WEDNESDAY 6 NOVEMBER 2002

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Members present:

Mr William Cash
Mr Michael Connarty
Tony Cunningham
Mr Wayne David
Jim Dobbin
Miss Anne McIntosh
Mr Jim Marshall
Angus Robertson

In the absence of the Chairman, Mr Marshall was called to the Chair

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RT HON MR NICHOLAS BROWN, a Member of the House, Minister of State for Work, Department for Work and Pensions, examined.

Mr Marshall

  1. ...today, in view of the delay that has taken place at our meeting, and perhaps it just shows how you are going to set the place on fire; and perhaps it is also more particularly pertinent since the topic over which this incident arose was called 'Control of Major Accident Hazards', so perhaps it is an appropriate time for you to be here this morning. But welcome, and thank you for agreeing to stay. You know what the intention of the meeting is. This Committee, and the House of Commons generally, protects the scrutiny position as strictly as we possibly can, and we do look gravely upon any breaches of that scrutiny position; and, as you know, your Department and you personally did transgress that strict rule, that we try to ensure is applied as strictly as possible. So if we turn immediately to that. We were told by your Department, in September, as you know, that a debate had been arranged in European Standing Committee A for 15 October, so that that would avoid the need for a scrutiny reserve at the Environment Council two days later. You then wrote to the Chair of the Committee on 9 October to say that the debate had been postponed, but you gave no explanation for that. We have now had a subsequent formal notification of the outcome of the Council, a letter which I think you signed on 30 October, which the Chair of the Committee may or may not have seen, I certainly have not seen it, and other members of the Committee have not seen it. So perhaps, for the record, you could tell us what actually happened at the Council on 17 October; and, since you knew that a Common Position was likely to be agreed then, why did the debate not go ahead as planned, for 15 October?
  2. (Mr Brown) Yes; let me say, from the outset, Chairman, that I want a good working relationship with the Committee, as does the Department for Work and Pensions. As you know, responsibility for the Health and Safety Commission and the Health and Safety Executive has been newly allocated to the Department. I actually think it is the right home for the Commission, that is my personal view, and so I hope that this is an arrangement that will endure, and it is essential for the future that the work of the Commission and the Executive, including the advisory work it does for the Government on matters of European Union competence, is properly integrated into the Department's work. Now I said I want a good working relationship with the Committee, I do, and the Committee is due an apology; you have not had the hearing that you wanted, and for that, on behalf of the Government, I apologise. The duties were new to me, and when I saw the hearing scheduled I knew at once that I had not been briefed on the negotiations, nor was I the Minister that had heard the advice, it was not clear to me who the Committee wanted to see, whether you wanted to see what I assumed then was my predecessor, who I assumed then had heard the advice, or whether you wanted me to come along; and, frankly, I could do no more than repeat what the Civil Service advised me, because I was not the Minister at the time who conducted the negotiations. So I postponed the meeting so that I could get myself properly briefed on it, and also explore which Minister you wanted to see. I quickly discovered that the negotiations on this were further advanced than I thought, and also that the previous Minister also was not the Minister who heard the advice, and so you would have to go back to the original Minister, who, of course, was no longer a member of the Government, who had set the negotiating brief. I then looked through the issues themselves, and it was pretty clear that what the Committee was seeking to explore was why the British Government's negotiating position was for a higher tolerance level into specific areas, in other words, the Committee was arguing from the point of view of the protection of people working in the industries