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House of Lords

Friday, 9th May 2003.

The House met at eleven of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.

Prayers—Read by the Lord Bishop of Chelmsford.

Equality Bill [HL]

Read a third time; an amendment (privilege) made.

Lord Lester of Herne Hill: My Lords, I beg to move that this Bill do now pass. I want to express my gratitude for the widespread support there has been for the Bill. I look forward to seeing what happens in another place.

Moved, That the Bill do now pass.—(Lord Lester of Herne Hill.)

On Question, Bill passed, and sent to the Commons.

Scrutiny of European Legislation (EUC Report)

11.7 a.m.

Lord Grenfell rose to move, That this House takes note of the Report of the European Union Committee on the Review of Scrutiny of European Legislation (First Report, HL Paper 15).

The noble Lord said: My Lords, the European Union affects the lives of every one of us. Whatever our individual views of it, I am sure that no one here will doubt the need for effective parliamentary scrutiny of the Union's activities. For that reason, I hope that the whole House will find something of value in our report, in the Government's response and in this debate today.

Some might nevertheless wonder why such a report and debate are necessary. Surely, they might say, the House has a well-developed and long-established system of EU scrutiny, and one moreover which attracts a considerable amount of praise, in particular from other national parliaments. So why do we need a review?

There are three reasons. First, the European Union is changing. It is about to be enlarged, and constitutional changes are being promoted by the Convention on the Future of Europe for discussion by governments at an IGC within the year. A review by this House of how it carries out EU scrutiny is therefore timely.

Secondly, I hope that no one in this House would take the view that a system of scrutiny to which so many of your Lordships—over 70, in fact—devote so much of your time is not capable of continuing improvement.

The third reason why the debate is necessary is a formal one. The Leader's Group on Working Practices recommended just over a year ago that there should be

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a review of the House's scrutiny of EU legislation. Once that report had been endorsed by the Procedure Committee and the House itself, the European Union Committee was tasked with conducting a review. This we did during the spill-over last year and published our report just before Christmas.

Without pre-empting my later remarks on the process for debating reports in this House, I should say that, although I am sorry that it has taken a while to find the time for this debate, neither the Committee nor the Government has been sitting idle. We have all made good use of the wait to begin to implement some of the practical recommendations of this report, of which I shall give a flavour in a moment.

Before turning to matters of substance, I pay tribute to my predecessor as chair of the committee, the noble Lord, Lord Brabazon of Tara, who started the review before moving on to higher responsibilities. I am pleased to see the noble Lord in his place today. I want also to express my sincerest thanks to the current members of the committee and those who left us at the end of the last Session for their many stimulating contributions to this report, and my very special thanks to our Clerk, Simon Burton, who worked the hardest of all and whose contribution was outstanding. The range of recommendations, all of which were unanimously agreed, reflects the range of experience among the members of the committee which I am privileged to chair. We took oral evidence from the three parties, which was invaluable. Our staff have worked hard both to produce this report and to begin to oversee the changes in working methods to which we have agreed, and I am deeply grateful to all of them.

Turning to the report itself, let me comment on five particular areas: scrutiny issues; issues for the Government; issues for the House; issues for the committee; and the role of national parliaments in the future of the EU.

I start by reminding the House what our current system of scrutiny is. EU documents are deposited in Parliament along with an explanatory memorandum from the Government. Our committee and our sister committee in the Commons separately examine these documents and where necessary comment on them by way of a report to the House or a letter to the Minister. The key to the system is the scrutiny reserve resolution agreed by the House in 1999, whose effect is to bar Ministers from giving agreement in the Council to any proposal which is not cleared from scrutiny—in other words, which we are still considering. The committee clears documents from scrutiny either by way of the Chairman's weekly sift of documents, or by a decision of the committee or one of its six subcommittees, or by a report or letter. Where a report is made for debate, only the debate itself clears the document from scrutiny.

Hence the key to our system is that the committee, on behalf of the House, is given sufficient time to scrutinise documents. The power we have is not to require the Government to change their mind but to make the Government think through what they are

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being asked to agree to in the Council. That function is certainly familiar to us Members of a revising Chamber devoted to making the Government "think again" on legislation.

Your Lordships will see set out in paragraphs 12 and 13 of the report our conclusions on the function of scrutiny. Significantly, we underlined the "constitutional importance of scrutiny" of EU legislation in draft or in the form of proposals at the earliest possible stage, given that our national Parliament has no direct legislative powers over EU law other than the all-or-nothing opportunity to accept a treaty for ratification, for example, or pass or reject an instrument implementing an EU law in this country.

I will mention today four areas under the heading of scrutiny: first, the case for a mandatory scrutiny reserve; secondly, the case for a nuclear option; thirdly, the problem of provisional agreements; and fourthly, the Government's proposal for a fast track.

First, I turn to the case for a mandatory scrutiny reserve. Some have argued that scrutiny ought to be binding on the Government. We heard evidence from the chair of the Danish Parliament's European Affairs Committee, Mr Larsen-Jensen, about the system whereby his parliament mandates Ministers in advance of Council meetings. We concluded that such a system would not work in the United Kingdom. Paragraph 70 of our report says:

    "There are dangers in giving so much power to our Committee or indeed to its Chairman. This could lead to the Government wishing to secure both the majority on the Committee, and that the chair was filled by somebody amenable. There are also dangers in taking power away from the House as a whole. Furthermore, a mandatory system would only work if a new mechanism were found to allow all the relevant UK parliamentary bodies to come to a single view. Overall, in a system such as the European Union, requiring agreement in negotiation between representatives of the Member States, there must always be flexibility and room for manoeuvre".

We were, nevertheless, very anxious to recommend a procedure to allow this House, exceptionally, to require the Government to secure a positive resolution in order to lift a scrutiny reserve. The Government oppose that recommendation on the grounds that it is a form of mandatory scrutiny, which we have rejected. I stand by our proposal, which is in effect for a "nuclear option" and accordingly one intended to be rarely invoked.

We believe that such a system would give practical effect to our strong emphasis on the constitutional importance of parliamentary scrutiny and would strengthen the hand of Parliament in its holding of the executive to account. Subject to what may be said in this debate today, it is my intention to invite the Select Committee to put a detailed proposal along these lines to the Procedure Committee for that committee and the House to consider. The Procedure Committee could be invited to consider whether our proposal would best be given effect by a new form of resolution procedure for the House, or by amending the scrutiny reserve resolution.

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I turn now to the problem of provisional agreements, where once again we and the Government are not of one mind. The Government reject our proposals for amending the scrutiny reserve resolution to take account of provisional agreements. The House has debated this before and others will say more later today, so I shall confine myself to saying that the committee intends to press the Government to avoid allowing the impression to be formed that the Council has agreed matters before parliamentary scrutiny is complete. Perhaps the Council might adopt language such as "being party to a general approach" to avoid giving any sense of "agreement". The committee will need to consider whether that, too, is a matter on which the scrutiny reserve resolution requires amendment.

Our fourth and final concern on the subject of scrutiny is the Government's suggestion that our sub-committees might establish a fast-track procedure to allow scrutiny to be completed in days rather than weeks. We of course commend the Government for having this discussion with us rather than just choosing to override scrutiny regardless.

The committee considers, however, that a formal fast track is not a good idea, and is, in any case, unnecessary. We already have procedures to speed things up: both the sift and the agendas of sub-committees are flexible, and items get taken with very little notice. We do have the power to meet in recesses if Members wish, and the new September sittings will provide an opportunity for meetings as necessary. In addition there can be problems of delay which are not of our making: if departments sit on documents, time can be wasted, whereas if government officials are available to give sub-committees clarification, items can be cleared in a single meeting. I know that scrutiny is not always convenient for the executive, but a proposal for a fast track procedure does not, in our view, sit at all well with the Amsterdam Protocol's very clear provision of six weeks for that scrutiny.

For all those reasons, we wish to retain our current flexible procedures and we will continue to work closely with government departments to avoid unnecessary delays. A formal fast track for clearance might unhelpfully impose undue rigidity on all of us.

To conclude my remarks on scrutiny, our report did propose requiring Ministers to make a Statement in the House when overriding scrutiny. The Government have instead offered to furnish a Written Answer, rather than the current procedure of a letter to the committee. We accept that for now, but we might in due course press further that this House adopts the Commons practice of written ministerial Statements for this purpose.

