Motion to Take Note
My Lords, this report follows an inquiry undertaken by Sub-Committee E, which I chair. All going well, as I think I should say, I shall be the last serving Law Lord to have that privilege and pleasure. Our day-to-day work is the scrutiny of European legislative proposals so that the Government, when negotiating them, should take full account of the views of the national legislature. We also undertake inquiries on topics of particular interest. On the sub-committee’s behalf I thank all those individuals and organisations who contributed to the present inquiry. I thank the staff who supported the sub-committee as always so valuably and the members for their energetic contributions.
The formal process by which European legislation is enacted is probably well known, set out in the treaties. Leaving aside obvious crises, such as the present financial turmoil or the events of 9/11, the impetus to legislation is not always so clear, and we thought it merited research. The noble Lord, Lord Triesman, estimated in this House in January 2006 that about half of all UK legislation with significant economic impact had European origins. Our aim was to lift the veil to some extent from the process of initiation of proposals.
The first consideration is: who does that? The second is: what influences them to do so? The third is to ascertain what processes are in place to check that proposals are appropriate and to determine their character. The fourth is to consider what processes there are to ensure that legislation is easily applied or transcribed. The primary European legislator is the Council of Ministers acting under the First Pillar in co-decision with the Parliament, but neither initiates. The unique feature of Europe is the Commission’s monopoly right of initiative in the First Pillar. Only under the Third Pillar can member states also propose. The Council and Parliament from time to time have sought to oblige the Commission to bring forward proposals—for example, by writing into legislation that this should occur—but the Commission has steadfastly refused to be bound.
Who or what then influences the Commission? Are the stimuli internal or external? The Commission acknowledges that a system has emerged where legislation results from a complex interplay of different actors. We heard differing views about the extent to which the Commission’s own role and internal culture might unduly encourage European legislative proposals. The Minister for Europe detected continuing proactivist instincts, but the noble Lord, Lord Brittan, was confident that no premium attaches to a staff member who encourages an idea at the expense of practicality. The noble Lord, Lord Kinnock, believed that there had been a genuine shift towards an approach based on less is better and self-regulation. We recently reviewed a report on the future of European justice policy which has indeed the flavour of consolidation not innovation.
Both Council and Parliament increasingly influence the areas on which the Commission focuses, although they cannot bind. The Commission has undertaken to respond rapidly and appropriately to requests for proposals from either. Both have in practice often set overall strategy or general policy which the Commission has implemented. Five-yearly and annual strategies and plans are increasingly co-ordinated between all three institutions by structured dialogue. However, all three, and especially perhaps the Commission, are very open to external stimuli. They operate in Brussels in a context of highly active lobbying and also after considerable consultation. Lobbying by pressure groups is to be distinguished from consultation with interested parties. Both are useful and both, above all, need to be transparent.
The European Parliament recently estimated that there are about 15,000 lobbying individuals and 2,500 lobbying organisations active in Brussels. Since 1996 the Parliament has had a de facto mandatory requirement for individual lobbyists to register in a publicly open register if they are to get an entry pass into the building. The Commission, in contrast, has only just introduced a voluntary register, in June 2008, with a code of conduct and a commitment to review it after a year. The committee in its report doubted the adequacy of this voluntary register. Since June 2008 it has apparently had a relatively slow take-up, particularly among the large law firms that count among the active lobbyists and among think tanks. Perhaps it is still early days.
The committee was rather surprised to find that the European Union provides financial support for NGOs and think tanks, which then engage in lobbying the Commission. This involves some risks, but we were reassured that where such funding is received, it represents a relatively small proportion of the NGO’s total revenue and that NGOs in receipt of it have not been afraid to bite the hand that has fed them. Again, the key is transparency. We concluded that EU funding could assist to ensure that all viewpoints were represented and might be justified if transparent. The present register asks for disclosure of any such significant funding but, again, it will work only if all relevant NGOs sign up or it becomes compulsory.
Consultation is key to ensuring that legislative proposals are both necessary and appropriate in their character. Commission consultation may not always have been as effective as it could have been. Workshops on the common frame of reference, a project of varying aim and direction in the field of contract, in which I participated personally as a judicial stakeholder, pointed to a considerable need to learn lessons in that direction. The Secretary-General to the Commission accepted that working with large groups of stakeholders was, to quote her, “a voyage of discovery” and required the Commission to learn some new skills.
The committee’s report underlines the need for proposals to take account of differences between legal systems. The common law is one of the world’s great systems and is chosen and applied by businessmen internationally with London as a legal centre and a forum of choice but, in European terms, the common law is a small minority. There are potential differences in approach to the role and content of law and the function of courts, particularly in commerce and business, but also in areas of family, succession and criminal law. These differences need to be communicated in Brussels. The Commission, in establishing a forum of stakeholders to look at proposals in the justice field, insisted that only pan-European organisations be represented. That had the incidental effect of excluding any common law professional body. The Secretary-General assured us that, in principle, the Commission tries to involve someone with a common law background in its projects, and it is welcome that the recent expert group on the future EU justice programme, which I mentioned, has an Irish representative of the common law.
The United Kingdom’s Ministry of Justice is also to be commended for recently inviting a dozen commission lawyers to this country on a two-day visit. I believe that that was valuable to both sides, and I should like to think that it demonstrates the common law’s wish for constructive engagement with Europe. The common law also needs to continue to be represented in the Commission at every level by lawyers posted or seconded there. Government assurance of support for this, particularly at the active junior level, would be most welcome.
Impact assessments are critical to ensuring that legislation is necessary and appropriate. They should not be seen as ex post facto justifications for decisions already made. In the past, general assertions of relevance to the internal market have probably sometimes passed muster without question, but that will no longer do. In 2006, the Commission set up an impact assessment board within the General Secretariat to assess the quality and sufficiency of impact assessments. The committee welcomed this, but believes that some parts of the Commission are still more advanced than others when it comes to preparing good quality assessments. However, one has to say that this is an area where member states do not practise what they preach. Third Pillar proposals by individual member states are noted for their lack or the inadequacy of impact assessments.
The final stage of any proposal is its drafting. The committee has concerns about the drafting of some proposals. Drafting is done by commission lawyers handling the proposal. The legal service of the Commission is formally involved only at a late stage. The committee considers that consideration should be given to introducing a cadre of specialist legislative drafters along the lines of the United Kingdom’s domestic parliamentary draftsmen. On 30 September, the Government wrote welcoming the committee’s report and analysis and indicating broad agreement with many points we made. They regarded our proposal for a specialist cadre of drafters as interesting, and we await their response to our question about whether they will actively promote it.
