Select Committee on European Scrutiny Minutes of Evidence

Examination of Witnesses (Questions 1-19)




  1. Minister, welcome to the Committee. A happy New Year to you and to your colleagues. Would you like to introduce your colleagues?
  (Miss Johnson) I will leave them to introduce themselves perhaps, and a happy New Year to you and indeed to Committee Members. Thank you.
  (Ms Wilson) My name is Patience Wilson and I am the Director of Consumer Safety in the Department of Trade and Industry.
  (Ms Drage) My name is Elaine Drage and I am one of the Directors of Trade Policy for the Department of Trade and Industry.

  2. Well, welcome to this session. I understand that we indicated that we would be half an hour or so, or quarter of an hour to cover the area and we will try to do that, so sooner than inviting you to make an introduction, we might as well just go straight into the questions. Perhaps I can ask you, Minister, can you explain the Government's reasons for overriding the scrutiny reserve on the proposal on animal testing?
  (Miss Johnson) Well, I think, if I may, I have got a prepared statement and it might be helpful if, in response to your first question because it is principally a response to that question, I do actually read the opening statement, which is only short, I can assure you, so it will not take up very much time. I would like to thank the Committee for their continuing interest in the Cosmetics Directive. I do regret, and I only emphasise this, that you did not appear to have received the Secretary of State's letter of the 22nd November explaining why she felt it was necessary to lift the scrutiny reserve on the Seventh Amendment at the Internal Market Council on the 26th November of last year. As the Secretary of State explained subsequently, she had written to both you, your Committee, and the Lords Committee as well, but for some reason or another your Committee did not receive the letter and I can only apologise for that, but it is a particular difficulty. I must stress that my Department has gone out of its way to keep the Committee informed. Indeed we submitted an EM on the 11th May 2000 which was cleared by your Committee and, further, my colleague Dr Howells, in his role as Consumer Affairs Minister, wrote to this Committee on the 27th July 2000. Indeed I submitted a further EM on the 14th November of 2001. The Government lifted the UK scrutiny reserve because a negative vote by the UK would have created a blocking minority, to answer your question directly. This would have caused the text produced by the Belgian Presidency to fail. We support the text. It represented and does represent a significant step forward in promoting animal welfare. It will lead to both a ban on the testing of cosmetics on animals throughout the EU and a marketing ban on linked internationally validated and published alternative tests which demonstrably protect human health. The text was given political agreement at the IMC, as you are aware now, on the 26th November. It will enshrine for the first time indeed the principle of a marketing ban in the EU law. Equally, it will maintain the current high levels of protection for human health and safety and we believe it will also push forward more rapidly the development of alternatives to animal tests. The European Cosmetics Trade Association, COLIPA, in a draft press notice in early December 2001 stressed their support for the Belgian Presidency text which was saying that it was a realistic approach and it would progress animal welfare. It is essential that the Seventh Amendment is agreed by the 30th June 2002 so that it will replace the Sixth Amendment to the Cosmetics Directive, as I am sure you are aware. We believe that the Committee accepted after our letter of 27th July 2000 that the Sixth Amendment is incompatible with our international trade commitments. Without political agreement of a November Council, it would have been several months before a further step in the lengthy EU process could have been made, and I can talk more about the timetable, but the timetable is quite important. This is not the end of the process and I would like to emphasise that fact to yourself and to the Committee. The next step is for the European Parliament to consider the revised text. I would just like to reiterate the Government's commitment to promoting animal welfare. The UK has had a ban on cosmetics testing on animals since 1998 and we are working hard in trying actually to extend this animal testing ban across the EU and ultimately more widely when validated alternative safety tests are in place.

  3. Minister, you mentioned that the UK did not keep the reserve because of the blocking minority and you talked about the blocking minority. Why was such a substantial number of Member States opposed to the proposal?
  (Miss Johnson) I think it has been a difficult subject. The Belgian Presidency worked very hard in their negotiations to try and reach some agreed compromise which was making sufficient progress for any of us to be able to support it. There were some surprises. Denmark and Austria voted against the proposal, as you are aware, but there were surprises, for example, in that France voted for and previously had voted against the thing. It is a volatile situation I think and one in which it was never very clear, and not probably until you get to the Councils on some of these very difficult topics, despite a lot of work that was put in by the Belgian Presidency in trying to arrive at some agreed and positive proposal, what exactly the outcome of the Council would be on the 26th November.

  4. Did that not suggest that the proposal contained some sort of a flaw in that one country changed its vote and voted another way?
  (Miss Johnson) I think it is the case with all these things, and I have been to a number of Councils in my previous role as well as presently in this one, it is always the case that there is a need to achieve difficult agreements at Council meetings and, therefore, it is always uncertain what some Member States will do because the individual difficulties for some Member States are not always foreseeable in detail until you get to the final text and the final discussion at a Council meeting.

