HL Deb 17 November 1992 vol 540 cc533-41

3 p.m.

Baroness Denton of Wakefield

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Baroness Denton of Wakefield.)

On Question, Motion agreed to.

House in Committee accordingly.


Clauses 1 to 4 agreed to.

Clause 5 [Regulations]:

On Question, Whether Clause 5 shall stand part of the Bill?

Lord Bruce of Donington

I hope not to detain the Committee very long in dealing with this Motion. I simply want an explanation in regard to Clause 5. The Committee will remember that Clause 5 reads: The power to make regulations under section 2(2) or section 3(2) above shall be exercisable by statutory instrument; and any statutory instrument containing such regulations, if made without a draft having been approved by resolution of each House of Parliament, shall be subject to annulment in pursuance of a resolution of either House". Under what circumstances is a draft made without having been approved by resolution of each House of Parliament? In other words, can the Minister tell the Committee the circumstances under which she envisages that this clause will be brought into operation within the context of her very comprehen-sive speech at Second Reading?

Baroness Denton of Wakefield

Perhaps I could explain the background to Clause 5 and the effect of omitting it from the Bill. The powers to make the regulations in Clause 2(2) and Clause 3(2) of the Bill would be subject to no parliamentary procedure. It is clearly necessary to retain the clause, or something like it, if Parliament is to have control over the use of those powers.

Let me explain to the Committee the purpose and effect of Clause 5. Clause 5 provides that the powers to make regulations under Clauses 2(2) and 3(2) are exercisable by statutory instrument. The instrument may be subject to either negative or affirmative resolution procedure in the same manner as instruments made under Section 2(2) of the European Communities Act 1972. The clause follows, therefore, the formula in paragraph 2(2) of Schedule 2 in the 1972 Act.

The fact is that the 1972 Act allows either negative or affirmative procedure to be adopted so that regulations under Section 2(2) of that Act may be combined with regulations made under powers in other Acts. Those Acts may provide for either negative or affirmative procedure but not for both. The flexibility provided in the 1972 Act allows Section 2(2) regulations to be made, using whichever procedure applies under the other Act.

Having given the background, perhaps I may explain why we believe that the clause is necessary. The same consideration applies to regulations under Clauses 2(2) or 3(2) of the Bill. If Clause 5 provided only for either negative or affirmative procedures—I believe that is the question of the noble Lord, Lord Bruce—there would be occasions when regulations made both under other enactments and under the Bill on the same matter would have to be subject to different procedures and, as a consequence, be in different instruments. That would mean unnecessary confusion. It would be a waste of time and resources to make two instruments. It would be unhelpful to readers of the measures to have to try to understand the relationship between them.

We are trying with this clause to ensure that the two sets of regulations are made in the same instrument and are subject to the same procedure to ease all future activity on these Bills in this House. I hope that that is helpful to the noble Lord and that he will not press the matter.

Lord Bruce of Donington

I am most grateful to the noble Baroness. I am still not clear about the circumstances when a draft is not available for consideration in advance. Is it because there is some hurry over something? Why should a draft not he made available? The clause states: if made without a draft having been approved". In other circumstances in which drafts are not available it becomes necessary to apply the affirmative procedure. I should have thought that it would be for everybody's convenience for drafts to be made available in advance in any event.

Baroness Denton of Wakefield

In this clause we are trying to protect the necessity for providing dual instruments in this area. When making regulations under these powers we would normally use the negative procedure.

Lord Bruce of Donington

I have listened to the noble Baroness and will further study her remarks when they appear in the Official Report. In reserving the right to raise the matter at some later stage, I shall withdraw my objection.

Clause 5 agreed to.

Lord Bruce of Donington moved an amendment:

After Clause 5 insert the following new clause:—

ANNUAL REPORTS (" .A Minister of the Crown shall lay before each House of Parliament annually a report on the operation of the agreement and the development of the European Economic Area.").