As to the Commission’s role and right of initiative, the committee’s conclusion was that they had devolved as the European Union’s legislative system has matured. The history of the Third Pillar signals caution about breaking the Commission’s First Pillar monopoly. The committee would not go all the way with the noble Lord, Lord Brittan, in describing the present institutional arrangements as an act of genius, but the right of monopoly was designed with care and operates within a framework of checks and balances, and we concluded that it remains appropriate for the unique, multinational organisation that the EU is. I beg to move.
My Lords, it is a great pleasure for me, on behalf of your Lordships’ House, to congratulate the noble and learned Lord, Lord Mance, on his maiden speech and his clear and informative explanation of the purpose, key observations and conclusions of the report on the initiation of EU legislation. Command of the English language, which manifests itself in an ability to make every word count in speeches that flow seamlessly from one point to the next so that the whole is a focused, cogently argued and persuasive case, is a priceless skill that one associates with eminent and distinguished noble and learned Lords. The noble and learned Lord, Lord Mance, has shown in his speech that, as I am sure we all expected, he is no exception.
I am a member of the European Union sub-committee involved in the report that we are considering, and the noble and learned Lord, Lord Mance, chairs that sub-committee with great skill and authority. His wife is also a distinguished and eminent judge. They were the first married couple both to sit on the High Court Bench and the first and, I believe, still the only married couple both to sit in the Court of Appeal. The noble and learned Lord became a member of your Lordships’ House in 2005, on his appointment as a Lord of Appeal in Ordinary. It has been our loss that the self-imposed constraints that limit the occasions on which Law Lords address your Lordships’ House have until now denied us the opportunity of hearing from the noble and learned Lord. We very much hope that there will be other occasions when we will have the benefit of hearing from him.
The noble and learned Lord has drawn our attention to the key observations and conclusions in the report. I await with interest my noble friend’s speech, in which I assume that he will talk about the Government’s response. However, I shall confine my contribution to a few—“few” is the operative word—general observations and impressions.
My key feeling, having heard the witnesses and read the written evidence, is that the process by which ideas are transformed into legislative proposals is very much collective. The Commission is the body with the near monopoly of power to submit proposals for adoption as EU legislation but, as witnesses said to us and as the report indicates, it does not have the monopoly of ideas. The Commission was given the power that it has as the body representing the collective interest of the European Union and able to act impartially in that general interest. That may not always be the approach of a member state, which may consider issues with its own interests uppermost. The Commission is also the guardian of the treaties and the enforcer of the law and it follows through the policies adopted by the Union. It has to assess and cost ideas and consult on them and form a view on the level of support or otherwise among member states.
However, the Commission does not work in a vacuum. There is little point in the Commission putting forward proposals that are unlikely to find favour in the Council of Ministers and the European Parliament because, although the Commission can propose, it cannot enact any required legislation. The wishes of the European Council, the European Parliament, the Council of Ministers and the individual member states are a key source of Commission proposals, which come forward as draft legislation.
Of course, those wishes may at times be expressed in very general terms, which gives considerable scope and influence to the Commission in developing and proposing the form and manner in which those wishes and general ideas may be implemented. It would also be true to say that, with the small army of lobbying organisations in Brussels, to which the noble and learned Lord, Lord Mance, referred, pressing their particular and varying viewpoints in addition to the member states, the Commission can probably claim that just about any proposal that it decides to make reflects at least some representations made to it and that it is not simply a new initiative from the Commission alone.
However, I formed the view from the evidence that I heard and read that the Commission did not seek to impose its views and thinking on unwilling elected politicians, but rather sought to listen to the views of a wide variety of organisations and interests and to put forward proposals for legislation that were likely after consultation and, yes, compromise to attract support from the elected legislators.
In short, ideas incorporated in proposals for legislation from the Commission come from a wide variety of sources and the extent to which elected politicians, through the Council of Ministers, the European Parliament and member states, want to be the key players in originating and pressing such ideas into legislation is a matter for those elected politicians to decide and determine. Perhaps they should seek to play a bigger role, because the processes and procedures are there—and would be even more so under the treaty of Lisbon—to enable them to be the key players in influencing and shaping what the Commission proposes, in addition to being the ultimate arbiters in determining what proposals become EU legislation.
My Lords, I, too, as a member of the Law and Institutions Sub-Committee, thank the noble and learned Lord, Lord Mance, for his comprehensive explanation of and introduction to the report. Whatever the merits of the constitutional changes that we are facing, it will be a considerable loss to your Lordships’ House that a serving Law Lord will no longer be able to chair that sub-committee of the European Union Select Committee. Although the subject of the report may sound dry to some of your Lordships—and, I am sure, to the media, who have probably given little or no attention to the report—it makes interesting reading and should be compulsory reading for those who still believe that the European Union is a conspiracy led by non-elected Commissioners and their officials.
Previous speakers have addressed a number of the most important points, but I make no apology for emphasising some of them. First, the Commission may enjoy a near monopoly of the power to initiate legislation—the only exception, as the noble and learned Lord, Lord Mance, said, being matters under the Third Pillar, which is a relatively small part of European Union legislation, although very important, and, it has to be said, not terribly successful, where member states have had the right of introduction. The Commission nevertheless has the power to propose but not, as the report describes it, the power to dispose. That rests with the Council of Ministers—that is, the member states—and with the Council and the Parliament.
As the noble Lord, Lord Rosser, said, it is clear that, although the power to propose legislation is important, it is not exercised in total isolation. The European Council, the Council and the member states, especially through the medium of the presidency, have an influence. They have their programmes and produce conclusions. Although the Commission may not be bound to bring forward legislation in the light of conclusions, it does not act in a political vacuum and account will be taken of the ambitions of member states. The noble Lord, Lord Rosser, referred to the general terms in which the European Council may propose action. I suggest that, if the Commission interprets those general terms too widely, it is to the European Council—that is, the member states—that your Lordships should direct their criticism for not having been sufficiently specific.
It was surprising to learn in the evidence that we received from Sir Kim Darroch that, in his memory, the Council has only once used Article 208, which gives it the specific right to request the Commission to bring forward legislation. Perhaps that is because the Commission is sufficiently sensitive to political realities, so that the article does not need to be used. The Commission recognises that Council conclusions represent the collective and decided view of the Council—that is, and I do not apologise for emphasising this again, the member states, with all that that implies.
