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A Noble Lord: Hear, hear.

Lord Lea of Crondall: I am not sure whether the noble Lord heard what I said because on a priori grounds he would disagree. Maybe he did hear what I said: but I shall say it again. It is not sensible for us to try to obtain detailed scrutiny of the process of the annual round of creating the European budget. That is not a valid way of using our time. The European Parliament is in the lead on that. Following the intricacies of all the budget lines, the European budget is difficult enough for the European Parliament to understand. There is no way in which that can be our job.

However, this is related to the problem of how do we look at what I shamelessly call the "big picture"? In this respect, we are not getting our act together in a sensible way. The noble Baroness, Lady Park, referred to the convention. On Wednesday, I attended a meeting of the convention committee—a House of Commons committee which others can attend. The meeting was adjourned for lack of a quorum and later returned. The previous meeting was adjourned for lack of a quorum. The paradox is that the next day the Sun and the Daily Mail newspapers had a splash, entitled, "A Blueprint for Tyranny". Noble Lords will understand from the tone of my remarks that I believe that to be gross hyperbole. It would be rather strange if we were agreeing a blueprint for tyranny and not achieving a quorum. Probably, that has occurred once or twice in the past 1,000 years, but not generally. How do we correct that?

Our representatives on the convention have made the point that it is the Select Committee under the distinguished chairmanship of my noble friend Lord Grenfell that is producing the running commentary on the convention. But we do not really get a handle on the big picture. Just to cheer up some noble Lords opposite, I could say the same about the euro. But in respect of the convention, we must reflect on the time spent on every statement that comes back here, which takes one hour and 20 minutes. That is excellent, but it is question mode. We can only ask a question. Some of us think that we should be thinking more systematically on a number of issues. Do we have one person instead of Patten and Solana? How does that

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relate to the present? How does that relate to enlargement? How much of the convention is codification of what exists, which is fairly substantial?

A great many people who criticise the step-by-step approach in European legislation, describing it as a type of stealth approach, say that we should define the framework—the football pitch—of Europe. Without using the word constitution, that is what a lot of people have been asking for; that we get the big picture sorted out with a little codification and some latitude to deal with enlargement. That is largely what is happening.

We should have an update on the big picture every couple of months. There should be either a government or a House report—I do not know which. It would not make any difference whether it was in the Moses Room or in the Chamber. Why that should make a difference I have never understood. I know that one cannot vote unless in the Chamber, but that would not be an obstacle because we are not voting. Against that background, we would have a more secure context of ideas in which to be better able to judge on the problems of scrutiny.

I am also something of an iconoclast on scrutiny. It is very mechanistic and I would undertake some sampling. To that end, I sympathise with the noble Lord, Lord Lyell, who said that he did not know whether the "sift" was the name of a horse race—I am told that it is the name of a television programme. However, I think that even the scrutiny that we do undertake is extraordinarily mechanistic and seems to consist largely of making complaints to the Government, saying that they have not replied to a letter that should have been replied to last Friday, and that we are outraged that the response arrived only this Monday. Is that an exercise for grown-up human beings, when we ought to be considering the big picture?

Perhaps we should follow the example of auditors, which is to take what is almost a random sample of explanatory memoranda for detailed scrutiny. We should produce many more shorter reports. We should group the larger reports. We should consider at two-monthly intervals the big picture—again, I do not mind which room we use to do that. Finally, I wish to add the little nugget that I like the proposal that all the sub-committees should be asked to report back on whether they have looked at the amount of press attention they received on their last reports. That is the kind of practical detail which, although it may be a twinkle in the eye of my noble friend Lord Grenfell, is nonetheless a good example of the kind of detail that we should be picking up on.

In most walks of life nowadays, people try to ensure that their reports are marketable. I know that the reports on asylum and the amnesty proposal were very good, although I must say that the report in question was written in such obscure language that, when I came to look for it, I could not find the recommendation. The page number did not correspond with the contents page.

As regards the whole question of communication and dissemination, I welcome the short note sent round to all the committees by my noble friend Lord

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Grenfell. It asks us to ensure that we test ourselves—as would happen in the business world—on whether we have marketed our product properly.

1.2 p.m.

Lord Williamson of Horton: My Lords, I welcome this opportunity to debate the report of the Select Committee on the European Union, of which I am a member, on the review of scrutiny of European legislation. I do not comment on the timing of these debates, except to say that in my family I am now known as "Man Friday".

