Wednesday, 15 July 2009.
Arrangement of Business
The monitor agrees with Big Ben—the Grand Committee is in session. Before the Minister moves that the first statutory instrument be considered, I will remind noble Lords that in the case of the four orders, the Motion before the Committee will be that the Committee do consider the order in question. I should perhaps make it clear that the Motion to approve the orders will be moved in the Chamber in the usual way. Further, if there is a Division in the House, the Committee will adjourn for 10 minutes.
National Assembly for Wales (Legislative Competence) (Social Welfare) Order 2009
Considered in Grand Committee
For the convenience of the Committee, I shall speak also to the National Assembly for Wales (Legislative Competence) (Exceptions to Matters) Order. For brevity, I shall refer to them respectively as the carers order and the exceptions order.
I will say at the outset how much we welcome the broad agreement that exists on conferring on the National Assembly for Wales the powers set out in the draft carers order, and for making the sensible, technical changes set out in the draft exceptions order. The content of the orders was previously set out in a single proposed order that was subject to pre-legislative scrutiny by a committee of the National Assembly in Cardiff Bay, by this House’s Constitution Committee and by the Welsh Affairs Committee in the other place. The Government are grateful to these committees for the scrutiny that they undertook.
Following comments made by this House’s Constitution Committee, the Government and the Welsh Assembly Government decided to separate the previously single order, which covered both carers and the technical changes being made to exceptions, into the two draft orders before us today. These orders, taken together, differ little in content from their single, unified predecessor. The National Assembly for Wales approved them both on 23 June this year.
I shall deal first with the draft order on carers. This order forms part of the legislative programme set out by the First Minister of the Welsh Assembly Government, the right honourable Rhodri Morgan AM, on 15 July last year. It inserts a single matter—matter 15.9—into field 15 of Schedule 5 to the Government of Wales Act 2006. Field 15 covers the area of social welfare. The competence conferred by this order will enable the National Assembly to legislate to support the provision of care by carers and to promote their well-being. Many noble Lords have taken a keen interest in this subject, and I am sure that we would all acknowledge the vital role that carers undertake not only in Wales but across the United Kingdom.
The Welsh Assembly Government wish to bring forward legislation—an Assembly measure—to strengthen support for carers, not as an add-on but as something that goes to the heart of sustainable health and social care services in Wales. They believe that better ways need to be found to identify carers, for example, including young carers, and for the NHS in Wales to work more effectively with carers as partners in the provision of care.
The Committee may be aware that yesterday the First Minister, Rhodri Morgan, announced the third year of the Welsh Assembly Government’s legislative programme. It includes a proposal to bring forward an Assembly measure using the powers conferred through this LCO, subject to its successful passage in this House and the other place. I am pleased to say that the Welsh Affairs Committee and the Committee of the Welsh Assembly, which each scrutinised the proposed order, supported the principles and policy that underpin the approach taken towards carers, and recommended that only technical and definitional changes should be made to the content and scope of the order. The Welsh Ministers have also made some minor drafting changes to the earlier order.
The draft order also includes a minor technical change to matter 15.1, which deals with domiciliary care. The matter enables the Welsh Assembly to legislate on the charging for social services that are covered by a direct payments arrangement. The change is needed as the Health and Social Care Act 2008 amended the relevant legislation on direct payments to include a wider range of payment recipients in situations in which an individual lacks the capacity to agree to and manage a direct payments arrangement themselves. This change to the Assembly’s legislative competence therefore reflects the broadening of Welsh Ministers’ executive competence that was brought about by the 2008 Act, and is further explained at paragraph 7.14 of the accompanying Explanatory Memorandum.
The National Assembly for Wales (Legislative Competence) (Exceptions to Matters) Order 2009 makes a technical change to the way in which exceptions apply to matters in Schedule 5 to the Government of Wales Act 2006 by making any exceptions to the legislative competence set out in Part 2 of the schedule apply to all matters in that schedule. There will still be occasions when an exception is included in the text of the matter and is thus matter-specific.
Exceptions are currently listed against specific matters in tables at the end of each field in Schedule 5. The onus is to ensure that each matter has all the relevant exceptions applied to it when it is inserted into Schedule 5, which runs the risk that an exception might not be applied to a matter when it is relevant to it. The change will make Schedule 5 clearer and easier to understand by ensuring that exceptions apply in all cases where they are relevant. To put it another way, the onus will be to disapply an exception if it should not be applied to a matter. This is a sensible change that further safeguards both UK government and Welsh Assembly government interests. Exceptions usually apply to areas of policy that are not devolved. Applying these exceptions to all matters in Schedule 5 means that the Government no longer need to decide whether each exception should apply to a new matter.
This Government are firmly committed to devolving legislative competence to the National Assembly, thereby enabling the Welsh Assembly Government to fulfil their commitments to the people of Wales. That commitment is demonstrated once again by the draft orders before us today. It shows that the process of conferring competence on the Assembly by means of Orders in Council—or legislative competence orders, as they are otherwise known—is working well and is being developed and improved.
I commend these orders to the Committee, and I beg to move.
Before I respond to the Minister, I congratulate him on joining the Wales Office and welcome him to it. I hope that he will have a happy and enjoyable time there, and I assure him that all the usual suspects from this House who take part in Welsh affairs are assembled in the Moses Room. I hope he will appreciate the value of their attendance on many occasions. They all have considerably more experience than I have. Having gone that far, however, I will say a few things about the orders in the same order in which the Minister took them.
The first time I read the Explanatory Note on the National Assembly for Wales (Legislative Competence) (Exceptions to Matters) Order 2009, I wondered where I was. It made absolutely no sense to me at all. I read both the order and the Explanatory Note several times and finally found my way through it, but I congratulate the Minister and his officials on simplifying it for us all. Although we are dealing with them as one, the Government separated one order into two pieces, which makes it much easier to understand and much clearer.
As the Minister has said, the order will amend the Government of Wales Act 2006 by inserting a new matter, matter 15.9, into field 15. The new matter would give the Assembly Government legislative competence to support the provision of care by carers and to promote the well-being of carers, and I join the Minister in wishing all carers well and thanking them for their great work in looking after those of us who need carers and are less able.
The report of the Welsh Affairs Select Committee, which conducted pre-legislative scrutiny of the proposed order, points out, as indeed is pointed out in the Explanatory Memorandum, that Wales has a higher proportion of carers than any region of England or Scotland, together with the highest proportion of people suffering from long-term illness, permanent sickness and disability among the economically inactive population. It is worth noting here that under the present crisis the economy of Wales is probably very close to being the worst, if not the worst, in the United Kingdom. That of north-east Scotland may be a little worse but, for the population, Wales is in a poor way, and I am sure that as time goes on its carers will be badly needed.
The Welsh Assembly Government already have a significant level of devolved secondary competence in respect of social welfare. It might be said, therefore, that the proposed order is a logical extension of the existing devolved competence. However, I feel it appropriate to draw attention to the criticism contained in the Select Committee’s report that greater use could have been made of existing powers already vested in the Assembly Government. This is one of the matters that we are concerned about: the Assembly is gaining competence but we are not always happy that it makes best use of it. For example, the Assembly Government have issued no guidance under the Carers (Equal Opportunities) Act 2004, whereas in England such guidance was issued within 12 months of the engagement of that legislation.
The Assembly Government should not be seeking primary competence where existing secondary competence has not been utilised. Indeed, the Select Committee criticised the Assembly Government for their failure to make full use of their existing power in that regard. The Select Committee did, however, point out that the Government did not act on their commitment to introduce secondary legislation providing for duties to be placed on the National Health Service to provide for the needs of carers. It is regrettable that this was not done, and I notice that it is the intention of the Assembly Government to introduce such provisions consequent upon the making of the legislative competence order.
Some matters arise on which I would appreciate clarification. First, any Assembly measures passed after the making of the order will potentially result in additional obligations being placed on local authorities. Can the Minister say whether, from his discussions with the Assembly Government, it is intended that those local authorities will be compensated by way of increased financial support for the cost of complying with those duties?
Secondly, the Select Committee drew attention to the cross-border implications of any legislation that may flow from the making of the legislative competence order. It is not impossible—indeed, it is highly likely, especially in the case of north-east Wales—that the carers and the cared-for may live on different sides of the border. What discussions has the Minister had with his colleagues in the Welsh Assembly and the Secretary of State for Health as to how these cross-border issues will be dealt with when measures are brought forward? Subject to what I have just said, I have no further comments to make on this order.
I turn to the National Assembly for Wales (Legislative Competence) (Exceptions to Matters) Order, which I found more complicated to work through. This is really a tidying-up order and is, I believe, a very sound move and one that I welcome. It tidies up what is in fact a very messy way of maintaining exceptions to devolved matters where legislative competence for a matter is transferred to the Assembly but that matter would otherwise include a function which was not exercisable by Welsh Ministers and therefore could not be devolved back to the Assembly.
When the Assembly was given legislative competence with respect to vulnerable children, a specific exclusion had to be made to cover the use of motor vehicles, road traffic offences and various other non-devolved areas, which resulted in a table consisting of 25 repetitive lines. The proposed order would create a general exception for non-devolved highways and transport and social welfare functions. This is a positive step, although it was not envisaged at the time of the passage of the Bill that the legislative competence order process would be utilised in this manner. Nevertheless, it has the effect of making the schedule not only look different, but it reads better without changing the substance of the powers devolved. To that extent, it is a good proposal and we welcome it.
Perhaps I may take this opportunity to welcome the noble Lord, Lord Faulkner, to the Front Bench. I know that from time to time he has enjoyed himself very much at the Millennium Stadium, and I hope that that will continue to be the case.
I turn first to the legislative competence order on social welfare. Did I hear the Minister correctly when he said that the First Minister actually dealt with this order on 15 July “last year”? It is now 15 July 2009, so the process has taken a whole year. I should say to the Committee that I am not a fan of the process and stated that clearly during the Government of Wales Bill in 2006. I said that we would face administrative problems as a result. The time that has been taken accounts for some of the delay that was mentioned earlier by the noble Lord who spoke for the Official Opposition.
The provision of care for carers which is set out in this order is extremely important. As has already been said, carers need care, and warm tributes have already been paid to them for the work that they do. However, their well-being is affected by their responsibilities, and the provision set out in this LCO to provide social care services for helpers is important, particularly in relation to non-residential care services. The 11 exceptions, including the Children’s Commissioner and child benefit, are welcome, while the provision that,
“any person may secure social care services on their behalf”,
is also welcome. Account appears to have been taken of the Children and Young Persons Act 2008. The Welsh Assembly Government can give guidance to local authorities and indeed carry out inspections and make regulations, but it has been noted that there are still gaps in service provision which, it is hoped, this legislation will put right.
