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Lord Jenkin of Roding: My Lords, it fell to me nearly 20 years ago to receive the report on Rampton. The House will remember that a television programme called The Secret Hospital disclosed a horrifying state of affairs at Rampton where, as my noble friend said, there was a classic example of the staff being totally in charge and the management totally incapable of managing.

I wish to address only one question to the noble Baroness. I understand entirely why the Secretary of State is extremely reluctant at this stage to contemplate disbanding the so-called special hospitals. There has been a great deal said--and I agree with much of what has been said by the noble Lord, Lord Clement-Jones, and my noble friend--about the culture that develops in such institutions. Indeed, the noble Lord, Lord Sheppard, talked about the violent swing from the reaction against over repression to what one can now see was a disastrous policy of laissez faire, if it is fair to so describe it. Those situations can only happen where there is this pattern of isolation.

I have listened with interest and enthusiasm to what the noble Baroness said about what is being done to try to break down the isolation. I believe that such isolation lies at the heart of why these institutions from time to time appear to go so disastrously off the rails to the huge disadvantage primarily of patients but of many others as well.

I ask that Ministers do not close their minds to the view that perhaps institutions of this size in the modern world with all its pressures are, as Judge Fallon said, inherently unmanageable. I recognise all the difficulties of trying to get communities to agree to establish separate smaller units within their own areas. One is very well aware of all the resistances that build up. Nevertheless, what has come through the discussion this afternoon, and I am sure will be in the debate following the report, is the question of how these cultures arise and flourish in the way they do. The answer is because they are isolated. They tend to be self-contained. They contain the problems that the rest of us, I fear, shuffle off onto the special hospitals. That is how these situations occur. I ask Ministers to recognise all the difficulties. In this case there are three large, fairly isolated, separate units very much of their own character containing a wide range of patients with different problems and needing different treatments. Can that ever be the right solution to this problem?

Baroness Hayman: My Lords, I have listened to the remarks of the noble Lord with great care, given his experience in this field. I am sure that he accepts and understands the reasons why we do not have alternative facilities readily available. We do not have guarantees that alternative bricks and mortar would

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not produce the same cultural difficulties. We have robust plans in hand to end the isolation of these units, and we can see a way of reducing size by focusing on the specific needs of specific groups and ensuring that they can be met. For those reasons we have clearly taken the view that it would not be appropriate to decide to close the hospital at this point, when we are looking at a completely new policy on personality disorder and a completely new structure and accountability for the special health services.

I am sure, however, that we would all agree, having seen this report, that we must keep a close eye on the effectiveness of the arrangements that we put in place and on whether they deliver the higher quality of care and reduce the problems that give rise to this report.

The Blom-Cooper recommendations were taken and applied across the board to all the patient groups within the hospital with very great problems caused by the application to the personality disorder unit where it was singularly inappropriate to relax the security. We do not want to fall into the same trap by applying the answers to the problems of the personality disorder unit--which contains a minority of the patients in the institution--across the board. I believe that we need a more focused and differentiated approach within an overall strategy of reducing isolation, ensuring that we have high levels of security, inspection and accountability.

Parliamentary Scrutiny of the Third Pillar: ECC Report

4.56 p.m.

Debate resumed.

Lord Howell of Guildford: My Lords, like the noble Lord, Lord Clinton-Davis, the distinguished former European Commissioner, I was not a member of the committee which produced the report we are debating. I therefore have no hesitation in giving unqualified praise to my noble friend Lord Kingsland and his colleagues for their work and for tackling this subject with such constructive focus.

I believe that we should banish all illusions that this is a rather obscure and dry matter. It is of massive importance to the way in which our democracy shapes and the way in which we tackle the trends towards globalisation and internationalism which tend to dominate more and more aspects of everybody's lives at all levels.

