephen Phillips: A smaller, 65% health warning is better than the 70% that was on the table. Is that right?

Anna Soubry: No, it was about reaching the maximum agreement amongst member states that we could. In order to do that, there had to be a series of negotiations. For example, there was a negotiation that went on about the addition of flavourings to tobacco, and there were a number of member states who made speeches about menthol cigarettes and the fact that, in their particular countries, menthol cigarettes were particularly popular. The Swedes, for example, were very concerned about a tobacco product called snus. Right up to the last moment, genuinely, people were making speeches that others were listening to-including myself-that had an impact on how we then proceeded, because around the table, the majority of people wanted us to reach a conclusion that very day. I accept that you could say, "Oh well, it could all have gone over until another time". The advice I received-which I absolutely believe to be correct from my own takings around the table from other Ministers, and because I trust the advice that I was being given-was that if we did not do it that day, there was every chance that it would just go away, if I may say, Mr Phillips, yet again. Some of us believe that these sorts of public health measures are very important.

Stephen Phillips: This Committee may believe it as well.

Q39 Michael Connarty: Are you implying the Committee does not? Are you implying the Committee members have less concern?

Anna Soubry: No, I am so sorry. No.

Q40 Stephen Phillips: If I may, Minister, I want to move on. You have done very well in explaining why you felt the need to take a decision when you did. Of course, the draft Directive had been deposited, as I understand it, by the Commission in December 2012. Is that right?

Anna Soubry: I believe it is right, yes.

Q41 Stephen Phillips: You wrote to this Committee with it in January 2013.

Anna Soubry: I believe that is right. If it is not, Mr Black can tell you.

Q42 Stephen Phillips: There is no correspondence at all from you or the Department until June 2013, despite this Committee having raised a series of questions in a report to the House, and despite the fact that you must have known that matters were progressing at the various councils that were taking place. Is that right?

Anna Soubry: I do not think that it is as simple as that.

Andrew Black: Mr Phillips, the point that I would want to make is that there were delays, and we can see that. We apologise for the delays. However, as you said earlier, this has been a very fast-moving dossier.

Q43 Stephen Phillips: I did not say that; the Minister said it.

Andrew Black: I beg your pardon. It was said earlier that it has been a fast-moving dossier, and that is absolutely the case.

Q44 Stephen Phillips: She said events were moving pretty fast, and she subsequently said events were moving quite swiftly. I am coming back to that.

Andrew Black: Yes. We were in a position where we needed to settle on the Government’s policy with respect to a wide range of matters within the dossier. That took time in terms of the negotiations with other Government Departments. It is regrettable that we were only able to come to you-

Q45 Stephen Phillips: Mr Black, that is not really a matter for you. Let us deal with the negotiations with other Government Departments. Why did the write-round take so long that this Committee heard nothing for six months after it had reported?

Anna Soubry: There were two matters that were happening. One is that the MHRA-

Stephen Phillips: The Medicines and Healthcare products Regulatory Agency.

Anna Soubry: Yes. Along with the Department, they were looking at e-cigarettes: electronic cigarettes. There was a debate going on as to whether or not they should be registered medicinal products. It is a genuine debate. That was going on, and that was potentially part of the Directive at one time. I believe that is right.

Andrew Black: That is right.

Anna Soubry: Yes. So there was all of that. In fact, I think in the end it fell out of the Directive2.

Q46 Stephen Phillips: I will let you come back to the second one.

Anna Soubry: Sorry, you did ask me this question. It is difficult; this is a public Committee, of course, and I am trying to be honest and speak frankly. The second thing that jiggered things in a way that I, certainly, would not have liked to have been jiggered, is that we were in a position on standardised packaging, and if we were going to go forward with it, if we were going to pause, if we were going to abandon it-[Interruption.] You may laugh, Mr Connarty, but these decisions-

Q47 Michael Connarty: I am laughing because you should have consulted Mr Crosby. He would have told you what you should be doing.

