§ 7.1 p.m.
§ Lord Templeman rose to move, That this House takes note of the Report of the European Communities Committee on Privileges and Immunities of MEPs (8th Report, 1985–86, H.L. 105).
§ The noble and learned Lord said: My Lords, the eighth report of the Select Committee on the European Communities deals with the privileges and immunities 494 of Members of the European Parliament. The present privileges and immunities derive from the protocol of 1965 which was then annexed to the European treaties. That protocol can only be amended by proposals submitted by the Commission to the Council and accepted by the unanimous agreement of member states endorsed by their national parliaments. It is therefore clear that this is a subject in which power will remain with the Government and with the United Kingdom Parliament to say "Yea" or "Nay" to the proposals put forward.
At the request of the European Parliament, the Commission has drafted proposals. It is those proposals that have been considered in the 8th Report. The European Parliament in general wishes to make clear that its Members owe a duty to the Community as a whole and not only to the member states from which they derive their power. It wishes to ensure that those Members are free to travel and carry out their work throughout the Community forming and testing views that they can then present to the European Parliament.
In that respect the principles that animate the European Parliament are no different from the ancient principles that your Lordships will find set out in Appendix 6 to the 8th Report. That appendix consists of a helpful note by a legal adviser on the history of United Kingdom parliamentary privilege and forms a useful background to the report with which your Lordships are concerned. On page 57, the appendix points out that,
In connection with civil proceedings the fundamental principle of the ancient law and custom of parliament was that 'Unless Parliament could keep its membership intact, free from outside interference, whether or not the interference was with the motive of embarrassing its action, it could not be confident of any accomplishment'".
It is that principle that has been put forward by the European Parliament in its suggestions.
The existing position, the proposals of the Parliament and the suggestions of the Commission will be found set out in Appendix 3 of the report of the Select Committee. Appendix 3, on page 24, sets out the three articles—Articles 8, 9 and 10—to which particular reference is necessary. Article 8 sets out that under the existing arrangements covered by the 1965 protocol, the immunities and privileges of Members of the European Parliament include the fact that no. restriction
shall be imposed on the free movement of members of the Assembly travelling to or from the place of meeting of the Assembly".
It is the wish of the Parliament that that privilege shall extend not only to travelling to and from the meeting place of the Assembly but also in travelling throughout the Community gathering information necessary for the purposes of MEPs. The Parliament has therefore made the request set out on page 24 that,
No administrative or other restriction shall be imposed on the free movement of members of the Assembly travelling within the Community".
The Commission's proposals limit that request. It suggests that the immunity should extend to
administrative or other restriction imposed on the free movement of members of the Assembly travelling within the community in connection with the performance of their duties".
In other words, there will be no immunity of privilege allowed to an MEP who is off on a holiday or frolic of his own. As regards that proposal, the committee, in paragraph 47, on page 19, agrees with the suggestion put forward. It says,
This would ensure that no restriction is imposed on the free movement of MEPs travelling within the Community in connection with the performance of their duties".
But it makes one suggestion in respect of which I would be glad to hear the Government's reaction. It is that the freedom must be made subject
to considerations of public policy or public health which a Member State considers to be of overriding importance".
That suggestion is made against the possibility that the Government may have sure information that some terrorist has succeeded in obtaining membership of the European Parliament, and it will also enable the Government to have control over parts of the Community where there is perhaps some disease in respect of which vaccination or other precaution is required. That is the suggestion made by the committee in regard to Article 8.
Article 9 is also set out on page 24 of the 8th Report. At present it provides that,
Members of the Assembly shall not be subject to any form of enquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties".
That corresponds, of course, to the privileges of members of the United Kingdom Parliament. It is suggested that there should be added the provision that,
Members of the Assembly may withhold evidence insofar as such evidence has a bearing on their activities as Members of the European Parliament. To that extent the impounding of documents shall also be forbidden".
The Commission approves of that request, and the committee likewise approves. Its views are set out in paragraph 48 on page 19, where the committee says,
A right to withhold evidence about opinions expressed and votes cast would follow naturally on the immunity from any form of enquiry which MEPs already enjoy and is similar in kind to the privilege enjoyed by United Kingdom Members of Parliament in legal proceedings in this country".
We hope to be informed of the Government's attitude to that recommendation.
I come now to Article 10, the most controversial of the existing articles and the present proposals. At the moment, under the 1965 protocol, Members of the European Parliament enjoy two distinct and rather contradictory immunities. In the territory of their own state, they shall enjoy immunities accorded to Members of their Parliament. But, in the territory of any other member state they shall enjoy immunity from any measure of detention and from legal proceedings, whatever immunities may be accorded to Members of the national Parliament.
There are two existing safeguards. First, the immunity cannot be claimed when the Member is found in the act of committing an offence. That deals, broadly speaking, with MEPs committing acts of violence who can be arrested straightaway and who cannot rely on their immunity in that respect. Secondly, there is the precaution that the immunity shall not prevent the Assembly exercising its right to waive the immunity of one of its Members. To anticipate the policy of the Parliament, it waives the
immunity of any of its Members unless there is some evidence that the work of the Member as a Member of the Parliament is being impugned or threatened. Parliament and the Commission wish to broaden that to make the immunities of Members of the European Parliament the same throughout the Community. The European Parliament's request is set out at page 25 of the report and says:
Members of the Assembly shall enjoy in the territory of the Member States immunity from any measure of detention and from legal proceedings".
When the committee examined that proposal they were of the opinion that it did not differentiate between arrest for civil and arrest for criminal offences, and it seemed to apply to civil proceedings as much as to criminal proceedings. Therefore, the immunity might extend, for example—to take a reductia ad absurdum—to the claim for maintenance by a wife of a Member of the European Parliament. However, on taking evidence from the European Parliament, we found that that was not the intention, and since then the Parliament has been recommended to amend the suggestion so that the immunity shall only be from prosecution, arrest or other measures which are limited to criminal offences and clearly do not come within civil proceedings.