I turn now from scrutiny to the second of my main areas for comment; namely, matters where the committee has made recommendations to the Government. I shall be selective here and mention briefly only four of them: the implementation of EU law; the form of explanatory memoranda; the deposit of documents; and some administrative matters.

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With regard to implementation, the committee will wish to press Ministers to offer a satisfactory analysis of their implementation strategy for all proposals. I look forward to the remarks of others today. However, I for one can well understand that the Government cannot necessarily always say whether a particular EU proposal is to be subject to primary or secondary legislation when implemented. What is important is that the Government are clear in their explanatory memorandum about the consequences of implementation and can satisfy us that those have been thought through.

On the form of explanatory memoranda, our report recommends that the Government offer a preliminary view in each EM on the compatibility of a proposal with the Human Rights Act. The Government have agreed. We have also pressed the Government to offer more information on devolution, comitology issues and the policy implications of a proposal for the United Kingdom. We will continue to press on all those matters.

The committee will also press for ministerial signature on all explanatory memoranda. The Government have offered a private secretary's signature in certain cases. It has been noted that Ministers sign considerably more Parliamentary Questions than they do explanatory memoranda; so we find the logic of their position hard to follow. Furthermore, the committee is both proposing to remove certain categories of document from scrutiny, and happy to accept a short EM in certain cases. The trade-off must be that Ministers are prepared to sign what is, after all, their evidence to Parliament.

The third point is on the deposit of documents. To enhance the effectiveness of scrutiny, we have proposed, and the Commons and the Government have agreed, that certain categories of documents be no longer deposited for scrutiny but that, where necessary, consolidated lists are provided to the committee so that we can exercise a right to scrutinise any document as necessary. I should remind the House that the current procedures only require a proportion of EU documents to be deposited anyway—so we are not doing anything too radical. The point here is that scrutiny is weakened if we are all overwhelmed with volumes of paper or e-mails which obscure the significant issues in a cloud of irrelevance. To quote my opposite number, the chair of the Commons European Scrutiny Committee, Jimmy Hood, we have to be selective to be effective.

Since our report was published, Sub-Committee A has agreed to take a similar approach to budget documents, and further helpful suggestions in this regard have been made by the Home Office and the Department for International Development. Doubtless others will be forthcoming.

I intend to ask the committee to review how we might best manage the procedures for determining which documents are to be deposited and we may, if necessary, seek to amend the scrutiny reserve resolution in that regard. The Government might be willing to consider some of the procedural

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amendments to the reserve that we are seeking (on which I say more below) in conjunction with further amendments designed to simplify and streamline the scrutiny system. In this context I want to commend the Government for their proposed new procedures to minimise the risk of overriding the scrutiny reserve, including six-monthly reports to the committee.

On the administrative side, we note that the Government intend to move to more electronic distribution of EU documents and EMs and to do more to provide early warning about proposals to committee clerks. All of this we unreservedly welcome.

We await more detailed proposals from the Government concerning the formal deposit of documents during the conciliation procedure: the issue is of significance, particularly where regulatory impact assessments are involved.

I turn now to the third area, issues for the House. Here I shall mention briefly: debates on our committee's work; working with the Commons; and the number of our sub-committees and our resources.

The question of debates on committee reports—and not just those of this committee—is a significant one. I know that the noble Baroness, Lady Harris, will refer to that a little later. It is clear that, given the way the House currently divides up its time, there is insufficient prime time for all those committees seeking debates. By "prime time" I mean time during daylight hours on Mondays to Thursdays. This issue is going to come into a sharper focus only as the number of committees increases. The number of reports awaiting debate listed in "No Day Named" in the Minute of Proceedings gives a clear flavour of what I refer to.

The present lack of any "prime time" for committee debates is clearly not acceptable although the reasons for the problems that occur are complex and sometimes political in origin. So the real question is: what is to be done about this?

At one level, and given the existing procedures of the House, committees can help themselves by being flexible about the timing of debates. Our committee is being as flexible and reasonable as we can be about the kind of debate we seek: for example, this debate, and another debate on Russia, are scheduled for Fridays; and debates on Europol and the civilian aspects of ESDP are scheduled as Unstarred Questions in the dinner break. We can also help ourselves by not recommending reports for debate that do not warrant it.

That said, our committee remains concerned that proper time be found to debate our reports, and within an appropriate timescale. I should remind the House that it is sometimes in the interests of Ministers too that an early debate is secured, as such a debate lifts the scrutiny reserve on a proposal. Furthermore, if the House really values the work of the committees to which it devotes such a proportion of its resources there is a duty on the House to make proper time available for debates on that work.

I accordingly urge the House to reflect deeply on whether all the issues to which it currently devotes its prime time are the right ones. Is there not a case for

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more Bills to be considered in Grand Committee to free up some prime time for debates? Is there also not a case for revisiting the use made of Wednesdays? When party debates and balloted Back-Bench debates are guaranteed regular prime time, should not committee reports be treated no less favourably? These are complex matters and I intend to invite my committee to put a paper into the Procedure Committee to explore the details more thoroughly than we can do today.

The committee does not, however, support the proposal for debates on our reports to be held in Grand Committee. It is hard enough as it is to secure the interest of the public and indeed of the majority of Members of the House in our work. I believe instead that we should thoroughly explore all options for making better use of the time in the Chamber before we consider that option.

I wish to say a few words now on relations with the House of Commons. The committee remains opposed to the idea of a Joint EU scrutiny committee on the grounds that that would weaken the effect of parliamentary scrutiny which is currently complementary between the Houses. It might also reduce the accountability of Ministers to Parliament. But we are continuing to examine ideas for joint working with another place where appropriate, and the Government have welcomed our proposals. We have held a joint session with the Commons to discuss matters with MEPS on which I hope the noble Baroness, Lady Billingham, will have something to say later. We have also invited the Commons EU Committee to join us in joint scrutiny of the Commission's Annual Work Programme, although they were not on that first occasion able to do so. And, of course, we work closely with them in COSAC.

The third and last point that I wish to make under this heading concerns the number of our sub-committees, currently six. The committee has asked the Liaison Committee for two extra sub-committees but a decision is on hold pending this debate. The committee's case is set out in the Liaison Committee's report. The key element is that the present division of policy responsibilities means that each sub-committee is examining too wide a range of policy areas and cannot always give proper attention to them all. This is supported by the relentless increase in the number of documents deposited for scrutiny. Since the Jellicoe review of our work in 1992 the number of documents deposited each year for scrutiny has increased from around 800 to about 1,400. I hope that other Members who have experienced what this means at the sharp end, working in the sub-committees, will make this point strongly today.

I turn now to the fourth area of matters for the committee to take forward. Some of these we have already implemented, others we are continuing to follow through. I shall confine myself to a few examples.

Overall, our review has proposed new areas of activity designed to enhance and strengthen the House's scrutiny of European legislation. These will

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mean increased responsibilities for sub-committees including: more regular scrutiny in advance of Council meetings, including of government officials; more short studies to complement major inquiries; more emphasis on the follow-up of work; more analysis of cost impact assessments; more scrutiny of comitology decisions; a greater effort to disseminate our work in the outside world, to which end we have agreed a press and publicity action plan which the sub-committees are about to begin to implement; and finally, more emphasis on ensuring that our work is of use to the House, including making our work more readily available using procedures such as Unstarred Questions to follow up unsatisfactory responses in debates and Starred Questions to raise significant matters in advance of Council meetings and to follow up significant breaches of the scrutiny reserve.

In addition to these matters which affect all the sub-committees, Sub-Committee A is taking forward our proposals for scrutiny of budgetary matters, and this the Government have welcomed.

These new functions will, overall, mean an increased workload for sub-committees. This, too, contributes to the case for more sub-committees to spread the load more evenly. We shall also seek the necessary resources to implement our ideas, both if new sub-committees are appointed and in existing areas of work where more resources are clearly required.

My fifth and final area, and the briefest, concerns the role of national parliaments in the future of the EU. There are clearly outside pressures for change which we believe will lead to an increase in our workload. It is a significant theme in the convention that there should be an enhanced role for national parliaments in the European Union to help redress the disconnection between the citizen and those governing the Union.

We have reported separately on proposals in the convention which would give national parliaments a welcome power to comment on and, on occasion, block EU proposals which do not accord with the subsidiarity principle. We are also looking at the implications for national parliamentary scrutiny of proposals for a President of the European Council. How would that post be accountable and to whom?