Anna Soubry: I am sorry, Mr Cash, but it just does not help. It is not even relevant. Anyway, in any event, there was a genuine debate going on as to the way forward on standardised packing, and I apologise profusely to this Committee that because of the genuine discussions-

Q48 Stephen Phillips: Genuine debate within Government?

Anna Soubry: Yes, absolutely-in Government. The write-round was not as swift as we would have liked it, and so on and so forth. I apologise. It frustrates me, Mr Phillips. I am sure it may anger you as a Committee member considerably more.

Q49 Stephen Phillips: It does anger me, I am afraid, Minister.

Anna Soubry: It meant that everything got delayed. Forgive me, Mr Black will correct me if I am wrong, but it happened really quickly with the European Union as well. There was a set of letters that I was sending out to hon. Members as they wrote in asking about the EU Directive, and the text of that letter literally changed, because the text of the EU Directive and what we thought may happen changed in this period. It moved that quickly.

Q50 Stephen Phillips: You are aware the Commission is proposing changes to the draft Directive. You are well aware of what is going on behind the scenes. Why not reply to the concerns that the Committee had raised in its report of 30 January?

Andrew Black: Mr Phillips, I think it is a fair point, and we probably could have done a lot more to keep you aware of what was happening. That is a learning point for us, and we will take it up.

Anna Soubry: I apologise.

Q51 Stephen Phillips: Let us take, for example, the fact that we had raised in our report the question of the legal base for the draft Directive. That could have been responded to immediately, and not six months later, couldn’t it, Mr Black?

Andrew Black: You are right; it could have been. We could have replied on a pointbypoint basis rather than sending it in one letter.

Q52 Stephen Phillips: Subsidiarity could have been dealt with immediately, couldn’t it, Mr Black?

Andrew Black: Yes, that is right.

Anna Soubry: No, you are right.

Andrew Black: We could certainly have replied on a point-by-point basis.

Q53 Stephen Phillips: Ingredients and omissions including reporting could have been dealt with immediately, notwithstanding the two points the Minister has raised.

Anna Soubry: Yes.

Q54 Stephen Phillips: Or all of it: the Committee’s report of 30 January could have been dealt with. This is why you find yourself here today. We would not then have been in the position where we said, "We are not in a position to issue a scrutiny waiver on less than two weeks’ notice", when you notified us in June. What you need to do, Minister, is sincerely apologise, not for taking your decision when this matter came to Council, but for the fact that you did not keep this Committee informed between January and June, so that we were not in a position to lift scrutiny, whatever the House of Lords may have done.

Chair: That is the point.

Stephen Phillips: That is the point, and that is what you need to appreciate and apologise for.

Anna Soubry: Mr Phillips, I do not hesitate to apologise for the fact that this Committee has not been fully informed. I only wish that, as a Minister, I was aware of all the things that happen within my portfolio. I can assure you, Mr Phillips, it frustrates the hell out of me. As you will understand, because of our shared background, it is a situation I have never been in before in my life.

Q55 Stephen Phillips: I would not want that remark to be misconstrued. You mean that we are both lawyers

Anna Soubry: We are both lawyers, Mr Cash. You will understand as well.

Chair: We are all lawyers.

Andrew Bingham: I am not.

Anna Soubry: Mr Bingham is getting very upset at the suggestion he might be.

Chair: There were three lawyers involved in that particular exchange. That is all I was saying.

Anna Soubry: Mr Phillips raises a serious point, and I want to make this point as well. I am new to the ministerial position. I am not that new, I accept; it is 10 months now. However, it is the most frustrating thing, and I have never experienced anything like it. I have very little control over these sorts of things, and I simply do not know about them. I could argue that my brief is extremely large. It is just inconceivable. When I was a barrister, I knew exactly what was going on all the time, but I am afraid it is the nature of the size of Government, and unfortunately we do not. I would say this, in defence of my officials. Apart from this, the advice that they provide to me is excellent, and the work they do, other than this instance, is also excellent. I would say that.

Q56 Stephen Phillips: They fell down here by not keeping you-and through you, this Committee and Parliament-informed of what was taking place between the end of January and the beginning of June.

Anna Soubry: Yes.