They will continue the reservation that a Member found in the act of committing an offence shall not be entitled to immunity, and they will continue the provision concerning the right and duty of the Parliament to waive privilege in a proper case. It is that proposal which has caused the greatest amount of controversy.
I should point out that the existing arrangements have had some strange results. For example, a Member of the European Parliament appointed by the United Kingdom Parliament, who committed a crime in the United Kingdom could be arrested and tried in this country and could not plead immunity. However, a Member of the European Parliament—appointed, as is now the case, by the United Kingdom electorate—who committed a crime in France, could not be arrested or tried. Similarly, an MEP appointed by the French, who committed a crime in the United Kingdom, could not be arrested or tried.
These differences stem from Article 10 and also from the different rules of different member states with regard to the rights of Members of their own respective national Parliaments. Your Lordships will see that set out at Appendix 5 at page 53. Appendix 5 sets out in the table the rights and immunities accorded by each member state to the Members of its own Parliament. For example, Belgium grants freedom of speech and voting to its Members and protection of sources of information However, the most relevant ones are these. Belgium grants freedom from arrest or detention and freedom from criminal prosecution. Turning to page 54, your Lordships will see that those same immunities are granted by all the member states with the exception of the United Kingdom, the Netherlands and Ireland. All other member states grant immunity from arrest and prosecution to their own Members, and the reasons for that are largely historical.
Freedom from arrest and from criminal proceedings was originally claimed on behalf of Members from the 497 United Kingdom, but it no longer exists and the reason is that in the long period of 800 years which has seen the development of parliamentary government in this country, two basic principles have been accepted. The first basic principle is that no one is above the law and therefore a Member of Parliament should not be given immunity; he is subject to the law like everyone else. The second basic principle is that everyone is equal before the law and therefore a Member of Parliament does not require any extra immunity; he is subject to the law but will receive free and fair treatment, and he will not suffer from the fact or be disturbed from exercising his power as a Member of Parliament.
In other parts of Europe arrest and prosecution have, from time to time, been used to hinder or to intimidate Members of national Parliaments. The European Parliament does not believe that the danger is passed, nor that it is impossible, even in the United Kingdom, for arrest and prosecution to be used as political weapons. I am touching on delicate ground, but those of your Lordships who are familiar with the history of France beginning with the Dreyfus case and ending with the explosion on board the Greenpeace ship in New Zealand, will recognise that in that country it is not always possible to divorce politics and law. One has examples through to the end of the Second World War of the grievous wrong suffered by Opposition Members of Parliament under the dictatorships in Germany, Italy, Spain and Portugal. Therefore, it is not surprising that in member states other than the United Kingdom and those which have the common law, there has been this express exemption from arrest or prosecution.
Since the 1965 protocol, the European Parliament has been asked to waive the claim to immunity, and through the cases which it has heard there runs the theme of the anxiety of the European Parliament to make sure that none of its Members suffer from political persecution. If your Lordships will look, for example, at page 78 of Appendix 7, there is set out the speech made to the European Parliament by the rapporteur in the Zahorka case. He says that the principle is that there is an old Latin concept, fumus persecutionis, which really means the suspicion of persecution, and it is that which the European Parliament is enthusiastic to suppress.
The fact is that really, if you look a little further into the origin of fumes persecutionis, you realise that, except perhaps in Great Britain, it goes back in fact many centuries in our national parliaments. The fact is that in every age certain persons have tried to hinder parliamentary activity or political activity, certain persons have wanted to damage the parliamentarian, the politician, to hinder him from exercising his mandate in the normal way, and from conducting democratic political activity".
Therefore, I am not merely being chauvenistic when I say that there is an historical difference between Great Britain and the other member states. That was recognised by the European Parliament and it remains anxious to see that, as the rapporteur puts it, no one can:
hinder parliamentary activity or political activity".
It is for that reason that the European Parliament and the Commission have suggested a widening of the immunity granted to all Members of the European Parliament.
498 There is one other difference between the United Kingdom Parliament and its means of protecting its Members, and the European Parliament. Over the years, the privileges and immunities of Members of the United Kingdom Parliament have really fallen into desuetude. However, both Houses of Parliament—and in particular the House of Commons—have retained, and will from time to time exercise, the powerful weapon of committal for contempt. If there were any danger of any interference with any Member of the House of Commons, that House has its own power to commit for contempt and thus to prevent any threat or any limitation on the freedom of a Member of the United Kingdom Parliament.
Of course the European Parliament has no such power. It has no jurisdiction; it cannot make any order; it cannot commit anybody for contempt committed in any of the member states, and quite rightly so. It has no power, and therefore if European Members of Parliament are to be protected, then (unlike the situation for Members in the United Kingdom Parliament) that protection must take the form of the grant of immunities and privileges. It is with those considerations in mind that the Select Committee, having considered the very powerful evidence of those Members of the United Kingdom Parliament who, quite naturally, could see no reason why there should be any difference between their privileges and those of Members of the European Parliament,made its recommendations in Paragraph 54 of the report. Your Lordships will find the summary of the committee's recommendations beginning at page 20. The committee were willing to accept that
Members should be immune from arrest or criminal proceedings";
and then made one important safeguard that it should be
in respect of any acts except crimes of violence".
We see no reason why there should be any privilege extended to a crime of violence for which, in any event, waiver ought to be made automatically.
There should be no corresponding immunity from civil proceedings".
And, as I have indicated, the European Parliament, having considered the views expressed by the Select Committee, have so provided.