It was high time to hold such a review, for three main reasons. First, this House has a central role in the scrutiny of proposals for EU legislation and other important EU documents. That has been running for many years and needed to be evaluated. We have to ask whether we are significantly influencing the Government and, more generally, are we making a sufficient impact, given the large amount of work that is put into scrutiny both by the Select Committee itself and by the detailed inquiries of the sub-committees?

Secondly, the noble and learned Lord the Leader of the House has been actively persuading the House to look at some of its procedures; for example, on the pre-legislative examination of draft UK legislation. It would be odd if one of the most important and prized roles of this House—namely, the scrutiny of EU proposals for legislation—should not be examined at the same time.

Thirdly, important changes have been made to the way in which the European Union works, with a wider use of consultative documents and programmes which, while not in themselves proposals for legislation, certainly can pre-judge it. In my view, scrutiny should begin earlier in the chain leading up to decisions. Additionally, over a recent period, the largest number of new initiatives, including legislative initiatives, have been in pillars 2 and 3, the areas of justice and home affairs, and the common foreign and security policy. We should remember the rapid reaction force and the European arrest warrant—indeed, we shall never forget that.

It is vital to keep up with those developments and to be aware that, in some cases, proposals for legislation can go directly into the Council without the Commission's proposal. It is also worth noting that the most significant changes in the Convention on the Future of Europe lie in the areas of justice and home affairs and the common foreign and security policy, with a proposal for a new EU minister for foreign affairs and, eventually, the greater use of qualified majority voting. I think it is most important for the scrutiny operated by this House to look at and comment not only on Commission proposals in the traditional areas; we need to scrutinise and consider what is going on in the Council on the newer areas of EU competence.

The Select Committee report published last December contains a number of practical proposals and comments on questions such as the length of reports, the effectiveness of correspondence with

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Ministers, the operation of the sub-committees and co-operation with the House of Commons committee. I support the conclusions but, as I would be surprised if they were contested, I do not comment on them at length. However, while welcoming the Government's generally positive reaction to the Select Committee's report, I wish to comment on a number of new points dealt with under the heading of "Effective Scrutiny" in Part 3. Other noble Lords have commented on those points, but if more than a few noble Lords do so, then in my view that demonstrates the fact that they are important, and that is why I shall come back to them.

First, even in the short time that I have been dealing with these matters as a Member of your Lordships' House, I believe that we have made good progress in extending scrutiny some way back up the chain which leads to legislative proposals and decisions. We are doing this by new scrutiny of the Commission's annual work programme and by the proposal to scrutinise the Council's strategic agenda. Experience has taught me that it is possible to influence legislation at the stage of preparation and potential inclusion in a work programme. Under the Union's legislative system, it is far more difficult to remedy defects at the stage where a proposal has been set in concrete. That is particularly the case because not only the Commission but also the other member states may be most unwilling to change what they see as favourable elements of a formal proposal. What I have said about the change in the balance towards justice and home affairs and the common foreign and security policy means that it is vitally important for us to look at the Council's future programme.

Secondly, just as we need to look back behind the tabling of formal proposals, it would also be helpful to look forward from the decisions taken in Brussels to their implementation in the UK. This is the recommendation set out in paragraph 171 of the Select Committee's report. It refers specifically to the value of information in the explanatory memoranda on the way in which the Government intend to implement European Union legislation—by primary or subsidiary legislation, and subject to the affirmative or the negative procedure.

Unless the Minister has travelled to the House today by way of the road to Damascus, I do not think that the Government will agree to the recommendation in this form, but nonetheless I want to take the noble Baroness back to the motivation behind the recommendation, and to the statement set out in paragraph 47 where the Select Committee requests that,


    "the Government's proposals to implement a particular piece of legislation be set out in more detail in the initial [explanatory memorandum]".

What I have in mind is that, even if the Government do not want to commit themselves within the explanatory memorandum to the legislative procedure which they propose to follow for implementation, there are other matters relevant to implementation which it would be helpful to know about at the scrutiny stage.

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The noble Baroness may recall that we had a fridge mountain—or, at least, a fridge molehill—as a result of changes in European Union legislation. It was desirable on environmental grounds, but the implementation at the local level was not sufficiently well prepared. That is only one example where the potential consequences for local or other public authorities, or for business, of the implementation of EU legislation could perhaps helpfully be signalled to the Select Committee at the time of scrutiny. I hope, therefore, that the Minister, while probably maintaining the Government's position on the form of legislative implementation, will confirm that we shall have other, possibly useful, information in the explanatory memoranda on implementation where practicable.