Stephen Phillips: Do you agree with that?

Anna Soubry: I do, but as a plea in mitigation, I would say that things were moving very, very fast, and that included Government’s own policy. Matters are not helped-and they never are-when other Departments do not respond as quickly as you would like. I am afraid that is something I would say very firmly. I would hope my own Department might be a bit quicker than others. That was part of it. It jiggered things up, if I can put it in that way.

Q57 Stephen Phillips: I accept the plea of mitigation, and I will adjourn sentencing and pass on to someone else.

Anna Soubry: Mr Cash is the judge in this.

Q58 Chair: I am going to ask you a question about accepting you gave us virtually no time to consider the implication of the draft Directive for Government policy.

Anna Soubry: We have done that. I have put my hands up, Mr Cash.

Q59 Mr Clappison: Now that you have accepted that things were not done as they should have been done, can we take it from that that you will cause instructions to be made in your Department, or that the Committee will be responded to when it should be responded to, as it should have been in January?

Anna Soubry: Absolutely.

Q60 Mr Clappison: We appreciate what you say about things moving within Government, but there was nothing to stop the Department from telling you what was happening at that particular time and where things had got to.

Anna Soubry: Yes, if I have been informed and it is my fault, and I had not acted, I want to make that very clear as well, Mr Cash. I have to admit that I tend to forget things, with the size of my brief. I just want to be clear on that.

Andrew Black: I would just want to reassure the Committee that there are many learnings from this experience. This is the first time, for example, that we have been involved in taking forward a dossier like this, and we will certainly work hard to keep you informed for the remainder of this journey.

Q61 Chair: The time-lag is huge. I am not suggesting that the House of Lords do not have an important role to play in this, but we have our Standing Orders, and we have our role to play. We will demand compliance with the arrangements that were set out by Parliament in relation to the scrutiny questions, and we are greatly dissatisfied. We accept the fact that you made this apology, and that it was profuse. James, is there any further question you want to ask?

Q62 Mr Clappison: Only to enlarge on that, Mr Chairman, because in the light of what you have said and what the Minister has said, I would respectfully draw it to the Minister’s attention that we have our role to play here. We are acting on behalf of this Parliament. We are charged with Standing Orders to see what should be scrutinised and what should not be scrutinised, in order to give MPs the chance to have their say. Regrettably, when the scrutiny overrides occur, it means that MPs do not get a say at all. Do you accept that?

Anna Soubry: Yes, I do.

Q63 Chair: There is one further point that I would make, and that is this. As you pointed out, much of this turned, in your mind, on the advice you received-be it from UKRep or from other officials-on the question of what votes would be cast. Of course, that is qualified majority voting. The question of whether or not the United Kingdom Parliament is in the position to find that there is a policy that it has to accept and implement into legislation, through section 2 of the European Communities Act, is dependent upon that decision. The reason for our scrutiny process-I am sure I do not have to explain to you-is to ensure that no decision is taken in the Council of Ministers until that debate has taken place. That is the fundamental question. What you did was effectively to prevent any such debate taking place at the time, although we have made it clear that there will be a debate, because we are not going to leave this alone.

Q64 Mr Clappison: We have received representations from the leader of the Conservatives in the European Parliament about the question of e-cigarettes. I have one particular constituent who has an important interest in e-cigarettes. This Directive was dealing with e-cigarettes, and it means they have not had a chance to debate it and examine it.

Anna Soubry: Forgive me, Mr Clappison. I fully accept all this, but I take the responsibility. I am not going to pretend that I just did what my officials said, because it was not like that, in any event. I did make a decision. I made a decision. I was content for us to do what we did. I apologise profusely to the Committee that things were not done in the way that they should have been done, the notice given, and so on and so forth. If we had not made a decision there was the danger of Article 24, and the danger that the moment would be gone, would be lost, and would be lost for a very long time.

