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EU: Codecision (EUC Report)

Volume 716: debated on Thursday 28 January 2010

Motion to Take Note

Moved By

That this House takes note of the Report of the European Union Committee on Codecision and National Parliamentary Scrutiny.

Relevant Document: 17th Report, Session 2008–09, HL Paper 125.

My Lords, the report and this debate are about ensuring that the House is as well placed as possible to scrutinise the decisions taken by the Government on our behalf in Europe. I put on record my thanks to three successive Ministers for Europe: Caroline Flint, the noble Baroness, Lady Kinnock of Holyhead, and Chris Bryant for their generally constructive approach to our inquiry. Our report made a number of recommendations to improve the scrutiny system, and the Government have already accepted the majority of them. I also express my thanks to the staff in the Foreign and Commonwealth Office and the Cabinet Office who provided very valuable evidence. This, for the first time, put sections of the Government's internal rules on parliamentary scrutiny of European Union proposals into the public domain. I hope that they will be able to make all this guidance public soon.

The report is a thorough analysis of the scrutiny system operated not only in this House but in the Commons. It also looks at whether the system provides effective scrutiny of proposals now decided under the codecision, or ordinary legislative procedure, of the Union. The report is therefore important because almost all European legislation is now negotiated under this procedure. This includes some of the most important legislation currently under consideration, such as the proposed measure on hedge funds.

The headline conclusion is that there are aspects of the ordinary legislative procedure which make it more difficult for us to scrutinise effectively. Our sister committee in the House of Commons has expressed similar concerns in its recent annual report. Other national parliaments are having difficulties, as shown by the written evidence submitted to us which is appended to the report. It is, for example, interesting that the Danish parliament, which has a particular form of mandating, finds this particularly complicated in the circumstances of codecision, and makes that clear in its evidence to us.

We are therefore concerned that negotiations on legislation are conducted for the most part in small, informal and private meetings between representatives of the European Parliament, the rotating Council presidency and the Commission. This makes it hard for us to feed in our views and for the Government to take full account of them.

In the report, we make a number of recommendations to address these difficulties. These aim to ensure, first, that the right information is provided to Parliament at the right time; secondly that the Government have the opportunity to take our views into account before the decision is taken in the Council; and, thirdly, that all government departments work hard to ensure that we are kept informed of the progress of negotiations without the delays that we have unfortunately sometimes experienced in the past. I shall go into this in more detail.

The Treaty of Lisbon has renamed what we have called “codecision” as the ordinary legislative procedure. It is the European Union legislative procedure whereby a proposal from the European Commission is negotiated and adopted jointly by the Council of Ministers and the European Parliament. In practice, it means that, like the situation between the Lords and the Commons here, every word of a legislative procedure must be agreed between the Council and the European Parliament. The process operates somewhat like “ping-pong” on a Westminster Bill, in that as soon as agreement has been found, the process stops. Therefore, although there is discussion in the European Parliament of three readings, in practice, there is only a single reading of a piece of legislation.

Personally, I support the idea that the European Parliament should be on an equal footing with the Council in negotiations on legislation. This provides a valuable counterpoint to the decision reached by the Council and provides additional layers of democratic accountability. In the past where the Council has legislated on its own, there has generally been less transparency. Of course, agreement between the Council and the European Parliament does not happen by accident. It happens because representatives of the rotating Council presidency, European Parliament and Commission meet in a series of small, informal meetings called, in the jargon, informal trialogues. It is in these meetings that the decisions are taken by three key people: the European Parliament's rapporteur for the particular proposal; the representative of the rotating presidency, representing the whole of the Council; and the representative of the commissioner. These meetings are not public and no minutes are published. We heard a great deal of evidence that negotiating legislation in this way presented difficulties, including for national Parliaments.

The European Parliament has also had problems with the arrangements and with the experience of using informal trialogues to make legislation. It has now agreed a code of conduct to try to ensure that agreements are more transparent and not so rushed that there is time for proper consideration within its committees. We welcome this. This code of conduct makes things marginally easier, but two important issues remain. First, the informal and confidential nature of trialogue meetings is still not transparent, and so it is difficult for us to follow negotiations and comment usefully to the Government. Secondly, because the negotiations are conducted by the representative of the rotating presidency on behalf of the Council, it can be difficult for Governments to follow the negotiations and hence to present the views of their national parliaments.

Addressing the difficulties posed by informal trialogues is all the more important because, although the ordinary legislative procedure, as I mentioned, allows for a maximum of three readings of legislation, there has been a trend to seek earlier agreements whenever possible, so much so that in the five years to the 2009 European elections, almost 70 per cent of legislation was adopted after only one reading. In other words, the informal trialogue is now the primary way in which compromises between the Council and the Parliament are obtained for European legislation.

I turn now to how we meet the challenges it poses. Succinctly put, we conclude that for us to conduct effective scrutiny, the Government must provide us with the right information at the right time. Currently, the rules governing what is provided to Parliament are set out in guidance issued by the Cabinet Office. Broadly, this guidance is good, but in the case of legislation negotiated through informal trialogues, it has caused us problems. These problems are set out fully in our report, and I will not take the House's time now to go into them in detail. Suffice it to say that we recommend a number of significant changes to the guidance to stop this happening again. Most importantly, we argue for an update from the Government every time a change with policy implications is agreed or proposed between the Council’s representative and the Parliament. This strengthens the previous requirement for an update only where the change is significant, which is, of course, a matter of opinion. I am happy to report that the Government have agreed to this.

Secondly, we should be provided with all presidency compromise texts, which aim to restart negotiations on a stalled proposal. This is because these are the documents on which the real negotiations take place, and on occasion departments have refused to provide them to us. Again, I am pleased that the Government have agreed. Finally, we should be sent an update in advance of a decision taken by the Council, or by the meeting of ambassadors, to agree to amendments to be proposed by the European Parliament. The Government have agreed to this too.

Unfortunately there are two important points on which we have not yet received answers from the Government, even though our report was published in July last year. First, some of the documents we need for scrutiny are marked “limité” by the European institutions. This is not a classification, but rather a distribution marking indicating that they should not be made publicly available. As a result, the Government do not generally provide such papers to us. However, we took evidence from the Council's legal service that it sees “no problem” with national parliaments being able to access such documents. We know that in other national parliaments scrutiny committees have access to these documents. The Government have yet to commit to providing us with limité documents, even though we have made clear that we need them to be able to scrutinise effectively.

Secondly, as I mentioned earlier, the Government’s internal guidance on provision of European documents to the committee is not currently publicly available. The written evidence to our inquiry is the first time that aspects of the guidance have been made public. We conclude that the whole guidance should be made publicly available. Again, the Government have yet to commit themselves on this. I have given the Minister notice of both these points and I will listen carefully to his reply to hear whether the Government have made their mind up on them.

I turn now to one further point which came out of the inquiry: the differences between how well departments deal with parliamentary scrutiny of European proposals. Some departments have excellent records. Unfortunately, however, our experience is that some departments do not. Documents are provided late, or sometimes not at all. This can lead to Ministers reaching agreement in the Council where there has been no parliamentary oversight. This is a serious matter. In the future my committee will be active in seeking oral explanations from Ministers or Permanent Secretaries whose departments do not fulfil their obligations to Parliament. I am sure that your Lordships will agree to this more rigorous approach.

I conclude with some reflections on the relationship between my committee and Members of the European Parliament. The primary purpose of parliamentary scrutiny of European affairs is, and will remain, holding the Government to account for the agreements they reach in the council. However, increasingly we have detected from MEPs interest in our reports and conclusions. For example, Arlene McCarthy MEP, then chair of the European Parliament’s internal market committee, told us in evidence to our inquiry that she had found a report from Sub-Committee G useful when her committee discussed the proposed timeshare directive. Indeed, she tabled amendments taken directly from our report.

Following this report, we will seek to make the results of our scrutiny available to MEPs working on particular negotiations. This will be in addition to making my correspondence with Ministers available on the internet. In this connection, I should mention the regular meetings which my committee holds with UK MEPs and our sister committee in the Commons. There are three meetings each year: one in the Lords, one in the Commons and one in Brussels. They are valuable opportunities to exchange views on current legislative proposals with MPs and MEPs.

I take this opportunity to thank the noble Lord, Lord Sewel, and the noble and learned Lord, Lord Mance, who chaired the committee during this inquiry, as I was absent for medical reasons. I beg to move.

My Lords, it is always a great delight but also, I am afraid, a matter of some despair to follow the noble Lord, Lord Roper, in a debate: delight because he comprehensively covers the subject, but despair because he comprehensively covers the subject so that there is little else to say. However, as I remember, that has never inhibited Members of your Lordships’ House, and I intend to follow that precedent.

It is clear that the treaty of Lisbon essentially tried to deliver many things but two in particular: to enhance the role of national parliaments in the affairs of the Union while, at the same time, developing further the role of the European Parliament through the adoption of codecision-making as the normal method of decision-making. The difficulty was that that inevitably produced a few paradoxes and stresses. Sometimes, the explicit values seem to go in one direction and behaviour goes in another. So we have an emphasis on the value of transparency but there is also the practice of informal trialogues, which makes transparency particularly difficult.