Thirdly, the recommendation in paragraph 184—which has been referred to by a number of noble Lords, particularly the noble and learned Lord, Lord Scott of Foscote—raises an important point which I do not hesitate to stress. The recommendation would establish a new power for the House requiring the Government to secure an affirmative resolution in order to lift a scrutiny reserve in exceptional cases.

It is understandable, of course, that the Government object to this recommendation because it represents a strengthening of this House's power of scrutiny—although applicable only in exceptional cases—and a weakening of the Government's room for manoeuvre. But it is not sufficient for the Government to reject the recommendation on the general argument that it is a form of mandatory scrutiny.

There is a big difference between the new proposal and a general requirement that in all cases the Government should have obtained a scrutiny mandate before negotiation and decision on a proposition. A general system of mandatory scrutiny would be a serious restriction on government action—the Select Committee has rejected it—but the recommendation in paragraph 184 is a much more limited proposal and the conditions for its exceptional use could be determined. I hope that the Minister will not be closed to this proposal from the Select Committee, despite what is said at the moment in the Government's response.

Finally, I turn to the question of European Union subsidiary legislation, which is covered in the recommendation in paragraph 176. As I have, by general acclaim in the Select Committee, been handed the poisoned chalice labelled "comitology", let me say that much of the European Union's subsidiary legislation is of very little importance. But a few points are significant and certainly sensitive for public opinion. So I hope that the Government will not rule out inviting scrutiny of such significant issues, where practicable, before they go to a committee in Brussels on their way to adoption. It would be a new approach, but it corresponds to the reality of where decisions are taken, and at what level, in Brussels. We need to bear that in mind.

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To sum up, there are 70 useful conclusions in the Select Committee's report and the Government's response has been generally positive. While the House could probably improve its own procedures for the timing of debates, I have tried to concentrate on four points: the vital need to scrutinise programmes at an early stage in the legislative process; the importance of at least some information on implementation in the explanatory memoranda; the proposal that in exceptional circumstances an affirmative resolution of the House would be required from the Government to lift a scrutiny reserve; and, where practicable, information on significant issues going to committees in Brussels with a view to EU subsidiary legislation.

If the Minister agrees with all that, I shall consider this to have been a good morning's work.

1.13 p.m.

Lord Brooke of Alverthorpe: My Lords, as a former member of the Select Committee who was serving when it embarked on this review, I, too, express my appreciation to the noble Lord, Lord Grenfell, to present members of the Select Committee, and to the Clerk, Simon Burton, for the excellent report it has produced.

I was a member of the Leader of the House's group on working practices which asked the Select Committee to undertake an examination of the way in which we scrutinise EU legislation. I sensed at the beginning that the Select Committee did not exactly fall over itself with a great deal of enthusiasm during the early stages but, as it started to get to grips with the task, it certainly showed that enthusiasm. I look across at the Opposition and at the noble Lord, Lord Howell of Guildford, who gave the matter a great deal of stimuli in debates in the Chamber. He gave us many ideas to consider, which led to much hard work being done within the Select Committee. Since I left the committee in November it has kept hard at it and has done an enormous amount of work in producing a thorough analysis and a wide-ranging set of recommendations of which it can be proud.

I am in agreement with most of the recommendations before us. The Select Committee has carried out a job of work not only for the House but for the country at large. As has been said, so much of our legislation now emanates from Europe, and has such an impact on all our lives, that it is more important now than ever before to ensure that what comes from Brussels is needed, and, if it is, that it is in the best possible form for legislation.

Most of the Select Committee recommendations take us in that direction. There is little with which I disagree, although, from the way that the debate was opened and has developed, I may take a different line on the way in which the Committee seeks to extend or maintain the scrutiny reserve described in paragraph 184.

When the House took its decisions on the options before it on the future of the House of Lords, had it decided that it wanted to become an elected Chamber rather than continue to be solely an appointed

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Chamber, the case would have been stronger for it to argue that powers should be extended possibly beyond those within the Commons. Indeed, if we had persuaded the Commons to follow the same line, that would have been needed. For a non-elected Chamber to seek to extend its powers in this way is somewhat questionable.