Q65 Michael Connarty: I just find this quite remarkable. Again and again, Minister, you have stressed how important this brief was, how important this Directive was, how driven you were to deliver the right result. This sounds like the most important brief you have in your Parliamentary Under-Secretary of State’s portfolio, and yet you did not seem to know that nothing was happening between January and June in terms of this Committee’s position. I presume your officials were telling you that a Government should not reach a decision in a Council meeting without the scrutiny reserve being lifted. Either you were not being told that, or you knew it and disregarded it. If it was such an important brief for you, this issue, why was that not as important to you as the decision that you seem to have taken, driven by your seizing the moment?

Anna Soubry: Mr Connarty, let me assure you that this is not the most important part of my brief. There are many parts of my brief that are of equal importance. For example, I hold the cancer brief; I also hold the long-term condition brief. I am also the Minister responsible for the future of children’s heart surgery and reconfiguration in London and indeed all the hospitals in the south of England, so it is not the most important.

Q66 Michael Connarty: You do a number of those things. I am glad that you have put it in its context. It was just another of many, many issues before you.

Anna Soubry: Indeed.

Q67 Michael Connarty: You were involved in a negotiation, and your official, Andrew, seems to be saying that it was the first time you have taken something like this through the European Council, so it was clearly very important there. Apart from your enthusiasm for it, and your vision-

Anna Soubry: No, Mr Connarty. I do not have a vision.

Q68 Michael Connarty: My vision has sustained me all the time I have been in this place, so maybe you need one. I do. The point is that you thought it was so very, very important that this went through, because it was to do with the general health conditions that you saw. I watched my father die of emphysema. He was teetotal but smoked 60 cigarettes a day, and it was a terrible, terrible death to see. I have never smoked. I hope that we can get everyone to give up a drug addiction that is just as harmful as any other addiction. Maybe I share those things with you. In this context, though, you are a Minister carrying with you a brief, and on your shoulders a parliamentary imposition-although you do not seem to have taken it very seriously-that you do not reach a decision until the scrutiny reserve is raised by this Parliament. We did not make this up. It is not our Committee’s Standing Order. It is a rule set by Parliament about how you should deal with European business. You did not take it seriously enough, because you thought that the override was worth more. That is what it seems to be.

Chair: You mentioned sovereignty, and, in that context, Michael is completely right. It is the sovereignty that leads to the fact that we have to make the decision in accordance with the Standing Orders.

Michael Connarty: I have to say that you are repeating old crimes that were committed by others. I have watched Labour Ministers sit there and tell us they were carrying things forward, and even spoken and moved things in councils to become the lead person in the Council, used by the presidency of the time to put something through. In fact, I can think of one case where Parliament was against the thing that our Minister was moving on their behalf, and they did not realise until their officials told them by whispering in their ear in the middle of an evidence session that they had been set up. Now, it seems to me you may have been sweet-talked by the Irish.

Anna Soubry: No, forgive me, Mr Connarty.

Q69 Michael Connarty: I am from Irish extraction. I understand they have the ability to carry people along with their enthusiasm.

Anna Soubry: I am sure you would ask the same question of a man, but I can assure you I was not.

Q70 Michael Connarty: The question is: how decisive was the UK’s support?

Anna Soubry: We took the view it was absolutely critical.

Q71 Michael Connarty: If you had, in fact, abstained, would the directive have fallen?

Anna Soubry: Yes.

Michael Connarty: We can check this out, because we can see who voted where.

Anna Soubry: Yes, of course you can.

Michael Connarty: I am asking you on the record here. If you had abstained, would the directive have fallen?

Andrew Black: Mr Connarty, I think, if I may-

Michael Connarty: I am asking a straight question. I would like a straight answer.

Anna Soubry: You will get it. You will get a straight answer.

Michael Connarty: I do not want a run round the houses from a civil servant. I want a straight answer. Would the Directive have fallen if you had abstained?

Andrew Black: I think there is a very good chance that it would have.

Q72 Michael Connarty: Count the numbers and tell me. If you had abstained, would the Directive have been carried or not?

Anna Soubry: Sorry, I do not have numbers. I can assure you that my view, my judgment-

Michael Connarty: No, what is your arithmetic?

Anna Soubry: Sorry, let me finish.

Michael Connarty: Not your view. What is your arithmetic? Would it have fallen on the votes that were taken?