The importance of identifying carers, particularly young carers, has been set out. I came across many young carers and the difficulties they face when I was a Member of the other place, so the provision of correct information is important. Cross-border co-operation is absolutely vital, as is the synergy between the National Health Service and social care provision in local authorities. When, for example, carers have to go from Llandrindod to Hereford, a distance of 40 miles, to accompany someone in their care, it is a whole-day operation. Because of my former direct involvement in Powys, I want to point something out. The border between Wales and England is 132 miles long, therefore even longer than the border between Scotland and England. As there is no district general hospital in Powys, people have to go to one in Oswestry, Shrewsbury, Hereford, Newport, Cardiff, Abergavenny, Swansea, Carmarthen, Neath or Aberystwyth. That is the situation in the most sparsely populated county south of the Highland line in Scotland. It is unacceptable in terms of service provision, but, of course, social services cross the border. Indeed, in places like Presteigne, English people living on the English side of the border utilise Welsh social provision as well; those parts of Herefordshire and Shropshire are very remote in England. We have to be careful about these aspects.
The Welsh Affairs Committee’s report on cross-border provision for health services pointed out—I shall not read from it—that there are totally different funding principles at stake between England and Wales, which caused both confusion and difficulties with the delivery of service. I point that out only as a principle, because I could talk about that sort of thing for a very long time.
The exceptions to the matters that the LCO will look at have already been covered thoroughly. That is a logical provision that addresses the limitations to Schedule 5 to the Government of Wales Act 2006. It may be controversial in terms of the logicality of the legislation because it includes restrictions as well, but the main point is that it is a technical amendment, and it is welcome because it makes clear what the provisions are and what specifically defines the agreement between the UK Government and the Welsh Assembly Government about where responsibilities and legislative compentency lie. In that respect particularly, I welcome the latter LCO.
I welcome the other LCO regarding social welfare. It needs a lot of work and application by both the Assembly and the UK Government to make matters better.
I am a member of the Constitution Committee and will therefore confine my remarks entirely to those matters that engaged the committee when the original draft order first arose.
The orders were of some considerable constitutional significance. First, in a letter from the noble Lord, Lord Goodlad, our chairman, we asked the Secretary of State for Wales whether there was a compelling case for remodelling the way in which exceptions were going to be reported in Schedule 5. My noble friend used the word “technical” on numerous occasions in his opening remarks. I remind him of our observation on that very word in paragraph 17 of our report:
“We do not regard the proposed new method as being merely ‘technical’. The Government of Wales Act 2006 is, in effect, a written constitution for the governance of Wales. There is an onus to explain with care and to justify why changes to this constitutional code are necessary and desirable”.
So it is not just a technical matter.
The second concern that the committee had about the original draft order was whether it was constitutionally acceptable that a change could be made to the 2006 Act by a legislative competence order rather than by amending the primary Act. That is what we are doing in the second order; we are amending the 2006 Act. It is therefore not a minor technical matter—it is something on which we need to constitutionally satisfy ourselves that we can use this competence order to amend the Act. That is a serious and important point to clarify.
As the committee repeatedly reminds those who read the report, the 2006 Act is a written constitution and to amend it is therefore a serious issue. Having said that, after a number of exchanges with our wonderful legal adviser, Mr Le Sueur—who, sadly, has retired today after three and a half years in the committee—we satisfied ourselves that it was acceptable that Section 95 of the 2006 Act could be amended by a competence order in the way that was being proposed.
We noticed one point in the original order that was obvious even to a layman like me—I did not need a legal adviser to worry about the contents. Articles 1 and 2 were fine; they dealt with social welfare. Suddenly, however, we found in paragraph 3 of the original order, which deals with social care, a reference to:
“Regulation of the use of motor vehicles on roads, their construction and equipment and conditions under which they may be so used … Road traffic offences … Harbours, docks, piers and boatslips”.
All those were rolled into an order that seemed to be concerned exclusively with social welfare. It is that which led the committee perhaps to dig in its heels and recommend that the Government—I am grateful they have accepted it—should not, in this case or the future, roll these things together. A social welfare order of this kind should not include a lot of exceptions that are totally unrelated.
I also draw my noble friend’s attention to the conclusions in our report. First, we express great satisfaction at the result of the exchanges and the fact that we now have two orders: the exceptions order, which amends the Schedule 5 arrangements; and the serious matters in the social welfare order, a subject which I will not develop but to which other noble Lords have spoken.
I also ask my noble friend to think about our recommendation in paragraph 15 of the report. It states:
“In future, LCOs should avoid rolling up specific provision on a subject and ‘exceptions to matters’ on a completely unrelated subject”.
In other words, we never want a repeat of that kind of original draft social order. The paragraph continues:
“We are concerned that ‘omnibus LCOs’, covering a disparate range of subjects, are less easily scrutinised by Parliament, the National Assembly, and the public”.
I hope that my noble friend will be able to offer us an assurance that the lessons from the evolution of this social welfare draft order, and the constitutional implications which arose from it, have been well and truly learnt; that in future we will have the very kind of things that we have got today—an order which deals specifically with social welfare; and that if you want to amend the exceptions, you should bring forward a separate order so that both can be scrutinised properly, sensibly and without the kind of confusion that arose in the original draft order. The Constitution Committee supports these orders but would welcome an assurance that in future we will have consistency and clarity in the way that such orders are brought forward.
I, too, welcome the noble Lord, Lord Faulkner of Worcester, to his new office and to this gathering in particular. We are very grateful for the very detailed thought and work that has gone into the preparation of these orders relating to the legislative competence of the Assembly. I intend to comment briefly on the form and content of the orders, and I begin by affirming that special care must be taken with carers because the legislative regimes that deal with care arrangements, especially charges, differ in different countries within the United Kingdom. Of course, carers are becoming increasingly important to us as the population becomes more elderly and in greater need of care and carers.
They are particularly important to us in Wales because, as the 2001 census revealed, we have a higher proportion of carers than any English region.
As my noble friend Lord Glentoran pointed out, 11.7 per cent of the population—341,000 people—are carers, for the very good reason that we have a higher proportion of people with limiting long-term illness, chronic sickness and disability, as explained in paragraph 7 of the Explanatory Memorandum. I therefore understand the Welsh Assembly Government’s anxiety to have legislative competence in this field to support regular carers in the ways described in the Explanatory Note to the social welfare order.
Such is the legislative competence conferred that any cross-border issues that arise can, as I understand it, be amicably resolved by close liaison between the relevant authorities. Yesterday the Government published their Green Paper, Shaping the Future of Care Together. I hope that that togetherness embraces the National Assembly and that they will take account of the contents of the Green Paper before and as they legislate.
I am also glad to welcome the exceptions to matters order and to commend our own Constitution Committee, of which the noble Lord, Lord Rowlands, is a distinguished member, for separating the order into two and for his clarification. I am not quite sure that I fully understand it, but I am sure that with further study and consideration I shall probably get my head round it. One should also commend Carwyn Jones, the Consul General, who has put his name to the Explanatory Memorandum on the second order.
The order brings precisely the order required to an area in which chaos was threatening. The table of exceptions has been replaced by a list, and it is clear that,
“a provision of an Assembly Measure is not within competence if it falls within any of the exceptions listed in that paragraph”.
This avoids specifying exceptions, as I understand it, to every change to Schedule 5 following a legislative competence order. Quite a number of these orders come our way these days.
There are extensive differences between Schedule 5 in 2009 and the schedule as it appeared after the passage of the Act in 2006. A number of fields in the schedule have been amplified by the addition of specific matters, and the time is fast approaching when there will have to be some consolidation to clarify the areas in which the National Assembly has legislative competence. It would be interesting to know what Assembly measures have sprung from those competences. Ideally, a document should be produced in the course of, or at least at the end of, each Assembly’s four-year term that consolidates the legislative competences that have been achieved up to that date. I certainly hope that the National Assembly and its Government will consider that suggestion.
I, too, warmly congratulate the Minister on his appointment and, so far as this body can, I am sure that we will confer on him honorary Welsh citizenship.
I, too, very much welcome the orders, both generally and specifically. Generally, one tends to welcome all such legislation because it is part of a process that Part 3 was intended to allow to run, and to run regularly.
Secondly, every piece of such legislation, quite apart from its own individual merits, tends to strengthen the foundation for legislative possibilities that the Welsh Assembly has. It assists in building up a cadre of people who are well qualified in this field, and it is only by the greater and more constant evolution of this process that one will bring about that result. In addition, I think one can say that not only is Part 3 intended to transfer, bit by bit, authority to Wales to legislate in the same way as Acts of Parliament allow that to be done from time to time but it also forms what might be regarded as a pathway or bridge to Part 4. If we are ever to have a referendum—I very much hope that we will and that it will be carried, although I know that that is not of necessity the view of everyone in this Committee—then it is imperative that Part 3 will have been exploited to the fullest possible extent. Nothing will give Wales a better picture of what Part 4 could mean than the full exploitation of Part 3.
Having made those obvious points, I turn to the first of the two orders—the one relating to social welfare. I welcome it. It is very necessary that the greatest attention is paid to this situation. The problems in Wales are not basically different from those in other parts of the United Kingdom but they affect Wales much more harshly and with more impact. The point has already been made by the noble Lord, Lord Roberts of Conwy, and other noble Lords that Wales scores very highly in many of the categories of disadvantage in this area. Indeed, we have a much greater dependence on carers. It is proper to remind ourselves that 70 per cent of all carers in the United Kingdom perform an unpaid service. The community is massively in their debt. Of course, this situation will develop much more acutely over the next few years. There are more disintegrated families and more dispersed families, and there are the very welcome tendencies against institutionalisation—I hope that I have said that right; it is one of the most difficult words in the English language to pronounce. In addition, there is greater longevity—something in which someone of my age has an interest. If we put all those matters together, along with many others, it is clear that the need for carers will increase very sharply over the years.
Wales has a much higher rate of people suffering from long-term sickness and disabilities. Another feature is the age profile of the community. The age profile in Wales is very different from that in England and is getting more and more pronounced in relation to those over the age of 65, particularly in the rural areas. I declare an interest here. For my sins, I am the chairman of a working group reporting to the Welsh Assembly on rural health. One piece of evidence that we found had great impact was the fact that over the next 23 years an increase of at least 30 per cent is anticipated in the proportion of people in Wales over the age of 65. That trend is present in England but in Wales it is far more pronounced and is extremely germane to the issues raised today. That deals with the first order, which I greatly welcome, as does everyone else in this Committee.
Turning to the second order, I congratulate—I was going to say “my noble friend”; indeed, we are friends—the noble Lord, Lord Rowlands, on his assiduity in spotting what I think was a fundamental flaw and one that unhappily cost 12 months’ progress of this draft order. The noble Lord is absolutely right to say that amending Schedule 5 is not a sin because every LCO that we pass makes amendments, but amending the main timbers of the 2006 Act is a serious matter. I congratulate him on being a constitutional eagle on this matter by discovering a weakness and very properly pointing to it.
On the exact way in which the mechanism operates, I am with the noble Lord, Lord Glentoran, on this. Although I have been a lawyer of one sort or another for a long time, I found it difficult to understand the order, certainly on first reading it. It made me think of that story about a person standing on the quayside in Hong Kong seeing a huge packing case which has printed on it the words, “The bottom of this case is labelled ‘Top Uppermost’ in order to avoid confusion”. Indeed, the more I read the order, the more confused I became, but I think I understand it by now, and I warmly welcome both orders.
