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We on these Benches regret the intense complexity that opt-outs and opt-ins have now achieved. That seems to us to be a general obfuscation and, once this Bill is complete, the Government would do better to publish a White Paper explaining it to us. We believe that the United Kingdom’s interests are best served by opting in much more vigorously than we have done so far. We also accept the views of the Lord President about staying out of negotiations and then discovering at the end of them that what has been agreed does not entirely fit British national interests and is not actually in British national interests. We therefore accept the views of the EU Committee on this. We recognise that we have to engage in these co-operative activities and that closer co-operation among law enforcement and other legal authorities in a European framework has been, and continues to be, in Britain’s long-term national interest.
Lord Howell of Guildford: This is of course a—
Lord Stoddart of Swindon: Before the noble Lord speaks for the Opposition, let me make one point. I am pleased that this amendment has been tabled as, throughout our discussions on this treaty and on the Bill, we have been assured that the so-called red lines protect the British position on a range of matters. We have been told that matters of justice, home affairs and police or what have you are protected because we have those red lines. I assumed that those matters would have to come back to Parliament, as we have been assured that these red lines protect British sovereignty and the sovereignty of Parliament. We now know that the Leader of the House takes a completely different view. Although there should—
Baroness Ashton of Upholland: I—
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Lord Stoddart of Swindon: Let me continue. Although there should obviously be discussion in the various committees—the Constitution Committee and the European Union Committee—in the final analysis, the Government’s view is that they must make the decision.
Baroness Ashton of Upholland: I—
Lord Stoddart of Swindon: I am right. The view of the Government is that they should make the decision after discussion in the parliamentary committees, but with no opportunity for Parliament, meeting as a Parliament, to make the final decision on whether we should opt in. That is what worries me and the supporters of the amendment. It is not good enough for the Government to say, “You can have discussions. We gave you all the assurances during the passage of the Bill through both Houses but now, without any further ado, we are going to agree to opt in where we had opted out”. I hope that the Government will think further about that if they wish to protect the power of Parliament.
Lord Howell of Guildford: This is, or ought to be, a parliamentary matter and not a party matter, so in a way I hesitate to taint it by offering a contribution from the opposition Front Bench. But we have heard extremely wise words, based on a very wise report from enormously experienced parliamentarians—experienced in both places—such as my noble friend Lord Goodlad, the noble and learned Lord, Lord Morris of Aberavon, and the noble Lords, Lord Rowlands and Lord Jopling.
We ought to ponder very carefully on the propositions that they have put forward. The propositions seem to me to carry considerable weight. What they are talking about in the name of Parliament, at a time when many fine speeches are being made about the need to restore parliamentary authority and accountability, is not just the need for improved scrutiny. I recognise that fully when the noble Lord, Lord Grenfell, talks about the time he needs to develop further methods. We have been talking now for more than two or three years—for five or seven years—about beefing up the whole scrutiny process, reducing the number of exceptions and loopholes that the Government can use to bypass scrutiny, and generally strengthening the entire system. There is very widespread concern that Parliament as a whole has not been doing its job. I agree with the noble Lord, Lord Harrison, on that. Although many people, especially in this House, have done an enormous amount of work trying to improve the system, it is not yet good enough.
We are looking beyond that. We are looking at the need for clear accountability in very important matters and changes affecting people’s lives. That is what the report from our own Constitution Committee addresses very squarely. I sensed in earlier debates some suggestion that we could perhaps slightly downgrade reports from committees in another place and that we must rest on our own reports. But here we have, with the full authority of its members, the Constitution Committee’s report. It clearly says, in heavy black type, what amendments are necessary to the Bill. Why does it talk about “amendments” to the Bill? It is seeking affirmative
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I concede that last night I was standing at the Dispatch Box arguing that we should go further than mere affirmative resolutions on the new passerelles—which are not similar to but are more extended than the old ones—and there should be an Act of Parliament before a great change was made moving from unanimity to QMV in important new areas. That did not seem to command vast support in this Committee, although the matter is so important that I think we will return to it. However, this report seeks something short of that; namely the affirmative resolutions about which we have heard.
If, as the noble Lord, Lord Grenfell, says, we need more time to work out how this is all going to work, that is a strong argument indeed for having a requirement in the Bill to ensure that we do not just roll ahead with the whole treaty and the whole Bill before this matter has even been worked out. That is a very important argument indeed.
Lord Grenfell: Perhaps I should clarify the point. When I was talking about more time I was not talking about months and months or years and years, I was talking about over the next few weeks. That is all.
Lord Howell of Guildford: I am pleased to hear that that is the idea. But it would be good to hear rather more about this extra work that has to be done and whether it will move us from the mere scrutiny area which the noble Lord appeared to be talking about into the area of having actual firm decisions by the two Houses in the form of affirmative resolutions, which is what this report so very clearly requests with a great deal of backing and reason behind it. That is what we are on about.