Those are the challenges in ensuring that we proceed with a form of decision-making in the EU that enables national parliaments to play a full and proper role. Quite honestly, it will need to be worked at by national parliaments, but it will also need to be worked at by the Governments of member states so as to enable national parliaments to carry out their scrutiny role properly and thoroughly.

As we look at decision-making in the EU, how do we see it developing? The noble Lord, Lord Roper, has already spelt out the main features that we have now identified. There is an emphasis on First Reading and early Second Reading decisions, and a speeding-up of decision-making as the rotating presidency comes towards the end of its six-month period. Those are stresses or difficulties that we, as parliamentarians in national parliaments, have to confront if we are to do our scrutiny role properly and adequately. The danger is that things go below the radar and are not properly identified, and that there is insufficient time to assess the merits of a proposal.

If we are to succeed, we will do so in partnership with the departments. Again, as the noble Lord, Lord Roper, said, it is essential that departments keep the Select Committee and its sub-committees informed virtually immediately the policy changes develop and as compromise text becomes identified. To repeat what the noble Lord, Lord Roper, said, I am afraid that in the past there have been occasions when that degree of communication has not been established as properly and effectively as it should be. The danger now is that the consequences of not having that sort of communication are very much greater, as I hope will be recognised.

I say in parenthesis that I speak in this context as the former chair of Sub-Committee D, which deals with agriculture. Of course, agriculture is one area that has come fully into the codecision process for the first time. I know nothing about the pesticides regulation but the record of Defra, even without codecision-making, was, I say with some generosity, somewhat patchy. It has a real challenge and I am sure that it will rise to it.

We have to recognise that scrutiny has evolved within this House. Two types of scrutiny take place. Routine scrutiny is where a sub-committee receives a communication, looks at it, assesses it and passes it back through correspondence with the department. That routine, day-to-day scrutiny focuses on scrutinising the Government and on their reaction and response. A slightly different type of scrutiny, with a slightly different emphasis, has developed and that is scrutiny which flows from the pretty exhaustive inquiries and reports which come before your Lordships' House. That scrutiny has moved beyond just holding the Government to account and scrutinising them; it goes into the area of trying to influence policy at the European level directly.

Until now, we have developed reasonable mechanisms to ensure that the Commission is aware of the views of the committee and the arguments and the evidence which have been brought forward in sub-committee hearings. However, we have not developed very well any real link with MEPs and with the committees of the European Parliament. We still have some work to do in that area and there is an opportunity there to come up with some innovative thinking on how to get the work and the value which goes into these reports into the decision-making process.

Finally, I return to limité. I wish the Minister could help us to clear this up. We know that many departments now come to sub-committee meetings with limité documents and go through them quite openly with members of the sub-committee. We know that in some member states the national parliaments put limité documents on their websites. We know from the evidence that we received in Brussels that there is no objection at that end to limité documents being made available to committees. So can we just get on and do it?

My Lords, I do not think that anyone would disagree that today it is more important than ever to ensure effective scrutiny of European legislation. The reason it is more important than ever—I do not say that just as a cliché—relates to the number of policy areas which are subject to what we must now call the ordinary legislative procedure. They have been increased by the Lisbon treaty. It is not surprising that the report we are debating today into the existing pattern of scrutiny has recommended a number of detailed changes to the present arrangements.

I congratulate the committee and the noble Lord, Lord Roper, on the great care taken in considering the changes and making recommendations and practical suggestions about what should be done to take account of them. I also congratulate the Government on the constructive way in which they have responded to the report. Anyone who has read the correspondence between the noble Lord, Lord Roper, and the Minister, in all fairness, would have to come to that conclusion. Reading the exchange of correspondence since the report, one sees what I suppose would be called an iterative process; put more colloquially, the committee has squeezed and, without squeezing too hard, has got most of the juice out of this orange.

As was pointed out in the last letter in the correspondence and reiterated by the noble Lord, Lord Roper, two outstanding issues are left. One is the publishing of the scrutiny guidance; the second is the provision of limité documents. Coming to this afresh—or perhaps I should say after a decent interval of a decade—it seems to me that there is no valid reason for withholding the scrutiny guidance, or providing the limité documents, perhaps with certain safeguards. It may be, knowing the ways of government, as most people in this House do, that the Government have held up these two little prizes for presentation in this debate. The final fruits of the work of the committee may be greeted with success at the conclusion of the debate. I hope that that is so, because I cannot see any justification for not giving them.

In a sense, I have sympathy with both sides of the argument. It is obviously important for effective scrutiny that information should be properly and adequately supplied, and that it should be supplied in a timely fashion. No useful purpose would be served by ensuring just an academic, backward-looking analysis. The information should be provided in time for comment and criticism before the final government decision on the legislation. The report rightly points out that the use of informal trialogues—that is to say, small, private meetings between representatives of the Council, the Commission and the European Parliament—which may have increased, makes that more difficult to achieve. However, that process—the use of the informal trialogues—is inevitable as a way of reaching agreement in reasonable time. Things move fast, and have to move fast.

All I say from my experience as a Commissioner is that when Parliaments tie down their Governments totally in advance and remove flexibility, that does not result in a better outcome for the country concerned. Denmark is of course the locus classicus where that happens. Sometimes, countries are unable to negotiate in a nimble and dextrous way if they are tied down by a rigid parliamentary mandate, which makes them less effective partners with their colleagues in working out the final legislative solution.

Our system is a long way from that, but one can understand Governments—any Government—not wanting, by conceding too much, to get closer to the Danish position. It is boring but true to say that we need the right balance. I believe that the process of push and pull between the committee and the Government has updated that balance in the light of changing circumstances and should improve the scrutiny process. I should say that it will improve the scrutiny process; it would be churlish to say just that it should. I was going to say that it should significantly improve it, but the correspondence shows that in this context “significantly” and “substantially” have special meanings which are viewed with deep suspicion, so I shall leave it by omitting adverbs and say only that I welcome the improvements that have arisen and will arise from that iterative process.

My Lords, I welcome this interesting and significant report, which seems to me to mark a further stage in the evolution of the Lords committee structure, which is welcome, while recognising how the gradual expansion of our committees has contributed over the past 30 years or so to transforming the role of this House. I feel some of the history of the EU Committee, because when I first came to the House, the Clerk of Parliaments, Michael Wheeler-Booth, would like to remind people that he had been the first Clerk to the European Communities Committee, and one of his first witnesses had been a rather nervous young woman whose nerves he had strengthened before she gave evidence by giving her a double gin and tonic. That was my wife.

I have seen the evolution of that committee, which was rather small to start with and dealt with a limited amount of legislation. With the Lisbon treaty, a not insignificant treaty in terms of a number of changes, we see the competences of the European Parliament extended and widened over a number of areas from which it was previously excluded, and this House has to adjust again. I simply mark something that many Conservatives are reluctant to accept, which is that as the United Kingdom has more and more to negotiate the basis of national policy in collaboration with others through various international forums, Ministers and officials are necessarily making compromises and necessary trade offs and offering concessions, and that potentially makes it harder for the usual forms of domestic accountability to be maintained. When it comes to climate change negotiations and to a range of international organisations—even to NATO—it is very difficult for us to find out what is going on and to keep abreast of it. In the European Union, we have more chance of keeping abreast of what is happening than most and, in this respect, the European Parliament is an ally rather than a competitor.

I spent much of yesterday in the rather overgrand and unnecessarily fancy buildings of the European Parliament, and I had my usual mixed feelings about them but, in some ways, the European Parliament is a real parliament that conducts real negotiations of the sort that our Executive-dominated political system does not allow the British Parliament to do very often. There is detailed discussion and negotiation. I sat in briefly on a discussion between a number of MEPs and one of the nominees for the Commission, who was a replacement for a nominee who had already withdrawn. Unfortunately, I missed Madeleine Albright giving evidence to a European Parliament committee.

The European Parliament is a serious institution with which we should be co-operating as far as possible. The report recognises that there are formal processes, but also informal processes that we have to try to grapple with. That is true of all politics, including what happens in this House. What happens in the Chamber is concerted very effectively by what we all do in our offices and in corridors between times. We need to work more closely with other national parliaments and with the European Parliament formally and informally. That means that the British Parliament’s liaison office in Brussels will become increasingly important to us, and many of us would like to know a little more about how it operates and how it feeds into the committee structure. It means that we should be better informed about exchanges with other parliaments, not only through COSAC but through the meetings that now take place between committee chairs of various sectoral committees in different national parliaments and in both Chambers here, so that we are aware of what is happening.

