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Lord Tordoff: My Lords, I trust that the noble Baroness will forgive my interruption. I have to say that, although the Commission comes in for a lot of stick, from my experience it has in the past been much more open and transparent in dealing with First Pillar matters than the Council has been until recent years. That is improving, as this report indicates, and as the noble Lord, Lord Kingsland, suggested, but I think it is not unfair to say that the Commission has been rather better in terms of transparency than the Council.
Baroness Ludford: My Lords, I thank the noble Lord, Lord Tordoff, for that intervention. As a former official of the European Commission I did not like to be seen congratulating the commission, but I think it is true that, because the Commission is often overstretched, as has been focused on this afternoon, it needs external input and information and so it is rather keen to let people have information documents so that they can get comments and assistance.
The report we are looking at this afternoon brings up two interrelated issues. One is parliamentary scrutiny and the other is secrecy. What the report emphasises is that early and thorough parliamentary scrutiny should be regarded by government as a benefit, not a burden. It is likely to lead to better legislation, and will probably save time, energy and possibly expense later on. I understand from the remarks made by noble Lords that the current Home Secretary and his staff at the Home Office may by now share this view rather more than they did in the past, and that is all to the good. Certainly the report on the Schengen acquis that we debated in November contained correspondence on differences of opinion as recently as last February, if my memory is correct, over whether the Home Office had interpreted correctly the criteria on making documents available.
Today's report shows a gap in the past between promises and practice which needs to be rectified; for example, adding a new unilateral criterion from the Home Office side such as whether the text had to be reasonably close to the final version. We look forward to that reticence being removed. The introduction that we look forward to in the Amsterdam Treaty of a formal scrutiny reserve and a minimum six week period for scrutiny is welcome, though I must confess that I am unclear whether this applies to member states' proposals as well as to those from the Commission and whether it applies to all third party matters. Perhaps the Minister will be able to enlighten me either today or at a later date.
I turn now to secrecy. It is vital that any definition of "confidentiality" should be interpreted narrowly. I welcome new Article 191A in the Amsterdam Treaty (I believe it is now 255) which confers on citizens a right of access to European Parliament, European Commission and European Council documents. Rules and limits on this right of access are to be drawn up by the Council and the European Parliament under the
I am wary of the declaration accompanying Article 191A that allows one member state to block the communication of a document in the possession of the Council or the Commission if the document originated from that member state. Perhaps the Minister could also indicate how that is likely to work and tell the House whether there will be any limits on that right of veto. But those rights of access lie in the future. At present, we have a wholly unsatisfactory situation where there are tiers of inclusion with the public at the bottom. At the top are governments and their civil servants, some European Union civil servants, followed by national parliaments and the European Parliament, pressure groups and then the public.
According to Justice, the Home Office never distributed Third Pillar texts or explanatory notes and claims to be constrained by the 1993 Council decision. It was left to your Lordships' committee to decide whether to let the advisory groups have the document in question. It surely cannot be right to put the onus unfairly on Parliament to be a gatekeeper. It seems to me that it draws Parliament into a web of "clubiness" and--dare I use this term?--cronyism which I find rather distasteful. It makes third party access a lottery. A pressure group or a member of the public has to know if the document exists, and then hope that the committee is carrying out an inquiry on it, before access to the document can be gained. I do not see how that can be acceptable. Therefore, I hope that the rules drawn up in future by the Council and the European Parliament will end that culture of secrecy and put access to documents on a true basis of citizenship rights in the spirit of a European freedom of information charter.
I have one further comment and question about the publication of Third Pillar initiatives in the Official Journal. The Amsterdam Treaty says that this will happen, but I am rather unclear as to how it relates to the protocol on national parliaments, where, as I said, it refers only to Commission proposals being sent out to national parliaments. In other words, will there be publication of all Third Pillar proposals, whether they come from the Commission, the Council or member states, bearing in mind the fact that national parliaments only get sent those from the Commission? That would mean that the public would get more than the national parliaments.