We shall continue to monitor the Commission's Annual Work Programme and, if adopted, the Council's strategic agenda. In addition, suggestions that matters of justice and home affairs might be brought under the Community method, requiring an enhanced scrutiny of an increased number of documents, and enlargement may mean more legislation for us to consider.

To assist such scrutiny we shall continue to work to enhance collective co-operation of national parliaments, most likely through COSAC (which we have had some limited success in reforming), and we shall involve MEPs where appropriate. Both our report and the Government's response propose some practical suggestions for enhancing co-operation with MEPs and other national parliaments. We have agreed to look into this matter before the Summer Recess.

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I have exceeded the time I allotted myself and now risk trespassing on eternity so I shall say no more. I look forward to the rest of the debate, and I beg to move.

Moved, That this House takes note of the Report of the European Union Committee on the Review of Scrutiny of European Legislation (First Report, HL Paper 15).—(Lord Grenfell.)

11.29 a.m.

Baroness Park of Monmouth: My Lords, that is a hard act to follow.

Before I proceed I should like to say how deeply honoured I am to be on the Select Committee and, indeed, on the sub-committee on defence and foreign affairs. I do not propose to speak about those subjects but chiefly about the scrutiny reserve with some references to the role of national parliaments.

As long ago as July 1997, the Select Committee on the European Communities said, in discussing third pillar proposals:

    "Earlier access to documents remains the key to better scrutiny, and the government's record still contains far too many failures in this area".

During the debate it emerged that although the principle of a mandatory six-week period for scrutiny was agreed, in practice it was difficult to get hold of documents in time, there was a culture of secrecy in Brussels, and there was often pressure on Ministers to make decisions before there had been time or opportunity for any proper scrutiny to take place.

Six years on, we are faced with very similar problems, and today we are reiterating the paramount need for time for scrutiny, for early access to the relevant documents and for time to question Ministers and officials if necessary before the decisions have to be taken in Council.

The scrutiny reserve is one of the very few means at the disposal of national parliaments to make Ministers accountable in the European dimension, and to ensure that they do not present their own countries with an insufficiently considered fait accompli under the pressure of having to get through the agenda and/or not wishing to be the awkward, dissenting country. When, as happened two years ago with the European arrest warrant, Britain signed the framework decision before the document was cleared for scrutiny, the time available for scrutiny was not six weeks but a few days, and some of the documents were not at first available in English. That framework decision is now being translated into British legislation nearly 18 months later, and I believe that it is not required or expected to become European law before 2004. Where was the hurry?

I believe very strongly that scrutiny of proposed European legislation is the first and vital step in ensuring that we are not effectively forced into alien legislation that is not necessary or appropriate to the needs of our country, and whose cost is sometimes not properly quantified before we commit ourselves to it. That is, alas, even more true of the mass of legislation

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applied at county council and regional level, such as the nonsense over old refrigerators and expensive abattoirs.

Although the Local Government International Bureau estimates that,

    "around 70 per cent of EU legislation is ultimately implemented by local authorities, who must bear the financial and administrative consequences",

they have no say in the framing of such legislation. Issues such as subsidiarity, EU competences and consultative rights are all matters of concern to UK local authorities. Important though it is, however, that our scrutiny procedures—when scrutiny takes place—should recognise that, there are constitutional dangers if the Committee of the Regions as proposed in the convention should acquire a legal personality, as it is trying to do, and a right of suspensive veto.

It would be absurd and dangerous if Parliament were to be expected to yield decision-making on local issues to the new Committee of the Regions, and allow those regions to negotiate directly through it with the EU. I hope that, at some stage before the IGC, we shall consider how scrutiny should work to ensure sensible internal national consultation with local authorities to the early stages of formulating policy, rather than with an extra and unnecessary tier of government in the regional assemblies.

To my mind, six weeks is not nearly long enough for effective scrutiny of decisions whose repercussions are so significant in our daily lives. We must have a clear policy for ensuring that there is no delegation of power to the regions. That is where our scrutiny of what goes on under the convention comes in. However, I believe that our representatives have been robust on the issue so far, recognising that there are serious constitutional consequences.

The most careful scrutiny of the committee's proposals in the area will be necessary. Concern is beginning to be felt by local councils, some of whom see in the proposed regional assemblies another layer of government which will further weaken local government. That is just what will devalue both local and central government with the electorate, and it will be wrong. In exercising our scrutiny over whatever comes out of the convention, I hope that we shall remember that. That point is a diversion from the main plot of the debate, but I felt that it should be made.

Scrutiny is not a luxury but a vital necessity, and one of the most important functions of the House. Every year, the Brussels bureaucracy is churning out ever more directives, framework decisions, common strategies, road maps and accession partnerships, all requiring ever more bureaucrats to devise, enforce and extend them. Some at least are unnecessary for us.

One reason why there is so often pressure on Ministers and officials to deliver decisions quickly in Brussels, and consequently to find scrutiny a thorough nuisance, has been the system of six-monthly EU presidencies. The country in the driving seat wishes to leave its mark and push through a series of favourite projects. I hope that that can be changed, for it seems to me that we should be looking, as we have now begun

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to do, at the Commission's work proposals for the year, pruning the list drastically, and allocating priorities or even deleting some items.

Scrutiny is positively valuable in improving the sensible proposals and, where they are seriously contentious domestically, in enabling Ministers to learn that there will be very real opposition to consider when it comes to translating a framework decision into legislation. Moreover, when there has been no timely scrutiny and a decision has been taken in Council which could subsequently be rejected by Parliament when it is brought forward as legislation, we shall be up against the fact that we shall be in breach of EU law. As candidate countries are reminded:

    "Community law takes precedence over any national provision which might conflict with it".

The other danger is that the Government will feel constrained, for that reason, to drive through measures which are wrong for us. I am sure that their intentions are excellent, and that they will want to respond to the wish of both Houses, but in practice it would be very difficult for them to do so.

Look at the terrifying mass of legislation and bureaucracy engendered by Brussels, both in the business of enlargement and its unremitting efforts to extend its power. The Franco-German proposals to the convention for a Minister for Europe who will be all-powerful in both Commission and Council and would speak for Europe in all international forums, including the UN, is an example. Without timely and effective scrutiny, which puts a grave burden on officials—I suspect that they are already overworked—in the appropriate Ministries here, we shall find ourselves drawn into expensive commitments which we would not otherwise have dreamt of, to the detriment of good government. I am glad to think that subsidiarity as a principle is there, but it has to be observed.

Effective scrutiny is our only protection. I hope that the House will give warm and effective support to the scrutiny process. One feature of it is the need for us to keep the House informed. I wonder whether—I hope that the Chairman will approve of this—the usual channels could be brought to agree to allocate regularly one Wednesday debate to EU issues every four weeks. Scrutiny should not involve only Ministers, officials and the committees. It should be a regular part of the business of this House.

Most of the action needed to make scrutiny effective can be taken with the good will of the House, including, for instance, more support in terms of research and speedy information both here and in Brussels; we are entitled to hope to get that support. However, one of the most important acts must be, whether through the Council, the Commission or the Parliament—we have many useful MEPs there—to reduce the amount of new legislation emanating from Brussels, to enforce subsidiarity rigorously, and to establish some priorities there.

That is almost as important as holding the executive to account. As it is we are being dragged along by something between an octopus and a juggernaut.

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There are better things that we could do with our national resources than to spend our lives reacting to what is often an extremely inefficient and secretive organisation.

11.38 a.m.

Baroness Harris of Richmond: My Lords, I wish to concentrate my remarks on the sensitive issue of the timing of debates on our reports. Everyone agrees that the value of a report is diminished if there is undue delay before it is debated. That applies particularly to EU reports, as they usually deal with topical issues of some immediacy arising from specific legislative or policy proposals. But far too often there is a lengthy delay between publication of a report and the relevant debate. In the case of my committee's report on labour mobility in the EU, almost a year elapsed between the two events.

How soon a debate can take place depends on several factors. The most critical is the timing of the Government's response to the report, because the House will want to have the Government's response before the report is debated. In our review we recommended that there should be a presumption that a government response is produced within six weeks of publication of a report and that reports are usually debated within eight weeks of publication, although we recognised that earlier or later debates might on occasion be required.

In their response, the Government acknowledge the importance of responding to reports in a timely fashion but reject the recommendation that they should be produced within six weeks. They propose retaining the existing time limit of two months, which they describe as,

    "a demanding timescale, that compares favourably with the six month deadline for responding to reports from other committees of the House".