I am always pleased to discover how high the reputation of our committees is elsewhere in the European Union. I spoke at a small dinner last night and was introduced to the Secretary-General of the European Parliament, who immediately began to cite several useful committee reports from this House, which he had found valuable in feeding back into reports. I have had the same experience when visiting other national parliaments. We now face the delicate task of maintaining the broader, wider and necessarily selective role that characterises the Lords committee and, at the same time, monitoring shifts in proposals as they work through this rather complex process. That carries implications for staffing and for the workload of committee and sub-committee chairs which I hope will be borne in mind by the usual channels or the House authorities, whether they are the same thing or different; we heard about this in the previous debate. The implications need to be taken into account as we carry on through.

There are also implications for our links with other parliaments, with the European Parliament, and in particular with the British members of the European Parliament. Paragraphs 103 and 104 of the report are particularly useful in that regard. I was not aware of how formal the links now are. There is a trialogue between the Commons scrutiny committee, our committee and our MEPs, which is excellent. I was engaged in a number of informal conversations with British MEPs from my own party group in Brussels yesterday which I find extremely helpful, just as I do when I talk to Liberal members of other national parliaments; I find out what is going on and exchange ideas. I regret that the Conservatives have become a more marginal force in the European Parliament, which makes it much more difficult for them to benefit from the same sort of exchanges.

This is a very valuable and significant report, and I hope that the House authorities will think through what the long-term implications for the operations of the Lords committee will be.

My Lords, the first page of the report notes that,

“interest in this House in our report may well be limited to those serving on our Committee and sub-committees”.

That is unnecessarily modest. We in UKIP, at least, are always interested in evidence-based demonstrations of how weakened Parliament has become, and how power has drained, is draining and will continue to drain away from Westminster to the EU apparat in Brussels. This is confirmed repeatedly in the report, which goes into considerable detail to show how frustrating and difficult it is for the EU Select Committee and its sub-committees to fulfil their mandate.

One brief illustration of this amused me: Sub-Committee E’s submission in answer to question 3:

“How does the Sub-Committee keep updated on progress in negotiations at each stage in the codecision procedure? We would normally do this informally, through contact at officials level, but also through the aforementioned requests to be kept informed … Is this effective? No”.

Its answer to question 4—

“At each stage of the codecision procedure, does the Sub-Committee have access to the right documents to ensure that it is able to scrutinise effectively?”—

was, “No”.

Obviously there is a serious problem here.

The report takes us through some of the tortuous procedures of Brussels bureaucracy that give rise to these problems. It has useful jargon-buster boxes to tell us how to navigate our way through the labyrinth and what is meant by first and second readings and by the oddly named “trialogues”. These trialogues seem to consist of a representative of the relevant European Parliament committee, a member of the Commission and the presidency: a sort of mini politburo.

Here I draw on the report of the European Scrutiny Committee of another place. Its most recent report, which was published on 6 January this year after the report by the noble Lord, Lord Roper, underlines the fact that no other member state is present at the “trialogue”, so not only is it difficult for Governments to follow the course of trialogue negotiations and to express their views but:

“it is well nigh impossible for national parliaments to do so at any appropriate point”.

The report goes on to say that neither the Council nor the European Parliament may change a text once it is agreed at one of these informal trialogues, and that the European Scrutiny Committee is not informed of trialogue changes until it is too late: once the negotiations are complete. This is no doubt what the Government refer to when, in their letter to the report, they unblushingly write:

“The report ... will I hope dispel some of the myths that the EU is not democratically accountable”.

Quite.

On democratic accountability, perhaps the Government should have looked at some of the evidence in the report. The noble Baroness, Lady Symons, took part in the examination of Richard Corbett MEP. I have always had a rather soft spot for the noble Baroness and I am sorry that she is not here. She once gave a poker-faced defence of the right of the Commission to legislate on the height and specifications of rocking horses. She was very good at that and she is very good now. On page 68 of the evidence, she said:

“We have gone through this enormously complex edifice and at every point my heart sinks as I recognise the dilution of the relationship between the electors and the decision takers ... but my goodness, you can see why people look at it and think “This is just not representing me. When I put my cross in that box, this was not what I meant, that this whole edifice would be elected”.

The noble Baroness, Lady Symons, is absolutely right and has got it in one. People in this country want their elected MPs to make the laws that they have to obey, the laws that govern them. Elected MPs at least can be held to account by parliamentary scrutiny and at the ballot box. But that just cannot happen with European legislation which is born in Brussels, as the EU Select Committee and the Commons Scrutiny Committee make painfully clear. Is it surprising that people are getting increasingly and demonstrably frustrated and fed up with that sort of legislative process? That is one of the reasons—not the only reason, of course—why UKIP did so well in the European elections when it defeated the Government and the Liberal Democrats.

Let us be clear: even if all the requests of the Government made in the report and in the speech made by the noble Lord, Lord Roper, were met—if documents arrived earlier, if committees were kept abreast of the secretive behind-the-doors deal-making in the trialogues, and if they were allowed sight of the limité documents—it would make very little difference. Scrutiny is only worth while if the scrutineers have teeth.

But national parliaments and their scrutiny committees are toothless tabbies. They cannot do anything about EU legislation. As the Commons Scrutiny Committee report makes clear, reminding those of us who need reminding that the so-called extra power for national parliaments under the Lisbon treaty will make no practical difference whatever to the current position—that is, impotence. The report also points out that under the Lisbon treaty’s yellow and orange card procedures,

“the legislative decision on subsidiarity would continue to rest with the EU institutions”.

The noble Lord, Lord Sewel, was rather optimistic about that.

So far, so bad; but it gets worse. The scrutiny reserve is the bluntest of blunt knives. Eighteen months ago, in response to my Oral Question on the scrutiny reserve, the Government admitted to using the scrutiny override 435 times in four years. In spite of their promises to do better, according to the Commons report, the scrutiny override is still alive and well and living at Westminster.

I am left with the conclusion that this report and the Commons report are just bleating about the consequences of Parliament’s deliberate actions. After all, successive Governments and successive Parliaments have repeatedly signed away powers to Brussels—the Single European Act, the Maastricht treaty, the Amsterdam treaty, the Nice treaty and the Lisbon treaty masquerading as the constitution. They all had parliamentary approval. There was an opportunity for a referendum on the Maastricht treaty, but it was lost. There was a promise of a referendum on the constitution, but when that was brought back as the Lisbon treaty the Government welched on their promise.

So if Parliament and its scrutiny committees have a problem with parliamentary scrutiny, they must look in the mirror to see the source of that problem. Until Parliament reclaims its full powers these problems, which are set out clearly in this report, will remain and, I believe, will get worse. Your Lordships know that there is only one way to reclaim these powers. As a Eurorealist thorn in this bed of Europhile roses, they will know what that course is. I commend it most warmly to them.

My Lords, although I am now a member of the European Union Select Committee, I was not a member at the time the report was produced; I am therefore free to congratulate not only the chairman but the committee on producing a report which contains important recommendations and proposals for enhancing effective security of matters subject to co-decision, or ordinary legislative procedure as we must now call it. It is also an extremely useful handbook and explanation of that procedure.

The noble Lord, Lord Roper, has already explained to the House the contents of the report and indicated where the Government stand to date. The outstanding issues have already been referred to by the noble Lord, Lord Roper, and by my noble friend Lord Brittan of Spennithorne. As to the outstanding issues raised by the committee—namely, the publication of the Cabinet Office guidance on scrutiny and the provision of the so-called limité documents—like other speakers I urge the Minister to tell the House that these issues can be resolved positively in favour of the committee’s recommendations and suggestions.

It is extraordinary that the Government should have any doubts about publishing the scrutiny guidance—not the documents to which it is subject but the scrutiny guidance. Everyone in Parliament and the public should know exactly the parameters in which we work. As to the limité documents, we know that those are made available to other parliamentary committees by other Governments, as has been made clear today. Two selective answers from one of the committee’s witnesses show how misleading the designation may be. In answer to the noble and learned Lord, Lord Mance, in questions 213 and 215, the director of the Council Legal Service said:

“It is not a classification in the sense that it means the document is restricted, secret or confidential”.

Later he said:

“Limité is not confidential, it is not immediately accessible to the public”.

To be fair, the witness also chose to justify in his answers the use of the designation and suggested that it was used only in certain cases where it was believed disclosure would undermine the Council’s decision-making process.

We understand that point. In a report of the committee on the access to documents regulations, the need to be able to negotiate and receive candid advice was recognised. However, we are talking about general publication, effective parliamentary scrutiny and the need for Parliaments to have all the material necessary to do the job of scrutiny properly. The use of the designation ought to be the exception rather than the rule.

Similarly, the ability of our Brussels office to have access to Council documents so that we can respond quickly to the possibly changing situation during the co-decision procedure is important. The new process will be a learning curve for all concerned. I welcome the Government’s proposals that we should be updated on policy changes and that judgments will not be made about what is or is not significant. However, I put in a plea which may be of potentially greater concern to the Sub-Committee on the Law and Institutions, which I chair, than to other sub-committees. In the areas with which we are concerned the policy may be agreed and not changed during the passage of the legislation, but the details could be extremely important.

