Scrutinous mutinous MPs get tough over unitary patent

The House of Commons features on many picture postcards of London's Palace of Westminster, but its function is not solely ornamental.  The Kat thanks the observant Chris Torrero for spotting this link to the House of Commons' European Scrutiny Committee: Thirty-Second Report: Enhanced cooperation for the EU Patent: the Committee's evidence session with Baroness Wilcox.  The text makes truly painful reading, given that the function of the European Scrutiny is, well, to scrutinise, and the proposed solution to the EU's perceived there-ain't-no-EU-patent problem seems to have gained momentum without the UK parliament's elected representatives having a chance to scrutinise it. The following extract shows the Minister responsible for intellectual property matters, Baroness Wilcox, having a torrid time of it:

"Assessment of the Minister's evidence of 11 May 2011

27. On 11 May the Minister gave evidence about the scrutiny breach, a transcript of which is appended to this Report. We had hoped to ask her questions about the legal implications of the right to withdraw from a Council Decision to enter into enhanced cooperation and more generally, and on the future prospects for the unitary EU patent, but it was decided to draw the evidence session to a close earlier than anticipated to give the Minister more time to reflect on the answers she had given.

 28. In summary, the Minister's evidence on the scrutiny breach showed a lack of understanding of how the House of Commons scrutinises EU documents, which greatly concerned us. The following is an example of an exchange with the Minister:

"Q12 Stephen Phillips [Member of Parliament for Sleaford & North Hykeham and no relative of the author of this post]: Perhaps we can deal with it in this way: without consulting your notes, are you able to tell this Committee what the scrutiny reserve is?

Baroness Wilcox: Okay. "No Minister of the Crown should give agreement in the Council or in the European Council to any proposal for European Community legislation or for a common strategy, joint action or common position under Title V or a common position, framework decision, decision or convention under Title VI of the Treaty on European Union."

"Q13 Stephen Phillips: That is what it says. Are you reading that for the first time?

Baroness Wilcox: I am reading it; I am reading it to you.

"Q14 Stephen Phillips: Are you reading it for the first time yourself?

Baroness Wilcox: Do you mean have I understood that that was the situation before I read it out?

"Q15 Stephen Phillips: Let's come on to that in a moment. Are you reading that for the first time yourself?

Baroness Wilcox: I have read this out before.

"Q16 Stephen Phillips: Are you reading that for the first time to yourself?

Baroness Wilcox: No, I have read this to myself before.

"Q17 Stephen Phillips: Right, so what is the scrutiny reserve?

Baroness Wilcox: The scrutiny reserve — that which I have just read to you, no?

"Q18 Stephen Phillips: What does it mean? What is its effect?

Baroness Wilcox: I think I could only but repeat it to you. It has been written carefully.

"Q19 Stephen Phillips: Well, would you agree with me that what it means is that the Government cannot go off to a European Council and agree a document that this Committee maintains under the Scrutiny Reserve and which has not yet been debated either in a European Standing Committee or on the Floor of the House of Commons? That is what it means, isn't it?

Baroness Wilcox: Well, yes. If we have good reasons to have to go back and look again, and if we have good reasons to override it, then we would do so. We would come here and we would try and explain to you why we had. In fact, I think in the exchange of letters that we have had, we have always tried to be very clear about what it is we are doing, and always try to keep in mind what we are doing for Great Britain."

29. We also found her evidence to be contradictory. In answer to question 5 she asserted that the Committee was responsible for the scrutiny breach:

"Baroness Wilcox: [...] We knew that 10 March was a critical date for us, and we had to take a decision as we had not yet finally heard whether you were going to withdraw your objection or not. Therefore, we then went ahead as we had not yet received the final answer to the letter that we had written to you."

30. The opposite, however, was the case. In our letter of 3 March we said "[w]e do not, therefore, give our agreement to the UK voting in favour of adoption on 10 March and the draft Council Decision remains under scrutiny" -- we question how this could have been expressed more clearly.

31. The Minister then appeared to rely on the legal advice she had received that it was possible to withdraw from the Council Decision as somehow trumping the Committee's own legal concerns and entitling her to override the scrutiny reserve:

"Baroness Wilcox: [...] I cannot say often enough that we would not have come to this decision lightly. I know you say that every Minister would say that, but in this instance our difficulty was that our legal advice was not the same as your legal advice";[3] and
"Q36 Chair: So, come what may, you were determined to go ahead, irrespective of whether the whole question of debate in the House of Commons was irrelevant?
Baroness Wilcox: Oh no, Chairman, no. We had to ascertain first and foremost that we would be able to withdraw. The important thing was that we were able to withdraw."... 

Conclusion

35. In her evidence the Minister raised three different reasons for why scrutiny was overridden, moving from one to the next as each was challenged. It is particularly concerning that she began by asserting that a delay on our part caused the scrutiny breach, and the reliance of "special reasons" appeared more off-the-cuff than pre-conceived. In addition, her answers were made the less convincing by a lack of understanding of the fundamentals of the scrutiny process.

 36. The overall impression we were left with was well summarised by the Chairman:

"Q20 Chair: I would simply like to add to that the fact that, as you said at the beginning, we have been at this for 40 years. In this context, some might interpret that as suggesting that, for you and the Government, this was a holy grail, sufficient to say, "Well, it doesn't really matter what the European Scrutiny Committee thinks about this. We will just go ahead anyway. If they ask us to come along, we can explain it afterwards." That is possibly a reasonable interpretation of what happened"; and

 "Q26 Chair: That is the question that is really troubling us, because it appears to me — I was not quite prepared for this when we started out on this session — that you really do believe that the Government has the right to override the Committee simply because it is a matter of what you perceive to be the national interest. Actually, there is a place called Parliament with elected Members of Parliament who gather together for the purposes of making decisions like that and calling the Government to account."

37. That said, the Minister's letter of 16 May is helpful in explaining in greater detail why the letter of 13 April was delayed; what the special reasons were for overriding scrutiny; and why she felt it would not be possible to abstain from voting in the Council (about which we are less convinced). We do not propose to take the scrutiny override further in correspondence with the Minister, but Members of the Committee may want to take up some of the answers she gave in evidence when she comes back to give evidence, as is suggested below.

38. We invite the Minister to come back, with her Department's legal adviser, to give evidence on whether there is a right to withdraw from Council Decisions in enhanced cooperation and more generally, and on her views of the prospects for a future unitary patent in the EU.

39. In the meantime the document remains under scrutiny."

The IPKat is not without sympathy for Baroness Wilcox, who has a broad brief within the area of business, innovation and skills; he understands that ministers depend on the support of their civil servants and that both the substantive and the procedural dimensions to the analysis, promotion and scrutiny of any legislation are highly complex.  There are several possible solutions to this problem:

• scrap Parliamentary scrutiny (Unthinkable? How do other EU Member States do it? Can we learn from them?)
• break up larger ministerial portfolios into smaller ones, so that subjects as allegedly important as business, innovation and skills -- which are as unrelated as they are related -- are each given to a single person;
• employ a larger number of civil servants to brief ministers and to keep them from running into situations like this.

Of these solutions, that of splitting ministerial responsibilities into manageable chunks seems preferable. It ensures that legislation remains scrutinised and should enable ministers to engage more informatively and less defensively than was the case here.  It also sends out the message that IP is important enough to have a minister of its own, rather than a regular series of reviews, committees and inquiries looking into it.