The noble Lord said: This amendment is to add a new clause which reads as follows: A Minister of the Crown shall lay before each House of Parliament annually a report on the operation of the Agreement and the development of the European Economic Area". I trust the Committee will appreciate that I seek to inject an element of transparency into the activities of government and officials in this particular field. Under Article 94 of the agreement to which the Bill applies there is provision for an annual report to be made. It states that: The EEA Joint Committee shall issue an annual report on the functioning and the development of this Agreement". I am anxious that that should be supplemented for the following reasons. Under Article 93 of the agreement: The EEA Joint Committee shall consist of representatives of the Contracting Parties". Under paragraph 2 of that same article: The EEA Joint Committee shall take decisions by agreement between the Community, on the one hand, and the EFTA States speaking with one voice, on the other". It is clear that the annual report, which ought to cover a wide field, is not submitted on the authority of Ministers; it is not even issued under the authority of the EEA council. It is submitted solely on behalf of unelected and, so far as one can see, unknown officials who are to operate in this field.

Perhaps I may quote from the excellent publication issued in October 1992 by the noble Baroness's department. At page 25 The Single Market—The European Economic Area states: Composed of EC and EFTA officials, the EEA Joint Committee will be the main EEA forum, charged with the responsibility for the day-to-day operation of the Agreement. In particular, it will be responsible for: ensuring that both the EC and EFTA comply with the obligations of the Agreement; ensuring that the two areas adopt a common approach to implementation and interpretation of the Agreement". As will be seen from the following pages, which I shall not read to your Lordships for reasons of time, the officials occupy an extremely important position. However, they appear to be responsible to no one in terms of accountability.

When today we are dealing with international organisations—whether they be the European Community, the new organisation which will deal with the EC and EFTA moving towards a situation in which new countries can make application for admission to the EC, and a whole series of other international and European organisations—we find that Ministers of the Crown in this country are becoming more remote from the activities which those organisations cover. That applies also to other countries but I am more particularly concerned with the United Kingdom whose Ministers are becoming more remote from the activities which are carried out in the name of this country.

I consider that to be undesirable. The annual report will be submitted by officials whom we do not know, whose decisions and functions have not been described anywhere, apart from in the most general terms, and who may vary from time to time throughout the years. We shall have a report from those officials and no one will be accountable for what they say.

It is up to other countries in the EC, and to other countries which will be party to the agreement, to do what they wish. However, as regards the United Kingdom, I am sure that it is proper that a Minister of the Crown should have an obligation and responsibility to report what is happening to Parliament. Anyone who has perused the Bill will know that from time to time legislation passed at this level will be incorporated automatically into British law by virtue of Section 2 of the 1972 Act. It will also be transmitted to the UK in a form in which the UK has the option of bringing certain legislation into operation.

The agreement is full of references to variations which may take place in Customs duties. As the agreement is supposed to come into operation in 1993 questions arise about the extent to which the Customs duties are capable of identification and levying when Customs posts are to be drastically decreased in number and in function. There is a whole series of matters on which other countries should be informed. For example, let us suppose that certain legislation prepared at this level and transmitted by officials is varied by one of the countries concerned exercising the option under Article 127 of giving a year's notice and leaving the agreement altogether. What retrospective action will be taken in order to ensure that Customs duties which have been paid may have to be refunded or additional Customs duties may have to be levied?

All those are matters of some concern. It may well be that during the passage of time Parliament has become so used to paying no attention to such matters, regarding them somehow as beneath parliamentary attention. However, often they go to the very root of government. There will be extra expenditure in terms of the agreement because on its coming into operation the United Kingdom will be required to pay sums out of the Consolidated Fund in order to subsidise some of the less advantaged countries within the area. It will be proper and indeed necessary for a British Minister to report those matters to Parliament. Surely any significant expenditure out of the Consolidated Fund is a matter in which Parliament should be interested at the time and not merely retrospectively when there is a detailed examination of the out-turn of Treasury accounts.