For example, the Commission is proposing to recast and strengthen the existing directive on combating late payments in commercial transactions; a fresh directive is proposed. The policy thrust—to reduce late payments—will remain the same but the detail may prove critical. I am sure that that will prove the case in other proposals which may come forward under the Stockholm programme. I urge the Government to be flexible and sensitive in assessing what may be a matter for parliamentary scrutiny, and perhaps exercise a judgment in terms of detail as to what is significant, because we must be alive to what is going on.

This brings me to my final point. The noble Lord, Lord Willoughby de Broke, accused the committee of bleating. However, it seems to me that it is UKIP which is doing the bleating and the committee is making substantive and constructive proposals as to how scrutiny by this Parliament can be improved in the light of the Lisbon treaty. I appreciate that some may consider that this involvement of the European Parliament in making laws which affect the United Kingdom is to be regretted—if not deplored—but that is not the subject of this evening’s debate; nor is it the real world because we are not going to withdraw from the European Union.

We need to recognise that we are now presented with opportunities to be involved and to influence the making of European legislation, and we ought to embrace those opportunities with enthusiasm. We need to demonstrate a willingness to work with colleagues in the European Parliament to ensure that, as early as possible, they, as well as Her Majesty’s Government and the Commission, know the views of the UK Parliament. I believe that in the European Parliament there exists a desire to work with national parliaments, and it is reciprocated in other national parliaments.

This week, the internal market committee held a hearing on the late payments directive to which I referred earlier. Seventeen parliaments from across the Union were present to discuss an issue which, while important, is something of a specialist interest. They all contributed to the debate, while others had submitted written evidence. The committee rapporteur, at what was an early stage in the process through the European Parliament, saw that on a number of issues there was a common concern by national parliamentarians across the Union; likewise, national parliamentarians with concerns found that they were shared by parliamentarians from other countries.

We have to create an atmosphere whereby this Parliament does not bleat but deals with European legislation as mainstream business, not something alien with which we would prefer not to be concerned. If we have the opportunity to have more influence on events, we must take it. If we have the opportunity to know more about what is happening and why, then rather than complaining after the event, we must show our citizens that, far from being spectators of the process, we are fully engaged as participants on their behalf.

My Lords, it was a privilege to serve on the committee which worked on this report. I express my particular appreciation to the noble Lord, Lord Roper, for the way in which he introduced this report this afternoon and to his colleagues, the noble and learned Lord, Lord Mance, and the noble Lord, Lord Sewel, for participating in chairing the committee.

This report is very timely, the more so because of the coming into effect of the Lisbon treaty; it had not been finally ratified when the committee was considering matters of codecision, now described as an ordinary legislative procedure. It is not simply a change of name; it is a considerable extension of the democratic process of deliberation at the European level, involving as it does justice and home affairs issues. Consequently, it is of great importance that national parliaments consider how they will seek to influence the particular direction of legislation.

At this stage there is perhaps no need to reiterate precisely the recommendations made by the committee but it is appropriate to thank the Government for their positive response to so many of the committee’s requests. I refer to updating the committees every time there is a policy change, bearing in mind the point of the noble Lord, Lord Bowness, that the detail is as important as the general direction of the change. It is also helpful to know that the presidency compromise texts will be made available, as will any amendments contemplated by the Government.

I heard the legal adviser to the Council indicating that there was no objection to limité documents being circulated. I hope that we can speed up the process within government and that perhaps that will be recognised at the end of this debate. It is unduly cautious to withhold information which is listed on websites by other national parliaments.

Perhaps the most difficult issue which the committee unearthed was how to extend the impact of its thinking on legislation to other national parliaments and to the European Parliament. There are obvious complexities in that, with 26 other national parliaments to be considered and multiple committees. The bureaucratic or institutional complexities of exchanging such information could be quite considerable. I would not propose that we get too bogged down in that. The onus seems to lie firmly with the European Parliament to come up with suggestions about timing and when it would like to hear from national parliaments. Otherwise, we can rest on our laurels and recognise that the reports of the committee and its sub-committees are valued and widely perceived at the European level to be helpful, constructive and direction-oriented.

It also seems to me that the European Parliament has at least as much interest as this House in being made aware of internal debates in a transparent fashion. In the consideration of the constitutional settlement at the European level, a lot of attention was paid to the importance of the Council’s proceedings, when it acts in a legislative capacity, being as transparent and open as possible. If the trialogue process which has been developed, and on which there seems to be a greater reliance, is not to be opened up, it has at least to be conducted in such a way as to allow time for consideration of the arguments being put forward. The European Parliament’s interests cannot be fully or adequately represented merely by the presence of a rapporteur at such a gathering. I hope that the European Parliament will as speedily as possible address the staging of the legislative process, focusing sharply on the trialogue. There would normally be advantage in there being a staged process, with a certain amount of time being preallocated to each reading and each stage, so that national parliaments throughout the European Union are aware of what is happening and what should happen. Sometimes there will be an urgent need to move rapidly but, more often than not, European legislation is not a response to an emergency but a deliberative process which seeks to improve the law across the whole Union.

My Lords, I shall intervene briefly in this debate on what might at first seem a rather dry and process-driven report, because it covers matters of considerable underlying importance for this House’s scrutiny of draft EU legislation. The entry into force at the beginning of last month of the Lisbon treaty brings all these issues into sharper focus and gives them added urgency.

The first point to make is that the Lisbon treaty considerably extends the fields of EU policy that fall subject to codecision and in which thus the capacity for the European Parliament to influence EU draft legislation is enhanced. This is particularly the case with respect to agriculture and fisheries, where the abolition of the old distinction between different forms of expenditure has that effect, and to the fields of justice and home affairs, where the move to qualified majority voting has a similar effect. We will need to ensure that the departments that are in the lead on these subjects, Defra and the Home Office, which have not always in the past been gold medallists in applying scrutiny procedures, are prompt and full in their handling of these procedures where codecision now applies. I hope that the Minister can tell us that proper Cabinet Office guidance has been issued to all departments covered by this extension of codecision.

This extension also underlines the importance of strengthening the links between this House and its EU Committee and sub-committees on the one hand and the European Parliament and its committees and Members on the other, and with other national parliaments. If we are to exert any real influence on legislation, subject to codecision, we must not delude ourselves into thinking that giving our views on draft legislation to our own Government is sufficient. We need to ensure that our views reach the key players in the European Parliament, in particular committee chairs and rapporteurs. That will require more work by our representative in Brussels, to whom the noble Lord, Lord Wallace, referred. It surely adds another argument against any weakening of our links with Members of the European Parliament such as would have occurred if we had simply acquiesced in the other place’s policy of withdrawing Palace of Westminster passes from them.

The other key issue highlighted by the report is the extent to which co-operation in the codecision procedures between the Council and the presidency and the European Parliament is often shortening and truncating the laborious shuttle procedures involved in codecision. I have to confess that I am a little less critical of that development than some others who have spoken, but it does mean that we will have to become more nimble and prompt in reaching views ourselves on draft legislation if we are not to be marginalised in the process. We may welcome or regret this acceleration of codecision procedures, but this trend is not in our gift, so we will need to learn to live with it.

The Government’s responses to our recommendations, as others have said—and I shall offer some praise, too—have been broadly, reasonably positive, if a little grudging. I welcome their acceptance of a number of our proposals. It is good that the weasel words, “significant and substantive”, to which the noble Lord, Lord Brittan, drew attention and which were a wonderful provision behind which the bureaucracy could shelter, in true “Yes Minister” style, are now to be removed from the lexicon of interdepartmental guidance and that the sole criterion for the need to update us will be if any development that takes place in Brussels has policy implications. I should also welcome the Minister’s confirmation that we will in future receive documents that are marked “limité”, thus putting us on all fours with a number of other national legislatures such as the Finnish and Danish Parliaments and the French senate. This should have happened long ago, given that the term limité is not a security classification as such—but better late than never.

I shall add one or two remarks about the intervention of the noble Lord, Lord Willoughby de Broke, who referred to a question from the noble Baroness, Lady Symons, which she put to Mr Corbett. It was a slight pity that he did not enlighten the House of Mr Corbett’s reply. The loss of Mr Corbett to the European Parliament to the benefit of the British National Party at the elections last June was one of the saddest aspects of that occasion, along with the very low level of turnout.

In reply to the question that the noble Lord quoted, Mr Corbett said:

“Of course when you are dealing with complex legislation of the sort that you also want expertise and input, just as happens at the national level when a government drafts a bill and consults and puts it to Parliament and there are debates and discussions, if it is a complex matter and there are lots of inputs from outside and then compromises are made. That whole process indeed can be complex and, certainly at European level, equally, if not more so, because there are more Member States and more diversity to be accommodated”.

As usual with Richard Corbett, I thought that was an admirably honest but also clear reaction to the question that was put to him.