There are two groups of reasons why we should pay close attention to the report, its recommendations and what we can do to reinforce them. The first is the obvious point which the report makes; that is, that the Government recognise that accountability and responsibility for actions taken under the Second and Third Pillar regime--security and foreign affairs and justice and home affairs--rests in the national parliaments. Paragraph 5 of the report makes clear that the European Parliament has a very limited say, not

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really amounting to accountability and influence over policy, in the way we believe that it should work. That is no fault of the European Parliament. They were given only very small additional powers under the Amsterdam Treaty. However, this is not a matter where the European Parliament can play much of a role.

When we come to the various different aspects of the new international role developing we shall find that the European Parliament's role in other areas is extremely limited. I do not share the over-optimistic view of some enthusiasts who propound "the third way" and so forth, and that the European Parliament is somehow a model for the future, neither a world government on the one hand nor a national government on the other. I believe that is completely wrong and that the pattern will not be so linear. The pattern of accountability in our democracies will develop in rather different ways. That is a matter to which we must pay acute attention because accountability rests here in the Houses of Parliament, and we must make it work.

The second reason why I believe this is so important is that it is not just a transitional phase. There are some who believe that the Second and Third Pillar are just temporary waiting rooms before the whole area of activities covered, particularly in the Third Pillar, collapses into the community proper and the whole thing becomes "communitised".

The view that this is just part of the road towards communitisation held back by one or two sensitive souls who do not want to go the whole way to supra-nationalism is very strong indeed. One hears that view put forward in a number of quarters. Indeed, it could be argued that some issues have already been transferred, as the noble Lord, Lord Wallace of Saltaire, reminded us, from the Third Pillar into the full community system, and even one or two issues from the Second Pillar. Some quite considerable and sensitive issues, including those of visas and refugees, have gone into the community system.

It could therefore be reasoned that this is all part of a pattern and that we need not waste too much time on accountability over the matters that remain in the Third Pillar--it is all hurrying along the railway tracks to something different. But that again is a completely wrong understanding of present and future trends. It is a linear projection which once again will not be sustained by events.

I suspect that the future will not be a more supranational or communitised pattern in dealing with these sensitive affairs. They go to the heart of national democratic legitimacy and the world--particularly democracies--will seek ways of reconciling the desire for retained national accountability and keeping the thread of control all the way from the voter up through the national institutions to these activities. They will be reluctant to surrender them to some higher authority governed by some higher model like the European Parliament. The pattern will be much more in the direction of what some American commentators are now calling "transgovernmentalism"--that is a little more than intergovernmentalism; it is a whole arrangement of networks between states dealing with a vast variety

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of sensitive issues while retaining the elements of national accountability. This is part of that scene. This is not just intergovernmentalism; it is transgovernmentalism and we must make it work. If your Lordships' House is to be reformed, as we are told daily that it is, then it may be that in that new pattern of reform your Lordships' House will play an even more decisive and effective part than it does already. It will presumably be more assertive--for various reasons--than it is already and therefore there may be opportunities for building a still more effective system of calling to account transgovernmental activities.

In another place I had the privilege of working on the committee which gave a great deal of thought over several years to the questions of scrutiny generally, calling to account the activities of the Council of Ministers and, after Maastricht, scrutiny over and the parliamentary input into the policies and proposals which circulated in the Second and Third Pillar areas. It was not a scrutiny committee; it was a foreign affairs committee of the other place. Nevertheless, the matter worried us a good deal and we gave it a great deal of thought.

To give a shorthand conclusion, on which I shall expand in a moment, scrutiny is not enough. The concepts of scrutiny exercised properly and effectively by other committees of both Houses were, and are, not enough to exercise accountability over this area, which is growing, of transgovernmental activity. We felt that it would indeed grow. We believed strongly that it is a vastly expanding area, particularly when we deal with the justice element--the juridical affairs. In that regard we are surveying a world in which the old, clearly defined boundaries of what was a juridical concern in which a national government could exercise some kind of direct accountability and control are being blurred. The simplicities of a world of nation states and activities confined within the territorial limits of those states have gone.

