Examination of Witnesses (Questions 1-19)|
JOHNSON, MP, MS
WEDNESDAY 9 JANUARY 2002
1. Minister, welcome to the Committee. A happy
New Year to you and to your colleagues. Would you like to introduce
(Miss Johnson) I will leave them to introduce themselves
perhaps, and a happy New Year to you and indeed to Committee Members.
(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
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
(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.
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.
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
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!
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
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.
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.
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.
(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.