In this transitional phase, between where we are now and the Amsterdam Treaty, it seems to me that there is another complicating factor; namely, that last March, under the UK presidency, Justice and the Home Affairs Council declared themselves in favour of making available to the public proposals in the field of justice and home affairs at the same time as these were made available to the European Parliament. There was no mention of national parliaments in those presidency conclusions. I wonder whether national parliaments at present in this transitional phase will also get those proposals.
I turn now to my conclusions. It is possible that I am confusing your Lordships as much as I am confusing myself, but I believe that we have a number of anomalies which need to be ironed out. It is one of my conclusions that we need strong co-operation between national parliaments and the European Parliament so that whatever rights apply are aligned. There is one further anomaly that I have noticed; namely, that national parliaments will be consulted on common positions under the Third Pillar where the European Parliament is not. That means that there is a whole network of people with different information.
I began by saying that I was concerned about the rights of all citizens, but I also mean all residents. I say that because we have non-citizen residents in this country--third country nationals--as in other member states. In terms of black and Asian ethnic minority citizens, we have anecdotal evidence at least (which was highlighted in the evidence to the report on the Schengen acquis) of discriminatory behaviour experienced by ethnic minority Britons travelling in the European Union. There are also the rights of third country nationals with rights of residence in this country but who are not citizens of the European Union, which by analogy are less.
I hope that the provision in the Amsterdam Treaty about combating discrimination on the grounds of race will be exploited by the Council in order to increase the security of black and Asian citizens and third country nationals who are ethnic minorities so that we end the situation of two or three classes of people in the European Union.
I conclude by saying that, for the third time in a debate on European matters, I am to be followed by the noble Lord, Lord Beloff. On the two previous occasions I believe that the noble Lord expressed himself in considerable disagreement with what I had said. However, perhaps this will be third time lucky.
Lord Beloff: My Lords, I shall not disappoint the noble Baroness. It is not so much a matter of disagreement; indeed, it is the fact that she starts from a quite different position from mine. My sole interest in these matters is how Britain is governed and how its citizens benefit from the form of government that they enjoy. The noble Baroness's interest is based on the assumption that there are persons called "Europeans" who live at the grass roots and are creating a new world. I cannot go into that because, as I said, it is very remote from my own interests.
I read the report now before the House with great interest. I congratulate my noble friend Lord Kingsland and his colleagues on making clear, with some difficulty to a limited mind, what the problems are in relation to this particular question of Parliament and the so-called Third Pillar. It is perhaps typical of your Lordships' House that this report has had to wait for a year or more to be considered and that a good deal has happened in the interim; and, indeed, may happen quite shortly if and when the Amsterdam Treaty comes into force. I must
I have always thought--and think so now more than ever--that it was a great and obvious mistake of this country to agree to any pillar, any set of measures, relating to justice and the law. We have in this country, along only with the Republic of Ireland, a system of common law that we share with the United States and certain countries in the Commonwealth based on an entirely different set of principles from those governing the majority of Continental European legal systems which are in their origin at least Napoleonic, if not earlier. I cannot see how they can be married effectively and see no reason why they should be. Why should there be an approximation of laws and procedures in courts which is not found necessary for the transaction of normal human relations with other countries not in the European Union, though many of them are, of course, in Europe geographically speaking? Therefore, it is extremely difficult to visualise what advantage the citizens of this country can gain from that particular approach.
The most interesting and novel part of the report was the description as to how the conventions, or agreements, which are to eventuate in some form of primary or secondary legislation are arrived at. On reading the description of the five levels at which matters are considered, it seemed to me a matter that is difficult to assimilate for those who are brought up in the British tradition of government, where there may be consultations, a White Paper and a legal text. One knows who is responsible for it. One can ask questions and argue in this House and another place about its validity, and it is a matter that the public can understand. But when one reads that texts are produced only at a late stage, following an agreement on principle without a text, one begins to think--if I may refer to the interruption to our debate--that there is a culture in Brussels more peculiar than the culture that apparently exists in the secure accommodation unit at Ashworth Hospital. There are ways of doing things that suit some people and may not suit others.