Anna Soubry: Mr Connarty, as I have just said, I do not have figures in front of me. Mr Cash will be given the figures if we are able to obtain them in that way. I can assure you that after everybody had spoken and I had made my views clear on Article 24, for example-

Q73 Michael Connarty: I think your civil servant may have the answers behind you.

Anna Soubry: Maybe.

Michael Connarty: I would like them now, then, if they have them.

Anna Soubry: You will get it. What then happened was a series of negotiations, which I watched. It was that close and that near as to how it was all going to pan out, and my view was that, if we abstained, there was every chance the Directive would have been lost. That was my view.

Q74 Michael Connarty: Was it the fact?

Andrew Black: Mr Connarty, a vote was not taken, so we are not able to give you numbers.

Anna Soubry: No, but we did know the way that things were going. There was no vote.

Chair: If you could just bear in mind that this whole question of consensuses has been looked at by our European scrutiny and within our inquiry. Simon Hix from VoteWatch at the London School of Economics has given some very interesting evidence to us on this question of the extent to which decisions get taken by consensus on some kind of-as I would put it-amorphous decision-making process that is behind closed doors. People arrive at decisions simply because there is not a specific vote. Now, I just put that on the record, because Michael Connarty wants to ask another question.

Q75 Michael Connarty: Do you accept that by reaching a general approach, you basically took a decision? In other words, you closed off the possibility of a change in the approach of the Health Council in reaching a general approach. You accept that is in fact a political decision in favour of the proposed Directive. That is what you reached: you reached a general approach. Is that correct?

Andrew Black: It was a general approach that was reached. I am sorry; I do not understand your question.

Anna Soubry: I do not understand.

Michael Connarty: I am just getting clear that the Minister accepts that what was done was that you made a political decision to support the Directive.

Anna Soubry: No, there was a series of negotiations right up until the last moment.

Q76 Michael Connarty: But when you reached a general approach, you accept that was a decision to support the Directive?

Anna Soubry: I supported something that I believed was the right thing to do, and it meant that if we decided to go forward with standardised packaging in this term of this Government, then we would be in a position to be able to do that. That was my biggest concern. My other concern was that we should have a Directive on tobacco.

Q77 Michael Connarty: So it was your clear impression that your Government was seriously considering bringing in plain packaging.

Anna Soubry: We had just had a consultation, Mr Connarty.

Michael Connarty: Yes. I am just asking: was that your position?

Anna Soubry: We were in a position. We had had a consultation on whether or not to introduce standardised packaging. The Government’s position was neutral. We were neither in favour nor against. However, if we took a decision that we were in favour, then we would have introduced the legislation. In fact, my Government’s policy remains: we are neither in favour nor against. We have decided to wait, to see what happens in Australia, before we make a decision, be it in favour or against.

Q78 Michael Connarty: We are not talking about the future policy.

Anna Soubry: That is what it was.

Q79 Michael Connarty: You discussed this within the Health Ministry, with other health Ministers.

Anna Soubry: No. Discussed what?

Q80 Michael Connarty: The purpose of doing this. Many other things are in this Directive, but one of the reasons you keep repeating-you repeated it from the beginning-was to give your Government the option of bringing in plain packaging.

Anna Soubry: That is right.

Q81 Michael Connarty: You discussed this within the Health Ministry with other Ministers in the prayer meetings that you have, which I took part in when I was a PPS in Government, where you talk to civil servants and then you talk about politics. Did you discuss this with the other Ministers?

Anna Soubry: I have not had any face-to-face discussions about this particular aspect.

Michael Connarty: About the plain packaging?

Anna Soubry: No, let me be clear, Mr Connarty-

Michael Connarty: I asked you about plain packaging. You keep repeating plain packaging as your only reason.

Anna Soubry: Sorry, you just keep not allowing me to finish my sentence and answer your question. In relation to this European Union Directive-

Michael Connarty: No, I did not ask you that question. That is why I am interrupting you. I asked you a question, and you are answering a different question.

Anna Soubry: I do not understand the question, then.