I also draw attention to our conclusion that the Commission operates in a very open fashion, perhaps more open than in our domestic procedures. The procedures followed before legislation is published and when a draft is produced provide considerable opportunities for interested parties to influence events. I suggest that parliaments need to ensure that their procedures enable the maximum benefit to be derived from that openness and from the Barroso initiative, which sends Commission documents direct to national parliaments. Of course I understand the difficulty in finding time and the right ways in which Parliament can make its views known at the right time on these issues, but it is a matter that clearly needs to be addressed as more legislation, in ever larger and more significant areas, comes forward. In your Lordships’ House, the main vehicle is the European Union Select Committee, but there may be times when the views of the House should be sought. The opt-ins and opt-outs on justice and home affairs matters are obvious candidates if the treaty of Lisbon comes into force.
Are there any lessons that we could learn from this report? I believe that the most important ones are to stop perpetuating to the British people the myth that the Commission is the sole arbiter in these matters, to understand that the right of initiation is not the right of disposal and that different vehicles exist for member states and citizens to make their views known on particular proposals and, indeed, to press for the introduction of measures. The member states have the opportunity to do so through the European Council and the Council; citizens have the opportunity through the lobby groups that have been referred to and through their Members of the European Parliament; and national parliaments have the opportunity if they take advantage of the information that is out there and ensure that they make their views known at the earliest time directly and through their national Governments. This may involve changes to how we carry out our business, but if we do not do it, others will. Brussels is not a secret society, but we must engage with it and not merely sit on the sidelines complaining after the event when we could have had some effect before the event.
My Lords, I, too, congratulate the noble and learned Lord, Lord Mance, on his maiden speech. It was of the excellence that all members of Sub-Committee E have come to expect of him, and it has made a singular contribution to the work of the European Union Select Committee.
I shall deal with one or two aspects of this excellent report, particularly those that relate to the Commission’s sole right of initiative. This so-called sole right of initiative is so frequently misdescribed, not least by UKIP members in your Lordships’ House, as the unelected bureaucrats of Brussels who are wagging the dog by the tail. Yet, in practice, we do not see the mythological creation in the minds of UKIP members—the idea that somehow legislative initiative is the Commission’s ball and that it will determine the rules by which all the games will be played. That is described quite clearly in the report as being far from the truth. It is arrant nonsense, and it is well debunked by the evidence that we had in formulating the report, especially the very detailed evidence that came from two former European Commissioners who are Members of your Lordships’ House—the noble Lords, Lord Brittan and Lord Kinnock.
Arising from the evidence of the noble Lord, Lord Kinnock, is the report’s very interesting Table 1, on the exercise of the Commission’s right of initiative and where the focus of the demand for legislation came from. The total proportion of EU legislative proposals that come under the category, “Adaptation of Community law to the development of scientific, economic or social data (of which 15 per cent are also responses to requests from other EU bodies)”, is 35 per cent. Under the category, “International obligations entered into by the Community”—the sort of things that Members of your Lordships’ House are always demanding of the Commission—we await a conclusion to a Doha round, which is the responsibility of the Commission to conclude on our behalf, and when we get it we want to see the legislation—the total is 31 per cent. Under the category, “Response to an express request from other EU bodies, Member States or economic operators”, it is 17 per cent. Under the category, “Mandatory instruments under the Treaty or secondary law”, it is 12 per cent. Then we come to the smallest group, “New initiatives from the Commission”, which is 5 per cent of the total. The idea of this bureaucracy being housed in the Berlaymont, dreaming up every crackpot idea that it can think of and then inflicting it on unwilling institutions and unwilling member states is a fantasy of imaginations that are really not fertile enough. It is so far from reality that they should by now have learnt some of the realities.
The sole right of initiative is described very clearly in the report. It is, as the noble Lord, Lord Bowness, said, and as the report says,
“a power to propose, not to dispose”.
When it comes to legislation in the European Union, the Commission has no role in the legislative process once the proposal has been made. Usually it is not the sole originator of the legislation. In the report, we see that the European legislature—the Council, or more usually the Council and the European Parliament—determines which proposals become law and which parts of which proposals remain in the legislation when the legislative Act is passed. Paragraphs 149 and 150 describe that in great detail.
One of the most complex things in the legislative process, which is described very well in this excellent report, is the interrelationship between European institutions. The idea that the Commission has a power that it can exercise, almost in a vacuum, ignores the fact that its members are all subject to appointment hearings by the European Parliament. Indeed, adverse comments expressed about a would-be Commissioner led in one case to the then Italian Government replacing their nominee. The institutions have the power to dismiss the Commission as a whole. Members in your Lordships’ House will remember when Jacques Santer and his Commission jumped ship before it happened.
The Commission’s annual work programme is subject to parliamentary scrutiny and examination in the Council of Ministers. Its annual legislative programme is equally subject to a vote in the European Parliament and, because of the need for consent, in the Council of Ministers. On top of all this, the most significant factor in the inter-institutional complexities, which mean that the Commission has to take into account the views of others, is the budgetary powers of the European Parliament and the Council of Ministers. A Commission that sought to enact legislation would not get it through. Even if it devised some mechanism that could get the legislation through in the face of opposition from the Parliament and the Council of Ministers, it would not have the budgetary resources to give effect to its views.
We have debunked a lot of the mythology that people have tried to weave into the European discussion over the years. The report gives a very clear description of the reality. As paragraph 154 says with great clarity:
“The Commission operates in a very open way”.
The reality is a far cry from the abusive description of the Commission as a secretive and self-serving bureaucracy—the description that we get from so many Eurosceptics and which I will not be too surprised to hear later on in the debate today.
Finally, there are two things in the Government’s reply to which I particularly wish to refer. One is the suggestion from Jim Murphy, the former Minister for Europe, at paragraph 2, that the,
“minimum consultation period of 8 weeks makes it difficult for national stakeholders to respond. We would therefore like to see the Commission increasing this period to 16 weeks and we will continue to press for this”.
The other thing relates to the idea that the noble and learned Lord, Lord Mance, described as interesting and the fact that the Government have referred that interesting idea to BERR, the department responsible. I am sure that the noble and learned Lord and his Committee will continue with their usual courtesy to seek a progress report on what that government department is doing. I welcome this report, which debunks a lot of the mystique of Europe. In doing so, it serves a useful purpose for which the noble and learned Lord deserves our congratulations.