The other remark that I would make about the intervention of the noble Lord, Lord Willoughby de Broke, is that he seemed to display an extraordinary lack of confidence in his colleagues in the European Parliament. After all, his party is much better represented in the European Parliament than it is in this one. Why is he so sure that they can have no effect at all on European legislation, to which he made no reference whatever, and why therefore are they drawing their salaries, taking their seats and—dare I say it above a whisper in case his leader hears this?—acquiring rights to pensions that will no doubt yoke them for ever to the federalist cart that is dragging us all to damnation?

In reply to that interjection —this is nothing at all to do with the report, of course—they are elected, they are doing their best and, like other MEPs from other parties, they are drawing the same expenses and pensions.

I am delighted that the noble Lord says that they are like others; the noble Lord who leads his party has often suggested that drawing a pension from the European Union makes you different from others. I will treasure that remark. I hope that they will have a successful influence in the European Parliament, which is part of this report because the whole of the report was devoted to codecision and how we can help to influence a process in which the European Parliament has a greater say than it had in the past. It is an integral part of that, and I look forward with interest to see how UKIP’s members fare in the months and years ahead.

In conclusion, one hears much talk about moves to strengthen our own parliamentary scrutiny procedures if there were to be a change of Government following the election. We shall no doubt have to wait and see whether that materialises and, if so, in what form, but it is surely important that we put our existing procedures to full use, which this report and this debate are designed to assist. If we do not do that, then talk of “changed procedures” is little more than political posturing.

My Lords, I have huge fellow feeling with the noble Lord, Lord Sewel. He explained the difficulty of following the noble Lord, Lord Roper; I have the difficulty of following the noble Lord, Lord Hannay of Chiswick. It is Scylla and Charybdis: repetition is boring, but by definition anything not said by the noble Lord, Lord Hannay, cannot be worth saying.

I want to make three analytical points, which I think are quite big points, and then three small ones at the end. The nature of the European Parliament is changing quite fast. It began as a debating chamber, a place of resolutions, often on issues in which the then European Community had no role. It is turning rather rapidly into a serious legislature. The next step is what is just happening now with agriculture, fisheries and most of the Third Pillar—the interior, justice, law and home affairs sections—coming under codecision.

Codecision is becoming the normal method, applying to 90 per cent of EU legislation. That is a good thing. Loose talk about the democratic deficits was never more than loose talk; the Council consists of the representatives of the elected Governments of the member states and is entirely democratically legitimate. Yet the democratic legitimacy of the process is undoubtedly enhanced by having the results of their negotiations tested by a directly elected and efficient parliamentary legislature. That is my first point; it is good news. We are dealing with the consequences for us of a development which is benign. I am determined to be both brief and benign in these remarks; benign will be my watchword throughout.

It is a good development, but it all takes rather a long time. In the report there is an authoritative table, on page 87, provided by the Council Secretariat, which shows that the average time taken for a legislative proposal to move from the Commission’s original proposal through to a final agreement is about three years—years, not months. That must make the EU legislative process one of the most measured and deliberate in the world, which is probably a good thing in principle, but hardly practical. It does not make for efficiency. There is a sort of balance to be struck here, and three years seems a bit too long.

It is not surprising, then, that dialogue between the Council and Parliament and an abbreviated procedure, with agreement at First Reading after about only one year, is increasingly being used. The same table shows about one year for legislation that goes through codecision and is agreed at First Reading. One year is not ludicrously rapid, and we need not criticise the European Parliament and the Council for speeding up the process in that way. Indeed, it seems to me to be a second good thing. The Council Secretariat’s table suggests that more than half—indeed, more than two-thirds—of legislation is now being settled in that way, by a deal between the institutions at First Reading. That seems to me very good.

So, as we look at the complications for our process of scrutiny, we need to bear in mind that they arise as the result of two major advances: a democratic advance and an efficiency advance. My third point—which is, again, strictly analytical—is that as the European Parliament becomes a mature legislature, it is clear that it is not going to follow our Westminster model, but one much closer to the American model, the US Congress. On Capitol Hill, legislative debate in plenary session in the Senate or the House is set-piece theatre, for the most part. The real political work is done in committees. So it is at Strasbourg. Plenary debate is becoming much less important in the Parliament, and it is the committees that count. On Capitol Hill, the key to legislative influence is to capture the chairmanship of the key committees. So it is at Strasbourg: the rapporteurs who represent the Parliament in the trialogue with the Council and the Commission hold the real legislative power.

It follows that there is a strong United Kingdom interest in British MEPs holding those jobs, which tend to be allocated in discussions between the big political families—the EDG, the EPP, the Liberals. Personally, as an analyst, I am puzzled that any great UK political party should choose to break its family ties at Strasbourg. Break-up means losing influence on EU legislation. I observe—again, in a wholly analytical, benign and apolitical spirit—that the reasons appear to be ideological, or perhaps theological, and therefore impervious to practical arguments of the kind I am advancing. I have to say, as benignly as I can manage, that such a rigid commitment to legislative impotence seems inimical to the UK interest. I quite understand why UKIP would not want to play much part in EU legislation. The noble Lord, Lord Willoughby de Broke, was eloquent in his disdain for the process and the product. I find it harder to see why the party of Plumb, Brittan, Howell, Soames, Major or Thatcher should adopt a position which, in effect if not in intention, seems to go in the same direction.

That is the end of my apolitical, benign analysis. I now turn to three minor issues, on two of which I can be brief because they have already been well covered. First, the limité issue is a nonsense. I hope that the Minister will confirm that the House will be allowed to see limité documents.

Secondly, we lag behind the Scandinavian parliaments, the French Sénat, the French Assemblée, the Bundestag and the Bundesrat in access to Council documents on the progress of codecision negotiations. These are quite important if we are going to hold the Government to their promise to keep us informed about the progress of a codecision negotiation. Our report suggests at paragraph 88 that this should be remedied. I hope that the Minister can tell us tonight that it will be.

Finally, on the rules of the scrutiny game, there is an existential absurdity in not publishing the guidance. The purpose of scrutiny is to ensure that our interpretation of the public interest is fed into the Government at all stages. The Government have nothing to hide. The rules of the game are being improved. We are content that, provided the rules are properly applied, our concerns will be set at rest. I cannot see why it should be difficult to publish the guidance. It is a small absurdity, but I am sure that it is absurd. I hope that the Minister will agree tonight that it can be put right.

My Lords, after those words, I am glad that the noble Lord, Lord Kerr of Kinlochard, was fittingly inserted into the speakers list as a full speaker rather than accidentally in the gap because of what may have been an administrative slip in the Government Whips Office; if that is not correct, I apologise to them. The noble Lord was inevitably repetitive, because most speakers in this debate are inevitably saying similar things, with the honourable exception of the noble Lord, Lord Willoughby de Broke, in the corner over there, who had a somewhat different view from that of most of the other contributors. It is bound to be repetitive, but there is no harm in that or any need to apologise.

I think of the historical context of how all this has developed since the early days. Forgive me—reminiscing can be very tedious if it goes back too far. I vividly remember working—at a very humble level, I hasten to add—with the then new Prime Minister Edward Heath on various plans to join the Community and setting up our parliamentary delegation and representation in the European Assembly. Edward Heath, with his usual dark, gothic humour, said, “I want to punish you by sending you to Strasbourg for a few years”. My response was, “Please, not too long. I have only just arrived in the House of Commons and I want to concentrate on this place as well”.

However, I accepted the dual mandate in the incredibly weak European Assembly of those days. It had 184 members in an awful utility-type building in Strasbourg. I think that there is still a section of that building left, but I have not seen it in recent years so I cannot be sure; it may have been pulled down when the latest EP building was constructed there. That Assembly was so weak that it was a parade of occasional viewers, when people remembered to attend, collecting expenses, as in the House of Lords, not a salary, because in almost all cases they had a dual mandate. They then aired issues in a very vague way, with weak committees and with the Council of Ministers and the Commissioner sometimes not even bothering to attend or, perhaps, being a little bit late. The president of the Parliament might return after lunch somewhat after the agreed starting time. It had all those features of what was then considered to be, on a gradualist basis, a very weak parliamentary Assembly, consultative only.

We should look at what has happened since then in the development of the European Parliament. This process has taken a long time for those who may be impatient about the construction of the unified Europe of sovereign member states. I hasten to emphasise that just in case people get excited about the lurking perils of the dangerous word “federalism”, which is totally misinterpreted and explained improperly in Britain. Despite the passage of 35 years, a great deal of progress has been made as regards the new European Parliament. The links between the national parliaments and the European Parliament will, I think, accelerate even more. Some national parliaments in other countries have made a particular point of developing those links, while others have hung back.

Shortly after my corvée work in the 1970s—I found it immensely interesting, even at that level—the scrutiny procedure was established in the House of Commons after the controversial vote on entry and membership of the European Community, as it then was. The whole purpose of the scrutiny committee—it was the Foster committee to start with—was to keep the Europeans at bay and to make sure that they did not affect the national psyche, national sovereign legislation and the unitary governance in Parliament. That was the British model and Britain was determined that it would not be affected by joining a foreign-dominated Community. However, that move was long overdue. I am glad to say that the previous Conservative Government felt that way, too, particularly Harold Macmillan.