  5. Why did the Government not ask for a vote to be deferred until a later meeting in order for the House to give its views first?
  (Miss Johnson) Our view is that the timetable does not permit it and I think if we consider what the timetable is, and I would like to emphasise again the fact that there is still scope for this Committee indeed to have further discussion on this because it is very hard and it has got a lot of the process to go through still, it has only yet been at a First Reading stage and the First Reading with the political agreement on the common position in November, we have still got to get to the Second Reading position. If we do not get to the position of adopting the Seventh Amendment by the 30th June now of this year, which is quite close now in terms of the European parliamentary processes, and I do expect that there will be controversy, there is bound to be controversy around a subject like this when it is discussed by the European Parliament, then we will not end up with an alternative to the Sixth Amendment and all the problems that I mentioned before with the Sixth Amendment. I think that the timescale at the moment is that we may get a Second Reading indicative by the Parliament around February and a possible agreement at the IMC indicative around March possibly and then there may need to be conciliation and Third Reading, so the process is actually very tight on the timescale. The next proper IMC is scheduled for March, so had we missed the November meeting, we would not have been able to re-inject this back into the process until March and we would have been too far down the line to hit the 30th June deadline.

  6. Minister, you will know that the Sixth Amendment was announced some years ago. You talk about the possibility of a challenge within the WTO. What evidence does the Government have that such a challenge is imminent?
  (Miss Johnson) We have indications both from the Commission's lawyers, from indications we have received from the US Administration and from our own legal advice that this Amendment, if it were introduced and implemented, would be in contravention or would be likely to be in contravention of WTO Rules and that is the legal advice that I am given on this subject and it is legal advice that comes from a number of quarters.

Mr Connarty

  7. I thank the Minister for coming along. You say that is the advice that you have, but in the letter, and I am sure you will have seen the letter, from the BUAV to Patricia Hewitt at the Department of Trade and Industry, Philippe Sands, who has been instructed by your own Department in other matters relating to the WTO; Philippe Sands who is the Global Professor of Law at New York University and Professor of International Law at the University of London has actually given an opinion and I will quote from it. After giving some detailed statements, he says, "For all the reasons above, I conclude that the current state of WTO law enables the EU to advance cogent and persuasive arguments that it could, consistently with the WTO obligations of the European Communities and its member states, adopt a ban on the sale in the EU of cosmetics that have been tested on animals after a specified date in the future". So it does seem that he is giving advice that the EU did not have to rush into amending the much applauded Sixth Amendment to the Cosmetics Directive which would in fact have protected animals from testing outwith the EU of cosmetics which would then be sold within the EU. It does seem to me that the Government rushed into the position which was unnecessary and, therefore, did not in fact enhance the welfare of animals, but in fact enhanced the testing of cosmetics on animals outside the EU which would then be sold within the EU.
  (Miss Johnson) As I have said, the balance of legal advice that we had and our understanding of the EU Commission lawyers' advice as well and the indications from the US are all that on the balance of legal advice an outright ban would be seen as protectionist and we would lose the case. That is the advice that we have received and I think you have to weigh that up in the balance of everything that is being considered here. I would not wish to impugn the reputation of any single lawyer, least of all protected by the powers that this House has, but the fact is that you can clearly get different legal opinions depending on who you ask on different things and given certain premises and I think the advice was given on a certain premise. The fact is that if we got into a position where this was a matter of dispute, we would lose the progress that we are making at the moment and enter probably a three or four-year period of considerable legal uncertainty under which no progress could be made on this topic at all. We are very keen to see progress made. We think it has been made on a realistic and practical basis and indeed we are making considerable progress here because we are not only extending the testing ban which we already have in the UK EU-wide, but we are also introducing by practical degrees a marketing ban which at the moment will be the first time that that principle has been established in the EU context, so it is a substantial step forward. If we risk the process stalling through legal uncertainty, then all of that could be jeopardised very seriously.

