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Earl Attlee: My Lords, perhaps I may briefly intervene. The Minister referred to "the usual suspects". I plead not guilty to that. I welcome the principle of the Bill, but I am not sure that I would like to see it on the statute book. I raised the point about the single currency inevitably leading to tax harmonisation; that if the single currency did not work we would have to go to tax harmonisation to make it work. Does the Minister have anything to say on that?

Lord McIntosh of Haringey: My Lords, I acquit the noble Earl from being among the usual suspects, with great pleasure. The answer to the noble Earl's question can be given by looking at the United States. They have had a single currency for more than 200 years. They do not have tax harmonisation; it does not follow.

3.57 p.m.

Lord Waddington: My Lords, that is a completely bogus point, for a start. Eighty per cent of the revenue raised in the United States is raised by the federal government and only 20 per cent by the states, so there is tax harmonisation. By far the largest slice of all taxes is taxed by the federal government. I have to say to the Minister that he may have made some good points today but that is a particular bad one.

I shall have mercy on the Minister and all noble Lords present because time is getting on. I thank all who have taken part in the debate. I am very flattered indeed that such acknowledged experts as the noble Lords, Lord Bruce of Donington and Lord Stoddart of Swindon, should come along. I occupy a room not very far from the room which, until recently at any rate, was occupied by the noble Lord, Lord Bruce. I always marvelled at his ability to get into the room because the whole place was full of Community documents. So nobody can pretend that he is not an expert in this field. All those who have spoken today feel strongly about these matters.

I do not accept for one moment the argument that the Bill could not work because we would be having referendums every second day. The object of the Bill is to prevent a Minister going to Brussels and signing up to tax harmonisation because we do not think that it is right and we do not think that it is necessary.

I noted the comments of the noble Lord, Lord Taverne. He said that the Germans tried a withholding tax and that tax was a disaster. Indeed, he is right. My understanding is that the directive on the withholding tax was actually formulated at the behest of Germany following its mistaken decision to introduce a 10 per cent withholding tax on domestic interest payments. That led to a massive shift of funds out of German domestic bonds by foreign investors to Luxembourg. It is beyond my comprehension why we should now be spending so much time trying to protect Germany from the consequences of its own folly.

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We were told by the noble Lord, Lord Taverne, that the continual refrain of the "superstate" caused him much irritation and all this rhetoric must be entirely discounted. I ask noble Lords to look at the quotations I gave today. They do not come only from Germans. They come from throughout the Community, from statesmen from almost every country in the Community and also from presidents of the Commission.

The noble Lord, Lord McIntosh, did not reply to one of the most important questions I put to him. He will remember that I said that Jacques Santer described the British decision to sign up to the code as a decision which had the effect of nullifying the veto and was a device to side-step the EU treaties that require unanimity before tax harmonisation can legally be enforced. Does he agree that Jacques Santer said that? If he said it, was he right? If he was wrong, does the Minister agree that we would be very foolish if we did not look upon the code of conduct exercise as an exercise in tax harmonisation if that is what a former President of the Commission thought it was?

Lord McIntosh of Haringey: My Lords, I do not know that he said it; I do not have the source in front of me. If he did say it, he was wrong. When the code of conduct is finally signed it will be a political contract which specifically reserves member states' national competence on tax.

Lord Waddington: My Lords, I am grateful for that reply so far as it goes. I note that there is no denial that that is what the President of the Commission said. We should take note of that. I shall not weary the House further. I thank all noble Lords who took part in the debate. It has been a useful exercise and I hope the Bill will be given a Second Reading.

Bill read a Second time, and committed to a Committee of the Whole House.

Comitology: ECC Report

4.2 p.m.

Lord Hope of Craighead rose to move, That this House take note of the report of the European Communities Committee on Delegation of Powers to the Commission: Reforming Comitology (3rd Report, HL Paper 23).

The noble Lord said: My Lords, the Select Committee on the European Communities reported to the House on a proposal which relates to procedures. There is a view that matters of procedure are even more contentious than matters of substance, but we shall see as I develop the background to this report.

The procedures with which the report is concerned are those for the exercise of implementing powers conferred by the Council on the Commission. This is not the first time that the committee has visited this subject. In previous reports it has expressed concern about the arrangements for adequate scrutiny and the need for greater transparency. But on this occasion it took the opportunity to examine the whole subject in much greater detail.

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To the uninitiated--those who are not well versed in the workings of the institutions of the European Communities--the system of procedures known within the Community as "comitology" is almost unknown. To those to whom that word means anything at all, it remains for the most part a mystery. This is not a satisfactory state of affairs. The exercise by the Commission of its implementing powers has at least the potential to affect the everyday lives of people at all levels throughout the Community. The system is an indispensable part of the Community's law-making machinery; it is at the heart of the constitutional structure of the EU. It does not seem to be right, therefore that, due to the complexity of the system and the fact that it is subject to so little public scrutiny, the process should be so obscure and so difficult to understand.

The occasion for this study of the system, and for the report which the European Communities Committee has now placed before the House, was the proposal by the Commission for a Council decision on the implementing procedures which is printed at pages 39 to 43 of the report. In simple terms, the proposal seeks to simplify and improve the present system. It seeks to do this in five main ways: the first, by setting criteria to guide the choice of implementing procedures; the second, by reducing the number of types of committee, which at present is complicated by the availability of several variants; the third, by ensuring that proposals which have legislative character, in contrast to those designed merely to implement, go to the legislative authority; the fourth, by enhancing the monitoring of the exercise of implementing powers by the Parliament; and the fifth, which is a matter of alignment, by aligning the existing procedures--those in existing committees--with those set out in the proposals.

The first task which we in the committee set ourselves was to investigate and to try to understand the present system. One of the points which came to the committee's attention as soon as it began to work was that so little information about the system was available. It is a remarkable fact, but it is the case that there is no definitive list of the comitology committees, their functions, their activities and their membership. So a substantial part of the committee's report has been devoted to setting out this background. We have traced the history of the system through its various stages of development.