Progress has been made since then with the European Parliament becoming a sovereign Parliament in its own right with an increasingly distinguished membership. My noble friend Lord Wallace talked about the visit that he made there yesterday. I agree that it is an exciting place to visit nowadays. I never thought that I would use that word, because it sounds foolish, but the Parliament is exciting due to the whole range of very distinguished foreign visitors from all countries of the world. I saw Tzipi Livni several times on one of my recent visits before she left the Israeli Government. There are many other examples, such as the Americans, who have been mentioned in the debate. That process will develop even more now because of the Lisbon treaty processes. Therefore, the work of our EU Select Committee will become even more important as time goes on.

I pay tribute to the noble and learned Lord, Lord Mance, and to the noble Lord, Lord Sewel—this was mentioned at the beginning of the debate—for the massive amount of work that they did on a very complicated exercise. To go through procedures and processes is much more tedious than to deal with substantive policy. I also pay tribute to the noble Lord, Lord Roper. Shortly after the corvée in Strasbourg to which I referred, we had lunch in Paris—he may have forgotten this—well over 30 years ago. I have an uneasy and shameful confession to make in that I think that I have owed him a return lunch since that time. One day I hope to get the chance to do that. He was prevented from taking part at the beginning of the complicated investigation due to ill health, but every member of the committee would pay tribute to him for having caught up and for having become a genuine leader in terms of guiding the committee on how to deal with these complicated affairs. I thank him for that.

I also pay tribute to the officials. Our British officials inhabit a corridor in the European Parliament. It is not given to them but is made available, I suppose, on an appropriate basis. I also pay tribute to the other national officials who work alongside them, so that, as the scrutiny process proceeds under the new arrangements of the ordinary legislative procedure and codecision, they can act in concert, where necessary, when the national interests of member states—they may vary in theme and substance—have to be brought together. In the future, that may occur in emergency circumstances.

This process is all new and time is needed for it to develop. Genuine subsidiarity is not a contradiction for enthusiastic Europeans; it is very useful to ensure that reluctant members of the national voting community of each member state are brought on board by not thinking of their own national parliament as losing its value and substance. However, given our recent crisis, particularly in the House of Commons, and to a much lesser extent here, that may not be a primordial factor at the moment in Britain. I am sad that I have to say that. None the less, we want to make sure that in the future we are armed with the necessary subsidiarity, where that applies. The European Union now comprises many more members than the small number that it had—six to start with, which made its co-ordination and running so much easier—but it deals with democratically arrived-at, joint, European policies to strengthen the Union and to make it a stronger force externally as well as internally for the citizens of the European Union. We have been citizens since Maastricht.

Therefore, one needs to let these processes settle in and not rush them too much. The European Commission should not produce as much brand-new legislation. The length of time taken for it to be put through is another reason why one should try to accelerate the process to which the noble Lord, Lord Kerr, referred, and we should not have as many items of legislation in the future. The communication system that the Commission adopts before the draft legislation appears also helps us enormously by perhaps reducing the total and by giving us advance warning of the policy formation in the Council of Ministers, which is eventually presented to the committees of the European Parliament on an accelerated basis. That bodes well for the future if we can get things right.

I repeat the exhortation to the noble Lord, Lord Brett, whose body language has been encouraging when people have asked for the two remaining items to be agreed to. This would be a magisterial day if he were to acknowledge that the two areas, the limité and the guidance notes, could be dealt with. Then we could make even more progress in the United Kingdom. I believe that the public are more and more enthusiastic about us being a European country. I am thinking in particular of the younger generation, who regard Europe not as a peculiarity to be kept at bay but as a normative political organism and phenomenon.

To be fair to the Government, I conclude by saying that, in his letter, Chris Bryant, the refreshingly dynamic and highly polychromatic new Europe Minister—I say that as a compliment, not in any other way—put an energetic touch to these matters and responded pretty well to the committee. We should ensure that we respond to that. This is about working together. It is not a weakness for the EU Select Committee and the Government to be working together on these matters for the good of the public, the European Union and the European Parliament. In his letter of 14 January, the Minister stated carefully, on the committee’s third point regarding the consideration of requests to the Government for updates or supplementary memoranda, that,

“my intention was to provide a small amount of discretion for those rare occasions where either the Government has reasons for not being able to comply with the request, in which case the Government would need to justify fully … or where a more informal update or discussion with Committee clerks is desirable for reasons of time pressure. I agree entirely that departments should always provide additional information promptly when requested by a committee”.

It all depends on what is meant by “promptly”; if the noble Lord, Lord Brett, could enlighten us on that important adverb, I shall be deeply grateful. It all depends on the spirit of co-operation, working together, not being fearful of it, but actually building the Europe that we all want.

My Lords, I shall try to follow the advice, if not the precise practice, of the noble Lord, Lord Kerr of Kinlochard, and be as benign and analytical as this work justifies and requires. I very much admire the work of the noble Lord, Lord Roper, and his very distinguished committee in their ceaseless search to ensure that all incoming EU proposals for legislative change and amendments are properly and rigorously scrutinised by Parliament and that the loopholes and escape hatches—I am looking at the Minister and the government Bench—which allow either Her Majesty's Government or higher authorities and procedures to slip things through into our domestic law and onto our statute book, are narrowed to the absolute practical minimum.

In particular, I reinforce the concern of the noble Lord, Lord Roper, to ensure that proposals reach our Parliament in good time, whether they come from government departments or EU sources. The report says good things on that. This is a matter not just in relation to information reaching this Parliament, but reaching the Government themselves. Government and Parliament need to be much more aware at an earlier stage of what the EU authorities seem to be hatching.

A very good example of that is the recent financial regulations, which seem to have caught the Government, and indeed everyone else, by surprise. Incidentally, that is why a future Conservative Government will have a Treasury Minister spending a lot of time in Brussels. Clearly, some more communication is needed there.

The fact remains that the overall scrutiny of the flow of EU proposals—here, rather unusually, I agree with the noble Lord, Lord Dykes, that it is too big a flow with too many items—instruments, regulations and laws is still very far from satisfactory. There are too many overrides of scrutiny reserves—the noble Lord, Lord Willoughby de Broke, gave us the figure but others know it too; it is a fact—and too many excuses and arguments about exceptional situations, the need to hurry for this reason and that, the fact that Parliament was not sitting at the time, and so on. We have heard all these comments again and again, and they have been used often in the frequent overrides.

It may be thought that these are trivial issues. They are not. We are dealing here with the system that allowed both the European arrest warrant, which was very controversial, and the setting up of the European Defence Agency to be incorporated into British law via the override system. Frankly, we should say in this House—and perhaps our colleagues in the other place should say the same; they may even have done so—that more of this is just not acceptable. The override system may, in the last resort, be necessary and perhaps will have to be used, but in very limited circumstances.

Meanwhile, on top of that, as the excellent report makes clear, government departments are still left with a little too much wiggle room to decide what proposed changes to legislation have policy implications and should be referred to us in Parliament. As the noble Lord, Lord Roper, rightly said, he successfully got the word “significant” washed out of the system, and that was a very good move by him. Even so, it remains a matter of judgment, and I think that we should be tighter and more demanding on that. If there is a scintilla of a suggestion of a policy implication, the matter should be referred by the government department to our scrutiny mechanism for processing.

There is also a clear need for more explanatory memoranda behind the proposals—something that the committee of the noble Lord, Lord Roper, rightly calls for. The scrutiny guidance should of course be published; I find it incredible that it is not. As for these mysterious limité documents, which several of your Lordships referred to, why on earth ours have to be concealed when other Governments give them to their parliaments, I simply cannot imagine. When one tries to analyse what limité documents are or which ones are marked limité, it verges on comedy rather than serious administration. I think that we are looking to the Minister and hoping for that concession to come with a nice smile.

Finally, half the report is on the expanded codecision procedures and the informal so-called trialogue arrangements. There can be no doubt that the codecision procedures for fixing—I use the word advisedly—and amending EU legislation between the Parliament, the president and the Commission undermine democratic scrutiny and reduce the ability of national parliaments to have a say. I do not think that there is any disagreement about that, and they are not something that we would like to see stay in place. Frankly, I think they are unhealthy and need to be reformed, although I have to say—I hope not too cynically—that we will ask for a change in the trialogue process in vain. I believe that it will go on whatever we say.

This whole development also places a very heavy load on our own systems and procedures and on the work of the noble Lord, Lord Roper, and his family of committees. In fact, it is probably far too heavy a load, because the flow of legislation and proposals from Brussels is far too heavy. I think that there is growing agreement, even among the strongest enthusiasts for this whole procedure, that that is so. Then along comes the Lisbon treaty and, of course, the noble Lord, Lord Roper, and his committee have even more to do, notably the opportunity to give reasoned opinions on the subsidiary nature of proposed EU legislation and regulations as well as to report on all the numerous opt-ins that result from the treaty. With the collapsing of the pillars, this will fall into one pillar, and I understand that there are probably about 100 opt-ins to police and justice measures alone in the pipeline. It will be a very busy time for a lot of people. There is also the task of deciding to refer proposals to the European Court of Justice, which will also be a matter for the committee.