My Lords, I can at least agree with the noble Lord, Lord Tomlinson, on one thing in congratulating the noble and learned Lord, Lord Mance, on his report and on the work that the committee has done to produce it. I was taken with the preamble, which said that the committee was dedicated to “lift the veil”, as it was elegantly put, in the call for evidence on the process of the creation of EU legislation. I enjoy the expression “lift the veil”, which conjures up the image of a mysterious lady. We do not know what lies behind that veil. When we lift it, what will we see? Will we see a sloe-eyed young beauty or a poxed and wizened hag?
Sadly, the committee’s report reveals the latter. The fact that such a report is necessary, surely underlines the point that the system of European governance is opaque and poorly understood by anyone who is not a paid-up Euroanorak. I suppose that any one of us here today will qualify as that. In its conclusion, the report states:
“Unless the Commission proposes legislation, none can be adopted”,
which does not quite chime with the idea that this is a collegiate system. But nowhere in the report could I find any searching questions asking whether this was a good idea or whether it is healthy for democratic governments or, perhaps more importantly, whether it is good for the people who elect those governments to see so many laws put into statute by a foreign body which they did not elect and which they cannot sack.
Paragraph 166 of the report states—
My Lords, I hesitate to interrupt, but it seems to me that the noble Lord is ignoring what the report says. It has been said time and again that, while the Commission proposes, it does not put the result into law. Does the noble Lord accept that? It is put by the Council of Ministers or by the Council of Ministers and the Parliament. That is a fact, whatever one’s opinion about law in Europe may be.
My Lords, of course the Commission proposes, but the Council of Ministers has very little control over what the Commission then does. The Council of Ministers is simply a channel for taking the proposals of the Commission and passing them through to national Parliaments. It has very little control over what the Commission does. I hope that the noble Lord will accept that the Commission is the sole proposer of legislation. The report says that.
Paragraph 166 of the report states:
“The Commission is a political body, not just an administrative one”.
The problem is that this political body has zero political legitimacy, which goes to the heart of the matter. That is why the French and the Dutch electorates failed to ratify the constitution. They voted it down when it came before them. It is why the Irish people voted down the Lisbon treaty, which, as we know, is, in essence, the constitution as well, although it is trading as the Lisbon treaty. It is also why the—
My Lords, the noble Lord mentioned the Irish referendum. Is he not aware that one of the reasons why the Irish were not very happy with the treaty was that they thought that they might lose a Commissioner? Therefore, I do not understand why he feels that the Commission would be regarded as a bad thing by the Irish people.
Oh, the cavalry has arrived.
My Lords, I am grateful for that intervention, but there are a number of reasons why the Irish voted against the Lisbon treaty. I do not think that losing a Commissioner was the principal one. It was one of many reasons why they voted against. I have read only today that they are to be given the chance to vote yet again. The EU does not like a vote against it. It will have another and the Irish will go on being asked to vote until they give the right answer. Is that democracy?
I find the list of witnesses curiously unbalanced. Asking two former Commissioners, however distinguished, if they thought that it was right that the Commission should retain the sole right of legislation is rather like asking a fox if it wants to keep the keys to the hen-coop. You are unlikely to get the answer “no”. Will the Secretary-General of the Commission Secretariat really tell the committee that the process of initiating EU legislation is opaque, undemocratic and should be changed? That question answers itself. Where were witnesses who may have given the committee a rather different flavour? Where was Bernard Connolly or Marta Andreassen, the former chief accountant of the European Commission? Where were some of the whistleblowers who have been sacked by the Commission for blowing those whistles? It would have been helpful to have had at least one witness who had a slightly different and a rather less laudatory view of the Commission’s activities.
The noble Lord, Lord Kinnock, told the committee that it was a waste of energy to try to dress the Commission in some democratic legitimacy. He said that it does not need it. According to the noble Lord, the Commission should be judged on its “operational legitimacy”, a yardstick your Lordships may think to be more appropriate for the KGB—I do not mean the “Keep Gordon Brown” campaign—rather than for the EU political driver.
The noble Lord, Lord Brittan, was characteristically fulsome in praise of the Commission. As the noble and learned Lord, Lord Mance, quoted:
“The whole thing is a great bargain of some genius”,
was his considered view.
Well, maybe and maybe not. As the noble Lord, Lord Tomlinson, reminded us, this,
“great bargain of some genius”,
had to resign en masse in 2000 when even the European Parliament found the stench of fraud and corruption around the Commission too much to stomach. The smell of roses does not hang around the present Commission. One of the members of the Commission was indicted for fraud. He was pardoned, but, none the less, he passed the scrutiny process, about which the noble Lord, Lord Tomlinson, told us. There still remains, let us say, a question or two about the purity of this body.
I should like to pick up on what the noble and learned Lord, Lord Mance, said about the curious charade played between lobbyists and the Commission. I must admit that I was astounded to read in the report that the Commission uses taxpayers' money to fund certain lobby groups that it favours; for example, the World Wild Fund for Nature was examined. It appears that it received 600,000 euros from the Commission. Therefore, it was paid by the Commission, to lobby the Commission on matters that the Commission wishes to see brought forward. Is this not Alice in Wonderland stuff?
I was sorry to note that the committee thinks:
“On balance, we consider such funding arrangements may be justified so long as they are transparent”.
They are clearly not transparent as none of the committee members appeared to know that this cosy little scam existed.
Finally, I should like to touch on something that I found interesting, which is central to our debate today. In one of the evidence sessions—at question 293—the noble Lord, Lord Wright, who was in the Chamber, asked of Mr Kim Darroch, the UKREP chief in Brussels:
“Have you ever known a House of Lords report influence the initiation of legislation?”.
Mr Darroch replied:
“If I say no, my Lord, it does not mean that it has not happened, it just means that I cannot remember off-the-cuff”.
In other words, it has not happened. The noble Lord, Lord Wright, pursued this and asked substantially the same question to the Minister for Europe, Mr Jim Murphy, at question 466. Mr Murphy replied that there was no legislation, but that he thought there was something about mobile phone charges.
In that same session, the noble Baroness, Lady O'Cathain, asked, somewhat plaintively, if Mr Murphy could find any more examples,
“because sometimes we think we have spent hours going through this stuff, and where does it all end up?”.