One should remind oneself that these orders do not in themselves create new laws. They peg out an area of jurisdiction on which—to use the idiom of a field—the Welsh Assembly can build something worthwhile. Too little building is taking place at the moment and I hope that it will speed up in the near future.
I congratulate my noble friend on his position in the Government and I thank him for his exemplary introduction of the orders. Surely no one would want to halt them. They are the progeny of the Westminster process and the Assembly in Wales has all the competence necessary to do good work with them. They will and should go through today, because certainly our carers in Wales do magnificent work.
Are these orders also pointers to the future governance of our country? I think that they are, and perhaps they are fingerposts on the Westminster parliamentary lanes that may point to more, not less, devolved government. The Assembly in Wales has acquitted itself very well since its inception, and the handover from Whitehall to Cardiff was almost seamless, which was a bureaucratic miracle. It is a considerable achievement in modern governance. I took part as a Minister in the 1979 referendum, and in the subsequent referendum held in the 1990s, which helps one gain an overview and insight into the context of Wales’s governance.
These orders conjure up a consideration of where the Government of Wales are travelling to, as does the now traditional opening, post the Wales general election, of the newly elected Assembly in Cardiff Bay by Her Majesty the Queen. To see Her Majesty, her consort, her heir and the Duchess of Cornwall seated in a line facing the Assembly Members in the graceful Assembly Chamber also concentrates the mind. The conclusion in any consideration of this is that the Assembly has certainly arrived.
These orders concentrate the mind on our governance in the principality, and they have convinced me that in the future there will be more, not less, devolved government in Wales. My guess is that via Calman, Scotland will gain more powers and that Wales will, at the very least, gain some of the powers Scotland will gain, or powers which Scotland already has. I think that there is a report outstanding about governance in Wales which may be published.
The orders prompt me to predict that in next year’s general election, if it is next year, each of the major parties will have proposals in their manifestos for more devolved powers for Wales. Modest though they are, these orders are harbingers of change. I think that the national party leaders will be proposing more than legislative competence orders.
The context of these orders is that the Welsh Assembly is very much a body that is up and running. It is confident, and clearly it is organising and lobbying for considerably more authority than it has now. This context includes an astounding development in British governance; in Belfast, Edinburgh and Cardiff the nationalist parties are very much in power, or are sharing power, most positively with others.
I believe that soon after these two orders are well and truly used, the pre-election political manoeuvres will ensure proposals for more significant devolved measures. Where that will leave the position of our excellent Welsh Members of Parliament and the post of Secretary of State for Wales we do not yet know, but surely that is a subject for later debate. It is sufficient to say now that today we are heading towards a decisive moment in the constitutional history of the Celtic nations.
When I saw the Committee assembling for the debate today, I confess that I felt a little daunted. The noble Lord, Lord Glentoran, may refer to your Lordships as “the usual suspects”; I prefer to look at the Committee and realise that we have the cream of the Welsh political establishment in the Room and that my first foray into this field is likely to be a somewhat uncertain one. I am grateful, though, for the warm welcome that every speaker has extended to me. I think that I shall come to love LCOs in due course, but I was as mystified by a first reading of the brief and the order, as were many of your Lordships.
It has been a fascinating and informative debate, and I have been heartened by the contributions that have been made to it for two reasons. First, there is a broad consensus, cutting across party lines, in favour of conferring competence on the National Assembly in respect of carers, as set out in the draft carers LCO, and for making the technical change to exceptions in Schedule 5 to the Government of Wales Act, as set out in the exceptions LCO.
Secondly, there is a great deal of knowledge and appreciation in this House, particularly among Members of the Committee here today, of the Welsh devolution settlement in general and the mechanisms of the Government of Wales Act in particular. That knowledge helps to ensure that the process of devolving legislative powers to the National Assembly for Wales runs smoothly, and it has certainly helped me today in enhancing my own previously sketchy knowledge; I now have a rather greater understanding of the devolution settlement as it applies to Wales.
I shall respond to a number of the questions that were put to me during the debate. The noble Lords, Lord Glentoran, Lord Roberts of Conwy and Lord Elystan-Morgan, referred to the need for special treatment for carers in Wales. The noble Lord, Lord Roberts, referred to the fact that Wales has a higher proportion of carers than any region in England. It also has the highest proportion of people with limiting long-term illness and a level of permanent sickness and disability in the economically inactive population between 16 and 74 than any region in England. Those figures alone suggest that a different approach is needed in tackling the intensity of these issues in Wales.
The noble Lord, Lord Glentoran, asked about compensation for public bodies and local authorities. The extent to which we decide to provide local authorities and the National Health Service with additional resources is a consideration for when the measure is developed. There is a track record which I hope will go some way to reassuring him. For example, we fully reimburse local authorities for changes that were made to the fairer charging guidance on non-residential social care in 2007.
The noble Lord, Lord Glentoran, also asked about cross-border issues. The Assembly could legislate in relation to public authorities in Wales, but not in England, and it could legislate to support carers living in England but caring for someone who lives in Wales. It could also legislate to support carers who live in Wales but care for someone living in England. I understand that the Welsh Assembly Government intend to develop a protocol on cross-border services for carers, so this is essentially a matter for them. I also understand that a cross-border health service protocol is already successfully in operation.
The noble Lord, Lord Livsey, returned to a theme that I know he has pursued before in these debates, because I read what he said in the debate on 19 June on the red meat order. He believes that the whole LCO process is much too slow and he would like it to go much faster; he expressed similar sentiments on that occasion as well. I do not think that he is being entirely fair. The process of conferring legislative competence on the National Assembly through LCOs and framework powers in UK Bills has so far delivered law-making powers in some 39 areas of policy. I agree with him that the start was a fairly slow one but, to begin with, it is inevitable that this process will take time. As more LCOs come forward—others are being proposed now on which we shall deliberate in the autumn—the process is picking up. I agree very much with the noble Lord, Lord Elystan-Morgan, who looks forward to the day when more and more competences are transferred to the Welsh Assembly Government and the Welsh Assembly.
My noble friend Lord Rowlands chided me and the Government for having the temerity to describe the exceptions order as technical. I apologise to him for that. I did not mean that the order is technical; I meant to imply that the subject matter is pretty technical. I am delighted that a tribute, entirely deserved, has been paid to him for his work on the Constitution Committee, and to the other members of the committee. The noble Lord, Lord Elystan-Morgan, described him as a constitutional eagle, a badge which I think he will wish to wear in future. Section 95 of the Government of Wales Act states that a LCO can also amend that enactment itself. This matter was discussed with the legal adviser to the committee and the legal adviser was satisfied with the vires to make this particular LCO. However, I can certainly give him the assurance that the Government will give careful attention to all recommendations made as a result of pre-legislative scrutiny. We are always mindful of the need to avoid omnibus orders. He made a good point and it is one which we certainly take on board.
The noble Lord, Lord Roberts of Conwy, asked what measures have sprung from the consolidation of matters at the end of each term. The answer is that the vulnerable children LCO has given rise to both the children and families measure and to the education measure currently being considered by the Assembly. Consideration of matters is, of course, an issue not for us in this House but for the Welsh Assembly Government.
I would like finally to say how much I agreed with what the noble Lord, Lord Elystan-Morgan, and my noble friend Lord Jones said about the process in which we are engaged. The phrase used by my noble friend Lord Jones about these being pointers to the future government of Wales is very good. As I indicated at the beginning of my closing remarks, these are important stepping stones towards the implementation of the devolution settlement.
I am not able to answer the question about the future of Welsh Members of Parliament, nor of the Secretary of State, and I suspect that my noble friend did not expect me to.
My noble friend is right. This is almost certainly a debate for the next Parliament.
Finally, I agree with the noble Lord, Lord Elystan-Morgan, that one virtue of the process on which we have embarked is that we are building up a cadre of experts, in Cardiff and the Wales Office, which will be of lasting benefit as we proceed towards more devolutionary measures.
I hope that I have responded to the points made in our short debate. If I have missed anything, I know that my attention will be drawn to it and I will be happy to write to noble Lords. I commend the order to the Grand Committee.
Motion agreed to.
National Assembly for Wales (Legislative Competence) (Exceptions to Matters) Order 2009
Considered in Grand Committee
That the Grand Committee do report to the House that it has considered the National Assembly for Wales (Legislative Competence) (Exceptions to Matters) Order 2009.
Relevant document: 19th Report from the Joint Committee on Statutory Instruments.
Hallmarking Act 1973 (Application to Palladium) Order 2009
Considered in Grand Committee
The draft order is intended to apply the Hallmarking Act 1973 to the precious metal palladium. I thank the Commons committee for carefully considering and approving the draft order earlier this afternoon.
The Hallmarking Act makes it an offence, during the course of trade, to describe an unhallmarked article as being wholly or partly made of gold, silver or platinum, or to supply it with such a description attached. This order proposes to apply the Hallmarking Act to palladium in a similar manner. Palladium has not hitherto been prescribed by the Hallmarking Act because manufacturing difficulties led to high costs and low demand. These difficulties have now been overcome and the market for palladium articles is expected to grow considerably.
Given the value of the metal, which is less valuable than platinum and gold but more valuable than silver, there is an increased danger of fraud. A consumer may not be able to tell by eye the difference between articles made from palladium and those made from cheaper precious metals such as silver and white gold, or from base metals. To protect consumers from fraud and counterfeiting, I propose that the Hallmarking Act should be applied to palladium.
Another reason why palladium should be prescribed in this way is that, under our obligations to the International Hallmarking Convention, of which we are a member, we shall shortly be required to recognise palladium articles stamped with the convention hallmark. This will be done under an amendment to existing legislation—the Hallmarking (International Convention) Order 2002—but we require the Hallmarking Act itself to apply to palladium to enable it to apply in a consistent manner to all precious metal articles affixed with the convention hallmark.
We conducted a full public consultation on this measure in autumn 2008. It is supported by all stakeholders, including the precious metals and jewellery industry, the British Hallmarking Council and all four UK assay offices.
The order will come into force on the day after it is made. I agreed this at the request of the precious metals industry to enable it to meet its Christmas rush, which peaks in September/October. I consulted the Sub-Committee on Productivity, Skills and Employment, which is part of the ministerial committee on economic development, and it agree with this decision not to apply a common commencement date.
It will become an offence to apply to an unhallmarked item a description that it is wholly or partly made of palladium or to trade in such an item. This brings palladium into line with the same offence that covers gold, silver and platinum. The offence provision will apply to palladium with a fineness or purity not less than 500 parts per 1,000. This value of minimum fineness is common to the international hallmarking convention and those EU member states that prescribe palladium. Small palladium articles weighing less than 1 gram are exempt from hallmarking. Similar minimum-weight provisions apply to the other prescribed precious metals.
Hallmarking is not compulsory for any palladium article manufactured before 1 January 2010 but it will become an offence to trade in unhallmarked articles that are manufactured after that date. In the intervening period, manufacturers and traders may voluntarily have palladium articles hallmarked if they so wish. This delay in the offence provision is intended to give the trade time to prepare for the prescription of palladium. It mirrors the same procedure that was successfully introduced for platinum when that precious metal was first prescribed in 1973.