It is not simply a question of facing the fact that there will be constant pressures from centralising forces in other parts of Europe--in Brussels and in other parts of the Commission, despite subsidiarity--and reasonable and rational arguments put forward, which will be hard to refute, for more centralisation, maybe communitisation, of these affairs; it is also that the whole concept of juridical space is changing and being eroded. That makes it more difficult to devise the right and effective means of calling to account what is going on in those areas.

One may ask what sort of things I am talking about. But one only has to think about the globalisation of capital markets and the moves of vast blocks of capital around the world at record speed being involved in all sorts of new problems of regulation far outside the European framework to see that the enforcement of regulation and the whole assessment, control and proper enforcement of laws and rules governing it will require something that goes beyond the traditional nation state limits.

The same applies to information. But one has only to think for a moment of the Internet and the growing difficulty of various national administrations to control

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movement--whether of trade or of information, some of it poisonous--across the Internet. There is also the sensitive area of immigration where at this moment many people within the European Union take the view that enormous difficulties are arising because the laws of the Italian states on immigration are calling the shots on the entire movement of immigrants inside the whole European Community. The question is, if legislators in different countries want to exert some kind of control over their immigration laws, how do they get a grip on Italian immigration laws which are the ones which decide who gets into their countries?

It is therefore an area which is becoming much more complicated and difficult to police and control. The report comes to grips with some, if not all, of the needs for moving forward extremely effectively. First, as my noble friend Lord Kingsland said, it is a question of the right documents and the right time; early depositing of the right documents. I agree with the implication of the report. In his evidence Professor Birkinshaw supported the fact that it is not just a question of looking at documents which may turn into primary legislation or even looking at documents which may turn into secondary legislation; it is also a question of having an oversight of the continuing stream of papers, memoranda, even ideas and perhaps thinking aloud by national government departments--I will come to a broader dimension in a moment--which may be about to operate in this area with results which will emerge in the Council of Ministers and be turned into policies and measures of various kinds.

So, early deposit of the right documents is also a conclusion to which we came in another place. Secondly, we need an early "inkling"--to use a non-technical word--of what the Government are thinking; in other words, moving upstream from the point where documents start appearing; having a committee which can converse with Ministers and the authorities about ideas that may take shape and move suddenly from being mere ideas into being legislative instruments.

Thirdly--the report rightly refers to this--there is a need again to have an inkling of what other governments are thinking. As the report rightly indicates, this nation may find itself involved rather suddenly in a whole process of law-making and regulation-making, the provenance of which lies in the ideas of other governments way back. Schengen may be a good example of that, though there may be many others as well.

Fourthly--recommendation 22 of this excellent report--it will need legislatures; that is, first and second chambers of the member state countries of the European Union (I repeat, this is not just a European Union question) and other countries to co-operate closely with each other in relation to their experiences and to learn what is coming before their own governments. This may tell them what is on the table. To some extent that is going on. Judges co-operate; courts exchange experience on various judgments on an international level right outside the normal official purview. That is transgovernmentalism; it is a pattern of co-operation

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between states which does not involve the official government. That is already taking place and is creating an international pattern in these areas.

I close on the fact that the fashionable view exists that nation states are fading away. That is totally erroneous. They are forming new roles. The state is changing its shape rapidly. But when it comes to global problems, it is the state that will be harnessed to their solution rather than any fancy new world level or supranational level organisations.

It is not just the state but also the non-executive parts of the state (of which the legislatures are a good example). We have a role to play in this new interface. There are also--and this has been mentioned by other noble Lords--the non-governmental agencies which are co-operating with each other with increasing intensity and creating a network world as against the old pattern of hierarchies of governments and officialdom. If one wants examples, the world's regulation of banking has been influenced most in the last two years by the Basle Committee, which is a group of voluntary nationals and senior bankers, rather than by the international monetary institutions.