There are other matters which are capable of being reported. For instance, the explanatory note to the Bill mentions certain circumstances in which extra moneys may have to be paid out of the Treasury in connection with a whole series of matters. One cannot expect a broad general report, which deals with the agreement as a whole and which is made by officials outside this country who are not accountable to it, to refer to those matters that are of some domestic interest to people in the United Kingdom. I would expect a Minister to be able to deal with them. Indeed, the people in the country as a whole may be interested—and if not, their elected representatives should be interested—in the advantages which are likely to accrue, if one is to believe, as one obviously does, the remarks of the noble Baroness, Lady Denton of Wakefield, on Second Reading. She said that there would be certain advantages as regards the fisheries of this country and the total allowable catches available to the UK. Surely it would be in order for an annual progress report to be given on those matters.

I do not wish to detain the Committee any longer by discussing the details. It is necessary that a Minister of the Government should be made responsible for an oversight of the whole operation, not merely for the information of Parliament but for the discipline of Ministers. The best way to secure that is by imposing a responsibility that there should be a report on the matters which I have already discussed. I hope that the Government will agree to that.

It may he possible at the same time for the annual report made to Parliament to identify, in accordance with the Prime Minister's advocacy of more transparency, which Cabinet committee or sub-committee has dealt with the matter during the course of the year.

I hope that I have said sufficient for the noble Baroness to apprehend the anxiety which lies behind the proposed insertion of this clause. Although the Government may find it difficult to believe, this is an endeavour to be helpful to them. It is to ensure that the growing rule and unaccountability of international civil servants throughout the Community gives way progressively to a far greater sense of responsibility by Ministers. Therefore, I hope that the noble Baroness may feel constrained, in the interests of transparency and good democracy, to accept the amendment. I beg to move.

Lord Boyd-Carpenter

Not for the first time the noble Lord, Lord Bruce of Donington, has done us a good service by raising this not unimportant issue. I find—as, I dare say, do many Members of the Committee—that one of the problems in performing our duties in connection with the whole European system is following exactly what is happening from time to time. It is practically a full-time job to do that.

Therefore, on the face of it, the suggestion of the noble Lord, Lord Bruce of Donington, seems to be extremely useful. He suggests that there should be an annual report prepared by Ministers. As I understand it, it should not be a report calling for approval but simply a report for the information of Parliament and, therefore, of the country. It may be that there is some great difficulty in that regard to which the noble Baroness on the Front Bench will invite our attention. I keep an open mind on that until she has spoken. However, prima facie the noble Lord, Lord Bruce of Donington, seems to have raised an interesting point to which the Committee would like to hear an answer, if there is one.

Lord Beloff

I support the initiative of the noble Lord, Lord Bruce of Donington, in part for the reasons given by my noble friend Lord Boyd-Carpenter. There is a good deal of anxiety and confusion in the country about the working of the increasingly complicated set of European institutions in which we are involved. The only way in which those anxieties can be allayed in our parliamentary system is by frequent reports—perhaps annual reports—to Parliament. One hopes that those reports would give rise to debate and would not merely be something lost in the Printed Paper Office for the few who take a detailed interest in those matters.

I am particularly worried because when the Government come round to feeling that the country needs more information, they do not always perform that task in a way which commands general assent. The recent pamphlet sponsored by the Foreign and Commonwealth Office called Britain in Europe, which many Members of the Committee will have received, purports to be an explanation of the Treaty of Maastricht. On Sunday the Sunday Times managed to find at least a dozen instances where the interpretation was, to say the least, questionable. In my view, it was moderate in its criticism of that document. It is not an explanation of the Treaty of Maastricht but a defence by those who believe that it should be ratified, putting aside the anxieties which have been widely expressed in another place, in this Chamber and more importantly, in the country at large.

Had that been a document presented as a report to Parliament, which Parliament had the right to question, rather than being issued in the manner of tablets from on high, people's worries might or might not have been allayed. In any event, in order to avoid that happening again it seems to me a very good idea to accept the amendment moved by the noble Lord, Lord Bruce of Donington.