To avoid confusion and to protect the consumer, there are only three permitted fineness levels with which palladium may be hallmarked. These levels conform to the international convention requirements. As with the well known pictorial hallmarks—for example, a lion or Britannia for silver—the trade has requested an optional pictorial mark for palladium and has chosen the head of Pallas Athene, the Greek goddess of war, wisdom and crafts, after whom palladium was named.
Palladium is formally ranked as being more precious than silver but less precious than gold or platinum, to enable manufacturers to conform to coating or plating rules. A precious metal article may be coated only with the same precious metal having a greater fineness or by a precious metal that is more precious.
As I said, these regulations are supported by the precious metals and jewellery industry because they protect both buyers and sellers in an area that is expected to grow in the next few years. They are also required to protect articles hallmarked under the international hallmarking convention. For these reasons, I commend the order to the Committee.
I thank the Minister for introducing the order. It does not seem particularly controversial, but I have a few questions. Some or all of them may have been asked in the other place when the order, as the Minister explained, was debated today. If that is the case, I apologise, but I would point out that it is impossible for noble Lords to have read Commons Hansard if it has not yet been produced. I venture to suggest that to schedule for an order to be debated in both Chambers on the same day makes a mockery of parliamentary procedure; a proper gap between the respective debates allows the benefit of questions consequent upon the answers given by the Minister in the other place.
According to the Explanatory Memorandum:
“A reasonable amount of public interest in this order is expected as this is the first precious metal to be added to the Act since it was enacted in 1973”.
The very next paragraph implies that consultation has been completed and that the Government have responded. I hope that noble Lords will forgive me for saying that. A cynic might suggest that either there has been consultation or that public interest is expected. To say both is to imply that the public have not been fully consulted. I am sure the Minister can explain that satisfactorily.
We read that the United States does not have a hallmarking regime such as that in place here in the United Kingdom. The regulatory impact assessment suggests that the result of this is “very significant levels” of what it quaintly calls “under-carating”. Can the Minister elaborate on this? Specifically, what volume of US unhallmarked goods, gold and silver for example, have traditionally been imported into the United Kingdom? I ask this because the answer might mean that essentially some of the problems envisaged under the voluntary scheme option referred to in the regulatory impact assessment exist anyway and will not be resolved if there is any quantity of US stock washing around in our system here.
We are told that, within Europe, Estonia, Latvia, Lithuania, Romania and Slovenia have prescribed palladium as a precious metal in broadly the same way as the provisions of this order. Can the Minister explain why other major European countries such as France, Germany, Italy and Spain are yet to take action, and whether this will give rise to problems analogous to the scenario I have envisaged in respect of US imports?
The argument for including palladium in hallmarking regimes centres largely on an expectation of increased palladium jewellery sales, derived at least in part from advances in manufacturing techniques. The market price of palladium, however, has more than halved in the last 18 months, from a high of $579 in February 2008 to $250 at present. We must hope that this does not suggest that the commodity markets are not quite as optimistic about the future of palladium as the Department for Business, Enterprise and Regulatory Reform.
Lastly, the department envisages a one-off cost to jewellery traders of £10 for each information sign they must alter, under Section 11 of the 1973 Act, to list palladium as a precious metal. Can the Minister clarify the source of this estimate, which to us seems rather low?
I do not pretend to be an expert on this subject, but none the less I am fairly well briefed on it. The importance of this piece of legislation is that palladium will be included as a precious metal, and as we have heard, it will be third in ranking behind platinum and gold, with silver coming last. That is a significant development for palladium. The legislation applies to precious metal articles wholly or partly made of palladium and relates to the lack of consumer protection, which is very important. The order summarises the costs and benefits of adding palladium to the list of precious metals.
Interestingly, Her Majesty’s Government estimate that sales in palladium jewellery could be worth £5.4 million in five years’ time, and reach 15 per cent of the UK jewellery market in 10 years. I have a number of additional questions for the Minister in order to give some indication of what we are likely to experience as a result of this legislation.
Have the projected increases in the sale of palladium taken into account the recession? There was some indication from the Official Opposition Front Bench that this might be so. What impact might this have on the use of palladium in other areas, such as catalytic converters where it is commonly used? How many other countries have adopted some form of hallmarking for palladium? We have just heard what is happening in that area. What increase in taxation receipts do the Government anticipate from the increased sales of palladium which they predict will follow hallmarking? Finally, what experiences were learnt from platinum being added to the hallmarking regime in 1975 in terms of fraud prevention? This legislation sets out fairly clearly the differences between platinum and palladium.
In addition, do the Government expect hallmarking to boost the value of palladium? Around the year 2000, palladium was more valuable than platinum, trading at $1,000 per ounce—platinum was around $600—due to shortages from Russia and demands from car manufacturers which needed it for catalytic converters. In response to those questions, perhaps the Minister will give us an indication of what is likely to occur as a result of this legislation.
I thank the noble Lords, Lord De Mauley and Lord Livsey of Talgarth, for their questions, which I will attempt to answer. The noble Lord, Lord De Mauley, asked: given that there was a public consultation, why do we expect there to be public interest in the hallmarking of palladium? Having been through the legal requirement of carrying out a consultation, we believe that the announcement of the hallmarking of palladium will be of interest, because this is the first time that a new metal has been hallmarked since 1973. It will bring the existence of palladium to the attention of the public and the consumer. It will have a positive effect because of palladium’s relative potential as a lighter metal than some of the others that are usually used for jewellery. The use of palladium, a lighter metal, will make possible more modern designs for earrings, for example. That will cause some interest and be of marketing benefit to the trade.
The noble Lord is right in his comments about the United States. My understanding is that we do not have any data on the volume of imports of unmarked goods into the United Kingdom. I will look into whether the department has any further information. If we do, I will write to him. I should stress that US marks are not recognised in the United Kingdom and must be assayed on import into the UK.
As for other EU countries and hallmarking, the position is that some countries do and some countries do not. It is based on a country’s own national legislation on hallmarking. I agree with noble Lords that that identifies a potential difficulty in terms of a common approach towards the hallmarking of jewellery and other goods across Europe.
As for imports into the United Kingdom, the hallmarks that the United Kingdom recognises as equivalent can be imported without further costs and without them being further assayed. The marks that are not recognised by the UK must be assayed. I will write to the noble Lord, Lord Livsey, to give him a full list of the countries that hallmark across the range of precious metals and those that do not.
As for the effect on the market, noble Lords have already highlighted the volatility of the price of palladium and of a number of other metal commodities over the past year. Our analysis of the market leads us to suggest that the current rapid increase in sales of palladium products will continue independently of the volatility of the price, for the reasons that I mentioned concerning its suitability for more modern jewellery. We believe that this change to the regulations is necessary because of the way in which we have seen the trade volumes move.
We have been given unofficial trade figures by manufacturers—I stress that they are not government figures—which indicate the number of kilograms of palladium traded per month. They show an increase from 1 kilogram of palladium for July 2008 to 3 kilograms for July 2009, and then to 4.5 kilograms for August 2009. So we have seen a threefold increase in the trade volume of this material, which is why we believe that the order is necessary.
The impact on the market for catalytic converters is something that I will have to write to the noble Lord about when I have done some investigation. We do not envisage that this order will have a significant material impact on taxation receipts.
I believe that I have answered all the questions raised. If I have missed any, I will write to noble Lords. I thank noble Lords for the light that they have shed on this important issue through their questions. I am sure that the industry will welcome the development in the regulations for hallmarking and that consumers will see the benefit in the development of new and effective products. I commend the draft order to the Grand Committee.
Legislative Reform (Limited Partnerships) Order 2009
Considered in Grand Committee
We are debating today the Legislative Reform (Limited Partnerships) Order 2009. Limited partnerships were created by the Limited Partnerships Act 1907. The Act has remained substantially the same over the past 100 years. There are currently around 16,000 limited partnerships. They have been used for a wide variety of purposes, but most new limited partnerships are for investment funds, particularly private equity funds. In 2003, a Law Commission report made a set of recommendations for reforming limited partnership law, which the Government decided to accept. The recommended changes would not alter the nature of limited partnerships, but would comprehensively modernise and clarify the law. They are therefore appropriate for a legislative reform order.
We consulted last year on a comprehensive LRO. It would have repealed the 1907 Act entirely and replaced it by writing new sections into the Partnership Act 1890. The response showed that there was wide support for modernising and clarifying the law along the lines recommended by the Law Commission. It also showed that there was insufficient support for the draft order on which we had consulted. We therefore reconsulted informally on a proposal to proceed stepwise by introducing the reforms in a short series of LROs, beginning with the instrument under debate today. Some consultees were naturally disappointed that the full reform would be delayed, but in general they accepted that this would be a more certain way of proceeding. We plan to consult later in the summer on the forward programme of LROs.
The current order delivers two changes recommended by the Law Commission. The first provides clarity that a limited partnership comes into existence on the date shown on its certificate of registration and that the certificate is conclusive evidence of its formation. Practitioners have told us that the current vagueness about when a partnership comes into existence is a serious problem, as is the risk that if there is some fault in the application process, it might turn out later that none of the partners has limited liability. The first change in the order will resolve both of these problems.
Some consultees argued that this clarification would be of most value if Companies House offered a same-day registration for limited partnerships, as it does for companies. I am happy to tell the Committee that Companies House is planning to offer a same-day registration service for limited partnerships from 1 October this year. The second change delivered by the order is to require all new limited partnerships to choose a name that includes an indication of its status at the end. Each of these proposals was welcomed by all consultees who addressed them, and no consultee objected to either. I hope that your Lordships will also agree that they make a useful first step in our programme of reform. I beg to move.
Once again, I thank the Minister for introducing the order. Reducing unnecessary regulatory burdens on both the public and private sectors is a worthwhile aim that is supported on these Benches and, I am sure, around the House, so to that extent the order is welcome.
According to the Explanatory Memorandum, the Law Commission originally recommended these changes in 2003, so why has it taken the Government over five years to make them law? The Minister will understand that this does not reduce our scepticism on these Benches about quite how high a priority legislative reform is for the Government. I have to wonder, for example, how many venture capital funds have chosen to register under a different jurisdiction during this period. On a more positive note, while on that subject, the British Venture Capital Association had asked me to ask the Minister if he could do anything to arrange that from October Companies House would be able to offer same-day limited partnership registration, so I am grateful for his assurance in that regard.
On the policy section of www.labour.org.uk there is a small entry that states:
“In 2009, the administrative burden on business of regulation will be reduced by almost 20 per cent making it easier and cheaper for businesses of all sizes to grow”.
That is quite a commitment. One has to ask how on earth, having dismissed tools such as regulatory budgets and sunset clauses, the Government intend to achieve that reduction. Six months into 2009, how much progress has been made?
According to the noble Lord the First Secretary of State, the new better regulation sub-committee of the National Economic Council will scrutinise planned regulation. That was said over three months ago. Would it be possible to have a report on what the committee has achieved so far? How many legislative reform orders have been laid before Parliament this year, and how many regulations have been introduced in the same period?