and not taking the opposite view, which is the burdens on business approach; and I have a lot of sympathy with the approach that the Committee was taking. But I have to repeat to you, I was not the Minister who heard the original advice, and therefore I am not in a position to interrogate it retrospectively. It then became clear to me that the matter was drawing rapidly to a conclusion, and indeed that the United Kingdom position was not commanding a great deal of support amongst other Member States; and there was an opportunity to achieve the outcome that it seemed to me that the Committee was seeking, in other words, a lowering of the threshold, a tightening of the protective position for workers in the industry, that being the point of view that other Member States were advocating. And, in order to bring the matter to a conclusion, a conclusion which it seemed to me that the Committee was seeking, I cleared scrutiny so that this could be settled under the Danish Presidency, a Presidency that is friendly to the United Kingdom. And it seemed to me that that was within the derogations that the Cabinet Office advice allows to Ministers, and I rather hoped that the Committee would be pleased that I had secured something that the Committee wanted and that was not the original negotiating position of the United Kingdom. However, once again, I do apologise to the Committee that you did not have the scrutiny debate. And can I, Chairman, just to conclude the points I want to make - and all of this has been set out in writing to the Committee, you have been kept informed at every stage, and I accept that is not a substitute for a debate and the Committee has the right to demand a debate if it wants one - there are three things that I would like to suggest. The first is, it is clear to me that there was a delay between your writing to the Committee on 13 February, which was when you examined the proposals and asked for the explanation, and our getting back to you, on 23 May. Now that is a three-month gap, it is before I became the Minister, but I am responding on behalf of the whole of Government and not just for my stewardship of these affairs, and we need a mechanism to make sure we are progress-chasing these things, when the Committee asks for something you should get it promptly, and then to put arrangements in hand in my office to make sure that we are progress-chasing the Commission and the Executive. It also seems to me that we need to review the way we, as a Government, handle these European negotiations, which involve drawing on the expertise of the Health and Safety Executive. I think the structure that we have currently is correct, in that the Executive reports to an independent Commission; but when conducting an international negotiation, I think it is necessary to be protective of ministerial input, and I intend to review precisely how that happens. And there is a third point I want to put to the Committee. My initial reluctance to do the debate was because it was going to focus on technical issues, on which I had not been briefed, and do not have, for my own general knowledge, a competence that I could share with the Committee, and I do not suppose many Members here do. Issues like this will occur again. I do not want the unsatisfactory position of either the issues not being addressed, or even of having to come along here and say to you what has been said to me, and then to have yourselves respond probably on the basis of briefings that have been put to you. And I wonder, and perhaps it is something that the Committee would like to consider, rather than decide now, if the Committee would like formal presentations from the professional advisers to Government, in other words, from the Health and Safety Executive officials, directly to the Committee, not in an adversarial setting but just so that you can hear the same advice that is being given to Ministers, without any impact on your right to decide on a debate. Having heard the advice, you might decide you wanted a debate, you might decide you wanted a debate even more, or you might decide there was no need for it. Now if that would help the Committee, actually to hear the advice to Government, then I am happy to explore whether we can offer that, and in future, when issues, which are of a technical nature, come to be debated, perhaps we could all hear the professional advice first.