In any case, the arguments advanced by the Government are worthy of deep consideration. In particular, there is an implied threat that if the power was introduced, if it was secured, the Government could start to take a greater interest in the composition of the Select Committee from a party political point of view. I do not believe that that would necessarily be in the best interests of this House and the way in which we carry out scrutiny overall.

So it is important that we do not over-egg the pudding on that issue and I counsel a little caution. I hope that we will accept what the Government have to say and that we do not get ourselves into a running battle on this front but instead concentrate on the many positive responses outlined in the report. The Government's responses in the report are as good as any I have seen for quite some time. A great deal can be built on within the context of the recommendations and the Government's comments, much of it on a joint basis.

Let me be a little provocative and suggest that the Select Committee should consider whether or not it can devise a fast-track scrutiny system. I speak from my experience as chairman of Sub-Committee B, to which the noble Lord, Lord Woolmer of Leeds, so kindly referred, and set out the wide range of topics that the committee seeks to handle.

We do so at two levels: a weekly scrutiny of pilot papers and, alongside that, longer-term, more detailed inquiries. Only a smallish number of the members of Sub-Committee B focus on a weekly basis on the detailed examination of scrutiny documents. I suspect that it is not a great deal different on most other committees. I am supported in that view, to some extent, by what the noble Lord, Lord Lea, said about what happens on Sub-Committee A. Could not such members who voluntarily focus on these issues—it is a small number—be brought together, at least on a trial basis, in an endeavour to create a fast-track mechanism? It may not work, but at least some consideration might be given to it.

If it did work, many other committee members would be greatly relieved because they find some of the work quite a chore. There could be a beneficial knock-on effect in consequence in that more Peers might be interested in putting their names forward to join EU sub-committees. It is important work, some of which could be done more rapidly, but it is not liked by most Peers because it does not deal with the kind of issues that attract them. As the Leader of the Liberal Democrats, the noble Baroness, Lady Williams, said, it is a grind.

The Commons European Scrutiny Committee does much of the work, of course, as we know from the reports it produces. Their members do more of it than

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we do. But most of us have never seen how effectively they scrutinise the European documents that go before them when they select those of great political and legal significance for further scrutiny and possible debate. This is because they still do it in private. Technically, I believe, our scrutiny work can be open to the public but in practice the scrutiny of these documents is, in the main, still done in private. I think it should be open and transparent. Similarly, I believe it is high time that the Commons committees were open and transparent in their approach to the examination of European documents.

There is a wider implication beyond legal applications and political interests in looking at those documents. As mentioned, the effects run right across society and affect industry in particular, as we found in Sub-Committee B. It is important that people know right from the beginning what is happening in Parliament.

It is also interesting to note that a Commons review of its scrutiny work last year sought an increase in the number of committees. But the Government rejected the proposal on the basis that the Commons had difficulty already in finding sufficient MPs to undertake the work for the existing structure, let alone for an increased number of sub-committees. In paragraph 188 of our report we seek extra committees. I believe that this is justifiable on the basis of the way in which we do the work and also the number of people whom we can provide to do it. Given that, as has been demonstrated with statistics, the work coming to Parliament from Europe continues to grow, we need at least one extra committee to deal with the public health issues and consumer affairs presently encompassed by a very hard-pressed Sub-Committee D. The Government's response states that this is a matter for the Liaison Committee. However, they go on to give their views which are, to my mind, not too encouraging or supportive. Given that the Minister embraces several functions for the Government and within the House structures, I wonder whether she might be prepared to offer what assistance she can to try to help us get at least one extra sub-committee, especially if the Select Committee were prepared to offer some movement in meeting the Government's point on ensuring a faster-track scrutiny system than at present.

I still do not believe that we have our relationships right with the Commons. Neither, for that matter, have we sufficiently progressed our relationships with MEPs, although I was heartened to hear that work is being done on that front. We hear plenty of fine words about the nature of our relationship with the people at the other end and about how we work together on EU scrutiny. But in my opinion the sum of the two Houses' efforts still does not produce the added value in scrutiny of EU issues that it should. I trust and I am sure that the Committee will continue to maintain its efforts on this front and hope that the Government will continue to give their assistance to changes in whatever way they can.