The most recent small-business survey found that health and safety regulations are the most burdensome regulation from the perspective of small businesses. What recent discussions have been had with the Minister’s counterparts in the Department for Work and Pensions to ensure that the Health and Safety Executive vigorously sets about the task of removing unnecessary regulation in the same zealous fashion in which it introduces it? In the Making it Simple Annual Review 2008, the noble Lord, Lord Carter, states that the Government are on target to reduce the overall burden of regulation by 25 per cent. Is the Minister able to square this figure with the most recent Burdens Barometer produced by the British Chambers of Commerce, which found that the total cost of regulation to business since 1998 had risen to £76.8 billion, an increase of £10.8 billion on last year, and a recent CBI statement that government regulation of business had reached what it called a “tipping point”?
In a recession, businesses need better, rather than more, regulation. I finish by drawing attention to the difference between effectively regulating the financial services sector and overburdening small firms with red tape.
I support the order before us today. As the Minister knows, limited partnerships—not to be confused with limited liability partnerships—have been used more and more in certain forms of fundraising. Following the advice of the Law Commission, it is extremely important that this structure is assisted by being burdened with, as the noble Lord, Lord De Mauley, said, as little red tape as possible. The Minister has not heard me speak on these orders before and, although I am in danger of becoming a toady, perhaps I may again congratulate his department on the quality of the explanatory document, which is set out in an extremely clear and concise form.
This is not a Welsh order, so it will not take the amount of time that anything to do with Wales appears to take. I have only two questions. As we know, the Government withdrew the original order because they felt that the consultation had demonstrated that other items that were going to be set out in the order were highly controversial. When does the Minister think that that consultation exercise on the wider issues raised here will be completed and when will we therefore have the further order? Pressing him a little further, it seems that the major issue of concern was whether the certificate would be conclusive evidence not only of the existence of the limited partnership—that is, the subject of the order that we have before us today—but that all the requirements of the Act had been complied with. That seems to be the controversial issue. Do the Government have a view on that or will they simply wait for the consultation?
I am very grateful to the noble Lord, Lord De Mauley, for putting this change in regulation into the wider context. The points that he made are vital, and I am grateful for his welcome of the commitment by Companies House to move smartly to implement the change. I say to him directly that it should not have taken five years. That is far too long. We should do better and we need to do better in the future.
The noble Lord made a point about business reaching a tipping point. With regard to the over-regulatory burden, we are listening very carefully to what business is saying to us at the moment. The global financial downturn was a crisis that very nearly engulfed our financial services industry, and the call for stronger regulation which came out of that was, I think, valid. However, in recognising the need for more regulation in that area, there is a danger that we will fail to recognise the equal importance of putting the same effort into simplifying and reducing the regulatory burden on business. I accept his point that the regulatory burden is significant. Following the decision not to implement a regulatory budget, we are monitoring the numbers of new regulatory instruments and are collating them into an overall single picture, which we are now reviewing. It would be useful for us to be in a position to share the outcome of that in the near future.
The committee’s reports on progress are indeed the mechanism for oversight, and I can tell the noble Lord, Lord De Mauley, as a member of that committee that this issue was reviewed just a few days ago. It is at the front and centre of the Government’s mind, and we take it very seriously. While making the necessary regulatory changes, we are committed to learning from what has happened to the financial services and to maintaining our focus on simplifying regulation. I will take his point about health and safety to my colleagues in the Department for Work and Pensions. I share some of his concern about our need to avoid developing in this country a culture of risk avoidance at all costs and the department’s need to develop an important role in ensuring sensible and effective health and safety regulation.
Questions were asked about the timing of the consultation. All the requirements of the Act are to be included in the certificate, which implies checks and inquiries that the register will not be equipped to make. I will write to the noble Lord about the timing of the completion of the consultation once I have made further inquiries in the department. We hope that it will be possible—this is not a commitment—to make a second LRO in the first half of 2010 and a third in the second half. That is our intention, but we are not committed to doing that at this point.
I thank noble Lords for their questions, and I commend the order to the Grand Committee.
Access to EU Documents (EU Committee Report)
Considered in Grand Committee
According to an ancient myth, much loved of poets, the male swan remains completely mute until just before leaving this world. It then sings one final melody. When I introduced the report of the EU Select Committee on the initiation of legislation in the EU last December, I thought that that would be my swan-song. I am delighted to sing a second time before the Law Lords depart this Palace for their new palace across Parliament Square—their Palais de Justice. It is an especial pleasure to do so in the presence of the Minister, the noble Lord, Lord Malloch-Brown. I have had some opportunity to follow his energy and engagement particularly in the Congo, a country in which I have developed an interest and some involvement while here in Parliament. I am sorry to learn that this will also be his swan-song as Minister, but at least we shall have the pleasure of hearing from him how far the Government and the Committee are singing in tune on this issue.
The report on access to documents comes at a time when openness in the legislature and Government are topical subjects nationally and at the European level. It relates to a Commission proposal of 30 April last year to recast with amendments an existing Regulation 1049 of 2001 governing public access to European Parliament, Council and Commission documents. The regulation is the European equivalent of our Freedom of Information Act.
To inform its attitude to the proposal, which remains under scrutiny, Sub-Committee E undertook a short inquiry. We had the assistance, both in correspondence and orally, of the then Minister for Europe, Caroline Flint MP. By happy coincidence, the main European Union Select Committee was at the same time hearing extensive evidence on co-decision and its impact on national parliamentary scrutiny. There is a synergy between the subjects. Parliamentary scrutiny depends for its completeness and efficiency on access to information and documents. We were able in these two inquiries to examine the extent to which the terms and application of the existing and proposed regulation may restrict the national Parliament’s access to documents of the European institutions. Incidentally, the report on co-decision will be published next Tuesday.
Access to documents is a subject that arouses some passion. I should make it clear that we are talking not about truly sensitive documents, classified “Trés Secret” or “Confidentiel”, which have their own special regime. With regard to other documents, the European Parliament has urged repeatedly that the other European institutions should operate with much greater transparency. The first article of the existing treaty sets out as an objective that the Union should take decisions as openly as possible. The European Court has in several judgments interpreted the existing regulation in a liberal sense, underlining the importance of transparency to build confidence in Europe, and the general need for claims to withhold disclosure to be considered on a document-by-document basis rather than a blanket one.
Sweden was a claimant in two cases. It is, along with other Nordic countries, a strong protagonist of more transparency. The current Swedish presidency, unsurprisingly, has announced its intention of reaching agreement on the present proposal this year. To date, there has been no first reading or common Council position; but it is evident that there are divisions among member states. Ironically, we found these published on the web in the form of a Czech presidency working document, accompanied by a commentary from Professor Steve Peers of Statewatch. Perhaps ungallantly, we asked the Minister whether she felt that such disclosures would, in the language of the regulation and the proposal,
“seriously undermine the decision-making process”
through which the present proposal is going. She explained in no uncertain terms the United Kingdom Government’s view that it would.
What would be the effect of the proposal? Commissioner Wallstrom, in a speech this year, said that,
“the present Regulation has on the whole worked well”.
She cited ever-increasing applications for access and ever-decreasing refusals. That trend was borne out by a Commission survey last October. However, she said that there was room for improvement, particularly for ordinary citizens as opposed to “professionals of EU affairs”. The survey showed that 30 per cent of access requests come from academics, which is a good way of bringing the affairs of the EU to wider public attention.
The commissioner also asserted that the proposal would not lead to any diminution in the level of access. However, our examination has revealed that, in some respects, the proposal could lead to some diminution in transparency. It also revealed that the Government, in at least two areas, are seeking further reductions in access. Of course, every change must be judged on its merits, and, in two respects in which the proposal would limit access, the committee saw merit in the suggestion.
I will deal briefly with the two respects. First, the proposal would exclude from the regulation documents in the institutions’ possession that have been submitted to courts by parties other than the institutions. The idea is that it should be for the relevant courts, European or national, to decide under their own rules whether and how such third-party documents should be made publicly accessible. The institutions’ own pleadings remain subject to the regulation. The institution can disclose them if it wishes, or it can seek to withhold them on a regulation ground: for example, because disclosure would undermine the public interest in court proceedings or the purpose of inspections and investigations. However, the Minister made it clear that the Government want to go further. They fear that the institutions’ pleadings might, if disclosed, refer to and disclose the Government’s position. However, if that is a risk, it has existed under the current regulation for some time.
The second proposed restriction of access is a new blanket exclusion from the regulation of information obtained by one of the institutions from third parties in the framework of an investigation. This seems an appropriate protection of, for example, whistle-blowers in the context of a competition investigation.
Both the existing and the proposed regulation provide for disclosure to be withheld where it would undermine the protection of legal advice. In the case of Sweden v Turco, however, the Court of Justice thought that the general public interest in open administration positively required disclosure of a Commission legal opinion on the Community’s competence. In that case, that was competence to regulate by directive access to the labour market by third-country nationals. The Government opposed that decision before the Court and still resist it. The Minister explained that they would like to see the relevant Article 4(2)(c) amended. The committee sees no reason to alter it. In the committee’s view, the Court’s decision in the Turco case does not mean that all legal advice will always be disclosable in a legislative context, let alone in the course of an investigation or legal proceedings.
Access to documents created in the context of legislative and other decision-making is the key area. The Commission, the Council and the European Parliament all participate in the process by which European legislation is formulated and agreed. In our report on the initiation of legislation, we concluded that:
“The Commission operates in a very open way, both in publishing information about its activities and in listening to views put to it”.
The same can be said generally about the European Parliament. There is, however, a marked lack of transparency, first, regarding the Council and its meetings and, secondly, during the process of co-decision between the three institutions; that is, the process of private meetings and trialogues by which they interact, discuss and reach agreement informally on proposals. The Minister noted that the Council had, under the British presidency, introduced a system whereby the Council holds some meetings in public, but the real negotiations still occur as between member states, and as between the Council of Ministers, Parliament and the Commission behind the scenes.
This brings us to the divide between those who believe that European legislation can and should be a more open process, and those who point to a need for private space if there is to be frank discussion and advice. The Minister, while supporting the European Parliament’s calls for greater transparency, was keen to maintain this space and to avoid a situation where negotiations were driven outside the formal meetings into the corridors and cafes of Brussels. She was also keen to draw a distinction between the nature and functions of the European Parliament and the Commission on the one hand and, on the other, of Ministers and heads of state representing their respective countries in the Council. She hinted at the tactical aspects that can lie behind individual member states’ negotiating positions and said that the discussions and stances of individual member states may be misunderstood if they were made public out of context and that it could undermine the Council’s position vis-à-vis the European Parliament if it had to disclose individual member states’ attitudes. Those are the battle lines between those who defend the status quo and those who believe that the Council, and the institutions when negotiating in co-decision, should act more like parliamentary Assemblies.
How does the new proposal impact on this debate? The first point to note is a new definition. This would limit disclosable documents to those,
“drawn-up by an institution and formally transmitted to one or more recipients”—
whatever that may mean—
“or otherwise registered, or received by an institution”.