We were particularly grateful to the Government for providing us, at our request, with a list compiled from departmental records of all the comitology committees of which they are aware which fall within the scope of the proposal. This list sets out the name of each committee, its legal basis, its type--using the existing system of numbering--and a summary of the activities in 1997 of those committees which were active during that year. It so happens that a number of them were not active at all. So far as we are aware, nothing like this has previously been made available anywhere within the European Union by anyone. It seemed to us that the list with which we were provided was so valuable that we should take the opportunity of publishing it as an appendix to this report. It runs to more than 50 pages.

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As the report itself runs to only 35, it has certainly added greatly to the substance and, we hope, also to the usefulness of this document.

In the course of our inquiry we took evidence from, among others, the Principal Legal Adviser in the Legal Service of the Commission and one of its Deputy Administrators--the people largely responsible for the proposal. They provided us with some useful insight into the thinking behind it and the practical considerations in the light of which it should be used. But, in order to subject their evidence and their explanatory memorandum to critical analysis, we took evidence from senior officials in the three departments of the United Kingdom Government most intimately connected with the practical operation of the system and from two members of the European Parliament. We also had the assistance of the Minister of State at the Foreign and Commonwealth Office, who was good enough to give up time to provide us with her oral evidence. In addition, we were in the receipt of a quantity of written material from other interested parties. We are grateful to all those who contributed to our inquiry.

In the light of that information, we felt able to take a view on the proposal. As I have already indicated, our starting point was our appreciation of the fact that comitology is as contentious as it is important and as opaque as it is complex. With that in view, it seemed to us that the new comitology decision should have three main objectives, which, broadly speaking, are those which the Commission has explained in a memorandum.

First, what was proposed should enhance the role of the European Parliament. Secondly, it should simplify comitology procedures; and, thirdly, it should inject greater transparency. We had in mind that there were three main interests that needed to be safeguarded. These were the major national interests of the member states; the interests of those people within the member states most likely to be affected by the measures which were being implemented; and the general public interest, which we all share, in securing democratic legitimacy and accountability.

Our conclusions are set out in the report under three main headings which perhaps I can touch on briefly in order to set the scene for this debate. First, there is the question of a greater role for the European Parliament. Everyone was agreed that it should have a greater role. The Commission made this clear in its explanatory memorandum and it was common ground among all our witnesses. But there was quite a division of view as to how this might best be achieved, and in particular how far the greater role should extend. On the one hand there was a desire on the part of the Parliament that it should be entitled not only to scrutinise but, in its own words, "to blow the whistle"--in this context the analogy was simply that of the referee in a game of football--on implementing measures which it did not like. On the other hand there was a much more modest proposal by the Commission to improve the position of the Parliament in two ways; namely, by formalising some of the aspects of the present procedures, and by making a few changes in the default procedure under the regulatory committee procedure.

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As a committee, we have always been sympathetic, at least to some degree, to the Parliament's wish to be more involved in the comitology process. There is clearly a case to be made for this. However, we feel bound to point out that there are some limits as to what is practicable and what is desirable. A balance has to be struck. Regard has to be paid to the fact that oversight of implementing legislation is a matter for the member states as well; to the interests of speed, where this is necessary; and above all to effective law making.

What we have recommended comes down somewhere in the middle of the two extremes which I have sought to identify. We recommend that the role of the Parliament should be formally recognised; it should have a right to be consulted, not merely to have that done as a matter of practice. In particular it should have the right--subject to exceptions for urgent cases--to receive every proposal to be submitted to a comitology committee in sufficient time for it to be able to offer an informed opinion to which the Commission would be bound to have regard. We also recommend that the Parliament should be given an enhanced role in the regulatory committee procedure in those cases where co-decision legislation has been referred to the Council following a negative opinion by the relevant comitology committee. We believe that these changes, which are outlined in more detail in the report, would be a substantial improvement on the present position. But we have made it clear that we do not favour giving a power of veto to the Parliament.

Secondly, there is the issue of simplification of procedures. The Commission has made it clear in its explanatory memorandum that this is one of its prime objectives, and the draft decision has gone to quite some lengths to meet this objective. I do not wish to dwell on this matter as it is rather complex. It is perhaps enough for me to say that we were not entirely satisfied with the solutions which the Commission has proposed for simplifying the procedures, especially relating to the choice of the type of committee in the implementation process. They bore the hallmarks perhaps of a degree of overworking in an attempt to define various situations. That attempt at definition seemed to us to give rise to a number of practical difficulties which might best be avoided. What we have done in the report is to make some suggestions as to how the proposal might be improved. Our main suggestion concerns the use of guidelines for the choice of committee type, rather than the laying down in advance of precise criteria.

Thirdly and lastly, there is the issue of greater transparency. There was no difference in view among the witnesses about the need for this and I have already drawn attention to the list of comitology committees provided to us by the Government. As we mention in the report, the Government have quite rightly told us that they cannot guarantee that the list is absolutely complete and accurate, but it certainly is a valuable step in the right direction. We should like to see that initiative built upon.

We have recommended that steps should now be taken--making use of modern electronic technology, where appropriate--to make available to the public a

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complete and authoritative list of the committees, and above all of their functions and activities. We have mentioned that steps should be taken to improve the procedures for scrutiny by your Lordships' select committee in various respects which we have set out at the end of our report.

It would not be right for me to end without paying tribute to the assistance which all Members of the Committee have received from its legal adviser, Dr. Kerse. His contribution to the work of Sub-Committee E, not only in this investigation but throughout its work, deserves special thanks. In this case his initiative and expertise was invaluable to us as we explored a very difficult and highly complicated subject, both in the investigation stage and at the stage of the preparation of the report.

In commending the report to the House I should like to underline the role which we see in this matter for the national Parliament, which is part of the reason why we seek an improved scrutiny role for the select committee and, through that committee, your Lordships' House. It is for that reason that it seemed to all of us important that there should be an opportunity for the report to be debated. I commend the motion to the House.

Moved, That this House take note of the Report of the European Communities Committee on Delegation of Powers to the Commission: Reforming Comitology (3rd Report, HL Paper 23).--(Lord Hope of Craighead.)

4.17 p.m.