  3. You know the procedures of this House, perhaps, as well as anyone, in view of the previous position you held, as Government Chief Whip; you will know that this Committee asks for a debate and not a particular Minister. How does that procedural position of ours fit in with the explanation that you have given for the postponement of the debate? The debate could still have gone ahead and another Minister could have - - -
  4. (Mr Brown) There would not have been very much to debate, as it has turned out; but, in any event, the fact of the matter is, you should have had the debate you are entitled to, but you should have had it before the summer recess. Now I am afraid that is all before my time as a Minister. I can do no more than to apologise to the Committee because you did not have the debate; in my opinion, you should have had it before the summer recess, but it is pretty hopeless, my being just given the duties, to ask me to come along and explain something on which I am not briefed, whose standing I have no knowledge of. And, once I had examined the issue, it seemed to me that the better thing to do, to respond to what the Committee actually wanted, was to bring the matter to a conclusion under the Danish Presidency.

    Jim Dobbin

  5. Just for the record then, do you agree, Minister, that the Government has a particular duty to maintain the scrutiny reserve when there is an outstanding debate recommendation?
  6. (Mr Brown) In principle, yes, but in these particular circumstances I am absolutely certain that I was right not to. It would have been an odd position to have the United Kingdom isolated just on those very narrow reasons, particularly when, by agreeing, we could get something that the Committee had actually said it wanted. Of course, I agree with the general principle; the truth is, we should have done it earlier and then there would not have been a problem, in other words, the debate should have been had before the summer recess, then there would have been no problem with clearing scrutiny, and actually I think the Committee would have been satisfied with the way in which the negotiations were going as well. As I understood the thrust of the Committee's argument, you were arguing for a lower threshold, a tighter threshold, perfectly properly, in my opinion, for the protection of people working in the industries.

    Mr Connarty

  7. Welcome to the Committee. It was, in fact, impressive that when you were a Minister we never had to have your Department for breaches of scrutiny. In your present role, I just cannot understand what your perception was of what this process about debate was. There seems to be a misunderstanding among Ministers whether the debate process is one where the Government pushes through its legislative position it wants to take to Council, or whether, in fact, it is part of the scrutiny process. And could I ask you, just simply, how do you regard Standing Committees of this Committee, are they scrutiny, or are they, in fact, legislative?
  8. (Mr Brown) The Committee is a substitute for scrutiny by the House. Nobody takes it more seriously than I. I used to be the Government Chief Whip, I understand the process well enough; indeed, I helped set up the Committees after the 1997 election. Now I have already, on behalf of the Government, apologised to the Committee, because you did not get the debate you were entitled to. It is my view that that debate should have taken place before the summer recess. I can do more; except I can say this. The set of circumstances is unique; to have had three Ministers deal with the issue in the space of nine months is - - -

  9. I think we have been told, in fact, you would not find it was unique. Ministers come into new briefs, and, in fact, the summer period was available, the whole of September and most of October was available to brief yourself on the issue. Basically, you denied the Members of Parliament, because anyone can go to that Standing Committee, the right to come along and question the position taken by our Government, which was, in fact, to put in danger, as far as we were concerned, people who worked in circumstances with certain chemicals, which you could take us on the position on. Now I do not know how much has gone out from what you have decided in the Council, to let people know that we may have got a better position, I am not actually aware of what position we have got; but can I just make the point, it is about the denial, it is the substance of the denial of the right of Members of Parliament to come to that Standing Committee, on behalf of maybe people in their constituency, or people in their workplace organisations which they came from, to put the Government under scrutiny, to get the Government to justify its position. If you could not have justified that position then it would have been quite clear the Government could have come along and said, "We're changing our position." But that was denied to Parliament, that is what is concerning us, as a scrutiny Committee, more than a sense of substance, for the Minister?
  10. (Mr Brown) I am entirely on your side on all of that. We have written to the Committee, and you have an explanation of the eventual outcome of this, and, indeed, reviewing the file, the Committee has been kept up to date by correspondence; but, I agree with you, that is not satisfactory, if you want the debate you are entitled to the debate. I think, more than that, you are entitled to an informed debate, and what I am offering the Committee is this prospect of exploring whether we can actually get the technical advice that is presented to Ministers presented to yourselves as well, so that before you decide on the debate you are actually as well briefed as a Minister; now that is something I offer for the future. There are two other things I can say for the future as well. This will not happen again, as far as the Department for Work and Pensions is concerned; this is the new home for the Commission and the Executive. As I have said before, I think the arrangements are right, I think they will endure, I intend to review the procedures to make sure that the Committee's requests are dealt with promptly, and certainly within time, and certainly we do not find ourselves in the position we find ourselves in now. Let me say something else though. It was very clear to me that what the Committee was concerned about, as I have said to the Committee before, was the thresholds to which working people were being exposed; of course, the Committee should have been able to debate that, and, once again, I apologise on behalf of Government that the Committee could not. But I did secure the result that it seems to me the Committee wanted. The Committee was arguing that the Government was going for too tolerant a threshold; the eventual outcomes, as the Committee knows, I think I am right in saying that, that all this has been reported to you, are much more to the result the Committee wanted. Now we could have either put in a reserve, a scrutiny reserve, or got the result the Committee wanted, and I thought the better thing to do, in the national interest, was to wrap up the negotiations, to secure the result, or something closer to the result the Committee wanted, and to get this settled under the Danish Presidency. It was the last chance to do so, remember.