As I have said, it is judicial co-operation between national judiciaries rather than a world court or even (dare I say it?) the European Court of Justice, which is setting the pace in shaping an international pattern of jurisdiction to oversee an increasingly internationalised world.

I believe that the new global order will be held to account not by the supernational parliaments or international courts, but by national legislatures, and that is rightly so because that, and nothing more than that, is what democrats and citizens will tolerate. We have to find the best way of doing this and this report makes a massive and practical contribution to that goal. It does not achieve everything but it takes us a long way forward and I repeat my congratulations to my noble friend Lord Kingsland and his colleagues.

5.11 p.m.

Baroness Ludford: My Lords, I share the congratulations due to the noble Lord, Lord Kingsland, and his committee. I am pleased to follow the noble Lord, Lord Howell of Guildford, whose remarks I found most interesting and I agreed with almost all of what he said. There is a huge contrast between what is for the most part the necessarily somewhat dry procedural focus of this debate and the huge significance of the subject matter because this topic takes us to the heart of the construction of the citizens' Europe, a term I always prefer to "people's Europe", not only in the content (which affects citizens' security and civil liberties) but also in the way that law is made, the degree of accountability, and the right of citizens to participate either directly or through their parliament in making the laws which will apply to them.

I was interested in the remarks of the noble Lord, Lord Howell, about the respective roles of national governments and parliaments and the European Parliament. I take the view (not that I necessarily have any bias between the European level and

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intergovernmentalism) that the intergovernmental method always throws up flaws in accountability. It is much more difficult for 15 national parliaments to keep track of a European executive, but the key is to have a partnership between the national parliaments and the European Parliament. The noble Lord, Lord Howell, is right: not everything will be gobbled up at Community level. Those areas which remain areas of national co-operation must go on increasing the techniques and the depth of bringing governments to account.

As a non-member of the European Select Committee, I very much echo the tribute that Justice paid to the fact that the House of Lords European Select Committee reports are widely respected for their expert attention to legal and procedural implications of Third Pillar proposals. I do not like this House being too incestuous but, as I am not a member of the committee and I am quoting an outside organisation, I think I can draw attention to that.

I also agree with the noble Lord, Lord Howell, on the need to retain such expertise in a reformed second Chamber. Scrutiny of European legislation is very much a function that must be retained and, as I have said before in this House, I know from my time in the European Commission that House of Lords Select Committee reports do carry great weight.

Lord Kingsland drew attention to the fact that the committee was making its report at the time that the Amsterdam Treaty was being finalised and the committee took account of that to some extent. Incidentally, I am not entirely sure why it has taken 18 months to arrange this debate. Perhaps I should have asked that before the debate started, but it is a pity that such a long time has elapsed.

The Amsterdam Treaty changes were considerable in relation to the Third Pillar, partly taking matters out of the Third Pillar and into Community competence in the area of freedom, security and justice. I regret that the UK opted out. I hope that in time our Government will see the advantages of some inclusion. The Amsterdam Treaty strengthened the general principles and objectives of the treaty on European Union in regard to citizens' rights, fundamental human rights, measures against discrimination, and on openness and transparency. They gave a role to the European Court of Justice in relation to the Third Pillar, although regrettably not for citizens to have a direct right of access to the European Court of Justice, and the formal right of the European Parliament to be consulted on Third Pillar matters as well as the protocol on the role of national parliaments. All this was a considerable advance in the Amsterdam Treaty and we look forward to the treaty coming into force.

In relation to openness I did note the remark by Adrian Fortescue of the Commission that in the future, as more legislation is likely to be initiated by the Commission rather than by member states or by the Council and, as the Commission's instincts were more for openness and transparency than were those of the Council, it was more likely that documents would be put in the public domain. I thought that introduced a nice note of competition perhaps in the light of events

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of this week where the Commission's record on openness and transparency was put under scrutiny by the European Parliament.

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