Then paragraph 55 stipulates:
Immunity should not apply to the arrest of a Member committing, about to commit or having just committed an offence.
That is the existing law accepted by the European Parliament, and nothing turns on that.
Then Paragraph 56 says that:
Parliament should have a power to waive a Member's immunity from arrest and criminal prosecution.
That power of waiver exists and is exercised whenever the Parliament is convinced that there is no question of possible interference with the political activities of a Member.
Then the committee go further and say:
There should be a duty to waive the immunity where this would not he contrary to the interests of the [European] Parliament. This
should apply in particular in every case where a Member is charged for an offence which is unrelated to the activities of the Parliament or any aspect of Community law or practice and where a Member is asked to give evidence not bearing on these matters.
Then we make suggestions with regard to the procedure for waiver. We say:
The procedure for waiver should be simple and quick, and there should be machinery for provisional waiver in urgent cases.
Finally, although the power of waiver lies with Parliament, we have said that the exercise of that power must be reviewable by the European Court of Justice so that one gets consistency and overview by a European Court of Justice who will consider whether the European Parliament is in fact exercising its descretion in a proper manner.
We shall be interested to learn the views of her Majesty's Government both on the proposals put forward by the European Parliament and the Commission and the suggestions made by the Select Committee. In the final analysis it will be for Her Majesty's Government and the United Kingdom Parliament to determine which, if any, of the extension of the immunities and privileges they are prepared to support. My Lords, I beg to move.
Moved, That this House takes note of the Report of the European Communities Committee on Privileges and Immunities of MEPs (8th Report, 1985–86, H.L. 105).—(Lord Templeman.
§ 7.23 p.m.
§ Lord Silkin of Dulwich
My Lords, I know that the House will wish me to thank the noble and learned Lord, Lord Templeman, for the clear explanation both of the problem and of the committee's proposals. I hope I shall not embarrass him if I mention that after three years he is ceasing to be Chairman of Sub-Committee E, and also if I thank him for the work he has done as such and the numerous cogent reports which have come from his chairmanship.
While the dual mandate existed before the advent of directly-elected MEPs it was natural enough that MEPs desired equality with their national colleagues at least within their own territories, and in addition they needed further immunities, as the noble and learned Lord, Lord Templeman, explained, to protect them when carrying out their European duties elsewhere.
However, the picture was necessarily changed by direct elections. Equality with national colleagues ceased to be relevant. Equality between MEPs became indispensible. As M. Georges Donnez, the rapporteur of the Parliament, said to the members of the Sub-Committee, that was the corner-stone of the system. The question that your Lordships' Select Committee had to consider was at what level of protection that equality should be achieved. It did a considerable amount of work on the subject, hearing a number of witnesses and receiving a number of representations, and I very much hope that that work will be fruitful.
Representatives of Parliament who gave evidence accepted one fundamental principle which governs our own system in this country and which, in my view at any rate, is appropriate to any democratic legislature. M. Donnez put it clearly, and what he said is repeated at paragraph 17 of the report on page 10: 500Parliamentary immunity is not, as we all know, the privilege of individual Members of Parliament, but is a guarantee for the institution which has the purpose of protecting that institution from any outside authorities or bodies. In the Parliament's view, the integrity of the institution had to be protected by conferring appropriate freedoms and immunities on its Members, enabling them to move freely throughout the Community, to act freely in their duties as a Parliamentarian and to be free from any form of intimidation in connexion with those duties.".The noble Baroness, Lady Elles, whom I am glad to see in her place, agreed—and this is reported in the same paragraph—that privileges and immunities,should only be such as is absolutely necessary for the execution of the powers of the Parliament".In other words, these privileges so called, perhaps more accurately immunities, are not for the glorification of individuals but simply to ensure, and no more than to ensure, that the parliament is able to carry out its functions.
I believe that both those MEPs and others who support that view are to be congratulated on their willingness to adopt that approach—the approach which has for long been that of our own Parliament, as is made clear both in Erskine May and in the report of the Select Committee on Parliamentary Privilege in 1967, a committee which I had the honour to chair and whose members included the noble and learned Lord the Lord Chancellor and other noble Lords.
While the principle is clear, its application causes problems. There appear to be two major difficulties. First, as the noble and learned Lord, Lord Templeman, reminded us, the European Parliament does not enjoy those powers of committal for contempt which are the principal means of protection developed by the high court of Parliament. It therefore possesses no means itself of preventing, or deterring, individuals or organisations from exercising or threatening pressure.
Your Lordships' Select Committee has drawn attention at Paragraph 39 to this deficiency, as did the noble and learned Lord in his opening remarks. In that paragraph can be found the comment that this is,a marked gap in the protection enjoyed by the European Parliament".Without it there are no effective means of preventing attempts to bring improper pressure so as to influence the parliamentary action of MEPs.
Certainly my own view from my personal experience in dealing with privilege in another place is that protection against improper pressure is more important than any other aspect of privilege. Indeed the privileges committee in the Commons has, on a number of occasions considered and condemned such pressures, and there is an appendix in the report which indicates the kind of matters about which I am speaking.
We cannot expect to transplant into a different system the system that we have here. I believe that the European Parliament and our Government ought to be thinking about the matter in order to consider whether it is possible to devise a system which would have an equivalent effect, though obviously not in the same form. If it became successful, that system ought to be given legislative effect so that this marked gap in the protection would be removed.