    Miss McIntosh

  11. Perhaps we would have the opportunity to question the Minister before he has to leave. Could I return the Minister to his letter to us, in which he says: "The circumstances and timing affecting this proposal are both unusual and unfortunate, and I hope that the Committee will understand the reasons for the actions I will need to take." Clearly, the Committee did not understand, and that is why the Minister is before us today. But there are very strong reasons for the House and the Committee insisting on a scrutiny reserve; and I put it to you, Minister, that, in the letter that you sent us, the justification for your willingness to agree this in the Council, on the grounds that the UK had secured improvements, really is the purpose of why you are here, surely, for the House, through this Committee, to decide whether, in this case, or not, sufficient scrutiny had applied. The scrutiny procedure has been in place now for 25 years, it is well understood by yourself and in other Member States, and particularly by the current Presidency. What we are asking you today is whether you are seriously suggesting that an essentially procedural reserve would have jeopardised our position on the substance of the document? If we can just stay with the past for the moment, I take it you are making a commitment for the future, but we feel very badly let down, and I think the country will feel very badly let down, that you overruled a scrutiny reserve?
  12. (Mr Brown) The alternative would have been to put the reserve in when we had secured the result that was satisfactory to the Committee, in fact, better than the Committee thought was going to happen, and that we did not bring it to a conclusion - - -

  13. That is for the Committee to decide.
  14. (Mr Brown) The Committee had expressed its view, and we did not bring it to a conclusion under the Danish Presidency. Although, of course, I accept the thrust of what you are saying, I do not want to quarrel with you on this question of Committees' scrutiny rights, because I am wholly on your side on that. But I am in a difficult set of circumstances, I had just got the brief, there was a choice between bringing the matter to a conclusion or putting in the reserve, and it was clearly in the broader national interest that we bring the matter to a conclusion, without quarrelling with people who are, after all, some of our closest friends and allies in the European Union.

  15. One of the reasons that you are suggesting this will not happen again, presumably, is because the House will now be sitting for two weeks in September, so there will be that extra time?
  16. (Mr Brown) No, it is more than that. I want to make sure that we properly integrate the Health and Safety Commission's and the Health and Safety Executive's work into the more conventional way in which things are done within the Department for Work and Pensions. I think it is a logical place for the Commission to be, I think this will be its permanent home. There will clearly be issues like this that will arise in the future, although not in this way, when dealing with European Union matters, and I want to make absolutely certain that the Committee gets its explanation and its right to scrutiny in a timely way, so that there is no question of things being jammed up against a deadline. If this debate had taken place before the summer, we would not be in this position now; and, in my view, that was when it should have taken place.

  17. Do you think, Minister, that part of the difficulty of the timing of it was the transfer to a new Department of this very big responsibility?
  18. (Mr Brown) I certainly think that the changes that have taken place within Government, a combination of events rather than any one event, have led to this outcome. Remember, I got these responsibilities just before the party conference season, a debate was scheduled for the second day the House came back, and, in order to get myself fully briefed for a debate, I asked for it to be postponed. In retrospect, it might have been better if I had not done that. But there is a whole series of decisions that were taken, with perfectly correct intentions, but whose cumulative effect has led to this unfortunate outcome.