The speech of the noble Lord, Lord Rowlands, was one of the best cases I have ever heard for a renewal of parliamentary authority and reputation—at a time when we really need such a thing. Everyone knows it. The Prime Minister says it. The Leader of the Opposition says it. The leader of the Liberal Democrats says it. All parties are telling the public that we must restore parliamentary authority and reputation.
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Baroness Quin: I am grateful to the noble Lord for giving way. Will he therefore welcome the fact that in the treaty there is an increased role for national parliaments in the review of justice and home affairs matters and that, while Governments will certainly—and, I think, rightly—want the power to be able to negotiate in Brussels, sometimes in quite challenging circumstances, in future they will clearly do so within an overall strategy agreed by Parliament?
Lord Howell of Guildford: “As far as it goes”, would be my answer to the noble Baroness. It is my passion that we should make national parliaments the anchors for the coming together—“confederation”
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We have debated this matter and it was debated in the other place, and a lot of doubts and question marks rest over the proposition that the position of national parliaments will be restored by this treaty. Many people would argue—not on any wild basis but on a very clear basis—that national parliaments do not in practice emerge very much stronger out of this than they were before; if anything, they come out a little weaker. Therefore, the case of the noble Lord, Lord Rowlands, is immensely powerful, and it was supported with equal power by my noble friend Lord Jopling. Even if they had not spoken, I have before me the words of our committee and its members, who are very distinguished Members of your Lordships’ House:
“We conclude that the importance of how the opt-ins and opt-outs are used is such that Parliament must be fully involved in their use. We therefore recommend that the European Union (Amendment) Bill be amended so as to require the Government to obtain approval from both Houses of Parliament before using opt-ins or opt-outs in any policy area”.
That could not be more plain, more obvious or more justified.
We will now need from the Government and from those who say that there may be other ways of doing this some very clear expositions to satisfy us that somehow we should turn aside from these recommendations. They are in the interests not just of party but of Parliament, our democracy and the European system, which itself is under considerable attack and lacks enormous popularity and contact with the people. We should give our full support to amendments of this kind and I hope that we will hear full support for them from the Government.
Baroness Ashton of Upholland: This has been an extremely interesting debate on an area which, I agree with noble Lords, is of great importance. I pay tribute to the work of the Constitution Committee. We have not been tardy in responding to its report. My understanding is that we are well within the deadline and we intend to respond in full before Report. I hope the noble Lord will know that we have communicated that to the Clerk of the committee, who I gather was satisfied. Therefore, noble Lords will have a chance to see our report.
I have two starting points. The first is to ensure that noble Lords are fully aware of the importance of collaboration on justice and home affairs matters in the European Union. I refer not only to the more obvious ways in which we collaborate across police forces concerning criminal activity and so on but also, speaking from my experience on the Justice and Home Affairs Council, to collaboration on civil and family justice issues. The noble Lord, Lord Wallace, talked about the number of people from the UK who live all over the European Union, and certainly every year millions of UK citizens live, work, travel, study
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The second starting point is that I agree with much of what has been said about the importance of real scrutiny. I have listened with great care to noble Lords who have raised questions on how to ensure that we do that. I hope to allay some of the noble Lords’ concerns. Having alarmed the noble Lord, Lord Jopling, with my evidence, I am not sure how to put that to rest, but I shall certainly try.
I am extremely grateful to noble Lords who were able to attend the committee last week. I hope they will agree that we had an interesting and quite detailed discussion about how the process might work and how we might reinforce or enhance the committee’s work. I agree with those noble Lords who have said that the committee is the appropriate place to scrutinise these issues. Having attended and provided evidence to the Select Committee, I speak from personal experience. I know only too well the expertise and knowledge that has grown up in the membership of the committee and indeed in those who service the committee. I can assure noble Lords, although I do not think that I need to, that the House is well served by the work of the committee and the sub-committee. I also take the point about ensuring that we involve Parliament appropriately.
As a Minister, I have taken 17 pieces of legislation and a plethora of statutory instruments through your Lordships’ House. I know only too well that, late at night, our deliberations may not carry the expertise that noble Lords would wish to see. It is therefore important to ensure that when we are discussing issues of scrutiny, we recognise the importance and value of the committee and seek to ensure that that is where the key scrutiny takes place. When talking to the committee I was also keen to ensure that we thought more carefully about how we scrutinise these issues in the light of much of what noble Lords have said about their concerns to ensure that the committee can participate and consider the issues in greater detail.
I shall say a little more about the process and answer some of the questions that have been raised. We are sometimes aware of issues in justice and home affairs that have come along from the Commission or which may have been bubbling under the surface because of specific issues that have been around for some time. Until we receive a fully formed proposal from the Commission we cannot start the process ourselves. That process within government involves consultation across the departments that have an interest, the devolved Administrations and other stakeholders. Noble Lords will be able to think of
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Having done that, the Government will make their decision. I think that 90 days is appropriate. They have to give us some timetable, and three months from the date of the full proposal is quite generous because it gives us time to look properly at the issues. The Government commit considerable resources to considering the issues properly. For those who think that 90 days to end up with a proposal that will become law is not long enough, I should say that that is the opening negotiating position. Negotiations can take many months on particular proposals, and at the end of that time we will probably be seeking to amend them.