The noble Baroness, who I am pleased to see in her place, should not hold her breath. As we all know, these reports end up in the wastepaper baskets of the Commission, and that is that.
My Lords, as the noble Lord has quoted me, I thank him for allowing me to intervene. Perhaps I may make it clear that the inference that I think that all the reports end up in the wastepaper basket is absolutely not true. Wherever we go in Europe, particularly in Ireland, we find that the House of Lords reports have been read and indeed pored over. It casts aspersions on the wonderful structure we have in place for our European Select Committee. While our findings might not result in major new legislation, they are helpful in assisting those who formulate legislation in the European Union to take into account certain factors that might not otherwise be apparent.
My Lords, I thank the noble Baroness for her clarification. Perhaps I should have made it clear that her quotation should have finished with the words “where it all ends up”. My interpretation was that we know it all ends up in the wastepaper basket, which of course is true because as I made clear, no legislation, apart from the intangible provision on mobile phones, has ever been put forward.
Following on from that, what is the point of these committees? They do a lot of good work and hear a lot of evidence and it is all very interesting, but what actually is the point of them? The answer in truth is that the vast majority of our law is now made in Brussels by our real government there, leaving our elected MPs with ever less to do. The painful and fundamental question we should often be debating in this Chamber is whether we really need 690 Members of Parliament or some 740 Members of this House to rubber-stamp all the legislation coming over from Brussels. We ought to ask ourselves: what are we here for?
My Lords, two days ago, Gideon Rachman published what I thought was a rather naive article in the Financial Times on the requirement for world governance and therefore the need for world governance—and thus, he thought, the acceptability of world governance. As I read it, I thought of all those people on the nationalist right in the United States who believe that the United Nations is a conspiracy against American sovereignty. They think that black helicopters from the UN have invaded South Dakota and so on. In this country we have a similar belief about the European Union, which is now necessary in a whole range of areas such as economic and environmental co-operation and dealing with the interests of the almost 5 million British people who either live or spend part of the year wintering elsewhere in the Union. In spite of the fact that the Union is necessary and desirable, many in this country and beyond it believe that it is all a vast conspiracy. We have just heard the speech of the noble Lord, Lord Willoughby de Broke, who did not mention that, when one looks at the scrutiny work of the European Parliament, one sees that the contribution made by UKIP Members over the past five years has not been among the most distinguished or among the freest from various failures close to corruption.
I regret that this is the last year during which we shall have a Law Lord as the chair of Sub-Committee E. When I was the chair of Sub-Committee F, I worked with two Law Lords, who were extremely co-operative, helpful and expert colleagues. We learnt a great deal from them and I regret that we shall see rather less of this distinguished group, which gathers twice a week in a sometimes rather closed circle in the Library. When I first came here I was deeply in awe of the Law Lords as a group slightly apart, but now that one of them is someone with whom my wife and I used to go to the pub as junior law lecturers at the University of Manchester, I am slightly less so. Perhaps it is because we are all getting older and more experienced.
I must comment on a small point. The beginning of Chapter 2 of the report notes that the European Parliament is a legislature that does not propose legislation, as if that is an odd thing in a legislature. I had not noticed that much of the legislation that passes through the two Chambers of this Parliament is actually proposed by members of the legislature. We all understand, here as in Brussels, that necessarily the complex process of policy making is one in which those who propose a policy do not always carry everything through to its final conclusion. What we want of the Commission and the Brussels process is, as the noble Lord, Lord Brittan, said in his evidence, for them to do less and to do it better.
My Lords, does not the noble Lord agree that the Executive here comes from the Parliament? The difference in Brussels is that it is the bureaucracy that proposes legislation. In that it is not similar to any other democratic process, apart from some that we would rather not think of, on the planet.
My Lords, I am glad that the noble Lord, Lord Pearson of Rannoch, has been able to join the debate. I am familiar with his views on this issue. All forms of international co-operation have problems regarding democratic legitimacy. Other forms of multilateral co-operation, such as the G7, the G8 or the climate change discussion now taking place at the Poznan conference, suffer the same sort of problem. We have to have international co-operation, much of which leads to decisions that directly affect this country. The least undemocratic of them, and the one that tries the hardest to be legitimate, is the European Union. I know that the noble Lord will not to his dying day accept that, but it is where we are.
When Britain first joined the European Union back in the 1970s, there was a culture in the Commission that had grown around the belief of many that, in the making of Europe and what would be good for it, they knew better than the rest of us. It left me uneasy at the time and, in retrospect, I am still uneasy about it. However, I am happy to say that it has changed with the generations as the European Parliament, national Governments, national parliaments and lobbies have become much more actively engaged in the Commission’s policy-making process.
I regret that the Lisbon treaty has not taken us as far as I wanted it to in terms of subsidiarity. It has strengthened the power of national parliaments, but they now have to make use of the leverage that they have been given. There is some way to go. I regret, too, that the coherence of the Commission is an increasing problem. We will now give in to the Irish and recognise that there will continue to be 27 Commissioners, rising to 30 as the Union expands. I think that that is a categorical mistake. It would be much better to have a Commission of 11 or 13 and to recognise that it is the national permanent representatives who look after national interests in Brussels. The Secretariat-General tries hard to pull the different directorates-general and the Commissioners with their interests together. Moreover, as the report rightly flags, multiannual programmes are agreed between the European Council and the Commission, while the annual work programmes and/or legislative programmes provide levers that national scrutiny committees should use and pay more attention to. One should say also that, if there is criticism of EU legislation, some of us have felt while working on the Bills that have come through this House over the past few years that the quality of national legislation can sometimes leave a certain amount to be desired.
I want to make a few points arising from the report. The question of British staff in the Commission is one that, as the report rightly notes, we ought to be more actively concerned about. There is a real problem in that the number of people coming out of British schools and universities with language skills is declining, which means that the number of British applicants to the College of Europe, with which I have some association, has declined over recent years. The college is one of the most useful sources of direct recruitment into the Commission. I regret that the European fast stream, a good initiative to encourage more bright young British people to go into the Commission, the Council Secretariat and other Brussels institutions, has been closed. I hope that the Minister will be able to tell us whether it may reopen. I regret the closing of the Diplomatic Service language centre, which helped to ensure that enough British officials spoke other European and non-European languages. The Government need to do a number of things to make sure that there are enough people in the Brussels institutions who, as the Brussels saying goes, know this country best.