On whether the so-called yellow or orange card—the reasoned opinion system—involves our national Parliament in more EU legislation seems to my mind a little doubtful. I understand that to trigger second thoughts by the EU authorities, nine parliaments are required to object. In the end, the EU authorities can simply review the objections, if nine parliaments are involved, and then can carry on as before. In my language, that is not a sign of vastly increased parliamentary involvement. It is obvious that far too much legislative power and accountability have been allowed to slip away. It does not really fit with the modern world of decentralisation. It may have been right in the past but it certainly is not right today.

This is not the time or the debate in which to go into the plans of those on this side of the House for regaining some of the accountability and power. However, one clear and immediate result for us in this House is that it puts a disproportionately heavy load on House of Lords resources and staff. I would like to give notice to your Lordships that we on this side are not comfortable with the way in which the EU-related committee structure, inevitably and through no fault of its own, has to place such a heavy demand on the House of Lords’s resources. Very shortly, it may well be time for your Lordships to consider a new and differently balanced committee structure. I understand that your Lordships’ Constitution Committee is just about to produce a report, which I have not seen, but which I understand contains thoughts and ideas along the same lines.

When and if my party forms a Government, we remain determined to be very good Europeans, with strong and positive policies for our region of the world. The world does not end with Europe. We have our own bilateral interests and roles within the changing global network to consider and our links with rising powers of Asia—central, south eastern and Pacific Asia—and Latin America on which to focus, and on which this House is capable of bringing enormous expertise to bear. At the moment, there are difficulties in that respect.

In addition, given my party’s announced plan for a much more cross-departmental government structure for international and national security issues—getting away from the so-called “stove pipe” departmental boundaries mentality and divisions—and for a national security council with heavy international involvement, we might well need an international and security committee to track it with a wider remit than anything available through the narrower EU prism. I suggest to your Lordships that the parliamentary committee structure—

My Lords, I am trying to follow in some detail what the noble Lord is saying. Clearly, it could be of great significance, given certain events and outcomes. Would the noble Lord clarify whether it is his intention to maintain a committee structure which would have the same function as the present European Union Committee and its sub-committees? If not, could he be more explicit about the type of changes he envisages?

We are talking about a balance, and I am talking about matters which are for your Lordships' House. I am just indicating the views of some colleagues in my party that we may put forward to your Lordships—to the House—to decide whether a different balance is required. We are where we are. Certainly it must include mechanisms to cope with the considerably expanded load with which the noble Lord, Lord Roper, and the committee, of which the noble Lord, Lord Sewel, is a distinguished member, has been grappling with. We must be careful not, as a result, to exclude by virtue of resources the ability to consider the other vast developments in the world and the shifting global power which places Europe in a different perspective and places our interests in a different perspective.

The usual argument that developing a change of balance and a new committee structure would duplicate the Commons is not valid, because the range of issues—covering our relations, concerns and interests in Asia, Africa, the Middle East and Latin America—will be far wider than anything which either the Commons Foreign Affairs Committee, which I know a bit about, or any new committee in the Commons could possibly cover.

I concede that those are big issues, to which much new thought will need to be given. Meanwhile, I repeat what I said at the beginning: I salute the efforts of the noble Lord, Lord Roper, and his committee in seeking to strengthen the existing system. That is certainly needed; the report addresses the immediate problems with thoroughness; and I welcome it.

My Lords, no Minister would ever deliberately seek to mislead the House, but sometimes the truth can be spoken with greater enthusiasm. When I say that I enjoyed the report, I enjoyed the Government's response and I enjoyed this debate as an individual and as a representative of the Government, it is the truth. It has been an uplifting and positive debate, containing some important points—not least some of the points made by the noble Lord from the Official Opposition Front Bench, although many of them seemed to be issues for the House or the committee rather than for the Government, so I am sure that he will forgive me if I do not refer to them in my response.

We have reflected here today that the Lisbon treaty, now in force, renames “codecision” as the “ordinary legislative procedure”. This reflects the fact that this procedure is now the default method for agreeing legislative acts at EU level, giving the directly elected representatives of the European Parliament increased power in such areas as agriculture, which has been mentioned by noble Lords, and justice and home affairs.

The Government welcome that. The terminology may be new, but the established process remains broadly the same. It would be disingenuous to pretend that on occasion the involvement of the European Parliament does not make it harder to achieve our aims in negotiations. But, on the whole, our experience has shown that, as well as improving the democratic accountability of the European Union, the fuller involvement of the European Parliament in the decision-making process results in more balanced—a word that has been used several times in this debate—and focused legislation.

An example is that the European Parliament—along with the UK—champions the principles of the single market, and has consistently resisted attempts by some member states to take a more protectionist tack, helping to protect UK competitiveness. More recently, MEPs helped to ensure an ambitious outcome on the 2020 climate change package, and pushed forward key ideas such as pilot projects on carbon capture and storage.

As the noble Lord, Lord Roper, emphasised in his introduction, the Government note that there has been an increase in the agreement reached at First Reading or early during Second Reading, and that the use of trialogues, mentioned by several noble Lords, can inhibit the scrutiny process by national parliaments. I was particularly struck and influenced by the contribution from the noble Lord, Lord Brittan, who got it right in his use of the word “balance”—there is a balance between an efficient process taking forward issues that can be negotiated, but not in such a way that denies scrutiny to national parliaments, or the European Parliament.

The Government are therefore pleased to be able to agree, as reflected in the opening speech by the noble Lord, Lord Roper, to many of the recommendations relating to the ordinary legislative procedure and parliamentary scrutiny; namely, the Government will update the committee every time a change with policy implications is agreed or proposed. This point was made by the noble Lord, Lord Howell, and other noble Lords. The Government will provide the committee with all presidency compromise texts, and they will update the committee in advance of decisions taken by the Council, including at COREPER, to agree European parliamentary amendments. We believe that an enabling factor in the increase in early agreements is the vast improvement in the European Commission’s consultation process and the need for proposals to be properly and fully justified through full impact assessments. It stands to reason that Commission proposals that better reflect the thoughts of the European Parliament and stakeholders, national parliaments included, should be agreed more quickly. Indeed, the committee looked at this very question as part of its inquiry into the initiation of EU legislation and heard directly from practitioners about the benefits.

Another likely consequence of the extension of the ordinary legislative process is that it will, at least at first, slow down the legislative process—I heard in several contributions in the past 30 minutes or so that that will be seen to be not a bad thing—and afford national parliaments sufficient time to conduct effective scrutiny of legislative acts, which is something that noble Lords will welcome.

The Lisbon treaty also gives national parliaments, for the first time, a direct say in making EU laws. The Government hope that this House, and the other place, will make use of the new provisions on legislative treatment in Lisbon in this regard and that noble Lords will continue to offer the European Commission the benefit of their considerable expertise and experience through the Commission’s consultation process. I thought that point was put rather well by the noble Lord, Lord Bowness, and was echoed, in greater detail, by the noble Lord, Lord Dykes, who said that the Lisbon treaty underlines that the EU has only those competences expressly conferred on it by member states through the treaties. Taken together with the increased powers for national parliaments, this further embeds the principle of the sovereignty of member states. A key element of this is the ability of a free and robust Parliament to examine government policy.

When we speak of parliamentary scrutiny processes, it is clear that we have one of the most sophisticated scrutiny systems in all EU member states. None the less, there is no room for complacency, and I commend the EU Select Committee for seeking to enhance the system through the report and its recommendations. Much of the ongoing debate about the committee—some of the contributions are not for the Government—was clearly seized of that requirement. The noble Lord, Lord Wallace of Saltaire, testified to that expertise in the comments that he reported were made in Europe yesterday about the value of your Lordships’ EU Committee’s reports.

I hope that the commitments I have outlined will allow the committee access to the information it requires to keep abreast of the progress of negotiations on individual legislative proposals and will allow it an opportunity to feed its views to the Government.

A number of noble Lords issued a challenge for me to smile, which is easily done, and to meet desires on two points that the noble Lord, Lord Roper, raised in his introduction, which is not as easy as smiling. They were about limité and guidance. We should note that the noble Lord, Lord Roper, and my colleague the Minister for Europe have engaged in further discussions, as the noble Lord made clear in his opening remarks. There are practical issues involved in making limité documents—documents with a restricted distribution that cannot be made publicly available—available to the committee, but we are confident that we can devise handling caveats to address the restrictions and accept the desirability of proactively providing the committee with appropriate limité documents at critical points in negotiations. Subject to ministerial approval across government, we hope to be able to begin providing the committee with access to certain limité documents from the end of next month.

I carefully noted the words “appropriate” and “certain”. Can the Minister give any guidance on the criteria that will determine which limité documents are appropriate and which are the certain limité documents that he is prepared to disclose?