Lord Borrie: My Lords, as a member of Sub-Committee E of the European Communities Select Committee I am happy to support the recommendations of the report, which have been outlined by the noble and learned Lord, Lord Hope of Craighead. As our chairman he has been courteous, thorough and fair--not only with the witnesses but, if I may say so, with the members of the committee as well. We are extremely fortunate to have him as our chairman. I think it is important that we have a continuing convention that this particular sub-committee, which deals with law and institutions, should have a current Law Lord as its chairman. There are some in the House who wish to pursue to extremes the doctrine of the separation of powers so that Law Lords holding current judicial office should not have any involvement in the work of the House except for its judicial work. It would be a great loss if Law Lords could no longer be chairmen of sub-committees such as this and presumably not eligible to be a member either.

As my noble and learned friend has said, this report, like others before it, owes much to its legal adviser, Dr. Christopher Kerse, who on this occasion, perhaps sensing that to some of us comitology was not the most gripping and exciting of our projects, sought to humour us with an excursus on the spelling, derivation and meaning of the somewhat unappetising word.

The system of committees we examined is the system of committees created by the Council of Ministers to assist the Commission in the exercise of its implementing powers. The committee consists of national civil servants from the member states, chaired by an official of the

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Commission. Your Lordships will gather from my remarks about allowing Law Lords to take part in the legislative work of this House that I believe in adopting a pragmatic and flexible approach to the doctrine of the separation of powers. Hence I see no objection in principle, nor does our report, to delegation by the Council of Ministers to the Commission of the implementation of legislative powers.

In the 1920s, the Lord Chief Justice of England, Lord Hewert, inveighed against the delegation of the United Kingdom Parliament's legislative powers to civil servants in a book entitled polemically, The New Despotism. But in the modern world this parliament, other national parliaments and the European Parliament all need to concentrate their attention on important matters of policy and principle and to allow at least some of the details to be filled in by others. The vital conditions are surely that such delegated legislation is transparent, de-limited, overseen and accounted for. In the United Kingdom we have over more than half a century developed a controlling web of publicity, of scrutiny and of parliamentary and judicial supervision.

What our sub-committee found in the web of committees in the European Union was the opposite of transparency. We found a system that was opaque, with not even a definitive list available of the committees that do the work of reviewing the implementation of legislative powers. If we have done nothing else, we have put a search light on those committees and published details about them in an appendix that takes up a major part of the report.

Secrecy and complexity breed suspicion, especially as the powers of the European Parliament are not as strong as many of us think they should or might be. The Parliament and others are naturally suspicious that the distinction between legislation and implementation is not always maintained in the European Union. So, in addition to seeking more transparency, our report seeks two other principal objectives: simplification of the committee system so that it can be better understood and an increase in the involvement of the European Parliament, elected by people throughout the European Union.

I want to refer to just one of the report's proposals that goes towards that objective of greater involvement on the part of the European Parliament. Paragraph 18 contains the proposal that the European Parliament should have the right to receive every proposal submitted to a comitology committee, so that it can offer an opinion to which the Commission would be bound to have regard. That is what the committee has proposed. We were not happy with Article 7 of the proposed Council decision because, while requiring Parliament to be informed of proposals, it does not explicitly give Parliament the right to offer an opinion to which the Commission must have regard.

Yet such a provision has been part of the so-called modus vivendi of 1994 which was agreed between the Council, the Commission and the Parliament. When I had the opportunity to ask a question on this matter on 14th October 1998, Madame Durend, Principal Legal Adviser to the Commission, said that the legal text of

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the decision did not preclude "other inter-institutional agreements". That can be found on page 9 of the minutes of evidence. We would much rather have such things in the official legal text of the decision than have them left to some further agreement between the different institutions. I commend the report to the House.

4.24 p.m.

Lord Shaw of Northstead: My Lords,

    "Delegation of detailed rule-making and individual decision-taking is a common feature of the relationship between the legislature and the executive in Western democracies. That delegation is usually subject to some form of supervision or control and of accountability". Such are the opening words of the report we are today considering. In the light of current experiences and the future hopes for the expansion of the European Union, this Third Report of the Select Committee is greatly to be welcomed. I, too, should like to thank the noble and learned Lord, Lord Hope of Craighead, and his committee for bringing the report before us today.

Before I discuss some of the details of the report, I should like to look at the wider perspective in which it must be set, as indeed previous speakers have done as well. In an earlier debate on 22nd March, I stressed that the opportunity should now be taken to look in depth at the manning and scope of the Commission's activities. In broad terms, I would wish to see the Council of Ministers playing more of a cabinet role; the Commission more of a purely executive role; and the European Parliament, among its other duties, a greater scrutinising role. It is against that background that I have studied this report.

The report says that the treaties do not provide that all law making is vested in the Council and that in practice the Commission is frequently given implementing powers. It goes on to say that the exercise of those powers is overseen by committees, which are composed of national representatives--usually civil servants--who are able to exert influence on behalf of the Council of Ministers. The first point I want to make is one that I have often made before. If in any organisation the board of directors does not give a clear lead, the managers will tend to take over--and I do not blame them. Clear leadership has too often been lacking from the Council and the Commission has become too powerful.

Secondly, the views of national parliaments and of the European Parliament itself have not been properly taken into account. Various reasons for that have been given and they are spelt out in the report--time has been too short; confidentiality has been regarded as essential; the workings of national parliaments and of the European Parliament itself have been too slow and cumbersome. However, the fact is that, whatever the reasons, the present situation is unacceptable and changes must be made.

Our own procedures for dealing with UK secondary legislation are at present under scrutiny. Greater flexibility in parliamentary procedures and greater chances for the views of interested parties to be heard are both required. Yet such greater national scrutiny is

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equally needed for European secondary legislation. After all, the results of such legislation have usually to be administered by the national governments and we are similarly subject to its consequences. It is only right, therefore, that it should be subjected to the same type of scrutiny as that given to national secondary legislation.

My third point is a simple one. There are now too many Commissioners. They all have to be staffed and they all have to appear to have important work to do. Clearly the whole matter of the numbers of the Commissioners and the methods of their selection, their staff and duties will have to be reviewed before further enlargement takes place. In my view, such a review should take place now.

So what decisions should the Council of Ministers now be taking in these matters? First, it is important that it gives a firm lead so that its proposals are adopted and will allow future procedures to be exercised with efficiency and fairness in the years ahead. The size of the Commission should be reduced. The amount of legislation delegated to it should also be substantially reduced.