If replies cannot be produced within six weeks, then clearly debates cannot be held within eight weeks.

I have to say that the analogy that the Government draw with the six months' deadline—which is in itself excessive—for the response to other reports is a false one. The reports from other committees are usually the result of a lengthier period of inquiry and address long-term issues which may not have the same immediacy as most EU reports.

Our reports are usually conducted on a much shorter time-scale, often dealing with issues of some immediacy. They are unlikely to be issues on which the Government need to form a view from the beginning. For the general run of reports, six weeks seems to me a perfectly reasonable target and I would welcome a better explanation from the Minister as to why, as a general rule, the Government feel unable to put together a response within this time-scale. I also remind the House that in proposing this review of scrutiny, the Leader's Group specifically asked that it should look at the desirability of a greater number of shorter and more focused reports. If, as I would expect, we shall in future be producing more and shorter reports, that is all the more reason for quick responses and early debates.

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We do not, of course, wish to be inflexible. We did not recommend six weeks as a firm deadline in every case but only as a "presumption". We recognise that some reports may address complex, long-term issues to which the Government need longer to respond; they may involve consultation with a number of different departments. In such cases, we would always be flexible in accepting a reasonable extension of the six weeks' deadline.

Similar considerations apply to the timing of debates. There may be occasions when, for a variety of reasons, it is not possible to schedule a debate within eight weeks of publication of a report. But it would be a salutary discipline on all concerned to have that period in mind as a "presumption".

We accept entirely the need to be realistic and flexible about the timing and length of debates. So far as possible, the timing and length of the debate need to be tailored to the subject and the breadth of interest of the report. We recognise that we cannot expect all reports to be debated in "prime time" and that time will rarely be available on a Monday or Tuesday for a debate of any length. But that should not rule out prime time on, say, Thursday mornings.

We are certainly not opposed to debating reports on Fridays, as this debate itself demonstrates. Although I should have preferred it to take place on a different day of the week, I agreed to a Friday debate earlier this year on a substantial report on illegal immigration, which had attracted a great deal of publicity, because I thought it important that the debate should not be unduly delayed. Another possibility is to arrange a debate for short reports in the dinner break. I have myself put down an Unstarred Question on Europol—referred to by the noble Lord, Lord Grenfell—as a basis for debating our recent report on the subject; and the committee's report on the civilian aspects of ESDP is being handled in the same way. We should also explore whether the House might make somewhat different use of Wednesdays, and in particular whether the current provision for balloted debates makes the best use of a day's prime time. We should look for opportunities to "tag" reports to other relevant debates.

I am sure that if we, and the usual channels, are flexible and imaginative, an eight-week target need not be unrealistic. The crucial factor is to avoid a backlog building up, which results in a vicious circle, where every report gets delayed, with no saving of parliamentary time, since eventually they will all have to be debated. Given the increasing number of reports that the Select Committee produces, it is more important than ever to avoid a backlog by ensuring that reports are debated promptly.

The one option favoured by the Government that we would strongly resist—an option referred to by the noble Lord, Lord Grenfell—is to relegate debates on our reports to Grand Committees. It is generally recognised that our reports perform a valuable function in scrutinising proposals for EU legislation and analysing major policy issues. Their value is considerably diminished if they do not reach a wider

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audience than the membership of the committee itself and the Government. Holding debates on the Floor of the House helps to disseminate the content of the reports more widely; holding them in Grand Committee would, I fear, amount to little more than a continuation of the dialogue between the parties already engaged in the preparation of the report.

I hope that I have shown that for our part we are prepared to be realistic and flexible about the timing of debates. I hope that the Government can be equally realistic and flexible and that they will think again about the speed of their response to our reports.

11.46 a.m.

Baroness Billingham: My Lords, as a member of both the Select Committee and Sub-Committee D, I know that the process of European scrutiny is a serious and vital part of our work. We rely heavily on our committee Clerks, and the sift system is designed to make the huge volume of European legislation more manageable. To an extent it works, but clearly we can do better. As other speakers have said, the volume of work and the lack of time available to members of committees, means that European legislation does not receive the scrutiny that it deserves and warrants.

Damagingly, if we believe everything that we read in some newspapers, we could be led to believe that Britain is constantly being "caught on the hop", deluged with obsolete fridges, buried under a mountain of cast-off electrical goods, with every piece of wasteland littered with old cars—and all this, apparently, without any prior knowledge, any notice or consultation, all the work of the fiendish Brussels bureaucracy.

But, of course, the reality is quite different. European legislation moves extremely slowly. It is a detailed, deliberate and lengthy process. It is played in a host of forums and debated in every country in the European Union. From the beginning of the process to the final legislation, months and often years have elapsed.

So how should we, as Members of the House of Lords, play a part in exposing these myths while at the same time raising public awareness and involvement in the process?

Dynamic and effective parliamentary scrutiny must hold the key. By debate, report and active publicity, detailed examination of EU business must become more transparent. That scrutiny has to be more than simply "taking stock"; it must be proactive and allow intervention at the earliest stage on matters of policy and principle.

Our report flags up a series of suggestions which could make the entire process more efficient. The earlier scrutiny takes place, the more opportunity is presented to exert influence on the outcome. For there to be a meaningful dialogue, national governments must be proactive and alert. We make the case in the report for much swifter distribution of EU documents. Electronic distribution is surely a solution to that problem. The call for an "early warning system" should be possible given the fact that the Commission

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and other institutions have readily accessible websites which provide direct access to information, both about what they have done and about what they are planning to do.

As reports form the basis of our contribution to European legislation, we feel most strongly that they should be debated within eight weeks of publication. The past has seen very patchy opportunity for such debate, and in some important cases the text is so out of date by the time the debate takes place that it becomes almost worthless. That, frankly, should not be allowed to happen.

It is as a former Member of the European Parliament that I want to speak of one specific area which I feel is being sorely neglected. I refer to our links—or lack of them—with our Members of the European Parliament. If we are serious about our quest for greater contact between the committee and the institutions, our liaison with MEPs ought to be fundamental. Links with MEPs would certainly alert us to early pre-legislative developments, and at the same time give an insider's view of the Commission's programme as laid out on an annual basis. As the European Parliament moves increasingly into a pattern of co-decision, those links could be even more productive.

There are very practical ways in which those exchanges of views could be improved, such as regular briefings from the chairs of committees of the European Parliament to the relevant committees of the House of Lords. Rapporteurs are extremely influential; they should share with us the outline of their reports, giving not only content evaluation but also an indication of timescale. As Dr Caroline Jackson, an MEP, stated in her submission to us:

    "MEPs are as important as Ministers in determining the final text of legislation".

As such, MEPs would prove an invaluable ally.

We have already made some progress in that direction. MEPs are called to give evidence at sub-committees but, given their frenetic work pattern, timetabling of such meetings is often impossible. However, presence does not have to be "in person". Is it not time that we invested in the best possible technology for video conferencing? A priority for this House should be to equip a committee room to enable regular group meetings to take place.

In February of this year, there was an historic meeting: members of the House of Lords EU Committee took part in our first joint meeting with MEPs. The outcome was a series of what I believe were helpful proposals. The first was that there should be three meetings a year. The second was that meetings at Westminster should be held in the European Parliament's constituency week, which would enable their Members to be with us. Thirdly, some joint meetings should be held in Brussels. It is also important that meetings should concentrate on major co-decision areas, such as the environment, transport and structural funds. At all stages, the House of Lords EU Committee should be fully involved.

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I have no doubt that MEPs would welcome the opportunity of sharing their work with us. It can be dispiriting to feel that there is a gulf between European and national Parliaments, which makes both less effective. It may well be the case that the Convention will take up that issue. If it does, we should welcome that. At the same time as better dialogue with MEPs, we should also look to the Commission and in particular to our own two Commissioners and their cabinets to give insight into future legislation. The London offices of the Commission and the European Parliament appear to be a well-kept secret from my colleagues in the Lords. Linking us with them more directly would be extremely beneficial.

In conclusion, we are in a very lively phase of European scrutiny. The emphasis is clearly on being more dynamic and successful in the future and on shedding daylight on the process and the product of European legislation. It is an area in which this House can play the lead role as the bridge between Brussels and the British people. That is a stunning objective for the 21st century and a positive role for our future.

11.53 a.m.