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Finally, with reference to the points made by the noble Baroness, Lady Park of Monmouth, and the noble Lord, Lord Lea, I think there is an omission in the report in not seeking to establish formally, on a monthly basis, more time in our programme for dealing with European Union issues. The noble Baroness suggested there should be a debate on a monthly basis; the noble Lord suggested alternative approaches. Mine was a fairly modest suggestion—as, indeed, are most of my contributions to the Select Committee. I suggested that we have a quarter of an hour report back from the chairman of the European Union Select Committee at least once a month in this Chamber, with an opportunity for Back-Benchers to question the chairman of the committee on its work and where it is going. I hope that the Select Committee may be persuaded to go back to that and have the appropriate consultations in the House. This would be another way in which we could raise the profile of the committee's work and give it the attention which I believe it so richly deserves.

1.24 p.m.

Lord Pearson of Rannoch: My Lords, the report rightly says that our scrutiny of European legislation is of constitutional importance, and most noble Lords seem to agree. But thanks to Sections 2 and 3 of the European Communities Act 1972 and to the fraud of subsidiarity, as set out in the European treaties, our scrutiny has been and, indeed, must be, incapable of preserving the heart of our constitution. As I have suggested before in your Lordships' House, the heart of our constitution, of our sovereignty, of our democracy, is the right of the British people to elect and dismiss those who make their laws and who levy their taxes.

The noble and learned Lord, Lord Scott, put it very well today, in what struck me as a seminal contribution, when he reminded your Lordships that it is the primary responsibility of Parliament, not the executive, to supervise the passing of our legislation. So we must face up to the fact that the 1972 Act threw away much of that duty of Parliament, that right of the British people, so hard won over the centuries. Subsequently, the Single European Act and the Maastricht, Amsterdam and Nice treaties have merely compounded the felony.

I have quoted the relevant words of the 1972 Act before and doubtless I shall do so again as we move towards consideration of the new constitutional treaty which will emerge from Mr Giscard d'Estaing's Convention on the Future of Europe. Those words are so fundamental to this debate that I fear they should be put on the record again. The crucial bit of Section 2 reads as follows:


    "All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties . . . are without further enactment to be given legal effect . . . and be enforced . . . accordingly".

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The rest of Section 2 says that Ministers may implement EU obligations by regulations. Section 3 makes the Luxembourg court the sole arbiter of the meaning and effect of EU law.

We can debate the niceties of the scrutiny reserve for all eternity, and perhaps your Lordships will persuade the Government to allow us a little more influence. But the House of Commons and your Lordships' House are, in reality, powerless against the treaty-making power of the Royal prerogative while those words in the 1972 Act remain in force. Once the executive, or the Government of the day, have agreed or been outvoted on a new law in the Council of Ministers, Parliament must enact that law, on pain of unlimited fines in the Luxembourg court. It is worth remembering that qualified majority voting, where we have only 14 per cent of the votes in the Council, already applies to all our commerce and industry, to our social and labour policy and to our agriculture, fishing and environment. Those are huge areas of our national life, and the list is due to expand under the Giscard convention.

Subsidiarity has proved entirely useless, as I believe is now generally acknowledged. Indeed, it merely confirms the supremacy of the Luxembourg court, and that once a power has been ceded to Brussels, it is never given back. Any noble Lord who still doubts that should study Article 5 and Protocol 30 of the treaty establishing the European Community.

The noble Lord, Lord Grenfell, my noble friend Lady Park and others have held out some hope for the future of subsidiarity. But I fear those hopes are dashed by the Giscard convention, which merely proposes that national parliaments should be able to ask the Commission to think again but proposes no change in the treaties to ensure that it does so.

I hope your Lordships do not think I am being unnecessarily ungracious about your efforts in scrutinising European legislation. It now amounts to more than half of all our legislation, all of it dreamt up and proposed by the EU bureaucracy, the Commission. I have no doubt that your Lordships' wisdom over the years has made the diktats of the corrupt octopus in Brussels slightly less obfuscatory and even, on rare occasions, less awful, but not much, my Lords, not much.

I have only one question for the Minister. Is there any chance that the 1972 Act might be amended to allow Parliament the powers which many of your Lordships, and no doubt the British people, clearly believe it should have? I fear the noble Baroness will say that that would be a very bad idea anyway, because the Government take their obligations to Brussels so seriously and think the results are wonderful. If that is to be her line, I remind her that whatever treaty emerges from the Giscard convention, it will give Brussels—


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