We are told that there are about 250 committees all beavering away at secondary legislation of one sort or another. I congratulate the committee on getting those figures out of the authorities. While UK attendance at these meetings is, I am sure, doing much to help ensure the success of Eurotunnel, the Council must, nonetheless, insist on a reduction in the numbers of these committees and the return of a substantial part of their work back to where it properly belongs; namely, with the national governments.

Too often, complaints regarding secondary legislation are answered with the reply that nothing can be done, since the regulation was made in Brussels and the Government are bound by it. Yet is it often the case that the responsibility should properly lie with the national governments, who ought themselves to have drawn up the legislation within their own procedures, including adequate public consultation. It is a fact well realised in all bureaucracies that the more you can dissipate decision-making, the more difficult it becomes to control it--and the more difficult it becomes to put the blame on anyone when anything goes wrong. Responsibility is too easily ducked.

Of course there will rightly be much that must still be left in the hands of these European committees. But their work will then, it is to be hoped, be less overwhelming and consequently better scrutinised. It has been said, indeed it was stated in the report, that the European Parliament has been snowed under with paper. Parliament has expressed a determination to handle the committee reports more carefully and speedily. A reduction in the number of reports coming through to it for scrutiny would clearly help it to achieve those objectives.

Finally, since the detection of fraud, corruption and mismanagement cannot be disregarded in whatever aspect of European activity is under scrutiny, I feel that I must voice my strong reservations about the Government's recent Statement on the appointment of the new European Anti-Fraud Office.

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Once again, the Council has shown a clear lack of leadership. At Maastricht, the Court of Auditors was given full independent status. As a result of its subsequent reports, the Commission was eventually forced to resign. Without those reports, that subsequent resignation would never have happened.

I have noticed that, ever since the investigations of the Court of Auditors began to embarrass the Commission, the gossip began to grow that the court was not perhaps the most distinguished of bodies, and that perhaps no one should pay too much attention to it. It is quite obvious that the last thing that the Commission would want would be for a truly independent anti-fraud office to be centred outside the Commission.

I fear that this lame duck Commission will now be laughing all the way to its overdue retirement, having ensured that the new body is to be placed within the Commission itself. The Council should have insisted that the full independence of this new office was secured by its attachment to the Court of Auditors.

4.33 p.m.

Lord Taverne: My Lords, I agree strongly with the remarks of the noble Lord, Lord Shaw, about the need to reorganise the Commission. It gives me a certain sense of nostalgia. In 1979, I was a member of the Spierenburg Committee, a five-man committee which looked at the workings of the Commission and decided that it should be radically overhauled and that the directorates should be reorganised. But of course that proposal sank almost without trace, except that the same ideas are now being revived.

I do not have a lot to say on the subject, and I shall not take a long time to say it. Delegated legislation always presents a problem; the implementation of laws always does. In the UK we have the Select Committee on Delegated Powers and Deregulation and the Joint Committee on Statutory Instruments. The public know nothing about the work of those committees. I believe that they do their work quite well, but it is at least being looked at again.

In the European Union the organisation is far more obscure. I am very grateful to the noble Lord not only for the manner in which he introduced the debate but for the report itself. It means that once again I am subject to a moment of clarity and understanding of the term "comitology" and the comitology committees. Five years ago I did a study on the future of capital markets in Europe and I thought that I understood "comitology", but as soon as the report was completed I forgot all about it. I suspect that by next Monday I shall have again forgotten how the comitology committees work.

The matter is nevertheless important, as shown by the list of 250 separate committees in the appendix. I note that one of the witnesses thought that there were 399 committees, so perhaps the list should be even longer than it is. There is one difference between delegated legislation in the European Union and in the UK. Quite a lot of draft directives are in rather general terms because they are the result of political compromise. Therefore, more is left to the

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implementation committees that must cross the t's and dot the i's. The need for simplification, clarity and transparency is self-evident. Given co-decision, the involvement of the European Parliament is also important. However, I am not sure how effective the recommendations will be. It appears that the European Parliament has not made full use, or even good use, of the rights given to it under the 1987 agreement.

The report is a very good one, and I hope that it will have influence. The reports on Europe by Select Committees of this House have a good deal of influence in Europe. On the occasions that I go to Brussels I am amazed by how much importance is attached to the reports. They enjoy a far higher reputation in Brussels than in this country, where nobody is aware of them. I hope that this report will be treated with respect and implemented.

I raise only one question on the report. I do not know whether it is a matter for the Government or the committee. I am not sure that the recommendations on simplification are very strong. I believe that recommendations 20 and 21 pull their punches compared with the proposals being put forward by the Commission itself. As the recommendations emerge they appear to result in less simplification than the Commission seeks. There may be good reasons for that; indeed, some are given in the report. Does the Minister agree with that? Generally speaking, will the Government give their full support to implementation of the recommendations of the committee?

4.39 p.m.

Lord Bruce of Donington: My Lords, I too should like to thank the noble and learned Lord, Lord Hope of Craighead, for the committee's report. I found it most interesting, so much so that I had to read it through at least three times and document it in some detail. Owing to the fact that there is racing at Ascot and it is late on Friday afternoon, I do not propose to make a very long speech on the subject, much as I would love to.

Going through the report, I am struck by how much it endorses the findings of a previous Select Committee report on genetic modification in agriculture which also carries a section on comitology. Your Lordships will be aware that "comitology" is not a word that is acknowledged in the English language. I understand that Oxford University Press does not envisage in the foreseeable future incorporating it in any new dictionary. According to the European jargon, the phrase is reckoned to be "the science of committees"; and that indeed it is. The difficulty about these committees--it is brought out clearly in the report and incorporated in the recommendations--is, first, that no one knows how many there are. The evidence given by the Commission was approximately 250 but it did not know. The version produced by the diligent work of the sub-committee was 258. A further estimate was made--it is incorporated at the end of the report--which says that there are some 390 different comitology committees.