On one view, depending on the force of the word “formally”, this addition has the potential to reduce significantly the right of access. However, the intention may be no more than to avoid disclosure of every draft or every single copy. Clarification is certainly required.
Apart from this, the proposal rephrases, but does not in text or terms significantly alter, the present legal position. In summary, under Article 4(3), documents relating to a matter on which a decision has not yet been taken are to be withheld,
“if disclosure would seriously undermine an institution’s decision-making process”,
“there is an over-riding public interest”
requiring their disclosure. After a decision has been taken, only opinions for internal use as part of deliberations and preliminary consultations within the institutions can be so withheld, again subject to the same provisos.
In practice, these provisions appear to be interpreted in a manner that corresponds with the Minister’s wishes, and so would no doubt please her. In other words, in order to limit disclosure to Community institutions and national administrations, the notation “Limité” is regularly stamped—largely, one may suspect, by Pavlovian reflex—on documents reflecting individual member states’ views, on drafting proposals and on legal opinions. One-third of all refusals of access are, according to the survey last October, on these grounds.
It would be interesting to investigate whether the Court’s decision in the Sweden and Turco case has made any discernible difference. Although it concerns legal advice, the reasoning is capable of a potentially wider application. We understood the Minister to desire not only a reversal of the Turco decision but even greater protection of a permanent and blanket nature against any disclosure of member states’ statements of position, ever. That would go beyond the present and proposed regulation, which has careful limitations by reference to the concepts of seriously undermining the decision-making process and the overriding public interest, and we did not agree with her about that suggestion.
The notation “Limité” has hitherto had a considerable impact on UK parliamentary scrutiny. The view has been taken that it operates as a general bar to disclosure by the Government to Parliament, or so it may appear. The present inquiry and our co-decision inquiry have disclosed that this is not the case. Other parliaments—Nordic, German, French—regularly see “Limité” material. The Council’s own legal view is that there is no problem about giving national parliaments automatic access to such documents, on the basis that such parliaments will comply with the restrictions involved. These are not onerous. The Minister indicated a welcome willingness to explore with Parliament how this avenue should be followed. We trust that her successor, with a European parliamentary background, will be equally enthusiastic about doing so.
I shall mention one other proposed extension of the grounds for withholding disclosure. This relates to documents submitted to institutions by member states acting other than in their legislative capacity—examples would be an application for state aid clearance, or a letter or report giving information. In Sweden v Commission, the Court held that member states had no veto over the disclosure of such documents; they had to justify their withholding on a basis to be found in the regulation. The proposal would modify this by giving states an additional right to rely on their own national legislation. On the face of it, this might give effect to whatever document-withholding rights that member states chose to enact domestically, and it is not stated what should happen if the European and national grounds for withholding disclosure overlap. In this, as in some other respects identified in our report, the proposal is unclear.
We concluded our report by welcoming a new provision requiring legislative documents, and non-legislative documents of a general nature, to be made directly accessible to the public, where disclosable, without the previous impalpable qualification “as far as possible”. I have long felt that the problem in the United Kingdom is that Europe is not properly understood or explained in its aims, its operation or its impact, and that the value attached in Europe to the United Kingdom’s engagement and our actual and potential influence in Europe are matters not sufficiently appreciated in the UK generally. Openness and accessibility to information are part of the key to addressing these problems.
It has been a great privilege to have been the last serving Law Lord in a long line to have chaired Sub-Committee E and sat on the European Union Select Committee. While I hope I have contributed, I feel that I have gained far more from the experience, from the insights that it gives into the workings of this place and of Government, and from the friendships made in the process. As we move across Parliament Square to take our leave of absence while we are serving Law Lords—depending on future changes, who knows? Perhaps even for ever—I also express my thanks for all the support that I have had from committee colleagues and officers and staff in this inquiry and in our work generally. I beg to move the Motion standing in my name.
I congratulate the committee on an excellent report which I have read because I now have all the time in the world to read reports. In a previous incarnation, my perusal or close examination of these reports was normally done on a Monday or a Friday in the Eurostar, but this time I was able to read it at my leisure. I have only one point to make on the report which I will do in just a moment, but before that I want to seize the opportunity of this debate to record my thanks to the Law Lords in general and to the noble and learned Lord, Lord Mance, in particular, who have made such an extraordinary contribution to the work of Sub-Committee E and the Select Committee. I have had the privilege of sitting alongside the noble and learned Lords, Lord Hope, Lord Scott, Lord Brown and then Lord Mance. How fortunate we and our predecessors have been and how greatly we will miss having a Law Lord chairing Sub-Committee E and contributing to the work of the Select Committee.
I am happy to note—I hope it is true—that the noble and learned Lord, Lord Mance, will be immortalised in the painting commissioned from Sergei Pavlenko. It will depict, so we are told, the last judgments of the Law Lords, which has an awesome and biblical ring to it. I do not think that the Government will be able to tell us whether the Almighty’s nihil obstat was sought and obtained. Through the noble and learned Lord, Lord Mance, perhaps I may offer my warmest thanks to all the noble and learned Lords who have given the committee the benefit of their incomparable wisdom and expertise and, I would add, their energy, patience and very good humour. On a more personal note, I will always treasure the central and inspiring role played by the noble and learned Lord, Lord Mance, in the committee’s delivery under his guidance of the crucial chapters in our Lisbon treaty impact assessment report. It was a quite extraordinary and exemplary piece of work which contributed hugely to the informing of the House as it debated the ratification of the treaty. I wish him well, along with all his fellow noble and learned Lords who are now to become Justices of the Supreme Court when they move across the road. Again, I thank him warmly.
I have but one observation on the report because the subject of access to EU documents has been of great interest to me throughout my chairmanship of the European Union Committee. Anybody who has been to any of the joint meetings of the Commission, the Parliament and national parliaments in Brussels will have heard questions put repeatedly to the Commissioners, particularly Commissioner Wallstrom, about how to get better access to EU documents. From the national parliament point of view, some considerable progress has been made, but this report approaches the subject in a much more detailed and important way. What I want to comment on is the part that relates to how much confidentiality is required for the conduct of legislative negotiation. As the noble Lord, Lord Roper, will know very well, this is of particular concern to the committee as the chairman deals with departmental Ministers all the time. It is an issue, and has been for some time. I note that some of our recent correspondence on this has been duly recorded and examined.
There appears to be a bit of a stand-off between the member states and the European Parliament which can only be accentuated by the extension of co-decision. Articles 4(3) and 4(4)—perhaps this is an oversimplification because I am not a legal expert—seem not fully to meet the requirements of either the former or the latter, with extensive protection favoured by the one and maximum transparency by the other. The report notes at paragraph 38 that:
“The Government appear to be seeking a particularly high level of protection for negotiating positions during the legislative process and that this is not reflected in the current wording of the proposal”.
The committee concludes, very sensibly, that the current and proposed regulations are right to retain the qualification that disclosure may be required,
“by reason of an overriding public interest”.
That still begs the question of what constitutes “an overriding public interest”. It is not easy to decide. My plea to the Government is that they must be vigilant in ensuring that we do not get to the point where officials and Ministers feel compelled to put nothing in writing during the negotiating process. There will be huge and continuing pressure from the European Parliament on the issue of access to documents related to negotiations. The previous European Parliament was terrier-like on this issue and I have no reason to believe that the new Parliament will be any different. This is something that needs careful monitoring.
The committee made a very convincing argument in relation to legal advice given in the context of a legislative proposal. The report persuades me that the Government ought not to be seeking a higher level of protection for legal advice than is afforded by the present regulation, as interpreted by the European Court of Justice in the Sweden and Turco cases. These are delicate issues of balance and the committee’s report will be very helpful to those seeking to achieve that balance. I am sure that the Government will take good note of its conclusions, and I hope that the other member states and the institutions of the European Union will do likewise. I very much support the report and congratulate the committee on its production.
I thank the chairman of the law and institutions sub-committee, the noble and learned Lord, Lord Mance, not only for guiding the sub-committee, of which I am a member, through this inquiry, but also for the comprehensive and clear explanation that he has given this afternoon, which relieves other members of the sub-committee of the obligation to go through the report in detail.
I attended a hearing of the European Parliament with members of the relevant committee of the Parliament and representatives of national parliaments. It is a fair assessment of the mood of that meeting that the European Parliament, and particularly the committee’s rapporteur at the time, Mr Cashman, would go further than this report to your Lordships’ House. This would be the case particularly in relation to the two areas to which some time is devoted in the report—I refer to the disclosure of legal advice and of documents used in the formulation of policy.
As regards the disclosure of legal advice, I, like the noble Lord, Lord Grenfell, hope that the level of protection for legal advice, which we assume is given by the present regulation following the ECJ’s judgments in the Sweden and Turco cases, will be given by any new regulation; but also that an appropriate distinction is drawn between legal advice given to parties in a dispute and legal advice that has been relied upon to establish legal competence.
As regards the disclosure of documents, the report supports the Government’s efforts to establish a clear definition of documents in the regulation, and questions the unsatisfactory suggestion that the definition should in some way be linked to the method of transmission of the document. The report strikes a reasonable balance that allows advice and negotiating positions to remain confidential, subject to an overriding public interest. However, it is against the public interest to have a system that encourages too much informality—a system where frank advice cannot be given and advice is not recorded for fear that it would leak into the public domain.
In the evidence session, I asked Mr Regan, first secretary to the United Kingdom Permanent Representation, how far the regulation would go in respect of preliminary thinking and advice. His answer was that the regulation would cover all documents held by the institution, including initial thoughts, early drafts and internal e-mails between officials of the Commission. I suggest that that would not be a useful outcome. It is essential that we seek to achieve the balance that Mr Regan referred to—namely, that between the principle of transparency and the good functioning of the Administrations and the legislature.
As has already been said today, there is considerable transparency in the workings of the European Union—perhaps more than in the workings of Westminster and Whitehall. Having said that, though, in my opinion the least transparent of all the institutions is the Council of Ministers. When the Council acts as a legislator, at the very least it should be the norm that the meetings are open to public scrutiny, as are those of all the other legislative bodies of the member states. It is also important that we pursue the matter raised by the noble and learned Lord, Lord Mance, regarding Parliament’s ability to see documents, and that some arrangements are come to along the lines of those achieved by other Governments, particularly in Scandinavia.
As a member of the sub-committee, I echo the sentiments expressed regretting the fact that it will no longer be possible for it to be chaired by a serving Lord of Appeal in Ordinary. Rather than “ordinary” in the ordinary sense of the word, the noble and learned Lords who have chaired the sub-committee have brought extraordinary expertise to the task, and the members of this sub-committee have been particularly fortunate in having the noble and learned Lord, Lord Mance, as our chairman. Under his leadership we have been present at meetings in Europe and taken an evidence session in Brussels—something that I believe broke new ground for Sub-Committee E. Whatever the merits or otherwise of the establishment of the Supreme Court, the loss of the Law Lords, and of the noble and learned Lord in particular, is one of the least desirable consequences.
The 15th report of this Session of the European Union sub-committee on access to documents, which we are considering today, is a valuable one. It is an example of one of our sub-committees preparing a report during the period in which co-decision between the Council and the Parliament is going on. It is important, particularly in view of the questions that have been raised already, that this document has been held under scrutiny. We will want further answers from the Government before the committee lifts its scrutiny.