At the beginning we ask whether the proposal is in the UK’s interests—whether it would be beneficial for the UK to opt into it or whether we would be in danger of damaging UK interests by opting in. Within that negotiating position there will be issues that we would wish to strengthen, to change or to discuss with colleagues across the European Union to see whether we might make them more effective. On the order for payment, for example, we might want to ensure that the ability to reclaim money is set at a level that is of use to our citizens rather than at a lower level that is of benefit to other nation states but of less use to us, and so on. That is how the process begins. It is not an end in itself but is a process of negotiation. That is very important.
When it comes to parliamentary scrutiny and the role of the committee I am keen to ensure that we “use” the committee and the expertise I have described as effectively as possible. I have therefore been talking with officials in the Home Office, the Ministry of Justice and the Attorney-General’s Office to see what more might be done. As noble Lords who have read my evidence will see, I have clearly accepted the importance of finding ways of collaborating as effectively as possible.
In working with the committee over the next short while, we will try to see whether we can be clear that we will lay an explanatory memorandum as swiftly as possible. I know that the noble Lord, Lord Roper, felt strongly about that in my evidence-giving last week. We would make sure that the Government put the proposed position as clearly and swiftly as possible. As noble Lords will know, sometimes when these issues are obvious the Government can be pretty clear with the committee on which way we would expect to go, while other times the consultation process needs to take place first.
We would then wish to give the committee some time within the 90-day framework to enable it to have discussions without the Government pre-empting those. Although we will have to discuss how many weeks that might be, I have a commitment from my right honourable friends in another place on wanting to do this, thus enabling the committee to have those deliberations and indeed to call evidence and invite Ministers before it to have those discussions. We will need to ensure that we set that out appropriately. How that can best be achieved is a matter for discussion with the noble
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I want to end on a more fundamental point regarding the whole area of justice and home affairs. As we move beyond the Lisbon treaty and into post-ratification, it will be important for the Government to consider their strategic approach to this area, as they would normally do. Indeed, as noble Lords will know, the Commission will no doubt produce post-Lisbon papers about the general approach that it might take to justice and home affairs. There are areas of collaboration where it would seek to work with member states to develop important areas of legislation, or indeed of policy. We will have to think carefully about what our approach would be. That will have implications for how we handle individual opt-ins. Those may come in all sorts of guises but they need to be part of a strategic approach. The Government should seek to do that in the spirit of wanting to be a participant in the European Union in this area.
It is important that Parliament should look at the strategy for government as part of that strategic approach. We will have to consider how best to do that. For example, perhaps government Ministers will initially outline that approach to the Select Committee and the Select Committee will then, through the usual channels, invite the House to debate such a strategy. In itself that will give a sense of direction and some detail on where the Government would go. To be blunt, however, I would not be in favour of the salami-slicing of individual opt-in decisions. I said that in my evidence, and I believe it from my own experience. The decisions do not come in packages, but they are often inter related within a general approach on civil justice, criminal justice and so on. Decisions need to be taken in that way.
Finally, in all this process, regardless of whether the Government ultimately decide to opt in or out—as I indicated, I have done both—one always seeks to do so in a spirit of being part of Europe, of collaboration and co-operation with our European partners. It is possible that, having not opted in at the end of the process, one can then ask the Commission and the Council about doing so if the proposal becomes acceptable. Indeed, a consultation is now out on Rome I—on which I was the Minister responsible for not opting in—concerning whether it is at the point where we could opt in. We spent a huge amount of time looking closely at the working groups, but that was exceptional.
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Lord Howell of Guildford: I hope the Minister will forgive me for interrupting because she is trying to cover this in great detail, but I think she is coming to the end of her remarks. She has spoken at considerable length about the need to improve scrutiny and the work she is going to do with the noble Lord, Lord Grenfell. We all agree that that is required. It would be marvellous if it could be done in a few weeks as some of us have been trying to do it for about 10 years. If we
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Baroness Ashton of Upholland: I intend to. I had not sat down. Had I sat down, the noble Lord would be have been correct to prevent me doing do. I was addressing the issues that noble Lords raised in their deliberations that I thought gave rise to concerns that, for some noble Lords, were the reasons why they were supporting the amendment, because they feel that the Government have not done enough to consider scrutiny. However, the noble Lord is right, and I am grateful to him. I shall address his point but I shall finish the one I was making about the scrutiny procedure, because I do not think noble Lords can reach a decision on this amendment without me putting forward how the process currently works and some of the issues that we need to consider for the future. I was saying that it is rare to be able to look again at the possibilities of opting in, but it is possible. It would not be a strategy to be pursued in the main. I mention that because it was raised in the committee and I felt that this Committee should also hear that point.
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