The characteristic of these committees is that they are appointed. How they are appointed we do not know. The committee itself did not know despite its examinations

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of Ministers who appeared before it. The Commission is always in the chair, which one would expect when one deals with European legislation. No one knew the identities of the people concerned--at least except in a few instances, enlivened by occasional interspersions by the Sunday Times. No one knew how their finances were provided--under which budget head the expenditure incurred by these committees came. Some of the members were naturally expert civil servants and some were brought in from outside. Those who were brought in from outside were not identified in any way; and their interests, if any, were not disclosed. And it is not known to whom the committees are finally accountable. So the position about these committees is not exactly satisfactory. One can see scope for a certain amount of abuse.

One thing is quite certain. Unless he is exceptionally industrious and does nothing else but peruse those committees' reports, no Minister of the Crown sees the results of these effusions. Ministers may think that they have final responsibility for Community legislation which becomes enforceable in this country. They may think that: but they do not. Large numbers of regulations passed by these comitology committees go directly into enforcement without any intervention from any Minister and without scrutiny by the parliamentary scrutiny committees.

One needs no profound political convictions to know that that is a very unsatisfactory state of affairs and involves enormous difficulties. One solution suggested by the noble and learned Lord's committee is that there should be greater supervision by the European Parliament. It makes that almost a principal solution. I venture to differ. If any noble Lord wishes to read the proceedings of the European Parliament--they become available in the English translation in this country some eight or nine months later than the date to which they relate--I do not think he will be frightfully impressed, whatever his or her political persuasion or inclinations with regard to the European Union, by the nature of the contributions that are made on the Floor of that Chamber. It is sometimes difficult to discern what contributions the individual committees of the European Parliament make. I have in front of me a report which was published more than a year ago containing a constructive contribution from Mr Kenneth Bowman of the European PPE. He makes some excellent observations on the subject, but apart from that little else appears.

Sometimes we think that everything goes as smoothly as it ought to go in theory; for example, that there is proper scrutiny before anything becomes enforceable in legislation in this country. That is not true and it can easily be checked. Every week there is published a document entitled Progress of Scrutiny and it is available in the Vote Offices of this and the other place. It lists the various documents, including regulations and so forth, received from the EU. It indicates their disposition, stating which have gone to a committee or sub-committee of the EU Scrutiny Committee and which are not considered necessary for further attention. They are listed and there should be no difficulty in finding them.

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Another document, a report, is issued only in the other place. It lists the outstanding queries on explanatory memorandums. From what some Ministers say, one would think that all the scrutiny committee had to do was to send a query to the government department originating the explanatory memorandum in order to receive a reply within a reasonable time. That is not so. Only a few weeks ago I received a report from the Commons' scrutiny committee, which reported that in 84 cases it was awaiting replies from Ministers, with queries going back to 1996 and 1995. Those are listed every week and can be seen. There must be a breakdown in the system somewhere.

Time does not permit me to go further. I have spoken to your Lordships too many times today, but I felt compelled to do so in the circumstances. The situation cannot be satisfactory. There must be a root and branch overhaul not only of the machinery at the Commission end but also at our end. We must ensure that what we assume happens does in fact happen, rather than being overlooked due to pressure of work or possibly lack of inclination.

Quite clearly, the situation cannot continue. The veil of confidentiality in regard to the activities of these committees must be lifted. Their origins and purposes must be revealed, as must their grade: advisory, regulatory or management. There are also sub-categories. We must know exactly why they exist and exactly what they do. We must know the result of their deliberations and, above all, the circumstances in which legislation is passed for enforcement without Council control or, I should guess, direct ministerial control.

These observations are not made out of sheer cussedness on my part. I have had to study these matters for many years. Something has to be done about them. In particular I would like to pay tribute to the speech of the noble Lord, Lord Shaw of Northstead. I had the honour of working with him for four years in the European Parliament. I agree entirely with everything he said. When we were in the parliament together we rarely disagreed anyway.

4.50 p.m.

Baroness Elles: My Lords, I regret that I shall be unable to follow entirely down the road taken by the noble Lord, Lord Bruce of Donington. I shall confine my remarks to the report which is before the House this afternoon. I agree very much with what he said and his criticisms both of the Commission and of the national parliaments and their conduct. The House should be grateful to the noble and learned Lord, Lord Hope of Craighead, for introducing today's debate on delegating and implementing provisions to the European Commission. Thanks are also due to our legal adviser who always serves us so well. They are also due to his assistant legal adviser. Both have played a major role in the preparation of the documentation before your Lordships today.

As regards the inquiry into the draft version of the Council's decision adopted in July 1987, it may be helpful to make brief recall to the Commission's

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position before that year. It was only after the direct elections to the European Parliament in 1979 that members recognised the existence of a plethora of committees chaired by Commission officials with civil servants from national governments. They were taking decisions on implementing legislation. Many of the committees had originated during the 1960s. Very little was known about them at all and certainly not by the European Parliament.

Debates raised in the European Parliament contributed to the adoption of the 1987 decision which recognised the right of information to the Parliament provided by the so-called comitology committees. Twelve years later--last year--a draft Council decision was considered to replace the 1987 version. It is designed to meet the objectives of the European Parliament and to legalise the three inter-institutional agreements which have been adopted in order to mitigate at least some of Parliament's objections.

Evidence before the committee showed that the European Parliament is still not satisfied with the draft decision and rightly so. Although Parliament does not seek further powers it demands full recognition of its supervisory role in relation to the comitology committees. The number of those committees has not been provided by the Commission and many noble Lords have commented on that fact. Her Majesty's Government have provided a list which is known to Whitehall departments. As I understand it--and it is mentioned in the report--there are about 250.

It is known that there are probably many more committees which are not set out in the list. There are probably at least 350. The Commission should be obliged to publish a complete list, whether the committees meet frequently or not. Some will meet regularly; for instance, the management committees dealing with agricultural matters will meet weekly concerning the prices of agricultural products and so forth. Other comitology committees probably have not met for a whole year. They may meet twice only over a long period. There is a vast difference between the committees, although for the time being they come under the heading of comitology which we are considering today.

The approach of the Commission has been to simplify the terms of the 1987 decision. At least it is said that it is simplifying them, and that is a laudable objective. But in so doing, it deletes reference to obligations imposed upon it. That could give rise to discussion--I use a mild word--between the institutions as to the role of the Commission. Therefore, it would be preferable to state clearly the tasks of the Commission, even though that may mean a slightly longer text. I maintain strongly that brevity does not necessarily mean clarity.