I wish to put an important point to the Minister. It must have cost a great deal of Civil Service time--particularly that of members of his own department, but also in the other departments involved--to engage in these discussions. If those energies had been available to the Minister's department for dealing with internal problems, which he has admitted exist in relation to, for example, asylum seeking or immigration, would not the department have been in a much better position? In other words, should not the manpower costs figure in our consideration of European affairs as much as the financial costs, which look like being brought rudely to our attention by the German Government during their presidency?
It is therefore difficult to see that much can be done by Parliament in these circumstances. It is difficult to see how the greater, or earlier, circulation of documents on which the report lays great emphasis will have an input into a system of this kind. If the Government are
It looks as though by far the most important part of a common policy is that referred to by the noble Lord, Lord Howell of Guildford, with whose remarks I find myself almost wholly in agreement. I refer to the problem of the movement of people, whether seeking refuge for asylum or as part of what looks like becoming increasingly a movement of peoples motivated by the perfectly legitimate wish to better their economic position. The Minister will correct me if I am wrong, but it seems that under the Amsterdam Treaty that matter will now be dealt with at Community level. We come to the very familiar problems of how one handles Community legislation and how the opinions of Parliament are made manifest towards it.
So we are in a situation in which one could easily take the points made by the witnesses to the committee and others and say: yes, of course it would be nice if one had the documents in time, and to have an opportunity to think about them. However, I suspect that that is secondary to the real question of how we are to tackle the serious problems that are before us.
It was conceivable that the answer would not lie with national parliaments but with a European parliament of some kind. It seems cruel to talk about the European Parliament this week, when it is once again in the process of showing itself up as a toothless dragon. If we still had, as was the case, a European Parliament representative of the national parliaments, not of an apathetic and uninterested electorate, perhaps there would have been some scope for advance along those lines. We do not have that, and we are unlikely to return to it. All one can say is that when one looks at Europe, defined as the Union, and when one thinks of the opportunities that it has thrown away--particularly in regard to embracing, as looks increasingly improbable, other countries in Europe outside the original core--one can only be sad. And sadness is what comes to my mind whenever I think about the European Union.
Lord Inglewood: My Lords, I begin by reiterating what a number of other speakers have said regarding the importance of the topic covered by the report. I am a member of Sub-Committee F, but joined the committee only after my noble friend relinquished his position there, although I served under his leadership in the Conservative Group in the European Parliament. It is a position to which I hope to return. (I daresay that will horrify my noble friend Lord Beloff.) The "apathetic electorate" have no part in having placed me here and are about to turf me out, so they may feel inclined to the idea that I may contribute something there.
The report approached the subjects under consideration, dealt with under the aegis of the European Union and the Third Pillar, in terms of a series of specific issues. I wish to stand back and view the scrutiny process as a whole in the wider political context of the European Union system of international relations here in Western Europe, and in a manner somewhat similar to that adopted by my noble friend Lord Howell.
For reasons that were not planned, a great deal of my political life has involved the consideration of matters relating to the Community and subsequently the European Union, and from a number of different perspectives. Over that time, I have become convinced of a number of relatively simple points. The first is that science and technology, telecommunications and improved transport mean that, increasingly, countries will have to work together over a wide range of topics. We live in a world where at present there is effectively a seamless transition in a number of areas between what traditionally might have been called domestic political matters and, in contrast, what were traditionally known as foreign affairs. In practice, the traditional demarcation between them--indeed, the distinction between them--has more or less ceased to exist. I believe that the vast majority of our citizens accept this and recognise that we have to work together to provide a coherent legal framework across more than one national jurisdiction. As part of this, I believe it is recognised that a satisfactory process for taking political decisions is needed. This, in turn, inevitably involves sensible give and take. What is equally clear is that a large number of people are, to a greater or lesser extent, unhappy about the systems which are in place for doing this. I suspect that the single greatest reason for this unfortunate state of affairs is that it is widely felt that there is inadequate democratic control and scrutiny of what is going on and that it is not backed up by consistent and even-handed enforcement in the areas where these joint decisions are taken.
The European Union system clearly involves two different but parallel ways of doing business. First, the old Community system has developed, involving significant Commission and European parliamentary involvement. More recently we have seen the development of an intergovernmental system which, after Amsterdam, will have some European parliamentary involvement and which in practice does have some peripheral Commission involvement.