Michael Connarty: If I ask you a question, I expect an answer to my question, not your question.

Anna Soubry: You ask me the question, and I will answer it.

Q82 Michael Connarty: The question is quite simple. In relation to plain packaging, had you had discussions? You said how important it was in your decision to go ahead with this. You keep repeating that; it is on the record. Did you discuss it with other Health Ministers? Did you discuss it with other members of the Government?

Anna Soubry: Did I discuss what?

Michael Connarty: How important plain packaging should be in your approach to this Directive.

Anna Soubry: To this Directive?

Michael Connarty: Yes.

Anna Soubry: I have not had any face-to-face discussions with any Ministers in the Department of Health about this Directive and the Government’s position on standardised packaging.

Q83 Michael Connarty: So it is your decision that it was so important, individually.

Anna Soubry: No. I answered your question, sir. You now go and interpret it, but please let my official give his answer, because you are twisting things round.

Michael Connarty: I am not asking the official. I am asking you. You are the Minister.

Chair: Michael, let us ask Mr Black to answer.

Andrew Black: I might be able to help provide some clarity. The issue is that this Directive does not bring in plain packaging, and the Government has been very clear about seeking amendments to the wording of Article 24 to enable future Governments to bring in plain packaging, should they wish. That point was included within the Minister’s letter to other Government Departments and to other Ministers, so it has been very clear about Article 24-amending Article 24 to be more acceptable and being more open in terms of allowing for plain packaging in the future. It is certainly a matter that has been exposed throughout Government.

Anna Soubry: It is really important that everybody appreciates that we genuinely had not made a decision on whether to go forward with standardised packaging, reject it, or, as it has turned out, to wait and see what is happening.

Chair: Right, that is on the record.

Anna Soubry: Absolutely. You have to understand that.

Q84 Stephen Phillips: I just want to try to get the facts. As I understand it, Article 24 in its original form might have prevented the UK from introducing plain packaging.

Anna Soubry: That was our fear.

Q85 Stephen Phillips: I just want to confirm with you what I understand your evidence to be. I am not going to make this party political, but at the time and indeed now, you have said that the Government’s position is that it is neither in favour of nor against plain packaging. Is that also correct?

Anna Soubry: Absolutely right.

Q86 Stephen Phillips: In order to be able to introduce plain packaging, if this Government or a future Government wishes to do so while the United Kingdom remains part of the European Union, Article 24 therefore needed to be agreed in a form that would permit that. Correct?

Anna Soubry: Absolutely.

Q87 Stephen Phillips: One of the drivers behind your decision, as I understand your evidence, to go along with the general approach and vote in favour-and effectively to override scrutiny-was that that is what was secured at the Council meeting that you attended.

Anna Soubry: It was. Mr Phillips, it was the thing that caused me the most concern. That is why I did it.

Q88 Stephen Phillips: If you had not done it, we might not have been able to introduce plain packaging.

Anna Soubry: Absolutely. At that stage, the Government had not decided whether we were in favour of it, we were against it, or we would wait. To use that expression, it was to keep all options open and enable us, should we decide to go ahead with it, to make that decision.

Q89 Stephen Phillips: It is for you how you give your evidence, Minister, but I think that if you had come in at the beginning and said, "That’s why the scrutiny was overridden," in those clear terms, we would have had a much easier ride for the last 20 minutes.

Anna Soubry: I did say that.

Q90 Chair: The position is that there has been a serious breach of scrutiny. The issue of compliance with Standing Orders, as I stated at the beginning, is one that we take extremely seriously. As you will have discovered as a result of this cross-examination, it is something that we not only pursue but will continue to pursue. You have given a profuse apology with respect to the time factor and many of the other matters, such as lack of correspondence and consultation. We have on record the fact that you have apologised profusely and you accept that. Is that correct?

Anna Soubry: Absolutely, Mr Cash.

Chair: None of that affects the fact that, as Mr Phillips has just indicated-after a rather longer session than we had anticipated-there are these important matters.