Reflecting a long-term objective of giving more general powers to the Commission, for some years the European Parliament has proposed the elimination of the regulatory committee, retaining only the management and advisory committees. The sub-committee does not accept that proposal, and rightly so. It is essential to retain the regulatory committee. Provided that the European Parliament is kept informed of its activities, the retention of that committee is to be supported.

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Other issues raised concerning the drafting of the decision, including in particular Articles 2 and 7, give cause for concern. It is hoped that the sub-committee will be kept informed of progress before a final decision is adopted and that its views will be taken into account.

We have already looked at the issue twice and this is the third occasion. The report gives a view on the most recent proposal. However, in view of the drafting with which we have been presented by the Commission, there may well be a fourth report. I hope that once again we shall have the pleasure of the noble and learned Lord, Lord Hope of Craighead, chairing the committee in relation to that.

4.57 p.m.

Earl Attlee: My Lords, I too congratulate the noble and learned Lord, Lord Hope of Craighead, on his chairmanship of the committee which produced that very important and comprehensive report. I thank him also for introducing today's debate on reforming comitology.

On these Benches, we warmly welcome the committee's report and many of the recommendations which it contains in response to the Commission's proposal on reforming comitology. The report sheds much light on what may be described as one of the more secretive and mysterious procedures employed by the European Community in its law-making. Certainly, it is relatively new to me. The report provides a useful first step in demystifying the subject of the work and functions of comitology committees as well as raising important questions about the reform of the comitology process which I hope the Minister will be able to answer today.

I support the comments of the noble Lord, Lord Borrie, regarding the role of the current Law Lords. Of course it is necessary to have regard to the separation of powers, but who better to determine where the separation should lie than a Law Lord?

In his interesting comment on statutory instruments and the relevant committees, the noble Lord, Lord Taverne, suggested that the general public are ignorant of how statutory instruments come into being. He is probably right about that. On the other hand, trade associations and consumer groups are well aware of how statutory instruments are devised. In fact, they have a major part to play. On the other hand, the noble Lord, Lord Bruce of Donington, referred to some of the difficulties in scrutinising secondary legislation. But there is the advantage that it is easy to challenge a Minister, especially in your Lordships' House, with regard to secondary legislation, and particularly if there is lack of consultation. For example, my trade association is involved closely with the DETR in the development of new secondary legislation.

As the report makes clear, there is little to be gained from the veil of secrecy surrounding the system of delegated decision-making. Moreover, if the low turnout in last week's European parliamentary elections has demonstrated one thing beyond the apparent dislike for

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the closed list system, it is surely that there is a high level of public apathy and general lack of interest in what goes on in Europe. That cannot be desirable.

That is doubly a matter for concern when one takes into account the fact that some of the decisions made under that system of delegated decision-making have a direct effect on European Union citizens; for example, in terms of the safety of foodstuffs. That is particularly pertinent today in the light of the current food scares in Belgium and the continuing debate on the safety of GM foods. My noble friend Lady Miller of Hendon introduced a Bill today to address that very issue.

I turn to the conclusions reached in the report. The report makes clear that no one disputes the fact that the European Community must have a system of delegated decision-making powers without which the wheels of the Community law-making would rapidly grind to a halt. However, that system must have the correct checks and balances built in in order to ensure that democratic accountability, transparency and legitimacy are maintained. Nor is there any dispute over the need for reform of the current system of comitology. That is a question that the committee has sought to answer: what should be contained within a new decision on comitology so that it meets its objectives while respecting the institutional balance as set out in the treaties and contributing to better and more efficient law-making at Community level?

Does the Minister agree with the view of the committee that the Commission's proposal for the new comitology decision falls short of meeting the three main objectives essential to such a decision as identified by the committee; namely, to enhance the involvement of the European Parliament, to simplify the comitology procedures and to inject greater transparency?

I should like to comment briefly on the three objectives of the new decision. I refer first to the role of the European Parliament. The House will be aware that at present the European Parliament receives prior notice of and information concerning proposed measures, and has the opportunity to express its views, but it has no rights under the present comitology arrangements and cannot block implementing measures.

Controversy over the role that the European Parliament should play in the exercise of the Commission's implementing powers has provided much of the impetus for the current discussions over reform of the comitology process.

The committee's report concluded that the Commission's proposal concerning the role of the European Parliament fails to meet the Parliament's demands for equality, is short on detail and imposes few obligations on the commission or the council. Does the Minister share the view of the committee?

We on these Benches firmly believe that member states who are responsible for applying legislation must retain primary supervision over its implementation. Will the Minister give an assurance that the Government will not support any proposals that would undermine the role of member states and national parliaments in the oversight of the implementation of such legislation?

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Secondly, I refer to the simplification of procedures. Although the types of procedure to be used in comitology committees were limited following the Single European Act and the Council decision of 1987, the position as regards the numbers and types of committees remains somewhat complicated. It is clear that a system by which there are no objective criteria to determine which committee procedure should be used must be rejected as a priority. However, there is a danger that an overly prescriptive and inflexible approach to simplification may have the counter-productive effect of undermining implementation instead of improving it. It appears that in its proposal the Commission may have fallen into that particular trap.

Does the Minister agree with the committee's conclusion that the criteria suggested in the Commission's proposals are unclear and may be difficult to apply, in particular the proposal to remove the variants? Does the Minister agree with the committee in opposing the European Parliament's proposal to abolish the regulatory committee procedure and to simplify the comitology procedure? What steps have the Government taken to express that view? What action do the Government intend to take in line with the committee's recommendation to seek political agreement on a set of guidelines to assist in the choice of type of committee guidelines?

The third issue is that of transparency. One of the strongest criticisms of the system of comitology is its lack of transparency. Many noble Lords have referred to that; for example, it is remarkable that there is no list of the 250 or so comitology committees that is publicly available, nor an authoritative account of the functions and memberships of each. There is no doubt that such a lack of openness conflicts entirely with the principles of democratic accountability and legitimacy.