  8. Given the lengthy WTO process that you would have to go through, would that not have left plenty of time for the Community to have acted if the challenge was in fact mounted? There are no challenges being mounted at the moment, no indications of any cases being put together to challenge, so would that not have left plenty of time to adapt to the real world rather than this hypothetical world where somebody may challenge when clearly the Sixth Amendment to the Directive would have been a massive advance for animal welfare throughout the world?
  (Miss Johnson) We are making those advances and in fact we are leading in making those advances and we do not need to lose sight of the fact that we are making those advances here in the UK and we are leading the EU to make such advances as well, so I think we are entirely driving in the right direction as fast as we possibly can and the question is how fast can we drive there and how much can you practically achieve. However, the question of the legal position is that nobody is challenging at the moment because at the moment they see what is happening on the Directive and the fact is that if we went through the lengthy process of putting in place a Directive which was challengeable, then we cannot undo that easily. I do not need to explain to yourself or other Members of this Committee that the fact is that the process of making European law is a fairly cumbersome one when it comes to this kind of thing and once you have put the legislation in place, undoing it is a several-year process in itself or at least a couple-of-years' process in itself and what we have here is something that guarantees the progress that we are making as against the risk of considerable uncertainty with legal challenge and stalling of the process and jeopardising what we at the moment want to seek to achieve and seek to achieve more and greater than others that we are trying to lead behind us.

Mr Tynan

  9. As to the process of stalling the current progress you intend to make, obviously the problem does exist that if there was a challenge to the WTO, then if that challenge was not defensible, if you could not defend that challenge, then you are right, we might be in a position where it would stall it, but if there is good reason and opportunity to challenge and win that challenge in the unlikely event because it could be unlikely that there could be a challenge from a country to the WTO on the basis of the legislation going through, on that basis do you not think that you have taken a hurried decision as regards where we are at the present time and the reversal of what would be in the circumstances if we had continued as we were?
  (Miss Johnson) We have taken a very well considered, I believe, judgment about this. These judgments are always difficult to call, but in fact I do not think this one was that difficult to call because I think the risks of doing something different are very substantial and the gains here are clear to be seen and we can build on them further. The fact is that if we had gone for something where it was open to challenge in the way you are suggesting and gone down the path of allowing the challenge to happen, then we would fall foul of the risk of stalling the process and all our legal advice points to the fact that we would be challenged and the EU would be challenged and it would cause the difficulty that I have outlined to the progress that we really want to see on this and I have to say I particularly want to see this progress made.

  10. I am sure you do. You are saying that the advice is that there will be a challenge, but is there any indication of where that challenge would come from?
  (Miss Johnson) The US is indicating that a challenge would be forthcoming. I think perhaps one of the issues to be considered here is that obviously although this is a very significant and important area in its own right, there are questions about whether there are issues that go beyond this, whether there are principles here which might apply in other areas, and clearly any issue in the WTO context where protectionism arises is seen by those who may see themselves as the victims of protectionism to challenge that very strongly and we would clearly do likewise were the situation differently placed.

  11. Did you take advice as regards the likelihood of being able to defend against a challenge?
  (Miss Johnson) The legal advice we have is that it would not be a good case to go on and we would be likely to lose that case. I have to take the legal advice amongst other things because otherwise I would be appearing in front of this Committee explaining why it is that we have ended up in a complicated legal case on the losing end and why we did not take advice. It is very difficult in the case of legal advice other than to take the best advice that is coming from many quarters, as I said, in that it is coming from the Commission as well as from our own lawyers.


  12. Minister, you will know that there are as many opinions from lawyers as there are lawyers.
  (Miss Johnson) I hinted as much myself, but I did not put it quite as boldly.

  13. I ask you not in this case, but a lot of people have hidden behind legal advice before and found that that legal advice was not very strong. It is not unusual for the States often to indicate and especially in the WTO and it makes it a bit more suspicious and concerning to us when we see that the only people opposing the Sixth Amendment or wanting to challenge the Sixth Amendment are the States. If that be the case, then certainly they will be isolated again as they were in the Kyoto negotiations. Why should we be in any way influenced by their self-interest in promoting their self-interest through the WTO? We are not unaccustomed to that, are we?
  (Miss Johnson) I think in response to that point I would just like to emphasise the fact that a significant, indeed probably a majority of other Member States are very concerned with progressing the Sixth Amendment. It is not only ourselves by any means, but really I believe it is Denmark and Austria who are the only two Member States who would be happy to progress with the Sixth Amendment basically, so we are talking about a substantial body of EU opinion as well as the Commission's own view about this in which we stand with the body of that view, that there is danger in moving ahead with the Sixth Amendment. I think it is highly desirable to get to a proper full marketing ban. I have to say that to you. That is the position we are trying to arrive at and I would like to reassure the Committee that that is where we are trying to go, but it does have to be practical, there to have to be practical steps to achieving that and we do have to work within the international framework in order to achieve it as well as meet EU requirements en route. We have made steps forward and I do think that we are achieving a considerable gain here. There are still gains to be had and we continue to work to achieve those.