    Mr Marshall

  19. Could I just come back to the fundamental point, Nick, and that is this. We have heard the explanations that you have given, but the fundamental criticism that we are making of you and the Department is not the negotiating position that you successfully achieved but the fact that you cancelled the Standing Committee meeting; that is the fundamental criticism. We have heard what you have had to say for that; but I think that is the fundamental reason that we have got you here today, because that is, we consider to be, a clear breach of the scrutiny reserve position. Perhaps you could just dwell a little longer on giving us the reasons for that decision?
  20. (Mr Brown) I am going to end up repeating myself, Chairman. I got these duties late; the original reason for postponing it was so that I could brief myself on the highly technical issues that you wanted to discuss, remember, the original meeting was scheduled for the second day back, and also to clarify which Minister you wanted to cross-examine on the subject. As I say, my original thought was it would be my predecessor that you wanted to ask, but I quickly discovered, after having postponed the debate, I have to say, that he had not heard the negotiating brief either, and it was his predecessor that had set the negotiating brief and, presumably, would be able to explain it to the Committee and say why he made the decisions that he did. It is perfectly right for the Committee to cross-examine this, but, as events then moved on, and often Ministers are faced with things when Parliament has come back, although, of course, Ministers are here before Parliament reassembles, it was clear to me that there was a possibility of bringing this to a conclusion and getting the result the Committee said they wanted, or, to be fair, getting something that is closer to the result the Committee wanted. And, under the Cabinet Office guidance, it is my view, and I accept the Committee may quarrel with it, but it is my view that I had sufficient room for manoeuvre to clear it, and I thought that was the right thing to do, and proper, in the broader national interest.

    Angus Robertson

  21. Minister, welcome to the Committee. Can I pick up on two things that you have said. One, that you believed that you were acting in a way that would find satisfaction amongst the Committee. You also said earlier, with regard to a debate, that you thought that there would not be much to debate. Do you not accept that this is not something for Ministers to second-guess but is actually something for members of this Committee and Members of this House to decide?
  22. (Mr Brown) I cannot say this again. I am on your side with regard to scrutiny, it would be odd if I were not, given all the previous tasks that I have carried out in Government, and that is why I am saying to the Committee that there are things that we should do better for the future. To be honest, Chairman, we are going round in circles. I have apologised on behalf of the Government. Let me say again, I think it would have been better if the scrutiny committee had been held either with the Minister who was setting the negotiating brief or at least before the summer recess, so that you would have had the debate in time for what they call the 'end game' in the negotiations in the European Union's forums. But that did not happen, and so I am left with two decisions, neither of which is going to be perfect, but I think I made the better of the two decisions.

    Mr Cash

  23. That, if I may say, is a very good moment for me to come in on this issue, because you are - - -
  24. (Mr Brown) You (- inaudible - opinion ?) anyway.

  25. Do not talk rubbish, Minister, and certainly not when you are sitting in front of a Select Committee; it does not help, it will not help your position either. Very simply, what you are saying is, "I know I was right," and, therefore, in terms which I think amounts to a contempt of Parliament, as well as of this Committee, you are saying that you know that you were right. And what I would like to know is, who advised you, in the circumstances, in the Cabinet Office and/or in your own Department, because it appears to me that either you overrode their advice, which I am sure was given in good faith, about the problem of a scrutiny reserve; and I would like an answer to that question, did you override their advice? And, if you did not, what advice did you receive, and by whom?
  26. (Mr Brown) No, I have not overridden the professional advice of the Civil Service. I acted within - I have explained this to the Committee already - the derogations that are clearly set out in the Cabinet Office guidance, and acted in the broader national interest as well. It is not a question of the advice of public servants having been overridden.

  27. You do realise how close you are to a contempt, do you not?
  28. (Mr Brown) That is a two-way thing. I am trying to be candid with the Committee and to explain why I took the decisions that I did. But if you are alleging there is any contempt of Parliament, that is a very, very serious thing to say. And, frankly, I think, Chairman, that if the discussion with the Committee is going to go down that route then the honourable gentleman, if he is making such a charge, had better make it plainly.