501 The second major difficulty, again referred to by the noble and learned Lord, is that, illogically but inevitably, representatives of different member states look at the systems in those states in formulating their ideas on what is the minimum desirable or necessary protection. The noble and learned Lord has drawn attention to Appendix 5 of the report, which is a useful tabulation of the systems in those states. The most noticeable difference which has already been referred to between systems in other states and our own is that nine of the states provide freedom from arrest, detention and criminal prosecution. Apart from ourselves, the Netherlands and the Republic of Ireland, they all do. Those three have no such privilege. The justification for that privilege is, as I understand it, the history of those countries and the fear that, without it, arrest, detention and criminal prosecution might be used to create an improper obstruction of an MEP in the performance of his duties.
In this case improper obstruction can be dealt with, notwithstanding the lack of committal powers of the parliament, because the parliament is dealing directly with the prosecuting authority in the national state. The existence of that immunity brings with it the need for exceptions. Immunity from arrest and detention does not prevent the apprehension of those who are said to be in flagrante delicto, actually committing or having just committed an offence. It is not wholly clear either what that expression means or what further consequences may flow from it once the apprehension has taken place. Indeed it is not easy to follow why it should have an effect on the question of prosecution, however important it is to have an effect on the question of arrest to prevent the continuation of the offence.
More important in my view is that immunity from prosecution could not work without a system of waiver of immunity. In the cases which arose in the 15 months between November 1984 and February 1986, which are listed in the report, the immunity has been waived live times and a waiver has been refused six times. It would take up much too much time if I were to examine those cases in detail. Suffice it to say, so far as one can understand the decision, decisions have not plainly followed a single consistent path. The principle which I applaud is to prevent the use of prosecution to obstruct legitimate political activity. The problem is to define "legitimate political activity". The more controversial the issue the harder it is to define fairly and the more diverse the results are likely to be.
For my part I am bound to say that I should prefer to solve the problem by removing the immunity altogether as in this country and by leaving the law to operate without impediment as we are able to do here. But I appreciate the difficulties that other member states would find about accepting that now, though one would hope they could move towards it. If it is unacceptable because of the different conditions in other member states then it seems quite essential that the decisions on waiver, though initially taken by the Parliament itself, should, as the Committee has proposed, be open to review by the European Court of Justice so that a body of European jurisprudence may be established to deal with what is essentially a European problem.
502 I hope that we shall hear what is the view of the Government on that issue in particular. It seems to me that, if in the future we are to have decisions which are not open to the suspicion that different decisions are made in different circumstances which might have a political consequence and a political reason, then uniformity is necessary.
The noble and learned Lord has given exhaustive consideration to the points made by the Committee in dealing with the proposals, complicated by the fact that not only the European Parliament, the Commission and in due course the Council and the national parliaments will have to consider each point and will not necessarily agree to go further. Like the noble and learned Lord I am impatient to hear what is the Government's approach to the points where the Committee has made recommendations.
§ 7.37 p.m.
§ Baroness Elles
My Lords, I should first like to thank the noble and learned Lord, Lord Templeman, and the members of Sub-Committee E of the Select Committee on the European Communities for the courtesy with which they received Members of the European Parliament and heard their evidence—in particular the valuable evidence given by M. Donnez, the rapporteur. I am also grateful for the recommendations contained in the report and the introduction of this subject by the noble and learned Lord. I shall try not to be too long so that noble Lords can quickly hear the views of Her Majesty's Government, but I wish to deal with one or two points that have arisen.
First, we welcome this report very much in the European Parliament. I should like to say to noble Lords—I think I have said this every time I have spoken on one of the reports coming from your Lordships' House—how immensely valuable we find these reports for their objectivity, their power of analysis and the clarity with which the case is always presented. Even if Members do not always agree with all the contents (and that is not the case with this report) the reports are enormously appreciated and serve as a guide to decisions we take on matters that have been discussed in your Lordships' House.
We particularly welcome the recommendation which recognises the need for equality of treatment. Clearly this could have had a certain political implication and perhaps Members of another place might not agree with that conclusion. But for those who serve in the European Parliament it is an essential ingredient of our work as parliamentarians. Anybody serving in the House of Commons, for example, would not expect separate treatment for people coming from Scotland, from Wales or from England. One would expect the same treatment with regard to privileges and immunities. We in the European Parliament take the same view.
What was surprising when the report was published was the reaction of Members of another place. They appeared to think that all had changed with the report, but since 1973, when we became Members of the European Community, delegates from both Houses of Parliament to the European Parliament have had the same immunities and privileges as Members of our 503 national Parliament when we are in the United Kingdom, and still do for the time being. But the minute we cross to Calais we have the immunities and privileges which are spelt out in Article 10(b). From that point of view there is no change in our position.
Similarly a French MEP, as the noble and learned Lord, Lord Templeman, implied, would have the privileges and immunities of a French Deputy. But the minute he comes to Dover, he has all the amenities and privileges spelt out in Article 10(b), which are considerably wider than many privileges and immunities for national Parliaments.
As the noble and learned Lord, Lord Silkin, pointed out, since the direct elections in 1979, the position for MEPs has changed, as also has their status. Whereas we were all Members of our national Parliaments up to 1979, now, since the 1984 European parliamentary elections, there are only 42 Members who have a dual mandate out of the 434, excluding the special case of Portugal and Spain, where, although some are no longer Members of their national Parliaments, they were originally elected from that national Parliament. But only about 10 per cent. of the 434 Members now have the dual mandate.
As to the work of the Members of the European Parliament, I hesitate to say how much we travel, but even in my political group we have Members from Denmark and Spain as well as from Britain. In the normal course of our parliamentary year we can have meetings in Madrid, Copenhagen, Brussels, Strasbourg and London. As to members of committees, for instance, the Legal Affairs Committee met in Athens three weeks ago. All this takes place in the normal course of our work. We must be able to cross frontiers, go through Customs, have our ordinary passports treated in the normal way and not be hindered or restricted in any way in the course of our European parliamentary work. If I may use the phrase, our work patch is not the United Kingdom, as it is for the MP in Westminster; it comprises the 12 member states of the European Community and we have to be able to move freely, as is intended under Article 8 of the 1965 Protocol, which is, of course, subject now to amendment.