Lord Marlesford: My Lords, this is an important debate because it involves such an important subject. There has probably never been a time when the House of Lords has been more crucial as a scrutiny body. That is partly because the Government—the noble Baroness, Lady Symons, knows that I support many of their key policies both at home and abroad—are in one respect sinners. I refer to their apparently deliberate policy of disarming Parliament, especially the House of Commons, by their virulent and deplorable use of the guillotine. I cannot think that even the most enthusiastic unicameralist—I know that there are distinguished members of the Government Front Bench who fall into that category, although they are not on the Front Bench today—who is also a democrat, fails to see the need for the House of Lords.

Today, we are concerned with the scrutiny of Europe and European legislation rather than purely domestic legislation. We have a huge asset in so doing. I refer not just to the 70 members of the various committees and sub-committees—I am a junior member of one of the sub-committees—but also to our Clerks, who show remarkable expertise and capability when producing cutting-edge documents at the end of the process.

Reading the Government's response to the Select Committee's excellent report, I cannot but detect a note of ambivalence to the work of the committee and its sub-committees. I believe that that ambivalence stems from two causes. First, Ministers' relations with the EU are, always have been, and probably always will be, a matter of deal- making. Thus, the logical and national interest solution to any particular aspect of EU policy or legislation will always be perceived at the level of the Council of Ministers as part of a bigger picture. Britain's interest is therefore a pawn in the chess game of Europe, although a better analogy might perhaps be a card in the game of European poker.

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The second cause of ambivalence is the natural propensity of civil servants to resent the interference of politicians, especially parliamentarians. "Yes, Minister" is a well-honed technique for dealing with members of the government. Parliamentarians can be more tiresome and unpredictable, and thus sometimes harder to deal with. That resentment stems partly from the desire to hold on to bureaucratic power and partly from the desire for as quiet a life as possible.

Some 30 years ago, when I was a temporary civil servant, I was lucky enough to work for a while for Lord Rothschild when he was running the Central Policy Review Staff. The then Secretary of the Cabinet, Burke Trend—who, incidentally, never managed to get the control over the CPRS that his successor did—dismissed its activities by referring to it,

    "making extra work for already very busy people".

I fear that there are sometimes echoes of that in the way in which this House's scrutiny role is dealt with by Whitehall.

I want to refer briefly to three points. The first is the suggestion of a fast track. The Government all too often use a de facto fast track. I refer to the frequent occasions, which are well documented and frequently complained about, on which EU proposals are referred to the House of Lords only very late and well into the process of ministerial discussion at the Council. I therefore strongly support the noble Lord, Lord Grenfell, in his rejection of the fast track.

Secondly, I believe that we are being subjected to an avalanche from Europe. Having recently acquired a son-in-law who is an Alpine guide, I have learnt something about avalanches. There are various techniques for dealing with them. One approach is to stem them; sometimes, one can divert them; but most of all one must ensure that those for whom one is responsible are not overwhelmed by them. One method for doing that in the context we are discussing involves the concept of subsidiarity, which dates back to Maastricht, dealt with in paragraphs 83–85 of the Select Committee report. My noble friend Lady Park also referred to this. Subsidiarity very often seems not to operate properly. A recent example is that of DEFRA's proposals for fallen stock disposal—something that has occupied the House quite a bit recently. I wonder whether we should consider introducing an additional form of sifting at an early stage purely to check for the defence of subsidiarity. I am not quite sure how that should be done, but I have heard Ministers informally express surprise from time to time that subsidiarity has not halted some Brussels proposals.

I remember the noble Lord, Lord Williamson of Horton, from whom we shall hear shortly, as the director-general of Europe—I hope that that is the right title—saying that when subsidiarity was first introduced it was rather effective. Many proposals that would have been put forward without it were halted. I fear that bureaucracy has probably by now found techniques to circumvent that obstacle.

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Finally, I refer to the importance of making a greater effort to disseminate our work to the outside world. Here I must make a plug for, and of course declare an interest in, The Economist, a paper for which I worked for 16 years, a period which ended 11 years ago. There is no other British paper that is as well read in the smoke-free rooms of Brussels or indeed in the chancelleries of Europe. I believe that it would be in our interest, in the interest of the Government, and thus in Britain's interest, to alert the journalists of that paper, as well as those of other papers, as early as possible to the controversies that arise in relation to the European matters we scrutinise.

I believe that the House of Lords is uniquely placed to stem, to divert and, most of all, to avoid the effects of the European avalanche. If the people of this country were aware of what we are trying to do and what we can do, I believe that the House would have their wholehearted support.

12.1 p.m.

Lord Scott of Foscote: My Lords, my justification for addressing your Lordships in this debate is that for the past two years I have had the honour to be chairman of Sub-Committee E, which has responsibility for scrutinising proposed European legislation. Arising out of my experience in that capacity, I want to talk about three of the recommendations contained in the report, each of which has been rejected by the Government.

Those three recommendations and the Government's reasons for rejecting them agitate an issue that has been alive in this country for over 300 years—an issue that has led to a civil war and to the execution of a king. That is the striking of the balance between the executive, on the one hand, and Parliament, on the other hand, as to the control that can be exercised over the content of legislation that is to be imposed on the inhabitants of this country.

The constitutional principle underlying the issue is not one on which I need to spend any time as I believe it is well known to every one of your Lordships and there can be little doubt that every noble Lord here would support it. It is the primary constitutional responsibility of Parliament to supervise legislation. It is not the primary responsibility of the executive to do that; it is the primary responsibility of Parliament.

Clearly, with regard to primary legislation, Parliament is in control. It either passes an Act or it does not. With regard to secondary legislation, a well established feature of the way in which such matters are dealt with is that except in times of emergency, such as a time of war, subordinate legislation is made subject to either affirmative or negative resolution procedures, thereby giving Parliament the ability, if it wants to exercise it—or giving either House the ability if it wants to exercise it—to reject a particular piece of secondary legislation.

But what about European legislation? What is the nature of the control that Parliament, the body with the constitutional responsibility for legislation, should be able to exercise in regard to it? European legislation

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may be of various different kinds. There may be regulations that would be directly applicable and enforceable in this country, as in other member states, as soon as they emerge from Brussels. There may be types of legislation that require implementation—directives in the European Community area and framework decisions outside that area that require implementation. There will be some measure of flexibility allowed to member states as to the content of the implementing measure that they may introduce pursuant to their obligation to do so.

The content of a framework decision or a directive that has to be implemented will have been settled when it emerges finally from Brussels. How long that will continue we do not know, but at the moment the bulk of the legislation that emerges from the Council of Ministers is subject to the requirement of unanimity. Qualified majority voting is not yet the rule. Where unanimity is concerned, each and every member state can put a block on the proposed legislation and the executive—the Minister—will have the ability to assent, thereby allowing the item of legislation to come into effect—if all other member states assent—or to decline to assent, thereby preventing it from coming into effect. That is an executive act but, if it is a matter of assent, it has the result of bringing into effect legislation in this country.

What is the role of Parliament? The role of Parliament is to scrutinise a measure before the assent is given to try to ensure that it is satisfactory to the citizens of this country to be subjected to such a piece of legislation. The scrutiny process is not perfect—how could it ever be? I respectfully suggest that it needs to be looked at in the context of the constitutional responsibility of Parliament for legislation. As probably nearly every Member of the House knows, an item of proposed legislation, emerging as it does as a proposal from Brussels, is deposited via the member state government with the scrutiny organs of the particular member state. Here it is deposited in this House and in the House of Commons for scrutiny. It is accompanied by an explanatory memorandum from government explaining the particular features to which they believe that attention should be drawn.

Confining myself to what we do in this House, Sub-Committee E, with which I have been associated, looks at a measure and takes evidence from experts and from Ministers on it. I pay tribute to the co-operation that during my time with the committee we always had from Ministers in that regard. They are ready to appear at very short notice to assist us with our scrutiny process. There is then correspondence, criticism and suggestions about the item in question between the committee and the Minister. But eventually the decision is taken by government. No matter what the objections may be, no matter how they may be persevered in and pressed in a report, such as your Lordships will have seen on many occasions, or in a debate with views expressed by Members of the House, the Government, the executive, decide. Opinions to the contrary can be overridden.