  29. I said you were getting very close to it.
  30. (Mr Brown) Well, frankly, that is a debating point.

    Mr Marshall

  31. Could I, perhaps, finally, Nick, ask you, we would still like the debate to go ahead, we have had no indication of when that is likely to be; could you indicate to us if any arrangements have been made, are likely to be made, and, if so, when the debate is likely to take place?
  32. (Mr Brown) It is a matter for the Committee. If you still want the debate, I am happy to have it. But I wonder if it might not be better, since you have secured the results you want, to sort of perhaps discuss amongst yourselves whether you want to take up my offer of exploring further how we handle issues of this kind in future. And, frankly, I do not see how a Minister - - -

  33. That is not a matter for the Committee. The Committee has requested a debate. Your Department previously arranged a debate; you have subsequently cancelled the debate. The position is, we would still like a debate to go ahead. I presume your Department will go through the procedure that it went through last time, in terms of arranging a debate, and we would anticipate that, this time, you would not find it necessary to postpone it. What we would like is a timetable which would indicate when the debate is likely to be held?
  34. (Mr Brown) Yes, of course, and we can arrange a suitable date for a debate, if that is what the Committee wants; but it would help me and the Department enormously if you said what it was you wanted to debate. And, remember, this is done now.

    Miss McIntosh

  35. This is extraordinary. You have deprived a Standing Committee, which has delegated responsibility, by your Government, amongst others, and we had the Leader of the House here yesterday to explore how we can improve even more the procedures. You have actually taken away the one right we have to impose a scrutiny reserve, unilaterally, possibly against advice, and I am not satisfied on that point. You are very close, as a senior colleague has said, to displaying contempt for the whole procedure. And, now, the very bottom line is, we have requested a debate. And I take this very seriously, Chairman, and I do not think the Minister should leave this morning without, at the very least, satisfying us on the point of when we are going to have a debate?
  36. (Mr Brown) Yes, we can arrange for the debate, I have already conceded that to the Committee. But I do not think it helps to try to play politics with these issues; and the idea that, somehow, you are saying that I have not been candid with the Committee, I just think is very unfair.

    Mr Marshall

  37. I think perhaps we should draw this to a close. The Committee's position is as it was previously. We have requested a debate; a debate was arranged and it was cancelled. The House will eventually decide on this issue, but, in order to do that, we do need a debate to be arranged. And I would suggest that that is the course of action that will follow, and the House will decide whether that debate is worthwhile or not and necessary, and it will not be an individual Minister or an individual Government Department making that decision. So if I could emphasise that that is the position of this Committee and will remain the position of this Committee.
  38. (Mr Brown) I am going to be in danger of repeating myself here. If you need the debate, you can have it, but I really do not think there is going to be anything that I am going to be able to add to what has already been said to the Committee.

    Mr Connarty

  39. ( - Inaudible - Government explain why - position - future ?) this Committee we asked for the debate on, then changed it when it went to Council; because it seemed to be quite firm in its position when we asked for debate, and shifted its position when it went to Council to get what it called a better result. I am sure Parliament would like to know what logic was behind that, defending a position up until the point of going to the latest Council?
  40. (Mr Brown) Mr Chairman, we are going round in circles here.

    Mr Marshall

  41. Nick, can I thank you for coming and defending your position in such a robust manner. But, before you go, perhaps I could just emphasise the role of this Committee. It is to protect the privileges of the House, in terms of legislation coming to the House, as you well know, from Brussels; and we do take our position on that extremely seriously, and we do guard the privileges of the House. Whilst I understand where you are coming from, I would just emphasise that it is the House, often acting on the advice of this Committee, which will decide the merits of an issue; it is not up to an individual Government Minister or an individual Government Department to make that decision on the part of the House. It is the House of Commons that will decide. So that is the real crux of the issue that we are discussing here this morning. We are not seeking to attack you for the position that you took, we are seeking to protect and safeguard the position of the House of Commons, as being the sole decision-maker in what is good and bad on the merits of any particular issue coming from Brussels.

(Mr Brown) I have got no quarrel with yourselves on the issues of principle, and I think, probably, it is best left there.

Mr Marshall: Could I thank you for coming; and also could I thank you for deciding to stay, in view of the problems that we had prior to the start of the meeting. Thanks for coming to the meeting.