But there are one or two specific points that I should like to raise, particularly because the working paper, the document which is under the name of the rapporteur, M. Donnez, is to be debated in the European Parliament in its plenary session in December. Whereas the original amendments from the Parliament are contained in your Lordships' report (together with the amendments proposed by the Commission)—there are new amendments which have been voted in by the Legal Affairs Committee of the European Parliament and which eventually are to be debated.
Therefore, with permission, I should like to raise these as problems which we shall have to be discussing and considering. The first is whether under Article 8 immunity applies in all cases as it now stands in the proposal from the European Parliament. I very much support the view which has been expressed both by the noble and learned Lord, Lord Templeman, and by the noble and learned Lord. Lord Silkin, that this should 504 only be in cases where Members of the European Parliament are travelling in connection with their parliamentary duties. The argument has been that, because we travel so much, very often one may tag on a holiday at the end of one's travels and it would be difficult to prove. But I would rather that the onus was on the MEP to prove that he was on business rather than on holiday than to have free travel throughout the Community, regardless of the purpose for which the MEP is travelling.
Similarly, there is the question of immunity from prosecution, arrest or legal proceedings. We assured the noble and learned Lord, Lord Templeman, and members of that sub-committee that this only applies to criminal proceedings; and there will be an amendment, if it is deemed necessary, to explain that this applies only to criminal proceedings and not to civil proceedings.
I should be grateful if, when the noble and learned Lord, Lord Templeman, winds up, he would perhaps comment on the fact that the memorandum from the Lord Chancellor's office on civil liability may give the wrong impression. Civil liability is not in question in this case. It simply is not relevant to the protocol either as it stands or as we intend to have it amended. No doubt my noble friend the Minister will be commenting on this problem.
The other problem which we have and which has already been raised is the basis on which a decision to waive immunity is made when it is requested by the relevant national authority. This raises a problem. At the moment we have three criteria with which I shall not take up the time of your Lordships. They are contained in the various reports produced by M. Donnez concerning political activity, a point on which the noble and learned Lord, Lord Silkin, touched.
At the end of the day, the report is presented to the European Parliament on a Monday evening. I must inform your Lordships that it depends upon how many people are in the House at that time and it is decided by a simple majority vote. That is a democratic way of proceeding, but in a matter which is as important as this, where the waiving of immunity is concerned, possibly the European Parliament could be advised to find a more strict and coherent way of deciding. I do not think it should be left to chance or to a political group decision at that stage. It is more important; it is for the Parliament itself as a whole to be able to take that decision.
In conclusion, I confirm that I consider that the waiving of immunity is a very important issue at which we should be looking a little more seriously in the Parliament. Noble Lords will understand that the way in which the privileges and immunities of the European Parliament have, so to speak, grown and been adapted from the protocol of 1965 must take into account the practices and traditions of other member states. I consider that Members of the European Parliament who come from the United Kingdom and who represent the electorate of this country are privileged and honoured to come from a country which for some 800 years has had an elected Parliament and which recognises (and has recognised for centuries) the rights and freedoms of individuals and Members serving in the Westminster Parliament.
505 Noble Lords will know that this is certainly not true of many of the member states with which we are working. I acknowledge and accept that many of them have anxieties—legitimate anxieties—as to the rights of their parliamentarians, who must be able to get to the European Parliament, just as we in this country have always been able to come to our Parliament. If there is a slight balance in favour of the MEP, I beg noble Lords to recognise that the privileges we have in this country are inestimable and have not been shared by others. It is in this spirit that I very much support the recommendations of this report and will listen with great interest to the reply of my noble friend the Minister.
§ 7.48 p.m.
§ Lord Cledwyn of Penrhos
My Lords, may I, too, thank the noble and learned Lord, Lord Templeman, and the other noble Lords who sit on Sub-Committee E for this excellent report. I should also like to thank the noble and learned Lord, Lord Templeman, for the instructive speech with which he opened this debate. The task of the Committee was not an easy one, as the report shows, and it has sensitive political implications, but I think that the noble and learned Lord and his colleagues showed a sure touch, and we are all very grateful to them.
They make plain in paragraph 3 that they are "concerned only with immunities" and, in paragraph 4, they define the extent of the new immunities and privileges now sought by the European Parliament for its Members. These, in my view, are very substantial and go far beyond those which were enacted in 1965. As the noble Baroness, Lady Elles, who makes so distinguished a contribution to the European Parliament, has said, the chief argument in favour of change is that whereas in 1965 the Members were indirectly elected, today (and since 1979) they are elected by direct universal suffrage.
This sounds like a reasonable argument, and it must be given due weight. In the democratic system, people who are freely elected deserve respect and the facilities to enable them to perform their duties and to discharge their responsibilities to those who elect them. Like many others, I take the view that the immunities and privileges must relate to those duties and responsibilities—that is, to the functions which the elected representative has to carry out.
This Parliament and indeed every other Parliament in the Community must therefore consider these recommendations carefully on the basis of this principle and on what privileges and immunities are really necessary. They must also consider these in relation to the immunities granted to national Members of Parliament.
We in this Parliament know from our experience of diplomatic immunities and privileges how they can be misused and abused, and the Government are currently considering what changes are needed to tighten up diplomatic privileges. We recognise of course that European Members of Parliament need the appropriate degree of immunity to do their job but it would also be a mistake to extend that immunity 506 beyond what is essential or to define it so loosely that undue advantage can be taken of it.