On the subject of transparency, the committee's report criticises the lack of systematic parliamentary scrutiny at either a national or Community level and the confusion over rights of access to comitology documents. Can the Minister give an assurance that the Government will take action to seek the implementation of the committee's recommendations to enhance transparency?

The committee also concluded that it should see all comitology documents which are likely to require Council decision or are of such political or practical significance that they might cause Ministers to be concerned if they were to learn of them first in the newspapers. Does the Minister agree that that is a sensible way forward?

In conclusion, the task of reforming comitology is far from the dry, abstract, esoteric and remote process that it would first appear to the layman. The decisions made as a result of implementing powers vested in comitology committees can, and do, have far-reaching implications which affect every citizen of the EU. It is critical therefore that this process is transparent, accessible and scrutinised appropriately by member states. The Minister's words will be listened to very carefully and I look forward to her response.

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5.6 p.m.

The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, I too thank the noble and learned Lord, Lord Hope of Craighead, and his committee for their work in producing the report, and the noble and learned Lord for introducing this debate today. The committee's work produced an excellent report and as the Government made clear in our written response, it is one with which we overwhelmingly agree.

I offer my thanks too to the other members of the noble and learned Lord's committee--my noble friend Lord Borrie and the noble Baroness, Lady Elles--for their hard work in drawing together the committee report. Perhaps I may also congratulate the noble Earl, Lord Attlee, on his sterling performance at the Dispatch Box over three debates this afternoon, and my noble friend Lord Bruce of Donington whose expertise and commitment to all issues European draw the admiration of the whole House.

I shall respond to the detailed points in a moment, but I should first like to contextualise some of those points. As a number of noble Lords remarked, comitology is indeed a complex and technical subject. It is one of those obscure terms known only to a few people closely involved in the system. I believe that even Commissioner Kinnock, when in another place, once said that comitology sounded as though it should be a disease of the lower intestine. And when I was asked about comitology it was suggested to me that it was more closely allied with the Question we had earlier this week from the noble Lord, Lord Tanlaw, on asteroids and the Spaceguard Programme.

As to what comitology actually is, I can think of no better definition than that given in paragraph 2 of the committee's report; that is,

    "'Comitology' is established Community shorthand for the system of procedures involving committees, made up of representatives from Member States and chaired by the Commission, whereby the Member States can exercise some control over implementing powers delegated to the Commission by the Council". For the most part that means issues which do not make the headlines, such as the detailed implementation and the day-to-day market management issues. Yet as the noble and learned Lord, Lord Hope, said, comitology is very important. The committee made that very clear in its report. As in most national systems, secondary legislation in the European Union makes up the vast majority of legislative Acts passed, as the noble Lord, Lord Shaw of Northstead, reminded us.

The Council and the European Parliament cannot take all the decisions themselves; there would simply not be time for them to do so. It is quite right, therefore, that implementation of basic Acts is delegated to the Commission. I agree with my noble friend Lord Borrie in that regard. But it is also right that the Commission should be monitored in how it carries out that role. That is why committees of member states oversee what the Commission does.

The recent dioxin case shows how important it is to have such procedures in place. If there is a crisis in one member state, the freedom of the single market makes

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it vital that the Community as a whole should be able to respond quickly. Comitology provides a mechanism for the Commission to summon experts from all the member states to assess the available evidence and approve, or otherwise, the Commission's proposals.

Once a decision has been made, it can be implemented right away. Hence the Commission's ban on the export of Belgian eggs, which was taken within one or two days of the issue being brought to public attention. I am sure that all noble Lords will think that that is the right sort of time-phase, if I may put it that way, in which such decisions should be taken. However, as a number of noble Lords have said, notably my noble friend Lord Bruce of Donington, the comitology system is not perfect; it is far too complex and it could be simplified. Moreover, the fact that virtually no one in the general public is aware of it simply demonstrates that it is far too opaque. Of course it is not the only aspect of the Community's work which could be made more open, as my noble friend Lord Bruce of Donington said when he talked about the secretive nature--as I believe he put it--of much that went on in Brussels, particularly in the Commission.

However, as I am sure this House is aware, the Government agree that the functioning of the Community's institutions can be improved. We would like to make their work more efficient, more effective and more open to the outside world. That can be seen in our reaction to the Commission's resignation in March. The Prime Minister was quick then to call for reform of the Commission. The United Kingdom put forward specific proposals for improving not only the Commission's financial control but also its internal management system.

I assure the noble Lord, Lord Shaw of Northstead, that that approach is now bearing fruit. The nomination of Mr Prodi as Commission President was a step in the right direction in the Government's view. Mr Prodi has now clearly displayed his reform credentials with the ideas that he presented to the Cologne European Council. Like us, he would like to see far-reaching changes and we will support him in those efforts.

The forthcoming IGC on institutional reform which was agreed at the Cologne European Council will be another opportunity for change. That will help the Union prepare for the challenges of enlargement by looking at the size of the Commission College and the decision-making processes within the Council. We welcome the well-defined agenda which was agreed at Cologne. This should help to ensure that member states can take the necessary decisions to prepare for the enlargement. Revision of the comitology decision has been another opportunity to push for a more effective and more open decision-making structure. It is with this in mind that member states at Amsterdam asked the Commission to come forward with a new draft decision; it is also this which guided our approach to the negotiations.

Perhaps I may now turn to the detail of the committee's report. As I have already said, the Government believe that this is an excellent report and one with which we very much agree. As the noble and

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learned Lord, Lord Hope, will be aware, negotiations in the Council have been proceeding rapidly since the committee issued its report. I can now inform the House that these negotiations appear to be approaching their conclusion. On Monday, the General Affairs Council will be asked to give its approval to a text that has already been discussed at working group and at Coreper level.

The members of the noble and learned Lord's committee will, I hope, be pleased to know that very many of their recommendations have been taken on board. Of course, I cannot guarantee that the text going to the GAC will not be changed before it is adopted. I should be grateful if the House could bear that in mind as regards what I am saying here today. However, I will do my best to highlight the relevant points as I go through the conclusions of the committee's report.