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That is the background against which, I suggest, the recommendations to which I am about to refer must be viewed. The first of the recommendations is to be found in paragraph 185 of the report. It is a recommendation to which the noble Lord, Lord Grenfell, the chairman of the committee, has already adverted. The recommendation is that in exceptional cases—I underline the word "exceptional"—the scrutiny committee should have the right to require government, if they are to override persistent objections made by the scrutiny committee to the item of proposed legislation, to come to the House to obtain a positive resolution allowing them to give their assent.

If that were introduced it would help to narrow the gap between constitutional principle and practice. It would enable Parliament to have the control which, in my opinion, is a necessary constitutional control over the content of legislation that is to bind the citizens of this country. The Government have turned it down. They have turned it down for reasons that are expressed in the annexe to the letter from the noble and learned Lord, Lord Williams of Mostyn, in his reply to the report.

A number of reasons are given. The first reason which your Lordships will see in the annexe is that the suggestion is said to be incompatible with the purpose of scrutiny. The purpose of scrutiny is the constitutional purpose to which I have referred. It is spelled out in paragraph 12 of the report, to which paragraph 13—the paragraph which is said to be incompatible—then serves as a summary. There is no incompatibility. I would respectfully suggest that the Government look again at paragraph 12 and the constitutional purposes of scrutiny in reconsidering the value of this objection.

Secondly, the point is taken that if this suggestion is accepted the result will be that governments will be fixed with the decision of this House if the resolution is not forthcoming. The Commons, the reasons say, have not asked for such a facility. They have not turned it down and I am sure would not if one were offered.

As to the impracticability of the Government being put into a position where they cannot give assent unless they obtain a positive resolution from this House, the position is no different from that which pertains anyway in relation to secondary legislation. It has not made the bringing into force of appropriate secondary legislation impracticable and there is really no reason to suppose that it would do so with European legislation. It would be a tool to be used only, I think, in exceptional circumstances.

An example might have been the European arrest warrant to which the noble Baroness, Lady Park, referred. The views expressed in the scrutiny committee about the proposed European arrest warrant framework decision were such that if there had been such a right available that is exactly the kind of legislation where the rights would have been exercised. And why not? Such a major piece of legislation, providing a framework which our own implementing legislation is obliged to follow, ought surely to have the assent of Parliament and not simply

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be based on a situation where views have been expressed and turned down, as was the case with that piece of legislation.

Finally, it is said that to accept the recommendation would make agreement of the Council of Ministers impossible. It would allow a part of Parliament—namely, this House—to put a block on the proceedings in the Council of Ministers. I would not suppose that if this recommendation were to be accepted it would be confined to this House. As I have said, I am sure that the Commons would be delighted to have a similar facility.

However, the position at the moment where unanimity prevails is that the Government are entitled to put a block on agreement to legislation in the Council of Ministers. The existence of a power to place the block cannot be an objection because it is exactly what Government have. The question is: who should be in a position to impose the block in relation to legislation? Should it be the executive or should it be the legislature, with the constitutional responsibility for legislation? That is the first of the recommendations that I wanted to mention.

The second recommendation, which has also been referred to, relates to the so-called "provisional agreement"—agreement on a general approach facility which the Government maintain they can exercise, notwithstanding the scrutiny resolution of this House passed on 6th December 1999. It is worth reminding oneself what that reserve resolution states. Paragraph (1) states:

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

It goes on to state in the second paragraph that,

    "any reference to agreement . . . includes . . . agreement to a programme, plan or recommendation . . . political agreement . . . agreement to a common position, to an act in the form of a common position".

All of that is covered by the existing resolution.

What is the size of the step necessary to make clear that that should cover also a so-called "provisional agreement"—an agreement on a general approach? How does one distinguish between an agreement on a general approach and an agreement on a common position? Angels may dance on the point of a pin, but the difference between the two is as indiscernible.

The Government's main objection to this recommendation is set out in the document which they sent to the noble Lord the chairman. They state that,

    "the ability to reach a general approach is a vital negotiating tool".

Of course Government must have flexibility to negotiate. They may negotiate treaties without impediment from Parliament, but negotiating on legislation that is to bind this country is to negotiate on a matter where the responsibility is with Parliament. I would respectfully suggest that their insistence on retaining the negotiating position is problematic if viewed as a matter of constitutional propriety. If the first of the recommendations, to which I have referred,

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were to be accepted, this one would not matter: they could negotiate, provided they could not bind. At the moment, they can negotiate; they can agree general approaches, thereby accepting principles on which proposed legislation is based in advance of the scrutiny process being completed; and they can bind.

The third recommendation relates to implementation. That applies not to regulations which need no implementing but to framework decisions and to directives. The Explanatory Memorandum which accompanied the deposited documents do not tell the scrutiny committee what means of implementation is intended. We asked whether that might not be done. We were told that it would not be practicable for the Government to tie themselves down to implementing by primary legislation or by secondary legislation at the time at which the question was being put and at the time at which the Explanatory Memorandum was being prepared.

That may be right: I do not know enough about the practicalities of these things. The committee has sought to discover from Ministers what actually are the criteria which determine whether primary or secondary legislation will be needed. I am sorry; I am overrunning time. We have not been able to discover that. We ought at least to know what criteria there will be for that purpose.

In conclusion, I simply ask the Government to look again at these recommendations and to consider them in the light of their constitutional context and perhaps, one might hope, come to a different conclusion on them.

12.18 p.m.

Lord Lester of Herne Hill: My Lords, as we have just been reminded by the noble and learned Lord, Lord Scott of Foscote, this report and the Government's response to it raise issues of great constitutional importance about the role of Parliament in supervising the conduct of the executive branch of government in preparing European legislation and in scrutinising European legislation. That is especially so because under our unwritten constitutional arrangements the flexibility and permeability of our constitution when dealing with the incoming tide of European legislation make it very easy indeed for the tide to flow in with inadequate parliamentary scrutiny or control.

As I am sure the Minister will emphasise when she replies to the debate, the Government accept that a purposeful and effective system of parliamentary scrutiny of EU business would, in their words, need to be,

    "a process of rigorous examination with a view to ensuring that those responsible are accountable to Parliament for their actions".

One key question is whether the Government's response will provide the necessary means to permit such an effective process to be undertaken. I am especially interested because of my experience as a member of two parliamentary scrutiny committees: Sub-Committee E, formidably chaired by the noble and learned Lord, Lord Scott of Foscote, and the Joint Committee on Human Rights. I shall concentrate on

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practical aspects of parliamentary scrutiny of European Union legislation raised in paragraphs 170-2 of the Select Committee report, to which the noble Lord, Lord Grenfell, referred in a powerful and an important speech.

In paragraph 171, the Select Committee recommends that the explanatory memorandum,

    "should as a matter of course state whether primary or secondary legislation is envisaged and, if the latter, under which power".

The committee suggests:

    "An indication should he given of the factors which lay behind the decision. Furthermore, where the powers in Section 2(2) of the European Communities Act 1972 are intended to be used, the Government should indicate whether the affirmative or negative procedure is envisaged and the reasons why".

The Government's response to those entirely sensible proposals is vague and disappointing. They simply state that,

    "the Government will give as much indication of how it intends to transpose legislation as it is possible to do at the time of sending an EM. But it is not possible to provide a definitive description. We can only provide our best assessment on the basis of the proposal as it stands at the time".

I hope that in her reply the Minister will be able to assure the House that, except for good reason to the contrary explained to the Select Committee at the time of the initial EM, the Government will do as the Select Committee recommends in paragraphs 170 and 171. If she is unable or unwilling to give the House that assurance, I should be grateful if she can explain in detail exactly why the Government are unwilling to do so.

As the noble Lord, Lord Grenfell, also mentioned, in paragraph 172 the Select Committee recommends that explanatory memoranda should contain a section on any potential human rights issues and that the Government should consider whether the Minister signing the EM should make a statement of compatibility with the Human Rights Act 1998, as happens with primary legislation—that is, stating that, in the Minister's view, the EU proposal is or is not compatible. That is a significant proposal because it creates a new working link between EU proposals and the international legal obligations imposed on the member states both as contracting parties to the European Convention on Human Rights and as parties to the Treaty of Amsterdam and, for that matter, to the European Charter of Fundamental Rights.

The Government's response states:

    "Where human rights issues arise, the EM will of course draw attention to them in the section on legal implications. The Government will in future offer a preliminary view on the compatibility of the proposal with the 1998 Human Rights Act. The EU is in any case, by virtue of Article 6(2) of the TEU, committed to respect fundamental rights as guaranteed by the European Convention on Human Rights".