Secondly, Brussels is a paradise for lobbyists, both in and out of the Commission. I strongly agree with the report’s conclusion that there should now be a compulsory register of lobbyists in the Commission and I trust that the committee will, if necessary, return to this issue. There is a clear overlap between lobbyists and the stakeholders whom the Commission consults. We have all seen the extent to which well funded law firms and others in Brussels operate, walking in and out of Commission offices. This requires watching. For example, I was told that the origins of the famous, or infamous, regulations about straight bananas and cucumbers and so on were, in part, lobbyists from supermarket groups that wanted to make sure that they got what they wanted rather than the misshapen products of the past.
Box 2 on page 30 refers to Article 13, the amazingly ambitious addition to the Amsterdam treaty, outlawing discrimination on grounds of disablement, race, gender and so on. That was pushed through by a coalition of non-governmental organisations in collaboration with the Commission and various others; most national Governments did not notice. When I chaired Sub-Committee F, we had a look at this and I was struck by the fact that all those who came to talk to us about it from various Brussels NGOs seemed to know the noble Lord, Lord Rix, extremely well. It was all part of an issue that had got round national Governments. It did not affect the British very much because we already had a great deal of the legislation in place, but the implications for Germany, Austria and other countries that had not yet passed anti-discrimination legislation were considerable.
I have some reservations about the Commission funding of NGOs. “Friendly” organisations, which the Commission consults and says that they represent the people of Europe, ought to make us all nervous. I have been to one of those consultations and I thought that it did not provide a cross-section of popular opinion throughout Europe. However, as the noble Lord, Lord Bowness, said, the overall process is clearly not controlled by the Commission. It involves a range of interested parties. The question for Her Majesty’s Government is how actively we engage and how effectively we play our corner. It has not helped that there have been 10 Europe Ministers in the past 10 years. We would have had a more effective engagement if we had had greater consistency in British voices.
The European Union Committee may first have to maintain the excellent quality of its reports. I, too, have on many occasions found in Brussels, in the European Parliament and in the Commission, people who have our reports on their desks and quote them back at us. We have a useful role in the process. We have COSAC, the Conference of Community and European Affairs Committees, and, as the noble Lord, Lord Roper, has told me, a useful developing network of national chairs of committees in national parliaments, which also helps to build up the network of national scrutiny. Moreover, national parliaments, including our own, now have offices in Brussels.
I shall add one point to this, which perhaps is a subject for another inquiry. Most other national parliaments also have useful and constructive co-operation between their national Members of the European Parliament, their national scrutiny committees and themselves. We do that remarkably little. Perhaps the European Union Committee might inquire into that further.
My Lords, I thank the noble and learned Lord, Lord Mance, for raising this important debate and I congratulate him on an excellent maiden speech. I agree with my noble friend Lord Bowness and the noble Lord, Lord Wallace of Saltaire, that the House will miss the Law Lords’ technical expertise on subjects such as this when they no longer sit in the House from next year.
There has been much highly charged and contentious discussion about EU legislation over the past Session. It is right that we should continue such scrutiny over an issue that can have a major effect on policies and functions in this country. One area on which the Government’s reply to the report focused was ways to improve the quality of EU legislation. They were right to do so. Nevertheless, while quality is often more important than quantity, it is not always the thought that counts. The plethora of legislation being pumped out of the EU is disturbing in itself. The current Prime Minister famously said,
“it is unacceptable that 50 per cent or more of regulations come from the European Union”.
Every year, more than 1,000 European documents are put into Parliament. Of these, only a very few are fully debated in the House. This is worrying. It further serves to illustrate how important it is to analyse and scrutinise every area of initiation and production of EU legislation.
I therefore welcome the useful report on the initiation of EU legislation and applaud the work of the cross-party European Union Committee in producing it. As stated in the intentions, it sheds some light on an area of EU activity that is not often examined. I echo the point made by my noble friend Lady O’Cathain and the noble Lord, Lord Wallace of Saltaire, that House of Lords committee reports are widely respected.
As this report states, its principal function is descriptive. Nevertheless, it reaches a clear conclusion:
“Developments since the establishment of the EU have not cast doubt on the validity of the arrangements and we believe that the Commission should retain the right of initiative”.
That is all well and good, but we still need to recognise the democratic tensions inherent in the system.
The report rightly underlines that this general monopoly of initiative is a great power. Paragraph 150 states that the power conferred,
“should not be under-estimated … The right to wield the pen provides the power to select among the many ideas for legislation which come forward from other parts of the system and outside it”.
In nation states, that power normally belongs to elected Governments, who change as voters decide. No such limit exists for the Commission. This explains why dossiers tend to keep being pushed until the other European institutions accept them. The Commission’s persistent support for a European public prosecutor is a good example. Yet perhaps the unhappy disconnect between bottom-up democracy and the need for the Commission to act impartially in the general European interest is irreconcilable. If so, it makes it all the more important that national parliamentarians are scrupulous in holding this power to account and making sure that scrutiny is maintained to the utmost level. I am cautious about regarding the issue of the right of initiative as closed.
Furthermore, if the Commission is to retain the right of initiative, it is imperative that our own Parliament has the chance to consider whether the legislation meets the principles of proportionality and subsidiarity. One of the few improvements in the Lisbon treaty is on national parliaments’ rights in this area. If any national parliament considers that this does not apply, they have a period of eight weeks to send a reasoned reply. The sheer amount of legislation pouring from the EU means that that is far too short a period. The report states that member states should,
“take advantage of the opportunities provided … to contribute to the development of EU legislation”.
How true. In their reply, the Government state that they would like to see this period extended to 16 weeks. What action have the Government taken to promote that proposal, and have there been any developments? Do the Government agree with the European Scrutiny Committee’s recent report that,
“we doubt whether the Lisbon Treaty’s new subsidiarity provisions about the role of national parliaments would make much practical difference to the influence presently enjoyed by the UK Parliament”?
This same level of scrutiny should be maintained across the board. The report describes lobbying, which the noble and learned Lord, Lord Mance, mentioned, as,
“both inevitable and useful to the initiation and development of legislation”,
with the careful caveat that it should be “transparent and appropriately regulated”. The report also states that the members of the committee,
“initially found it surprising that the EU provides funding for interest groups who are engaged in lobbying the Commission”.