My purpose in intervening today is primarily similar to that of the noble Lord, Lord Grenfell, who was my predecessor as chairman of the committee and has already referred to the remarkable contribution made by the noble and learned Lord, Lord Mance, as chairman of Sub-Committee E and a member of the Select Committee. I echo that. He made a central contribution, as the noble Lord, Lord Grenfell, said, in the preparation of our report on the impact appraisal of the Lisbon treaty.
The noble Lord, Lord Grenfell, referred to the central contributions that came from Sub-Committee E, but I remember also the discussions in the full Select Committee when the noble and learned Lord, Lord Mance, was frequently very helpful in finding language that would reflect these issues appropriately. He was also responsible for the preparation of the reports of his own sub-committee, and reference has already been made to one of those. The report that we debated in the House on the initiation of EU legislation is one that has had the most impact both inside and outside this House, and was a good example of a report that helped people to understand the processes and workings of the European Union.
I was interested to hear earlier this month from the senior adviser to the European Union Committee of the Czech Senate. When it needed advice on institutional matters, it would turn either to the judgments of the German constitutional court or to the reports of the House of Lords. The latter has benefited very greatly in recent years from the diligence and wisdom of the noble and learned Lord, Lord Mance. During the year that I have been chairman, I have very much appreciated the opportunity to work closely with a Law Lord and to realise the skills and talents that they have.
As has been said, the noble and learned Lord, Lord Mance, is in fact the 12th Lord of Appeal in Ordinary to chair Sub-Committee E. Law Lords have provided the chair continuously since Lord Diplock held it from 1974 to 1977. They have made an absolutely invaluable contribution to the quality of the work of the House of Lords European Union Committee. As has already been said by the noble Lord, Lord Bowness, and others, whatever view one may take about the creation of the Supreme Court, the end of this tradition is certainly a substantial loss to the House.
This is also, I think, the last occasion on which we shall see the noble Lord, Lord Malloch-Brown, at the Dispatch Box replying to a debate. Although Europe has not been at the centre of his responsibilities in the Foreign Office, he has frequently replied to the debates of the European Union Committee and we have very much appreciated the interest that he has shown in its work and reports. This is therefore a day of regrets at departures but, more importantly, of enormous gratitude for the contributions that have been made to our collective work.
It is a great pleasure to follow the previous speakers in wholeheartedly supporting the commendations and thanks to the noble and learned Lord, Lord Mance, for all the work that he has done. Although I have had less acquaintance with, and less direct knowledge of, that work compared with colleagues who have had more years of experience in that regard, I can testify to the huge contribution that he made, particularly in the latter stages of the European Union Select Committee. That was referred to by the noble Lords, Lord Roper and Lord Grenfell. Without his contribution, we could not have made the progress that we did on what was, thanks to the chairmanship of the noble Lord, Lord Grenfell, and other members of the committee, a very remarkable report. It is lengthy and profound, and it had a considerable impact on the progress of the Lisbon treaty Bill in the Commons. It was in the background; none the less, it played an important role.
I very much agree with most of what the noble and learned Lord, Lord Mance, has said today, and so there is no need for me to be lengthy in my comments other than to commend the report from these Benches and to hope that the noble and learned Lord’s Motion to consider will eventually be approved after further discussion.
We are now at an important stage with the start of the new European Parliament and the question of what will happen to the further ratification steps. We think mainly of the Irish referendum but other countries are still to put the final seal of approval on the ratification process. That usually happens with presidential signatures, but there is also the necessary and important—presumably primary—legislation to come in the Bundestag before the general election in September. It will be interesting to see the terms of the Bill when it is eventually published. I am not sure of the date because there is the summer holiday to contend with as well. Subject to that and to, I hope, the ratification process eventually being completed, with the Lisbon treaty starting to function in the European Union there will be the very important transparency priority for the future of the Union. There will be a new European Parliament with in many ways a different kind of membership and, we hope, more openness on the part of the other institutions. The Commission has tried to lead the way in these matters and it needs support and thanks for that.
Perhaps logically, the Council of Ministers remains slightly in the background in progress on these matters because of the early pre-legislative stages, which always make Governments very nervous. The then Minister for Europe, Caroline Flint, who left the Government for totally different reasons from those enunciated recently by the noble Lord, Lord Malloch-Brown—I do not make any comparison at all—revealed in the Minutes of Evidence all the nervousness of government about the revelation of documents at the negotiation stage. I quote what she said from page 2 of the Minutes of Evidence:
“I think in this debate that we need to be mindful about the difference in terms of the role and responsibilities of the Council and the ministers who are represented in those forums and the difference between the accountability of those individuals to their Member States in these negotiations and those of MEPs, who I think have an important role but a slightly different role”.
The noble and learned Lord, Lord Mance, then put the question—I hope he will forgive me for quoting it:
“Is the broad answer to the question I put that the Government does think it would seriously undermine the decision making process to make any sort of public disclosure of negotiating documents?”.
The Europe Minister’s answer was:
“I think it could contribute to that, yes. Inadvertently, it would lead to something that would not be very satisfactory and people would possibly find other ways to have these conversations and talks. It would not allow the candour that is necessary in these discussions and negotiations. I do not think that in itself would be helpful in terms of policy making”.
That is undoubtedly the position not only of the UK Government—this matter is still under scrutiny and has not been decided yet—but of a number of other Governments.
If we accept the logic that this is really only a legislative stage, and an early legislative stage under the co-decision procedure which the European Union Select Committee is now felicitously examining closely, that is much more acceptable to member Governments. Governments then have the ability to reveal, if they so wish, other pre-legislative negotiating positions that are developing. They often brief the press in that way, and there is no reason why that should not be a happy outcome. However, I am not totally optimistic that this will work well. It remains to be seen what will happen during this different process.
There is an obvious need to modernise this regulation, as the report implies. It is not enough for us to rely on the terms of Article 255, although that article is adamant about the need for modernising the regulation and is encouraging as a background. The sub-committee’s Recommendation 17 on page 8 says about the courts:
“We consider it appropriate, in principle, for the question of disclosure of documents submitted to courts to be regulated by the courts themselves, where such courts have, or are likely to have, and operate appropriate mechanisms enabling third parties to apply for and obtain access where necessary”.
That is a much easier matter for this Committee and other organs of examination to determine and, as far as I among many observers of these complicated matters can see, it is not producing much trial and tribulation at the moment.
I refer briefly to the exchanges on the relationship to the co-decision inquiry and the other matters that are dealt with in this report. Again, paragraph 61 on page 16 endorses Article 255, which I think is generally accepted; and summing it all up with great force in paragraph 77 on page 18, the committee says:
“We support a firmer obligation on institutions to establish direct access to the public of their documents and believe that there is scope for more proactive dissemination of information”.
One technical and technological suggestion is a subscription e-mail service. I imagine that other things could be tackled as well. Eventually, it may not be necessary for anyone to subscribe to it. I hope so, and the sooner the better.
Although the noble and learned Lord, Lord Mance, referred delicately and engagingly to a swan-song, I thought that I would go straight to Hollywood in total contrast and refer Members to the famous Cecil B DeMille definition of the ideal film: you start with an earthquake and build up to a real climax. No one would suggest that that would be appropriate for this committee report because it is—I am sure the noble and learned Lord would not mind us laymen who are not legal experts using the term—dry-as-dust stuff. None the less, it is very important for the background, and even if we get nowhere near to an earthquake in this matter, which would be totally inappropriate, we need Governments’ attitudes to change substantially and all the various institutions working together for the greater good to take a more adventurous approach. So much European legislation will depend on sensible consensus in the future rather than on perhaps some of the more classic manifestations of party political behaviour in the national Parliaments, although that can also play a role in the European Parliament between the different political groups.
I say that with some pleasure, reflecting as I do on the early 1970s when I was a Member, under the dual mandate system, of what was then a very weak European Parliament—the European Assembly to most people—with 184 Members and where sometimes the Commission did not even bother to attend, particularly towards the end of the week to what is now, having been created in Brussels mainly but also in Strasbourg, an increasingly powerful and important institution that I hope meets with the pleasure and approval of colleagues on this Committee. We see the genuine building-in of democracy at the European level and more effective liaison, we hope, with national Parliaments as their increased powers are built-in from the Lisbon treaty process. On that note, I hope very much that this Committee will support the suggestion of the noble and learned Lord, Lord Mance, that we approve this report.
I, too, congratulate the noble and learned Lord, Lord Mance, and his Select Committee for all the hard work that they have done to produce such an excellent report, Access to EU Documents. I am very fortunate to have been part of the noble and learned Lord’s two very distinguished outings in this House. I was very honoured to have heard his maiden speech at the end of last year. The House will miss him. I also agree with the noble Lords, Lord Grenfell, Lord Roper and Lord Dykes, and my noble friend Lord Bowness, in their admiration for the work of all 12 Law Lords who have chaired Sub-Committee E. They will also be missed when they go across the square.
I thank the noble and learned Lord, Lord Mance, for explaining the background to this report and for the evidence that his sub-committee took. The report is a thorough and comprehensive analysis of the major issues of the European Commission’s proposed reform regulation 1049/2001, which sets out the code for public access to European Parliament, Council and Commission documents. We on my Benches support transparency within the EU, better access to documents and freedom of information. I therefore very much welcome all the recommendations that the Select Committee highlighted. I also acknowledge the difficult task that the Select Committee had in striking a balance between, on the one hand, protecting the need for privacy when formulating policy, particularly when set against the need for legislators to act transparently and, on the other hand, enabling the public to properly scrutinise the activities of the EU.
I agree with the principle that disclosure of documents submitted to courts by parties other than the European Parliament, the Council and the Commission, referred to in the report as “the institutions”, should be excluded from the scope of the regulation altogether. This should be governed by the courts where,
“such courts have, or are likely to have, and operate appropriate mechanisms enabling third parties to apply for and obtain access where necessary”.
However, as the report points out, this provision needs to be further defined as to which courts this applies to. Does it apply to the European Court of Justice and the Court of First Instance exclusively or does it apply to any court anywhere in the world? If it is the latter, what would be the procedure if the court did not have mechanisms in place for granting access to documents?
On 6 April, the Government acknowledged that problem in a letter from the right honourable Caroline Flint, the then Minister for Europe, to the noble and learned Lord, Lord Mance. Will the Minister update the Grand Committee on whether the Government feel that this issue has been clarified? Do the Government accept that, by failing to define which courts are being referred to in Article 2(5), we are in danger of sending to court appeals which might not have received a sufficiently robust appeals process?
The application of Article 2(5) is limited to documents submitted to courts by parties other than the institutions. Does the Minister accept the report’s argument that this is an “obscure exception”? How is it proposed that these documents would be treated if the exception remained?
As the report points out, the wording of Article 3 of the proposal—
“The definition of a document accessible to the public would expressly cover retrievable information held in a database; but would otherwise be limited to documents ‘drawn-up by an institution and formally transmitted to one or more recipients or otherwise registered, or received by an institution’”—
is open to a worryingly wide range of interpretations. In its current format, it “would not be justifiable”. Will the Minister reassure the Committee that this part of the proposal will not become a vehicle for preventing the transparency that the EU so badly needs?