The Government's acceptance of the Select Committee's proposal is welcome, but the practical implications need to be fully considered. I shall deal with those in the remainder of my remarks.

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If scrutiny is to be real and effective, and if there is to be a process of "rigorous examination", in the Government's words, and analysis, significant resources will need to be allocated both by government and by Parliament—comparable to those available for the scrutiny work performed by the Joint Committee on Human Rights. To understand what that means, it may be useful if I sum up the work done by the Joint Select Committee when scrutinising legislation, because that provides a standard against which to measure what needs to be done.

As the House will know, Section 19 of the Human Rights Act 1998 provides that a Minister in charge of a Bill has before Second Reading to sign a compatibility statement that is printed on the face of the Bill. The Joint Committee's working methods are similar to those of Sub-Committee E in its scrutiny work. We examine every government Bill at as early a stage as possible to establish whether significant questions of human rights appear to be raised by any of its provisions.

When such questions appear to arise, written ministerial responses to specific enquiries from the committee are sought. When it seems appropriate, written commentary from non-governmental sources on those questions is sought at the same time. Ministerial and other responses are considered, pursued and published alongside any report of the committee's opinion. Oral evidence will only exceptionally be taken.

In practice, Section 19 of the Human Rights Act 1998 requires Ministers and their respective departments specifically to consider the impact on convention rights of each new Bill they seek to introduce. In that way the Minister responsible for the Bill assumes individual responsibility for convention compliance.

Although Section 19 refers only to the European convention, in practice the Joint Committee considers legislative measures for compatibility with all of the international human rights treaties by which the United Kingdom is bound. I assume—but should be grateful for confirmation by the Minister in her reply—that the same is intended for parliamentary scrutiny of EU legislation. That is to say that it will not be confined to compatibility with the convention rights but with the body of international human rights treaties by which the member states of the European Union are bound, and which are now enshrined in the European Charter of Fundamental Rights. It would surely be unsatisfactory if scrutiny did not extend to all the European charter rights.

Crucially, the Joint Committee is supported in its scrutiny work not only by two excellent parliamentary Clerks but also by a specialist legal adviser, Professor David Feldman. We scrutinise all primary and some delegated legislation for compatibility in a way similar to the approach adopted by the courts in assessing claims of human rights violations. We consider first whether the legislation interferes potentially with any of the convention rights. If a potential interference is apparent, we consider and scrutinise the reasons

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advanced by the Minister. As I said, we may question Ministers orally as well as in writing. We act speedily and try to produce our reports in a timely manner so as not to miss the legislative train. Our reports are increasingly referred to by our courts in interpreting and applying legislation. In due course advocates and judges in the two European courts may do so as well.

If parliamentary scrutiny is to be real and effective, it must be of the highest possible professional quality and timely. That is why it is essential to have legal advisers with the expertise and dedication of Professor David Feldman, and of Dr Christopher Kerse for Sub-Committee E. If Parliament is now to undertake real and effective scrutiny on a systematic basis, we must consider how best to match the work done for the scrutiny of domestic legislation by the Joint Select Committee with that new, vital task. As I said, we have good resources for both the sub-committee and the Joint Committee.

The question for the proper authorities, which I am not competent to answer, is how best to deal with the matter. It is a matter of what the European lexicographers would call "comitology"—which committee should be dealing with it; Sub-Committee E, a further sub-committee of it, a sub-committee of the Joint Committee on Human Rights or some new committee. All I know is that the task of performing effective scrutiny work is onerous and requires a great deal of professional expertise and dedication on the part of those who have the privilege and burden of performing the scrutiny work.

My only concern is that, the Government having accepted an important proposal in a welcome way, it is now absolutely essential that the Government and Parliament should will the means of securing that important end. I therefore hope that the Minister can assure the House that the Government will soon consult on the best way of creating an effective system of parliamentary scrutiny of EU legislation in the context of human rights. I suggest that the matter deserves to be tackled with energy and political commitment.

12.30 p.m.

Lord Woolmer of Leeds: My Lords, I apologise to the Principal Deputy Chairman of Committees, the noble Lord, Lord Grenfell, and other noble Lords that I was not in my place during the opening speech. I had forewarned the noble Lord, Lord Grenfell, that my Sub-Committee published its latest report at one minute past midnight last night. I had to deal with certain press matters arising from the report just as I was about to enter the Chamber. No discourtesy was intended.

Given that so many points have been made with great eloquence by other noble Lords today, I shall confine my remarks to just one area. It has been a pleasure for me to be involved in the work of the European Union Committee and one of its Sub-Committees. People outside the Chamber do not always realise the amount of time and attention that Members of this House give generously to the issues.

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They bring an enormous breadth of experience to the scrutiny process. In carrying out that work, Members have other matters to address inside and outside the House.

The staff of the Select Committee and its Sub-Committees are equally dedicated and their work is equally impressive. The workload is substantial for members but truly enormous for staff. In addition, new thinking, new ideas, improved processes and improved communication have been generated by the chairman and staff of the parent committee in recent months.

The report of the Select Committee is an important, reflective but positive contribution to an understanding of the work of the House in scrutinising European legislation. Our committees are active in pursuit of their duties. I shall speak only of the work of the Sub-Committee that I know best, and which I currently have the honour to chair, following in the footsteps of my noble friend Lord Brooke of Alverthorpe, who, I am delighted to see, will speak in the debate today.

Sub-Committees vary in the range of their remit. Sub-Committee B has quite a wide remit covering energy, transport, telecommunications, industry, the single market, competitiveness and research. In the current Session, since December 2002, it has considered 179 documents. I shall give the House and the outside world a feel for just some of the variety of its work. It has considered government responses to our previous inquiry on drinking and driving, and on the recycling and recovery of packaging waste. It has commissioned Green Papers on European space policy and is carrying out an inquiry on the latest Green Paper on entrepreneurship. The committee has looked at proposals from Brussels on security of supply of petroleum products and gas, the trans-European energy network, co-generation of energy, the development of the trans-European transport network, the promotion of bio-fuels for transport, and safety at sea following the "Prestige" oil spill accident. It has also considered proposals relating to the de-regulation of sales promotion in the internal market, safety issues in the manufacturing of cement, the re-use, exploitation and charging for the use of public sector documents, the European research area momentum, the European network and information security agency, and many more.

Some of those matters may appear minor compared with large, vital issues such as the written constitution for the European Union, human rights and others mentioned today. But it is precisely in the detail as well as the sweep of policy that an impact is made on industry and consumers. At the heart of much of the work of Sub-Committee B is scrutinising the basis and the risk impact assessments put forward to justify measures. It has conducted and concluded a major inquiry into air traffic agreements, especially EU/USA aviation relations, the subject of the report that we published last night. It is conducting an inquiry into

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the Green Paper on entrepreneurship. The Sub-Committee has already agreed that the next inquiry will be on the liberalisation of financial services in Europe

Therefore, I was particularly interested that the European Union Committee had suggested additional responsibilities to enhance and strengthen the House's scrutiny of European legislation. I remind the House of the report's suggestions: more regular scrutiny in advance of Council meetings, more short studies to complement major inquiries, more emphasis on follow-up work, more analysis of cost-impact assessments, more scrutiny of comitology decisions and more emphasis on ensuring our work is of use to the House. In our enthusiasm, we want to ensure that greater effort is made to disseminate our work outside the House. We have adopted an ambitious programme for developing external relations through the media and a range of other avenues.

Our work already poses considerable demands on committee members and staff. I do not believe that we can do all that we aspire to do without additional resources or looking very carefully at what we already do. My reflections on the work of Sub-Committee B have led me to conclude that we need to look very carefully at what we currently do and how we do it. Do we need to re-prioritise our work as well as any proposals for new work? Can we make room for other areas and types of activity by reducing it elsewhere? What resources are needed and how much time is required from noble Lords and staff to increase our workload still further? Are the current staff optimally used? Having asked all those right and proper questions, I have no doubt that the House is understaffed to perform the duties expected of us, certainly for a more ambitious agenda. We should not be fearful of saying so.

I hope that, in considering all our work, we can impress upon the Government and the usual channels that it would be valuable to consider increasing the number of committees that we have. But, even having done that, if we are further to improve the work that we do so well, resources will lie at the heart of the matter.

12.37 p.m.