One always says what a very good question it is when, if it does not bowl the batsman at middle stump, it at least provides some difficulty. The answer is that I cannot give any detail. As several noble Lords have said, this is a growing and learning process. The Government are intent that the right information is provided at the right time, as the committee says. That, I am sure, will guide us in taking this forward. If not, I am sure the committee will be very quick to advise the Government.

I suggest that this is fairly simple, and that the Minister might, with the Minister for Europe, come to the simple conclusion that if the overriding rule is that the EU Select Committee and its sub-committees are informed of any document or any development that has policy implications, presumably that will apply to limité documents, too. Let us, for heaven’s sake, not introduce by the back door the weasel words “significant”, “substantive” or “appropriate”, having just chucked them out of the front door.

My Lords, the noble Lord gives good advice. I will take the issue back to my colleagues in government and advise them of your Lordships’ view.

This leads me to the second point on which my smile and good will were being sought: the question of guidance. I can provide something very similar here.

My honourable colleague the Minister for Europe will write to the noble Lord, Lord Roper, shortly on the question of limité documents. In the mean time, I shall ensure that he has sight of the debate in your Lordships’ House to guide his response.

The second area of discussion between the Government and the committee that is still under way is on the scrutiny guidance that we can use within government to set up departments’ responsibility in this respect. The guidance is being updated to reflect the new commitments that we have made on the scrutiny of the ordinary legislative procedure. As has been said, it will also need to reflect our approach to limité documents. The committee has pressed us to make the whole of this document publicly available and subject to some drafting changes, which I hope are not the weasel words that concerned the noble Lord, Lord Hannay. We have no problem making this document publicly available on the Cabinet Office website, and again we hope to be able to implement that within the next month.

I do not want to sound like Oliver Twist, but there was a third request: for improved access to Council documents on the progress of a codecision negotiation, as, say, the French Assemblée has.

I thank the noble Lord for that contribution. Once again, I shall ensure that it is fed into the feedback that I give to my colleagues so that they can respond further to the noble Lord, Lord Roper, on that point when the Minister for Europe writes to him.

As I said, we hope to have the documentation on the website within the next month, and I hope that my assurances, while not necessarily meeting every point that concerns noble Lords, will underline our commitment to taking forward the committee’s recommendations.

The most substantive point tonight related to scrutiny override and was made by two noble Lords, one of whom was the noble Lord, Lord Willoughby de Broke. I enjoyed his contribution, but then I do like party political broadcasts, being something of a political nerd. On the more substantive issue, which I think was made by the noble Lord, Lord Howell of Guildford, in the first half of 2009, only one override was used, which is the level to which we aspire. Following the 2009 Summer Recess, this figure increased. However, the UK utilises its parliamentary reserve in Brussels so that we can hear the views of the committee before documents are signed off. When we override, we do so for operational reasons where UK interests are at stake and there is a risk of setting back key EU actions, such as civilian missions being able to carry out important work.

Where there are administrative errors, the FCO is quick to correct them and explain any shortcomings to the committee. In 2008, the Foreign Office provided 135 Explanatory Memoranda for scrutiny, all on fast moving issues. Of these, 20 were overrides, including four on the crisis in Georgia and three on the piracy mission off the coast of Somalia. I hope that that in part meets the points made by the noble Lords, Lord Willoughby de Broke and Lord Howell.

Parliamentary scrutiny is essential in informing and improving our approach to EU policy-making. Debates such as this are a vital part of that scrutiny. I therefore re-emphasise the Government’s commitment to getting the scrutiny process right. As the noble Lord, Lord Sewel, said, we need to work at it. In that sense, we are entering and going through a collaborative procedure. I entirely accept the points made from the Liberal Benches that we need to work closely with our international partners. I should like therefore to give the commitment to continue to review that process in the light of developments at the European level. I thank noble Lords once again for their commitment to the parliamentary scrutiny of EU affairs, which I believe is one of the strengths of our House and beneficial to us all. I should particularly like to commend the noble Lord, Lord Roper, and his committee for their timely and constructive reports. I hope therefore that my report of progress shortly to be made on the issues outstanding from the committee’s excellent report will be helpful.

I need to make a correction: the overrides to which I referred were reported from the FCO alone and may not cover other departments.

My Lords, I am grateful to all noble Lords who have taken part in this extremely valuable, full and useful debate. As the noble Lord, Lord Willoughby de Broke, said, when we prepared this report we thought that it was rather technical and did not imagine that it would receive quite as full a debate as we have had today. I am particularly pleased that a number of people who served in Brussels in various capacities have been able to speak. I hope that the Foreign Office will read this debate in Hansard, because it contains the important views of the House.

I am grateful for the general tone of the Minister’s speech. He was somewhat limited on one subject. We are not quite clear where we are on limité documents and I found the use of the word “appropriate” rather strange. It is my understanding that when the noble Lord, Lord Hurd, was Foreign Secretary, he gave an instruction that the word “appropriate” should never be used in the Foreign Office because it was one of the ultimate weasel words. That edict has obviously disappeared but it is something which I try to remember. I hope that we will have a clear statement as to which limité documents we have when I receive the letter from the honourable friend of the Minister, the Minister for Europe.

The response on the Cabinet Office scrutiny guidance was more encouraging. We look forward to seeing the revised form on the web. I know that on both those points, the noble and learned, Lord Mance, who was particularly concerned about both matters when we were carrying this report through, will be pleased to hear the decisions which were made known.

My Lords, in my response I omitted to make a point on noble Lords’ concerns about departmental responses on scrutiny being variable. The guidance to which the noble Lord is referring, which we will publish, will be made available to all departments. They will be reminded of the need to be consistent. Noble Lords made a number of valid points. I will ensure that the Hansard report of this debate goes to all departments.

I am grateful to the Minister. Perhaps I may elucidate on the point made by the noble Lord, Lord Kerr of Kinlochard, on the question of access by our national parliamentary representative in Brussels to Council documents on the same basis as applies to the French and some of the other parliamentary representatives. I understand that discussions on that subject are beginning to take place in Brussels. Again I hope that there will be some progress on that fairly soon.

I should like to make three further points. First, in the original presentation I said that in the trialogue the rapporteur was the main speaker. However, the rapporteur is not necessarily the only representative of the European Parliament present. The chair of the committee will be present, as will, interestingly, what are called shadow rapporteurs. Each political group appoints a rapporteur for a particular topic so there is a rather full representation from the Parliament, although the negotiations in the trialogue are led by the rapporteur. I did not make that sufficiently clear.

As to my second point, I was interested in what the noble Lord, Lord Howell, said about the future of committees. I realise that there are always demands for more committees. All I would say, without wanting to be too supportive of the European Union committees, is that this structure of committees appears to be serving the House well and I hope that we will look very carefully before we change it for something else. No doubt we will have to return to this issue on another occasion.

On the issue of scrutiny overrides—a matter which concerns us—I was interested in what the noble Lord said. In fact, in this House the total number of scrutiny overrides for all departments for the first half of last year was 14. We were pleased that that was down from 21 in the second half of 2008. Unfortunately the figure went up in the second half of 2009 and we are trying to pursue this issue with departments. We have tabled Questions for Written Answer to get the total numbers on the record and one was answered in last Monday’s Hansard. We have tabled Questions for Written Answer to name and shame departments responsible for overrides which could have been avoided. One involving the Foreign Office was answered on 8 December. Last year Sub-Committee B summoned the Permanent Secretary of Defra to give evidence about her department’s failure to meet its scrutiny obligations.

Last week, in a positive way, we had a meeting for the scrutiny co-ordinators, the officials, in all departments. They met the staff of the European Union committees, who encouraged them to improve their performance. That shows the way in which we are attempting to address the issue of overrides and ensure that they are reduced.

If it was not for the lateness of the hour I would have liked to have responded to what the noble Lord, Lord Willoughby de Broke, said about the toothless tabby. We can provide him with information on the way in which we have had impact. I cited earlier the way in which our report on the timeshare directive in 2008 was well received by the European Parliament. In her evidence to the committee, Arlene McCarthy said that she had drawn from it to move quite a number of the amendments which were in the final text of that document. We have a number of other equal examples.

There is one other matter to which I should like to refer. There is a concern, which the European Parliament shares, about the risk of lack of transparency. That is why in its new standing orders it issued a code of conduct for negotiating in the context of the ordinary legislative procedure. In this, it makes clear that there has to be a period of time between the agreement in the negotiations and the decision in the committee in order to,

“allow political groups to prepare their final position”.

This is so that the political groups, if they do not like the deal that has been done in the negotiations, will vote against it when it comes up for consideration at First Reading. That has happened on occasion. I should correct the suggestion of the noble Lord, Lord Willoughby de Broke, that nothing could be done once agreement had been reached in the trialogue—it can; a decision still has to be made by the European Parliament, and there have been cases where the Parliament as a whole has rejected the agreements which were reached in the trialogues. This has been a useful debate.

Motion agreed.