The committee stated that, although it recognised the need for privacy of internal discussions,
“Member States act as legislators when negotiating in the Council, and legislators normally act publicly”.
In the light of that, how are the Government seeking to strike a balance in this area? What is their justification for,
“seeking a particularly high level of protection for negotiating positions during the legislative process”,
when the European Parliament is of the opinion that all such legislative material and exchanges should become generally open to public scrutiny? The Select Committee also recommends that the proposed regulation is right to retain the qualification that disclosure may be required by reason of an overriding public interest.
The European Court of Justice found that there was no general need for confidentiality in respect of legal advice given to the Commission. Why are the Government again seeking greater protection and confidentiality, especially as the Select Committee found no need for it?
I echo what the noble and learned Lord, Lord Mance, and other noble Lords have said about the Minister. I have very much enjoyed my outings with him in debates and at Question Time; they have been a privilege. I wish him the very best for the future.
I thank the noble and learned Lord, Lord Mance, for initiating this debate and for allowing the Government the opportunity to respond to the committee’s report on the proposed recast of the access to EU documents regulation. To pick up his reference to swans with regard to Ministers and Law Lords, I note only that the fine swans-cum-Law-Lords of ours will find that their new pond is even closer to St James’s Park and other fine birds. I wish that we still had Lewis Carroll to record this fine condition; I fear that no poet today will quite rise to the occasion.
I am grateful to the committee for its detailed consideration of the issues, and I am pleased to note that the Government share its view on a number of points. I am also grateful for the points that have been raised today. I hope that I can immediately dispose of three of the noble and learned Lord’s concerns. The Government are not arguing for diminished transparency. Our position is based on the need for balance and allowing the institutions to function effectively.
Let me also say a word about the use of limité sanctions. We respect the Council’s limité classification. However, the Government await the Lords’ EU Select Committee report on the scrutiny of co-decision dossiers; I understand that it will make a number of suggestions on the issue. My noble friend the Minister for Europe looks forward to receiving the report and will consider any recommendations made by the committee. I would also reassure the noble and learned Lord that, on the issue of whether the UK is arguing for the disclosure of third-party submissions, as the then Minister for Europe made clear in the committee’s evidence session in March, negotiations continue at an early stage and member states’ negotiating positions will evolve as they proceed. As the committee recognises in the report, our concern is not against institutions’ pleadings per se, but that the substance of third-party pleadings can often be obtained from the content of institutions’ pleadings. Noble Lords know that we are keen to protect those third-party pleadings.
The broad argument I want to convey this afternoon is that the Government, like the committee, have long supported openness and transparency. While I agree with the noble Lord, Lord Dykes, that perhaps this is not earthquake territory, we hope that at least a brisk breeze of openness has blown through government information in recent years. I mention the Freedom of Information Act, the Data Protection Act and the environmental information regulations, which have transformed access to information in this country. At the EU level, the UK presidency in the second half of 2005 saw a number of measures proposed to promote transparency, including deliberations in Council of co-decision dossiers, the European transparency initiative and so forth. However, there is a need for balance, as I think noble Lords have acknowledged in the debate, to ensure the effective operation of the institutions and the EU decision-making process. That is why the Government continue to take a pragmatic view on each of the points raised in the review by championing those areas where we believe the proposals should go further to promote transparency and exercising caution where we believe they may impede the effective operation of the EU’s policy-making.
The Government’s position is guided primarily by our own freedom of information legislation debated in this House almost a decade ago. In that legislation, each request is dealt with on a case-by-case basis by subjecting most exemptions to a public interest test. It is this balance that has been the Government’s basis for their position on the specific issues addressed by the Commission in its proposal and by the committee in its report. It is the question of balance that lies behind our wish to ensure a sufficient level of protection on negotiating positions and working papers in Council.
We recognise that the public may be interested in such documents; indeed, much information is already made public, such as Commission consultations on proposals or the Government’s communications on our position when negotiating objectives and updates as negotiations proceed. However, we also think that it is in the public’s interest that decision-making should be based on frank advice and that policies should be allowed to develop freely. We believe that if space to develop policy is not preserved, innovative thinking is likely to be stifled; I noted the remarks of the noble Lord, Lord Grenfell, in that area. We welcome the committee’s recognition of this in its report.
We remain concerned that discussions between member states may be forced out into the corridors, away from the Council negotiating table. We would not necessarily want sofa government in the corridors of Brussels. The key stages of negotiations and the end result are of course publicly available, but it is not necessarily helpful that every stage of the steps in between could be open to scrutiny.
The committee advocates that the withholding of legal advice should be subject to a public interest test, but the Government are concerned that this may impede the effective operation of the institutions. The Council needs frank and open legal advice in order to make informed decisions. This requires a high level of confidentiality, and the regulation must give particular recognition to lawyer-client confidentiality. The High Court recently confirmed that the equivalent Freedom of Information Act exemption is heavily weighted in favour of protecting the confidentiality of legal advice. We would support a similar interpretation in the regulation.
I am assured that the Turco judgment, which has been referred to—I speak hesitantly here in front of a Law Lord; I hope that I dare offer an opinion on this—creates a presumption that certain legal advice will be disclosed routinely. We do not think that the ECJ judgment strikes the right balance and we agree with the committee’s view that the Turco judgment went further than the provisions in the existing regulation. Greater clarity is therefore needed of the position of legal advice on the proposal.
Reference has already been made to the earlier hearings with my right honourable friend the then Minister for Europe. Those hearings were clearly lively. The committee raised a concern about the exclusion of court documents held by EU institutions and questioned whether that exclusion applied simply to the Court of First Instance in the ECJ or more widely. The noble Lord, Lord Astor of Hever, returned to this very important point today. The Commission has since clarified that the exclusion would apply to documents held by the institutions from all courts, including courts of the EU but also others, such as the WTO court. The Government share this Committee’s concern that, if this exemption were to apply to all courts, there would be a risk of a reduction in transparency. The Government are therefore considering their position on this aspect of the proposal, and my noble friend the Minister for Europe will keep the committee informed of progress.
The committee raised a concern about the exclusion of documents not formally transmitted or registered from the scope of the proposal. The Government share that concern and firmly believe that the broad definition of the term “document” should be retained and that the disclosure of drafts should be considered on a case-by-case basis.
Noble Lords will also be aware of the Government’s concern about the potential disclosure of documents originating from member states and held by the institutions without the consent of the member state involved. This regulation is principally designed to provide access to the institution’s own documents. Member states’ own freedom of information legislation should principally govern access to member state documents. If, for example, someone wants to see a UK document, they should apply using the UK’s domestic legislation. This is consistent with the principle of subsidiarity, avoids conflict between national and EU law, and will achieve the same ultimate outcome, as member states will be able to take a reasoned view on public interest grounds.
However, under the current proposal, member states will not be able to rely on an assertion of whether or not to disclose without clear justification, and the applicant will be informed of the member state’s reason for opposing disclosure. The applicant will then have recourse to challenge the reason before the courts. We think that this would bring the same ultimate outcome and, we hope, would satisfy the committee’s concerns.
In conclusion, I thank noble Lords for their kind words about me. It has been a pleasure to appear in front of this Committee. I sometimes find such appearances rather daunting because I, along with the great British public, find some of these issues very hard to understand. The ratio of preparation to time in front of noble Lords is sufficiently high that, although it has been a great privilege to appear here, I confess to some relief that this is the last occasion on which I shall have to do so. I look forward to sinking back into my pond. May it be relaxing and not require the need to defend European directives in the future, important though they are.
I thank all speakers, in particular the Minister, for all the hard work that he has just assured us—and shown us—that he has done on the subject. I will also mention the noble Lord, Lord Roper, and the noble Lord, Lord Grenfell, whose chairmanship of the European Union Select Committee, on which I had the privilege to serve, was inspiring, influential and knowledgeable. I thank noble Lords generally for their very kind words.
The Lisbon treaty was mentioned. That was a very co-operative effort, with huge and valuable assistance from the committee, legal team and staff. I am sorry that I will not be able to follow it up here, but I will be interested to see how accurate our predictions prove.
The theme of noble Lords’ speeches has been the need for a delicate balance—something that the committee fully accepts. The noble Lords, Lord Grenfell and Lord Bowness, and the Minister, Lord Malloch-Brown, emphasised that.
It is clear that drafts—the subject of the evidence mentioned by the noble Lord, Lord Bowness—come within the present regulation. They might fall outside the proposed regulation. However, their disclosure would not be required if it would seriously undermine the decision-making process, unless there was an overriding public interest. I stress that, as far as we ascertained, there was little to suggest that the present position has proved vexatious. Of course, in the past two years there have been a number of European Court decisions. The Turco decision some two years ago was one, and it may have wider implications, as I suggested when opening the debate.
I am particularly grateful for the questions put by the noble Lord, Lord Astor of Hever, and for the Minister’s response to a considerable number of questions.
I suggest that the present wording achieves a balance. As the Minister mentioned, the Freedom of Information Act requires case-by-case consideration. That was precisely the approach of the European Court of Justice in the Turco case. That is what the court said, and it was right to highlight the fact that hitherto there has been a blanket approach to the disclosure—or non-disclosure—of documentation. The antidote to be found in its decisions is a healthy one. I do not believe that the court would apply the principle to absurdity. We must trust the force of argument. The considerations that the Minister has mentioned are ones that can and would be advanced if disclosure was sought unreasonably, and one must believe that they would find force in the right quarters—ultimately, even, in the Court of Justice. That applies in particular to legal advice. No one is suggesting that the Turco decision is a recipe for trawling through every conceivable piece of legal advice. In the case of disputes, as the noble Lord, Lord Bowness, said, that would be out of the question.
There is a strong argument that, on a matter as fundamental as European Union and Community competence, the public has an interest in knowing what the advice is. There are other contexts in which competence and legal advice are discussed, but this is a much less controversial one. The Turco decision, which we fully accept involved a liberal interpretation of the language, was one of which we approved. This applies also to the decision-making process. Again, one comes back to the question of drafts, which I have mentioned.
As for non-legislative documents, the Minister mentioned the proposed revision to allow member states to rely not only on regulation grounds but also on their national grounds for withholding documents. He suggests that that means that a UK document would have to be sought under UK freedom of information legislation if the UK Government relied upon that. As we have said in our report, while that may be a feasible line of argument, it does not seem to be clearly developed in the present draft, and the draft seems to have a rather muddled idea of how the invocation of national legislation would match and marry with the invocation of European legislation and who would decide what. It needs clarification.
I conclude by mentioning another anthropomorphic myth involving swans, and I hope your Lordships will forgive the pun. In one form or another, the heroes in “Swan Lake” and “Lohengrin” were transformed. Then, I am afraid, they swanned off into history, and so, as the Law Lords transmute into Justices of the Supreme Court, must we, with some sadness but in the hope of not losing all contacts.
Committee adjourned at 6.26 pm.