The report states that,
“in practice, NGOs are not afraid to bite the hand that feeds them”,
as the noble and learned Lord told us earlier. That seems to me to be a rosy view. Do the Government share our view that the European legislative system can sometimes be a dangerously closed loop, with the European Commission funding EU-wide bodies that then provide vocal support for EU-wide legislative initiatives? Is there not a conflict of interest there?
As the noble and learned Lord said, the report also focuses on the role of impact assessments. We welcome the fact that these have become standard practice. They are there not least because of the persistent pressure from Conservative MEPs and others who share our view that too often in the past European legislation has been initiated with little thought as to its costs. I pay tribute to the Barroso Commission for the notable improvements in this respect.
We welcome the fact that in 2008 the Government expect to have carried out 200 of these impact assessments. The Government will doubtless quote their shadow price of carbon scheme to use as the,
“basis for incorporating carbon emissions in cost-benefit analysis and impact assessments”,
which should aid impact assessments. However, I cite the examples of the impact assessments into biofuels and renewables targets, which both went far further and had a far greater impact than the assessments predicted. We welcome the production of these documents, but if they are not done well they run the risk of being relegated and becoming just jargon.
Lord Denning once pointed out that, as more legislation increasingly came under the scope of the European Court of Justice, the unhappy conflict between the English common law and the civil law of the European Union would become more apparent. The Government themselves have recognised that this is a problem, stating that,
“the Common Law system needs to be more widely understood within the Commission and taken into account when legislation is developed on justice and home affairs”.
The action taken to support that position, however, is of questionable effectiveness. Examples include arranging for,
“Commission lawyers to visit the UK to increase their understanding of Common Law”.
What evaluation have the Government made of the effectiveness of such measures?
In conclusion, we welcome this report and are encouraged by the amount of useful information contained within it. Nevertheless, I urge the Government to consider the important caveats that I have mentioned.
My Lords, I begin with a brief apology. The Government would have preferred that the Minister replied to this debate but, as noble Lords will have appreciated from their television screens, my noble friend Lord Malloch-Brown is somewhat preoccupied with the disastrous developments in southern Africa, particularly in relation to the cholera epidemic in Zimbabwe, and it will be appreciated that he is doing such distinguished and sterling work with regard to that aspect of the Foreign Office that it precludes him from responding to a debate of this significance today.
It therefore falls to me to respond and to begin by congratulating the noble and learned Lord, Lord Mance, on what I think was a unique maiden speech. A maiden speech that is also a sad swan-song is an interesting concept. The noble and learned Lord also indicated that it might be a little while before the House heard from him again because of the constitutional changes that are being effected. In due course, however, I hope that his maiden speech will be looked upon as the first of the contributions that the noble and learned Lord will make to the House. We have all valued his work; strange it is that that work should be done by someone who has not spoken in the House before and yet has made such a contribution, as represented by the report. I both congratulate him on the report and thank him for the precise, accurate and effective way in which he made his maiden speech today. I did not detect the bundle of nerves that normally besets some of us when we first address the House, but then the noble and learned Lord has been with us for several years and has been doing sterling work alongside his colleagues. We very much respect that contribution.
The Government broadly welcome the report and recognise that it points to ways in which we can be more assertive about the need for reform in Brussels. In a moment I shall come on to the various contributions to the debate that have raised issues of principle. The noble Lord, Lord Willoughby de Broke, presented his case with his usual forcefulness. That case is not related to the constructive concepts of this report but is to damn the Commission and all its works as having failed any conceivable democratic test. Therefore, there is not much that the report can possibly have in the way of enlightenment for the noble Lord. However, he will appreciate that my noble friends Lord Tomlinson and Lord Rosser had partly anticipated that onslaught, as indeed had the noble Lord, Lord Bowness. Having worked so hard on the report and on how we can make European institutions and the Commission more effective, they were concerned to present a rather robust, principled position on the role the Commission plays. I do not have time to deploy that case in full; indeed, that has already been done successfully for the Government by the three noble Lords to whom I have made reference. Instead I shall respond to the report, which identifies where we can effect greater reforms in Europe to improve the work of the institutions.
The Commission is much misunderstood in Britain. That is not surprising. The noble Lord, Lord Willoughby de Broke, berates the Commission—we have heard the noble Lord, Lord Pearson, do the same on other occasions—for being very different from any structure that we know of in the United Kingdom or indeed in other parliaments and democracies that follow our model. The Commission is different because the European institutions are different in their approach to representation of the democratic will and to how decisions are taken in Europe. Of course I understand the extent to which criticism against the Commission can be voiced, but let us not exaggerate. The noble Lord, Lord Astor of Hever, indicated that he had reservations about the amount of legislative proposals that emerge from Europe. There was a time under a former Administration when there were a very large number of regulations relating to the essential building work of establishing the single market. We are all aware that a large amount of cross-European legislation was necessary.
A House of Lords Library report indicates that about 8 per cent of our legislation emanates from Brussels. So let us not be caught up in the myth that the United Kingdom has handed over its law-making capacity to Brussels. That is just not so, and it needs to be understood.
My Lords, what, in that case, do the Government say to the former president of Germany, Roman Herzog, and the German federal justice department, which put the figure at 84 per cent of national law? Of course we are not talking about local government law covering street cones or statutory instruments which follow on from other law, but about the body of national law. There, I think, many of us are comfortable with a figure of some 70 per cent at least.
My Lords, the danger is that we could engage in a debate which I think has been sufficiently aired already this morning. I know that the noble Lord looks at the small print of everything that emerges from Brussels, so he will be acquainted with the fact that a great deal of the work of the Commission is as a result of initiatives taken by others. The myth that the noble Lord and others wish to present is that the Commission is the sole driving force of law. That is not so; of course the Commission has a very important role to play in this area, but more than a third of its work is in response to scientific, economic and social data and another third relates to international obligations, in which it is responding to initiatives which are part and parcel of the modern world in which we live and a reflection of the European community to which we belong. Another fifth of the Commission’s initiatives is in response to direct requests from member states or other EU bodies such as the European Council or the European Parliament.
I know that that will not do, but we all know the burden of the onslaught from certain Members from the other side. If the European Commission were transformed rather more into some aspect similar to the British Civil Service—which it is not—then they would set about describing how illegitimate the European Parliament was. That would be the next base for the argument that there cannot be institutions that are democratic in Europe. On these issues of principle, the Government do not agree, and nor, I think, do the vast majority of British people. Nor do I think it is relevant to bring these issues into a report which is careful and precise about what it wants to see done.