As the noble and learned Lord, Lord Templeman, said, we have a great deal of experience of immunities and privileges in this country. The noble Baroness, Lady Elles, has just referred to uniformity in this country as between Englishmen, Scotsmen, Welshmen and Irishmen. There was a time when immunities and privileges were granted to Englishmen in Wales which Welshmen did not enjoy, and I can assure the House that that was a source of endless trouble. Mercifully, that was a long time ago. But we read with great interest the history of United Kingdom parliamentary privilege in Appendix 6 to the report, and I think your Lordships will agree that after centuries of custom and practice we have got it just about right in this Parliament. The note on page 56 of the report sums it up succinctly. It reads:the main privileges of Parliament and its Members concern immunity from legal process which might keep a Member away from his parliamentary duties; freedom of speech and proceedings within Parliament; and sanctions imposed by Parliament for contempts".The report discusses arrest on criminal charges, and, as we know, the Standing Orders of this House except arrest or detention on a criminal charge. My own experience over 36 years in both Houses is that privilege is a mantle to be worn very lightly. Some Members—very few—take themselves too seriously. I recall a Member who, on being stopped by the police in connection with a possible motoring offence, said to the officer, "Do you realise who I am?" That was a revealing thing to say.
As the report says, the most fundamental privilege concerns the need for Members to be able to attend Parliament. It quotes White from his book, The English Constitution, where he said:Unless Parliament could keep its membership intact, free from outside interference … it could not be confident of any accomplishment.It is freedom of access to the Parliament and freedom of speech in that Parliament which are crucial. It is when you extend those freedoms that you begin to get into difficulties. This is especially true when you are operating in 12 countries over half a continent.
Evidence was given by the Foreign and Commonwealth Office and the Home Office upon this proposal that MEPs should be granted immunity on all journeys within the Community, provided they could be defined as proper duties of an MEP. The Commission defined a journey "in connection with" the performance of the duties of the MEP. I regard that as too wide and open to abuse. The Foreign and Commonwealth Office rightly argued that a member state should be able to preserve a residual power to prevent the entry of any person. The Home Office also thought the words "in connection with" were far too elastic. Article 8 therefore needs very careful study and I hope the noble Baroness will elaborate on the Government's view of its implications.
On Article 9, which deals with freedom to withhold evidence, I note that the Lord Chancellor's Department had a very proper reservation to make. The Commission had agreed with the European Parliament that evidence could be withheld if it had a bearing on the activities of an MEP. The noble and 507 learned Lord the Lord Chancellor pointed out that the words were imprecise because they failed to make it clear that such right would be applicable to criminal proceedings only and also that immunity could be claimed even if the activities of the Member were marginal to the case. These are very important distinctions which need to be recognised.
Article 10, which, as the noble and learned Lord, Lord Templeman, pointed out, is probably the most important, deals with immunity from detention and prosecution; and there were interesting exchanges on this article between the Committee and the witnesses. The point which caused concern was that immunity might apply to civil proceedings, but this fear seems to have been allayed by those who gave evidence to the Committee.
Finally, the Commission's proposed formulation of Article 18 on waiver has caused confusion, and here again the noble Baroness's observations will be appreciated. There are therefore a number of very important reservations which must be made, and the noble and learned Lord and his noble colleagues have made this plain in their report. We must also take into account in our consideration of these problems the 18th Report of the Select Committee on European Legislation in another place. However, I return to paragraph 40 of the report because it enunciates the basic principle on which the European Parliament and the Commission should proceed. It says:The Committee consider that immunities should not be designed for the benefit of individual members but solely for the benefit of the European Parliament as one of the Communities' institutions.I think Mr. Peter Shore's oral evidence to the Committee was both interesting and important. He said that the most important point was "functional need". He said, in answer to Question 178:The politician outside Parliament seems to me to be unprotected by privilege in any way, and has to behave himself according to the law of the land".I agree with that. I agree with paragraph 50 of the report that the United Kingdom and the other Parliaments must take care not to create a supranational élite with a supra-national privilege and immunity. That is what we must guard against.
To return to paragraph 50 of the report, while I support it, I still have doubts as to whether the changes—even those suggested by the Committee—are absolutely necessary. I am open to conviction. In his evidence for the Foreign Office, Mr. Robin Renwick said this:So far as individual cases are concerned, we are not aware that the existing arrangements have caused any serious difficulty in respect of MEPs carrying out their normal functions".That is a very important statement from the noble Baroness's department and I shall be grateful to her if she can confirm that departmental opinion. Is there in fact any evidence that any MEP has been frustrated in his obligation to represent his constituents or to perform his proper duties because of the inadequacy of the 1965 protocol? These are substantial privileges and they should not be amended without good cause.
I certainly agree with the remarks of my noble and learned friend Lord Silkin about the need for some parliamentary power to deal with the possible use of 508 improper pressure upon MEPs. That is not dealt with in the draft or the report but I think the point made by my noble and learned friend is a very important one.
I recognise that there is a desire in the European Parliament for uniformity. I understand that perfectly well; but if uniformity is imposed then a new and complex situation could arise, in that national Members of Parliament and MEPs of the same country could enjoy different immunities and privileges. That is a possibility as things stand at the moment. There are distinguished Members of the European Parliament in this House but under these new proposals they would enjoy wider privileges than Members of the British Parliament. After centuries of developing parliamentary privilege, we should pause before we allow this paradox to emerge, because it may have unpredictable consequences at some time in the future.