Q91 Nia Griffith: Thank you, Minister, for coming along. Thank you for the apology you have offered, and also for the insights you have offered into things that could have been done better. What I would like to do is look to the future and ask you if you will now be able to go back-perhaps you have already started this process within the Department-and look at procedures, and see if there are ways in which things could be tightened up and changes could be made, so that we will not find ourselves in a similar position to this in the future. Perhaps you could give us some assurances, and possibly follow it up in writing to us.

Anna Soubry: Absolutely. Yes, I would not even hesitate not to agree with that-sorry, a double negative. I absolutely will. Trying to improve communication, do things quickly-something that I am used to in my previous life-is a great frustration, as you may have gathered. As my team know, it comes down to the answering of Members’ letters and the contents of them. There is much that we can do-and I fear, Mr Cash, it is across Government, not just in my Department-to improve things. Complying with sensible rules, or whatever you want to call them, like complying with this Committee, are important matters.

I should say-in response to what you have said, but also for the benefit of Mr Cash and everybody else-that when I was over in Luxembourg, I knew that in due course I would have to come before this Committee. That is why I was so clear in my own mind as to why I was doing what I was doing, notwithstanding that I knew I would have to come here. Forgive me, but I did think I had made it very clear that it was Article 24 that particularly exercised me. Well, I thought I had, Mr Phillips, but you and I can disagree. Yes, it is a serious point. We will absolutely take this back, and we must make sure that things are done properly and quickly so that things can be done in the correct manner.

Q92 Michael Connarty: Minister, I commend you in your enthusiasm for your job, but it is genuine anger on my part that any Minister should ignore the Standing Orders of this Parliament. I have to say that it is much more important than writing back to Members of Parliament individually, because it is in fact a Standing Order of the Parliament you stood for.

Anna Soubry: Absolutely.

Q93 Michael Connarty: That is the first thing. The second thing is that I hope we may be able to get on the record what sense you have of the balance of power in the actual potential votes in the committee, because this question about whether it would have mattered to the final outcome if you had abstained or not is quite important. The third thing is that you seem to say now that you were very aware and conscious of, and even driven by, the amendment to Article 24. Did you at any time feel you had to give something in the negotiations to gain what you got from the fact that they were amended?

Anna Soubry: Mr Connarty, you need to see my speech. If we can, I will get you the transcript of my speech, which was my contribution to the negotiations. Article 24 would enable us-if we so chose in the United Kingdom-to move even further, and not just on standardised packaging. We take the view that this is absolutely paramount in all of this, so that if we wish to move beyond this Directive, then we are in a position where we can do that. I truly cannot remember now. I think we said would support something, but it was Article 24 that was the sacrosanct point.

Q94 Chair: I think we have to bring this to a conclusion, but with respect to the question of the votes, we would like to have that in writing.

Anna Soubry: I do not think there was a vote, Mr Cash.

Q95 Chair: If there was not, I would like to know what the circumstances were-

Anna Soubry: Indeed, and we can get that for you.

Chair: -in such a way as to demonstrate why a consensus or a decision was ultimately arrived at.

Anna Soubry: Yes, definitely.

Q96 Chair: The other thing is simply to say that, when you use the word "paramount", we regard Standing Orders as paramount.

Anna Soubry: I know you do.

Chair: At that point, I will bring the proceedings to an end. Thank you very much for coming.


[1] During my evidence, I may have given the impression that the Lithuanian Presidency was not planning to prioritise the Directive. I have learned that the Lithuanians are keen to maintain the excellent progress on the Directive in Council made by the Irish. The point I was wanting to make about the importance of agreeing a General Approach was that I considered this to be vital so that the Lithuanians could pick up a version of the Directive in Council that had broad agreement from all Member States rather than one that could be completely re-opened which may have jeopardised the future of the Directive.

[2] In fact, Article 18 of the proposal for a revised Tobacco Products Directive which addresses nicotine-containing products remains in the General Approach compromise Council text. The text foresees all but the very lowest dose nicotine-containing products (NCPs) being regulated as medicines and appropriate health warnings for the low dose NCPs under the medicines threshold.

Prepared 2nd October 2013