Lord Lyell: My Lords, I rise with some humility and possibly hubris—a Greek word that I learned 50 years ago, perhaps in conjunction with the noble Lord, Lord Grenfell. I hope that I am not too cocky, but I seem to be the only speaker in the debate who is neither a member of the committee, nor otherwise intricately connected with committees. I speak as a humble Back-Bencher but with enormous gratitude to the noble Lord, Lord Grenfell, the chairman, and every member of the committee that has produced this superbly succinct, readable and helpful report. Occasions such as this, when we discuss what are known technically as House of Lords papers, are very important. The little bookcase in my office contains an entire shelf of House of Lords papers, dating far back, on all kinds of matters such as potatoes, eggs, traffic and railways.

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Today's debate is one of the most important to take place. I look forward to hearing the Minister's response. The debate deals with scrutiny and, above all, watching the enormous mountain of papers that comes from Brussels, and around Brussels. That is why I was particularly taken with the definition of "scrutiny" so far as concerns the House of Lords in paragraph 11 of the report. Then, as regards paragraph 55, I found the marvellous concept of "the sift". I became worried that it might refer to a television programme rather than a theme that we should be looking at. It lies at the heart of the report and, above all, of today's debate. At paragraph 55, I think, it produced the interesting figure that only 15 to 25 per cent of Community documents can be sifted, arranged or passed on by the noble Lord, Lord Grenfell, and his admirable staff—I do not know how many he has—to the sub-committees of your Lordships' House for further essential scrutiny. I was taken with the definitions in paragraph 127, narrowing down what the main Committee and the sub-committees do.

This week, I met my noble friend Lord Inglewood, who is unable to be present, probably for a very good reason. In what he technically terms his "paper", at paragraph 12, he referred to the lack of debates such as this in what he called "prime time". That has been a constant thread running through many of the comments made so far today and for the usual channels, in the attempt to provide prime time.

I recall how, a week or 10 days ago, when we discussed various aspects of the Procedure Committee, the noble and learned Lord the Leader of the House—with a lovely smile on his face, as always—wondered why your Lordships' House was able, one Wednesday afternoon, to discuss the fate of the Atlantic salmon, when, he thought, enormous issues of European importance could, otherwise, have been discussed. My noble friend Lord Howell of Guildford trod quietly on my little toe and said that I or somebody else might find out how much of the torrent of paper that comes to the chairman of the committee—the regulations and all the other tiny ordinances—covered the issue of Atlantic salmon. The number of documents might be well into four figures, but, all the same, the noble and learned Lord the Leader of the House might have got it right.

I stress to your Lordships that the plight of the Atlantic salmon has considerable importance in Scotland and Northern Ireland. It is in that context that I deal with subsidiarity. In our debate, we are enjoying the wisdom and expert comment of your Lordships, but subsidiarity brings the whole concept of European legislation and our scrutiny of it to the area in which I live. I live in the Glens of Angus, so well known to the noble Lord, Lord Tordoff, and to my noble friend Lady Elles and the noble Lord, Lord Thomson of Monifieth, who were in their place at the start of the debate but have flown the coop, perhaps when they heard that I was going to speak. It is essential that we have scrutiny and that Back-Benchers such as myself understand the enormous efforts made

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by your Lordships on the committee and the sub-committee dealing with European legislation. There is a good story to be told, but it is of no value, unless it can be explained by persons such as I to the colleagues that we see when we go home at the weekend.

A Minister in another place recently made a wonderful comment about a group of people who had left the planet Zog 20 years ago but sometimes went back for day-trips. Many of my colleagues in Angus believe that I visit the planet Zog—this Parliament—every week. When they consider a debate such as today's or discuss things from Brussels or Strasbourg, to many of them it feels like a different galaxy. I do not believe that it is, but part of what I ought to do is try to explain how what we are discussing and the enormous amount of paper—of which the noble Lord, Lord Grenfell, deals with 15 to 25 per cent—is relevant to their plight. Yet, the gap in perception can be and has been closed by the enormous amount of work done by your Lordships' committees and sub-committees, which can be discussed in the Chamber.

I shall begin to conclude by referring to paragraph 16 of the report. It points out the enormous amount of work done not just by the committees but by the chairman, the noble Lord, Lord Grenfell. Each week, he examines all documents, of which only 25 per cent can be sifted to sub-committees. The report points out that the tide of paper comes in not just when we are sitting but even during the Recess. As a humble Back-Bencher, I convey my gratitude and admiration to the noble Lord, Lord Grenfell. I noticed that he virtually had to be restrained from leaping with joy, when my noble friend Lord Marlesford suggested that there might be just a little extra sifting. I noticed a gleam in the noble Lord's eye. Such sifting might be available, and the noble Lord, Lord Woolmer of Leeds, suggested that we might obtain additional facilities.

I must express my admiration—and that of all of us—of the members of the committee and, above all, of the chairman. He is a proper European. He and I go back 50 years. We learnt French and German together at a well known college at Eton, beside Windsor. I have also tried to polish up my Italian. On Wednesday night, I spoke to somebody, now retired, who is well known to your Lordships and lives in Igea Marina. That colleague said that, when the noble Lord, Lord Grenfell, spoke, we had a proper European, a true leader of your Lordships' House and somebody who is discussed considerably in that region of Italy.

I make my humble comments as a Back-Bencher, not as a member of the committee. I thank the noble Lord, Lord Grenfell, and everybody who has contributed. I apologise for taking up the time of the House and look forward to hearing what the Minister says in reply to the points made.

12.46 p.m.

Lord Lea of Crondall: My Lords, the main thrust of my remarks will be about the overall question of what we do best and how we can decide on what, in normal parlance, is called "horses for courses". On what should we concentrate our limited resources? This

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excellent debate gives us the opportunity to ponder that. Many of us are perplexed that there is a European big picture and that we may fall between some of the different stools in our scrutiny. How do we combine all the different aspects?

There is also the problem of time and the availability of the main Chamber, as opposed to Grand Committees. We have all realised that there is no easy answer to that question. The number of reports is daunting, and I am, reluctantly—maybe not so reluctantly—coming round to the view that we need a different procedure for considering reports.

The other day, I read a rather good report from one of the sub-committees about the common agricultural policy. It was the first time that I had had in my hands an overall report on the CAP that I could understand. I suspect that, if that report is debated on a Friday evening in November, the only people who will be present for the debate will the members of the sub-committee who wrote it. That is par for the course. Is that a sensible use of our time? I am not particularly an iconoclast by instinct but why do we not group these reports? To put the matter quite brutally, at least some others will be obliged to attend when the CAP is discussed. I think that that is the situation today and there is some support for that point.

Furthermore, I would abolish the party slots on Wednesday afternoons. They are a total waste of space. We have desultory discussions in our group; I am sure that others do too. The only question asked is: how can we ensure that we shall bat on a good wicket if we choose this topic? What a ridiculous way to run a railroad. As far as I am concerned, that is for the chop. I have been lucky enough to win a debate on Africa on 21st May, so I had better not say that it is a stupid idea to have a ballot. Therefore, after 21st May, let us get rid of the ballot as well.

I do not think that there is much to distinguish between the Chamber and Grand Committee. What are we talking about? The size of the room! The question is: who will attend?

I should like to consider the substance of this issue and the big picture. First, the noble Baroness, Lady Park of Monmouth, made a point which struck me. I think I am right in saying that local authorities are not consulted about the implementation of secondary legislation which emerges from Europe. I should like to remind the noble Baroness—she can hop up and disagree if she thinks that I am wrong—that local authorities are not consulted about secondary legislation, full stop. There is a question in that, but it is not for today.

I attend meetings of the Joint Committee on Statutory Instruments, of which there are a great number. There is resistance to obtaining feedback from the user community—whether local authorities, trade unions or anyone else—as to whether they are written in English that can be understood, never mind French. Often we think that there is something rather conceited about the notion that Parliament decides and that other people had better just get on with it. That is not a party point at all.

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On that point I have a number of pilot projects as regards the downstream—to use the jargon upstream/downstream. The noble Baroness, Lady Park, also made the point that there is support for the report by my noble friend Lord Grenfell on looking at matters upstream; namely, before matters are decided in Brussels. That would be very nice, but under my test of horses for courses, it is not particularly our métier to have national parliaments involved on a day-to-day basis with multilateral negotiations before matters gel in Brussels. I do not understand how the role of the European Parliament can be our job. I think that applies to the European budget too, but I say that with some reluctance because I am a member of Sub-Committee A.

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