I do not want to dwell on these possibilities because, if certain things happened in certain countries, not excluding our own, it is possible that the European Parliament and indeed the Community could be damaged beyond repair. One hopes that that will not occur but, in my view, it would be more sensible if Members of the European Parliament sought privileges and immunities which approximate to those we enjoy. I wish the European Parliament well, but it is young in years. It comprises members from 12 nations, each with their own political tradition, which we recognise and respect. Our fervent hope is that it will develop into a strong, democratic and enduring institution, but that will not come overnight, and we must move slowly and surely. It is for this reason that this report is so important and why the questions raised in it must be given the most careful consideration.
§ 8 p.m.
§ Baroness Young
My Lords, this has been a most interesting debate on a highly technical subject. It has given us a useful opportunity to reconsider the functions and needs of the European Parliament and indeed, of parliamentary bodies in general. If I may do so, I congratulate all your Lordships who have taken in this debate this evening on the careful contribution which each has made.
I should, however, right away like to congratulate the noble and learned Lord, Lord Templeman, and the Select Committee for the characteristic clarity and thoroughness of the report. I was impressed by the committee's analysis of the Commission's proposals. It has correctly identified the major problems. If I express disagreement with some of the recommendations made by the Select Committee, this in no way lessens my respect for the coherence and integrity of the conclusions which the Select Committee has reached. It is largely a matter of political judgment how a balance can be struck between the need to guarantee the effective functioning of the European Parliament and the need to respect our national parliamentary traditions.
At present MEPs' privileges and immunities are laid down in a protocol signed by the member states in 1965 and to which the United Kingdom subscribed as part of the legal framework of the Community by its 509 ratification of the Act of Accession in 1972. Members of the European Parliament currently enjoy three types of immunity under the 1965 protocol. First, under Article 8, their freedom of movement when travelling to or from a place of meeting of the Parliament cannot be hindered by any administrative or other restriction. They also have certain special customs and exchange control facilities which, in the Select Committee's judgment, add little to the general freedom from such controls enjoyed by all Community citizens.
Secondly, MEPs' freedom of expression: under Article 9, MEPs are protected from any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast in performance of their duties. Thirdly, under Article 10, MEPs enjoy immunity from detention and legal proceedings outside their own country and, insofar as their national MPs enjoy such immunity, within it.
The Commission proposal before us today was made at the request of the European Parliament, which has been discussing changing its privileges and immunities ever since it was directly elected for the first time in 1979. The proposal includes amendments of all three relevant articles (8, 9 and 10) of the existing protocol.
For Article 8, the Commission propose widening MEPs' freedom of movement to cover all travel in connection with the performance of their duties, and certain provisions assisting MEPs who wish to reside in one of the Community's working places. The noble and learned Lord, Lord Templeman, asked me whether freedom of movement should be made subject to the requirements of public order and public health. Perhaps I could say that, as regards Article 8, the Commission propose, as I have mentioned, a working which is much wider than the present article. I should be more prepared to consider a change if I felt that MEPs were suffering difficulties in respect of their freedom of movement, but I do not think this is the case and I agree with the Select Committee that freedom of movement of MEPs cannot be absolute. It must be subject to considerations of public policy and public health which an individual member state considers to be of overriding importance. I am glad that the Select Committee recognises the need for this qualification.
Secondly, the Commission proposal would apply Articles 12(b) to (e) and 14, to enable Members of the European Parliament to set up their homes near one of the working places of the Community institution. The Government do not regard these changes as raising any difficulties for our own taxation and customs requirements, since they would apply to MEPs residing outside the United Kingdom.
For Article 9, the Commission would extend the protection of MEPs' freedom of speech, to allow them to withhold evidence having a bearing on their parliamentary activities, and forbidding the impounding of relevant documents. For Article 10, the Commission suggest a uniform immunity from detention and legal proceedings which would abolish the present distinction between the immunity that MEPs enjoy outside and inside their own countries. 510 Finally, the other substantive Commission proposal is to amend Article 18 of the protocol to provide that privileges and immunities should be accorded to MEPs solely in the interests of the Community.
The main problem raised by the Commission proposal is the provision for uniform immunities for MEPs; that is, immunity against legal proceedings and detention applicable in all member states—a point I think made by the noble Lord, Lord Cledwyn. Your Lordships' committee has pointed out that non-British MEPs already enjoy immunity from detention and legal proceedings in respect of acts committed in this country, unless they are caught in the act.
I understand the argument for consistency. In this instance, however, I do not believe consistency is a sufficient argument for extending such privileges to British MEPs in this country. To do so would mean that British MEPs enjoy greater privileges and immunities in Britain than do Members of Parliament. The political and practical significance of that cannot be overlooked. Nor do I believe that such a step is needed on functional grounds. We should need to be persuaded that any great difficulties have arisen from the operation of the present protocol. Even if the present protocol is imperfect, that is no reason to extend its coverage and create fresh problems.
One of these problems is that a widening of MEPs' immunities will introduce risks of delay in national judicial procedures caused by the speed at which the European Parliament decides whether or not to waive immunity. At the moment, immunity procedures in the Parliament take six months or even longer. The Select Committee quite rightly underlines the need for more rapid procedures in the Parliament. But I must point out that the member states cannot themselves determine the European Parliament's rules of procedure which are, quite properly, for that body itself to decide.
§ Baroness Elles
My Lords, would the Minister give way? I am most grateful. One of the reasons for delay is, of course, the delays by the national authorities, who are not always very quick on the uptake in coming to the European Parliament, asking for waiving of immunity. The other reason is that where the Member has the dual mandate, in each case every time the European Parliament waits for a decision from the national Parliament before taking any decision, because it is usually left to the national Parliament to decide whether or not they wish to waive the immunity. I think, on an analysis of the cases before the European Parliament, these have been the main reasons why there have been delays, and not because of any internal procedure within the European Parliament. I am most grateful to my noble friend for giving way.