  Miss McIntosh: May I declare an interest in that I worked in two separate law firms on European Community law. The Minister made the statement—

  Chairman: Along with a few more lawyers!

Miss McIntosh

  14. I think the first time that anybody had been recognised as expert in European Community law was David Horne QC and the Minister would do well to seek advice from him. In welcoming you to the Committee today, could I ask, she alluded in her remarks to an earlier question from yourself, Chairman, to the validation of the testing of cosmetic products by means other than on animals. I followed this very closely at the time as an MEP. I just wondered what stage we are at because I thought we had reached the final stage we could have reached. Could she explain to us this morning what the implications of that procedure are for both the Sixth Amendment and why it has not been adopted and the Seventh Amendment which is before the Government now?
  (Miss Johnson) The test requirements in the Sixth Amendment will not be adopted if the Seventh is obviously, so it is an ideal situation and the position with the alternatives that are being adopted is that there is currently a dossier of tests available and basically they are ways of sifting through to see whether something is safe enough to be further tested in a sense because what you have is a number of sifts which allow you to decide things by "does it cause severe irritation to the eyes?", for example. If it does cause severe irritation to the eyes, it never gets tested on anything further anyway. There are sifts coming through. There are currently three or four agreed tests further to this that the OECD has validated. The pressure I think now has to be to have a realistic timescale under which we try to achieve a greater number of these tests so that more and more things can be put through internationally validated tests which we know will not fall foul of the WTO Rules. I think the important difference here and the reason why we have gone for the international and OECD aspect of it and the reason why the Belgian Presidency negotiated this was to have something which was firstly scientifically provable, which is very important in this context, so that it cannot be alleged that it is a matter of either an individual Member State's or an individual country's views about this, and secondly internationally recognised standards because that provides the validation which will be accepted in the international context for the further marketing ban and the ban on testing, so we are making progress on that and I would like to see a realistic timetable for the OECD to progress that further.

  15. Could the Minister explain then, is that one of the difficulties in having not adopted and implemented the Sixth Amendment and one of the difficulties now in seeking agreement on the Seventh?
  (Miss Johnson) Yes, it is one and I will give you a shorthand answer on this at least. Yes, it is one of the difficulties certainly and if we had a whole plethora of readily agreed international tests, there would be no problem in moving immediately. The whole problem is about the practicalities of doing it and that is why I say we need a realistic timetable. I do not think we need to be over-generous about that timetable, we need to set a tough timetable if we can, but it needs to be realistic bearing in mind that these tests have got to be produced that require standards because clearly if they do not go through the sort of processes I have been talking about scientifically and become accepted internationally through the OECD publication of them, then there will not be agreement of the kind that we need to make this further advance.

  16. Were there not plans for there to be a dedicated test centre, to have validated tests which would be recognised throughout the whole of the European Union and is the Minister saying today that we just have not got there?
  (Miss Johnson) By the OECD there is, but I am not sure if there is one test centre.
  (Ms Wilson) No. There is the Scientific Committee on Cosmetics and Non-Food Products, but it is the OECD who will actually do the international validation and they will use the major test centres that they themselves have approved.

Mr David

  17. The risk now is surely that large multinational cosmetic companies will certainly carry out their tests outside the European Union and market themselves and their products inside and that is the crux of the whole dilemma we are now in. Surely the situation is now less favourable from our point of view than it was some months ago.
  (Miss Johnson) No, it is an improvement because we have actually got the testing ban EU-wide and we have got the starting of the marketing ban. What we need to do is we need to make more progress on the marketing ban, I agree with you entirely on that, but we have got the wherewithal and this is the first time that there is an EU acceptance of the principle, or will be if we get it agreed finally through the process, that there is an acceptance of the principle of a marketing ban. That will be in itself a major step forward. What we then need to do is to make sure that all parties are working hard and that there is a realistic timetable behind this that will deliver the OECD validated tests which will provide the full range of alternatives we have got. We have got a limited range of alternatives and a lot of sifts at the moment. We are talking about new products anyway, we are not talking about anything that is there at the moment. We are only talking, as you know, about anything that comes up for the first time, some new chemical, some new product, but we are talking about making sure that those are available for testing via alternative means and that is what we have got to achieve and focus on.

Tony Cunningham

  18. Could I follow that as far as the OECD is concerned. What we have got is a marketing ban on cosmetics tested on animals where alternative test methods have been accepted by the OECD. The OECD, if my understanding is correct, requires unanimity. Yes?
  (Ms Wilson) Yes.

  19. And of course the United States are a part of this process. Is that a concern of yours given that up to now the OECD has so far failed to accept any non-animal tests?
  (Miss Johnson) I think this is done by the scientific processes rather than through political debate.

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