Inevitably, the noble Lord, Lord Willoughby de Broke, referred to the Lisbon treaty. That is of some apparent concern in the light of the developments of the past few days. On Monday, noble Lords will have an opportunity to deploy that case again as there will be a Statement in the House resulting from the ministerial meeting. When the Lisbon treaty is ratified, it will give Europe’s citizens the right to propose ideas for legislation, compelling the Commission to consider legislative proposals if there is a large enough body of opinion behind them.
A change is being effected to extend the democratic institutions of Europe. However, this report covers discrete and precise areas in which we could effect improvements. The Government very much welcome it and look upon the recommendations identified by the noble and learned Lord, Lord Mance, in his speech and by other constructive contributors to this debate as ways in which we can improve the position. We certainly want to see the Commission act as transparently as possible, so we welcome its code and register of representatives and lobbyists, which were introduced in June this year. The noble Lord, Lord Wallace, referred to that. We look forward to the results of the Commission’s review of the register and code after its first year in operation. I have no doubt that transparency is of very great import for the Commission, and we are grateful that the point was identified in the report.
Concerns were raised in the report about whether the common law system was sufficiently taken into account in developing legislation on justice and policing. This is always a challenge for us specifically in the United Kingdom because of the different legal basis between our own position and that which obtains in Europe. There are significant exchanges between the Commission and our lawyers to improve understanding of these issues. We paid host recently to the entire civil law unit of the Commission, which was here for a two-day working visit. The noble and learned Lord, Lord Mance, would have not have chaired the committee with the distinction that he did if he had not emphasised the importance of understanding on both sides the way in which we can improve legal contributions to the work of the Commission, and the particular dimension of common law nuances which are bound to play their part in the British interpretation of European law.
We also consider that national Parliaments have a voice and a role to play. In September this year, the Commission published its 15th report on better law-making, reviewing the activity over 2007. It said that the House had sent the Commission 18 opinions on its new initiatives under its new system for communicating with national Parliaments. We made more submissions than any other Parliament except for the French Senate and the German Bundesrat. We are active in meeting the challenge, to which the noble Lord, Lord Astor, referred, between the obvious discontinuance in the British approach to political decision-taking and the role of the Commission and of European law. That will always be a challenge; we recognised it from the very first days of joining the European Community. I can reassure the House that the noble and learned Lord’s plea in his report that constant work should be addressed to these issues is being continued by the Government.
We also appreciate the fact that the right level of regulation is important for Europe’s credibility and competitiveness. Europe has an increasing role to play in tackling the big challenges of climate change. Although I hear criticism from time to time about the intrusion of Europe upon certain aspects of our way of life, I hope that even the noble Lords, Lord Willoughby de Broke and Lord Pearson, might think that on climate change, international co-operative action is the only conceivable way in which we will see the crisis situation resolved to safeguard the interests of all mankind. In those circumstances, the European institutions have a role to play.
We have been concerned that the Commission should show a real commitment to improving the quality of regulation. That is why the Commission is now involved in considerably more impact assessments—300 impact assessments have been completed since 2003. Its own Impact Assessment Board, which screens impact assessments for quality, has rejected some of them for being below par. It is critical of the work that has been done and we have no doubt that that is an important element in ensuring that European legislation proves to be successful.
None of us in this House regards the institutions of Europe as working as well as we would hope but none of in this House thinks that British institutions work as well as we would hope. That is why in a democracy there is a constant ferment of new ideas and pressure for progress, and the European institutions fit into that pattern. There is a great deal of work to be done. The Commission’s recent legislative and work programme for 2009 sets out to simplify Europe's regulatory environment and it will certainly be a key priority in this. We will ensure that that work gets high priority. We will continue to press the Commission to do more in this area and to do it faster.
This has been an extremely constructive debate aided by the fact that all noble Lords who contributed—with the exception of a dissonant voice, which is bound to be expressed on principle against Europe and all its works—supported the chairmanship of the noble and learned Lord, Lord Mance, and the work of the committee in terms of the constructive ways in which we need to improve the work of the Commission and European institutions. I congratulate the noble and learned Lord on his report. The whole House owes him and the committee a debt of gratitude.
My Lords, I thank all noble Lords and who have spoken today and thank the Minister. This has been a constructive and lively debate over large areas of the sub-committee's report. There is not time to mention more than a few points.
The committee certainly sought to take and invited evidence on a broad basis. There has been some debate this morning about the extent to which the EU law-making process can be regarded as properly democratic. There was reference to the possibility of a long-term change in the mechanisms by which legislation is proposed, but at present, as a number of noble Lords emphasised, the Commission does not dispose: it proposes. Although it has discretion, it is not in any way the sole disposer. It operates subject to constraints—institutional and public as well as the underpinning legal constraints, through the European Parliament, of appointment and budget.
As the noble Lord, Lord Wallace, said, of all international institutions, the Commission might be regarded as the most democratic. It is certainly very open. Of course, that gives us opportunities that we need to take and to engage with. A number of noble Lords supported the proposal that the period for response be extended to 16 weeks from eight. There was reference to scrutiny in this Parliament and in particular in this House and to the possibility that the Select Committee might consider the procedural aspects of that. I am sure that that is something the Select Committee is likely to take up.
The influence of reports of this House was mentioned. Of course we do not initiate proposals. Our role is to scrutinise proposals. In my limited experience, the scrutiny that we undertake can be and is effective. One example that I can mention immediately is the recent proposals relating to pre-trial supervision. We were roundly critical of the form in which they came forward and we received feedback from Brussels about the relevance and acceptability in large measure of some of the points we made. The ultimate proposal was far better thought through and far better drafted, and there have been several such instances. I believe that this House, through its scrutiny committees, has a real impact on European legislation; certainly that is what one hears.
There were references to the importance of British staff in the Commission and I welcome what was said in that respect in support of the committee, and in relation to the importance of common law and its role being understood. There have been some reservations about the Commission’s approach to the closed loop of lobbyists. Certainly that needs to be reviewed in the light of the publicity that should follow if the register is effective, although that is likely only if it is made compulsory. We hope it will be. I am grateful for the Government’s support for the report and for the Minister's response on matters in it. I look forward to his further response on outstanding points. I am grateful that he has indicated that they will receive attention.