§ Baroness Young
My Lords, I am most grateful to the noble Baroness for that point of explanation as to why the particular situation has arisen. I think it is certainly something to bear in mind, but I will continue with the point that I was making. It is essential that the immunity procedures should be accelerated before member states decided on any expansion of the immunities conferred under the protocol.
511 One might also fear that an extension of immunities could increase the abuse of the system. This is the most difficult of all. The Select Committee points out that the present protocol gives very broad immunity indeed; that is,from any measure of detention and from legal proceedings".This could easily be interpreted as applying to civil as well as criminal proceedings. I welcome the Select Committee's suggestion that Article 10 should, by its express terms, confer immunity only in respect of arrest or criminal proceedings, excluding crimes of violence, and should not therefore apply to civil proceedings—the point, of course, which the noble and learned Lord, Lord Templeman, explained. But I doubt whether it would be possible effectively to enforce the limitations it desires.
I understand that, for example, the distinction between criminal and civil proceedings is drawn very differently in member states of the Community. Only this month, the Parliament has refused to waive the immunity of Lionel Jospin, a French Socialist MP and MEP charged with defamation. One might also wonder about definitions of violent crime. So the feasibility of ensuring uniform treatment of MEPs in these circumstances must remain open to doubt.
The general problem of abuse of immunities is well illustrated by Appendix 7 of the Select Committee's report. Since 1984, immunity has been upheld in several cases which relate to an MEP's activities going well beyond strictly parliamentary functions; for example, publishing articles advocating violent demonstrations and attacks on public buildings—that was the Kloeckner/Haerlin case; supporting an illegal abortion clinic—the first Pannella case; and stealing passports for Czech refugees—the Zahorka case.
The Select Committee recognises the problem over the obligation to waive and the judicial review. Under the present provision in the protocol, there is no obligation on the European Parliament to waive the privileges and immunities of MEPs where such a waiver is not contrary to the interests of the Community. The European Parliament should not be the ultimate arbiter in respect of its immunities (as this Parliament is). It should be duty bound under Article 18 of the protocol to waive immunity where this would not be contrary to its interests and there should be the possibility of review by the European Court of Justice of its immunity decisions. Again, this is an extremely useful suggestion which should be a basic component of any Commission proposal on this matter brought to the Council.
Before I conclude, I should say a word about any likely progress on the Commission proposal. The prospects for a full Council discussion look relatively remote at present. The European Parliament still has to give its opinion on the Commission proposal. Its original request was adopted by only 93 votes against 83 in 1983—as my noble friend Lady Elles told your Lordships' Committee—so the Parliament may now suggest further amendments. This could in turn lead to a revised Commission proposal which would delay consideration by the Council. Finally, it is important to remember that any change to the protocol counts as treaty amendment (under Article 236 of the EEC 512 Treaty) and would require the common accord—that is, unanimity—of the member states.
The noble Lord, Lord Cledwyn, asked whether there was any evidence that any MEP has had difficulties because of the inadequacies of the 1965 protocol. I cannot, of course, answer for non-British MEPs, but in respect of British MEPs, I know of no case of difficulty since the United Kingdom acceded to the Community in 1973.
To conclude, I hope I have made clear our view that the present protocol—although it was framed in its original form over 30 years ago—still performs a useful function. We need an effective, directly elected European Parliament to enhance public awareness of Community activities. Our MEPs—and I think we are all very pleased that one of our MEPs was able to take part in this debate—can act as a check on Community decision-taking and promote useful change within it. The Single European Act, which your Lordships debated and approved only recently, will enable the European Parliament to fulfil its role still more effectively. That seems to the Government to be the right route to follow. We are not persuaded of the wisdom of a change in privileges and immunities which would not significantly improve the ability of MEPs to represent their electors. Indeed, it might merely promote a sense of alienation between elector and elected.
Finally, may I say that I shall of course read carefully the report of the debate, but I express once again our gratitude to the noble and learned Lord, Lord Templeman, and to his committee for the work that they have done. I hope that I have answered the points that have been raised—the points on which we are in agreement with the committee, the points on which the Government's view differs from that of the committee—and have explained fully the reasons for our differences of opinion.
§ 8.14 p.m.
§ Lord Templeman
My Lords, the Select Committee will be gratified at the informative and knowledgeable debate which has taken place in respect of their report. The noble and learned Lord, Lord Silkin of Dulwich, has great experience in this field and is well appraised of all the constitutional and historical bases for the privileges and immunities of Members of Parliament in this country and abroad. Then we had the noble Baroness, Lady Elles, and the noble Lord, Lord Cledwyn of Penrhos, putting succinctly and well the two different—though I would not say opposing—views of a Member of the European Parliament on the one hand and, on the other, the view of a Member of the House of Commons. There is a conflict of history and a conflict of approach between those two.
That brings me to the Minister. I quite agree with the noble Baroness that this is a question of political judgment. That is why I began in opening by stressing the fact that it is for Her Majesty's Government, with Parliament, to determine what they are prepared to accept and what they are not prepared to accept. But the Select Committee felt that it would be most useful to the House and, we hope, to the Government, if we expressed our prima facie views, always being prepared to be differed from, either in principle or in 513 detail, and I am very grateful to the noble Baroness for the detailed and frank answers which she has given to the problems which we have raised.
May I conclude by saying that I feel just a tinge of regret that, as happens on so many occasions, at the end of the day we will probably say: the European Community is all very well but we insist on being slightly different. I can understand the approach but I feel a slight regret that we cannot go along, as I feel a regret on other subjects when some of the Members of the Community will not go along with us. It is only a slight regret, because I recognise the very different approaches and the very real concern which is felt on both sides of the House and by Cross-Benchers at the proposals which have been put forward. I am very grateful for the debate.
§ On Question, Motion agreed to.