If noble Lords will permit me, I should like to start with the general objectives of the decision. I believe that the committee rightly identified three of these as follows: first, greater recognition has to be given to the position of the European Parliament; secondly, there should be further simplification of the procedures, but only in so far as this is practically and politically feasible. Thirdly, the whole comitology system needs to be made far more transparent. The noble Earl, Lord Attlee, asked me to comment on all three points and I intend to do so.

First, I turn to the role of the European Parliament. In its opinion the committee notes that the European Parliament has asked for the right to "blow the whistle" on implementing measures with which it does not agree. In other words, it would like to be able to veto some measures. As the noble and learned Lord, Lord Hope, said, the committee concludes that this would be neither practicable nor necessary, and Her Majesty's Government agree.

The Commission's proposal gave the European Parliament an effective veto over measures which were not approved by the regulatory committee. Instead of a proposal related to the proposed measures then being passed to the Council, as at present, the Commission would have had the option only of coming forward with a full legislative proposal. The noble Earl, Lord Attlee, asked me what the Government thought of that. The Government believe that this could have seriously delayed comitology decisions being taken, and that would have been unacceptable. The regulatory procedure in particular has to deal with subjects which need to be resolved quickly, such as matters of public health, or indeed animal safety.

Instead of a veto over implementing measures, the committee recommended that the European Parliament be able to scrutinise implementing measures and have an opportunity to give its opinion. My noble friend Lord Borrie concentrated particularly on this proposal in his address to us. The Government again agree, and so do other member states. It is important to recognise the increased legislative role which the European Parliament is now playing. Co-decision makes the EP co-legislator with the Council. Now that the Amsterdam Treaty has come into force, co-decision has been

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extended to a significant number of new areas. This should of course be reflected as far as possible in the comitology system. After all, comitology is there to implement legislative acts.

But at the same time the Council has to keep within the limits of the treaty. Article 202--that is, the old Article 145--of the treaty establishing the European Community gives the European Parliament no formal role in the comitology system. As a result, the current draft of the decision tries to involve the European Parliament but not put it in the driving seat. It contains a new article which specifically gives the European Parliament the right to receive and scrutinise all draft measures implementing co-decided acts. The Commission will be able to take account of any opinion the European Parliament may give before it comes to a final decision.

However, the new article does not amount to a veto, nor can it legally do so under the treaty. In addition, the European Parliament will be able to comment on all draft measures implementing co-decided acts which are submitted to the Council under the regulatory procedure. Again this is something which the committee of the noble and learned Lord wanted to see.

The committee also addressed the question of information passed to the European Parliament. It recommended that decisions should go further on this than the Commission's proposal. This should be possible. Under the draft decision the European Parliament would now receive not only all measures implementing co-decided acts, but also summary records of meetings and lists of those present, or at least the organisations to which they belong.

The United Kingdom would have liked to have gone slightly further than this. Like the committee, we saw little reason why the European Parliament should not receive all draft implementing measures as long as those implementing non-co-decided acts were simply for information purposes. However, sadly, there was no consensus for this in the Council and in the end it was necessary to reach a compromise.

I turn now to the question of simplification. The committee first addressed the question of criteria to determine the choice of comitology committee. The noble Lord, Lord Taverne--who is not present now--asked me to address this issue in particular. As noble Lords will be aware, the Commission's proposal contains an article setting out the circumstances in which the legislative authority should select a particular type of comitology committee. This was designed to prevent disputes between the Council and the European Parliament when the type of committee was being chosen. The noble and learned Lord's committee felt that it would be difficult to define all the circumstances in which a particular committee type might be chosen. As a result, binding criteria of the type preferred by the Commission might give rise to more time-consuming debate between the Council and the European Parliament. The majority of member states within the Council agreed with this approach. There was a consensus that criteria could be helpful to guide an institution, but they would have to be non-binding.

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The other key question in relation to simplification is the removal of the variants. There are currently seven possible procedural types in the comitology system. That is too many. It makes the secondary legislative process even harder to understand for those on the outside. The Commission's proposal therefore reduced the number to four. That is how it has remained, although the two safeguard procedures have now been combined into one variant. As the Committee's report pointed out, the one variant chosen by the Commission would have shifted the balance too far in the direction of protectionism.

Finally, the Committee addressed the question of transparency. Here noble Lords will, I hope, be pleased to know that we have good news and good stories to tell. I began my remarks by saying that the Government were consistently looking to increase transparency in the Community's institutions. That is exactly what we have sought to do during these negotiations. As the noble and learned Lord, Lord Hope, reminded us, there is currently not even a publicly available list of all the comitology committees and their activities. As noble Lords will know, the public perception of comitology is, therefore, probably rather less than nil. I think most members of the public do not know that such committees exist, nor indeed what comitology is. I hope that the list of committees published by the noble and learned Lord, if not absolutely guaranteed as a full list of committees or to be 100 per cent accurate, will be of considerable help. I thank the noble and learned Lord for ensuring that it has got into the public domain.

The new decision should now go some way to remedying this. As it currently stands, it makes a number of significant advances. First, within six months of the entry into force of the decision, the Commission will be required to publish in the official journal a list of all comitology committees, along with the basic instruments under which they have been established. Secondly, from 2000 onwards the Commission will have to publish an annual report on the workings of the comitology system. Thirdly, all documents sent to the European Parliament will be listed in a public register to be set up in 2001. Fourthly, there will be public access to all comitology documents on the same basis as Commission documents.

I hope that this is exactly the kind of success which the committee hoped for when it wrote its report. I trust that if the decision is finally adopted in this form, it will at least go some way towards improving the public's perception, such as it is, of the comitology system.

The noble Lord, Lord Shaw of Northstead, mentioned the issue of fraud. We can only welcome the decision of 25th May of ECOFIN and the European Parliament to set up the new independent European anti-fraud office within the Commission. That is something for which we have pushed for a very long time. I should say to the noble Lord that the Government believe the fact that the office will be able to work within the Commission, with access to papers and people, is very much a strength, not a weakness. The important issue is that it will be able to manage its own investigations independently. I stress that to the noble Lord because I rather gained the impression from the remarks that he made that he

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has a great deal of doubt about its independence. We would be very unhappy if there was not independence. I assure the noble Lord that we will be keeping our eye on that matter. The office will be looking at all institutions, not only the Commission.

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