It is important that we distinguish this way of doing business from traditional, classical diplomatic intergovernmentalism, from which it is obviously derived and with which it shares certain characteristics. I believe that this is a new development and should be seen as such. It is distinct from the way in which sovereign states did business together traditionally.
In the case of the Community system, even after the Amsterdam provisions come on to the statute book, and certainly in the case of European Union intergovernmentalism, the member state governments are, in my view, the single most important element in the decision-making process. As has been pointed out
If one looks at the theoretical basis of the way decisions are taken in the European Union, there is clearly a strong linkage between the Council of Ministers and their equivalents in the Second and Third Pillars, and national parliaments. One of the big difficulties, however, is the perception that there is a lack of success on their parts in achieving adequately comprehensive scrutiny and accountability. This in turn is at the root of much of the major concern which there is in this country and in other countries in the Union regarding the way in which the European Union system operates. Whether or not one is a supporter of a particular way of doing business, it is nonetheless damaging for democracy in general and for individual countries if there is an erosion of confidence in the way in which government is carried on.
In this country the natural focus for political debate is set in Parliament here in Westminster and, in particular, in the Chamber of the other place. If one looks at the way in which European matters are debated in Parliament, traditionally there is relatively regular debate regarding high profile political events and issues as they occur. I think, for example, of debates about the conclusions of a European Council. I am of the view, however, that, because the "devil lies in the detail", it is not these to which much of the public's concern is addressed. For example, if the European Union decides that it should have an asylum policy between its member states, that is clearly a matter of constitutional significance. As far as many citizens of these countries are concerned, however, at that point it is essentially an abstraction. What matters is the detail of the policy itself and the way it affects real people in a tangible way.
If I might be allowed to use United Kingdom parliamentary terms, I believe we are perceived as having plenty of second reading debates but hardly any committee and report stages. Indeed I noticed, as my noble friend Lord Beloff and the noble Baroness, Lady Ludford, noticed, that the report we are discussing this afternoon was ordered to be printed on 31st July 1997. That is a date in the calendar which is etched in my mind because it is my birthday, and I can assure your Lordships that I feel a great deal older now than I did then.
If this assessment is correct, quite clearly it has a whole range of serious implications, which I have neither the time nor the expertise to go into now. I would like therefore to turn to the Kingsland report itself and to try to amplify it, if I can, by some of my own experiences in Sub-Committee F.
In terms of transparency, accountability and basic democratic answerability there are a series of identified weaknesses in the way in which the Third Pillar operates. It is a matter of satisfaction--and I say this not in a grudging way--that the Government have responded positively to a number of the points contained in that report. When there has been political debate about treaty changes in the past, governments of both political parties have emphasised the qualitative political
I should like to add my support to the very important proposition made by my noble friend Lord Howell about the changing nature of the nation state in the world as it is now developing. It is important to be clear, however, that the European Parliament is not a supranational substitute for national parliaments in watching over European Union business. On the contrary, it is complementary. There is a very considerable degree of community of interest between them. I believe that the scrutiny process in particular would be substantially strengthened if that were more widely recognised on both sides.
In discussing European matters reference is often made to the so-called democratic deficit. There are certainly a number of areas where, by our standards, there do seem to be deficiencies in the way the Union works. One such is focused on the way in which the Council of Ministers meets and the fact that it is held in camera. There are good and fair arguments on both sides, but I hope that I have illustrated by my remarks this afternoon that it is not only in the instruments and the institutions of the Union that one might find ways of achieving the proper scrutiny of matters conducted at a European level. As has already been mentioned, national parliaments have an extraordinarily important part in this process, where we have seen certain developments outlined by the Government and where I believe there is a great need for further expansion in the future as appropriate. Sadly, if one looks across the range of what is currently being dealt with at a European level, it is arguable that the worst deficiencies are to be found in the intergovernmental activities of the Third Pillar.
The noble Lord, Lord Wallace, referred to the incorporation of the Schengen acquis. I have to confess that the word which springs to my mind when considering what has happened is "fiasco". It seems to me that it could be accidental to sign a treaty and for a parliament to introduce the necessary legislation for some agreement where there might have been a misunderstanding about the meaning of the words. But surely it is careless and reflects no credit on anyone involved, ourselves included, that in this instance we appear to have signed up to something in which the words themselves have not been properly identified. There is a salutary lesson to be learnt from that episode.
It is the nature of the European Union that any business conducted under it and any political debate about it is always under the shadow of the next IGC. We know that before too long there will be a further inter-governmental conference, dealing with matters of enlargement.
I conclude by asking the Minister the following, in the hope that when the Government consider treaty changes in the future they will specifically take into account the need for a thorough scrutiny of matters dealt with at European level by national parliaments. I ask that when they consider those matters they spell out and explain the implications of what is involved, the general constitutional grounds, what the financial implications might be, or how it affects the convenient conduct of government business. They should also specifically take into account how the matters they wish to be dealt with at the European level can be subject to proper parliamentary scrutiny by parliaments in all the member states.
I hope that the Minister will be able to confirm that if and when the Government do that, just as they deal with these other matters, they will be able to spell out in terms to this Chamber and the other place, precisely how they assess those things.
Lord Pearson of Rannoch: My Lords, I have listened to the debate with much interest and mounting apprehension. When one hears the anxieties about justice and home affairs under the Third Pillar which have been expressed by a number of noble Lords who are not exactly noted for their Euro-scepticism, one is perhaps entitled to be fearful of the extent to which those vital areas of our national life are already influenced more than they should be by Brussels.
I intervene briefly to underline a general point about our parliamentary scrutiny of proposed European legislation which has not yet been fully made this evening. The point is that there are large areas, such as all of our industry and commerce which are covered by single market legislation, and such as our environment--there are large areas of our national sovereignty where even the famous scrutiny and reports of your Lordships' House may have little or no effect because, even if the Government agree with your Lordships' findings, they can themselves be outvoted in the Council of Ministers. The proposed takeover directive comes to mind in that respect, as does the droit de suite. The former risks virtually destroying the mergers and acquisitions system in the City of London, and the latter our art market. Aspects of the water directives perhaps come to mind and, of course, our old friend fraud, where the Community has consistently ignored the blandishments of the British Government which have been widely inspired by your Lordships.
Those regrettable situations where we have sold the pass makes this debate and the Minister's reply this evening all the more important. The British Government have not yet ceded our sovereignty over justice and home affairs to the qualified majority vote in Brussels.
If the Government therefore follow the recommendations of this excellent report, particularly that in paragraph 59, they will do much to preserve that sovereignty where it belongs, which is here in the British Parliament. I say that because, as other noble Lords mentioned, paragraph 59 recommends that the Government should accept a formal scrutiny reserve in the areas under debate. I think that that still means that the Government would not agree to any proposal under the Third Pillar in the Council unless the scrutiny reserve had been lifted by our parliamentary Select Committees. One might, just in brackets, add that it would be quite a good idea if the same suggestion could be made for the common foreign and security policy. But that is not the object of the debate this evening.
I put it to the Minister that if the Government do not intend to accept that form of constraint, he should come up with some way of guaranteeing that the will of Parliament will be able to prevail over that of the Executive in decisions taken in Brussels under the Third Pillar. I look forward to his reply with much interest.
Lord Lester of Herne Hill: My Lords, this debate has been enriched by well-informed and thoughtful speeches by noble Lords with particular knowledge and experience of European law-making and parliamentary debate and scrutiny: the noble Lord, Lord Kingsland, with his great experience in the European Parliament and here, and my noble friend Lord Wallace of Saltaire, distinguished in the foreign field. There was the noble Lord, Lord Clinton-Davis, a former successful commissioner, the noble Lord, Lord Inglewood, a former official of the European Commission, my noble friend Lady Ludford and the noble Lord, Lord Howell of Guildford, a distinguished parliamentarian. We heard from the eminent editor of the Federalist papers, and former Gladstone Professor, the noble Lord, Lord Beloff, who always adds a great deal to all debates in this House.
We are here on a rainy, windy dark January afternoon and it is difficult, on an occasion like this--as my noble friend Lady Ludford pointed out--to bring an apparently dry subject to life and explain why it is important. Even if it is not read by the rest of the world, this debate will tend to illuminate rather than obscure the main issues.
Perhaps I may say for myself what a pleasure and privilege it has been to serve on a sub-committee chaired by the noble Lord, Lord Kingsland, on a subject of real practical importance to the peoples of this country and Europe. He may not thank me for saying so because it may bring him into disrepute in some sections of his party, but I pay tribute not only to his experience and skill but to the commitment he showed when we were doing our work during a difficult time. In the political climate of the time, which we tend to forget was of a deeply divided government and a soured political atmosphere about Europe, he managed to give us leadership. As a sub-committee, we were not divided
As has been pointed out, the report was concerned with enhancing parliamentary scrutiny of the way that international treaties are made and their content, under the auspices of the European Union and its institutions. All noble Lords agreed, and it is obvious that there is a need to respond to the democratic deficit, the want of parliamentary control over the executive, whether it is the British Executive or the European executives. It is especially topical for us to debate this now when the Westminster Parliament is devolving, and has devolved, legislative powers down to the Scottish Parliament, down to the Northern Ireland Assembly, and when there is widespread public concern about the proper role of the United Kingdom Parliament in being able to call the United Kingdom Government and the governments of Europe effectively to account.
It is essential to ensure that what governments do on the international plane is effectively scrutinised by the Westminster Parliament and other national parliaments in partnership with one another and in partnership with the European Parliament. It is essential for the executives to be called to account nationally and trans-nationally. The report observed in its introduction that Parliament owes a duty to the public to ensure that Ministers are made fully accountable for their actions in the Council, that matters falling under the Third Pillar can have serious implications for the rights and freedoms of the individual. Parliament must ensure that its procedures for monitoring work under the Third Pillar are effective. I have listened to your Lordships during the debate, and everyone agrees with that basic principle.
There is often a great deal of time-wasting, excessive flattery and self-congratulation in this House. I will not add to it, but I would like to say that it is true that this House and its European Communities Committee, chaired by Lord Tordoff, and the sub-committees, really have been in the vanguard of promoting more effective scrutiny of European Community legislation, as well as British delegated legislation, than any other legislative body across Europe. It is a matter of great satisfaction that what we do is read with admiration right across Europe. I very much hope that, when this House is reformed, those attributes will be properly safeguarded.
It is a most welcome change that the present Government have endorsed the modern democratic principles of transparency, consultation and parliamentary accountability upon which the Kingsland Report is based. In the Labour Party Manifesto, there is an undertaking to overhaul the parliamentary process for scrutinising European legislation. As someone who is not a member of that party, I would say that the Government have done so. They are fulfilling that commitment.
I disagree. The underlying principles of justice and respect for basic human rights--as the noble Lord, Lord Beloff, knows better than anyone, as he is a distinguished historian of political ideas and thought--spring from British 17th century political thought and from the age of the European enlightenment in the 18th century. It is true that there are major procedural differences between the civil law and common law but, as someone who has had to learn to swim in a different legal environment since I joined the Bar in 1963, I and my colleagues have learned that the two European courts--much attacked by Europhobes--have worked well in partnership with national courts, one dealing with justice under the treaties of the European Communities and the other with human rights. Members of the British legal profession--Scots, English and Northern Irish--with different legal systems, have worked well together. We have worked well together with our colleagues in European countries. I believe that the new generation is well placed to work within European law. Our senior courts have proved at least as competent as any in Europe in interpreting and applying European Community law. If one looks beneath the surface differences between the different legal systems, one finds common principles.
I would also say to the noble Lord, Lord Pearson of Rannoch, that mutual assistance is vital across countries for policing, for countering serious crime and terrorism, and for enforcing criminal and civil justice. National territorial jurisdictions cannot in isolation from each other work successfully. Not only is there a vital need for co-operation and assistance between and among national courts: that need is vital also between and among national governments and between and among national parliaments.
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