Lord Harmar-Nicholls

I support the amendment moved by the noble Lord, Lord Bruce of Donington. It is essential to have such a provision if the dual procedure is to be allowed to work at all. As a Member of the European Parliament for five years, I know that it is no good relying upon European Parliament Members to carry out that task. The European Parliament is submerged with too many items which make it impossible to get a coherent view as to what affects one's own country.

The reason that I support the amendment in particular is that if a Minister of the Crown must lay before Parliament an annual report, we shall be more certain that the Minister of the Crown knows what is happening. We know that there are too many instances of Ministers making recommendations to Parliament which have merely been put in front of them by their departments. They do not always think it right to give time to understanding all the implications of those recommendations.

If a Minister must prepare a report and submit it to Parliament, he is more likely to know what is involved. Therefore, it will not be possible to hide matters with only interested parties questioning the possible results. The preparation of a report by a Minister may ensure that some of the quirks which seem to get through would be eliminated because the Minister preparing that report would have seen it in good time and would know what was involved.

I believe that Community matters should be more democratic than they are at present. A report from an elected Government Minister means that he would know what is involved. Therefore, we should accept the amendment.

Baroness Elles

I support the amendment tabled by the noble Lord, Lord Bruce of Donington, although I do not know whether it is in proper form. As a Member of the European Parliament I was extremely disturbed by the lack of what is known as a democratic deficit. In the parliament we were able to table questions and ask for reports to be laid before the parliament but, of course, the reply came from a member of the Commission or from somebody who had no power to act on what the parliament then said.

It is for that reason that I welcome the possibility of a report on a major issue to the United Kingdom which will come before the British Parliament and where questions can be asked by British parliamentarians on matters which affect British interests. I therefore strongly support the principle of the amendment.

3.30 p.m.

Lord Peston

I do not believe that we should stray into the delicate area of what Ministers of the Crown know or knew of this or any other topic. Will the noble Baroness confirm that we are in the Committee stage of the European Economic Area Bill regarding the extending of the Community's single market to member countries of EFTA? I do not understand how we have strayed into the general issues of Maastricht and other matters.

Much as I am sympathetic to the idea of giving reports to Parliament, I was under the impression that the Government were already on record as committing themselves to doing precisely what my noble friend requires. Perhaps the Minister will confirm what I understand to be the case; that is, that the Government are already committed to doing what is being requested.

Baroness Denton of Wakefield

I am grateful to the noble Lord, Lord Bruce of Donington, for his explanation of the new clause. I share his anxiety and that of my noble friends that Parliament should be properly informed of developments in the European Economic Area and that there should be transparency of action. I was delighted when the noble Lord drew the attention of the Chamber to the fact that my right honourable friend the Prime Minister is committed to transparency of action. I can reassure him by pointing out that the EEA Council, under Article 89, will assess the overall functioning and development of the agreement. It will therefore assess and effectively oversee actions of the joint committee about which the noble Lord expressed nervousness.

I should like to confirm the view of the noble Lord, Lord Peston, that it is indeed something to which the Government are already committed. I hope that I can assure the noble Lord and my noble friends that the agreements already made will ensure that Ministers accept their responsibilities and that parliamentarians in this country will have the chance to examine the matters in hand.

Perhaps I can say first that once the agreement comes into force the Government will report twice a year to Parliament on the operation of the European Economic Area in the six-monthly White Paper, Developments in the European Community. There will be a new section in the White Paper exclusively for the European Economic Area following a recommenda-tion of the House of Commons Trade and Industry Select Committee in its report of 25th July 1990 on trade with EFTA.

I turn to the issue raised by the noble Lord. The second report indeed arises from Article 94 of the agreement. That requires the EEA joint committee to issue an annual report on the functioning and development of the agreement. The noble Lord expressed doubts in that regard because it would be a report issued by officials. I reassure him that to ensure Parliament is able to consider the report it is the intention of the Government that it should be treated as a European Community document for the purposes of parliamentary scrutiny. It will be deposited in Parliament accompanied by an explanatory memorandum from DTI Ministers, which will be subject to exactly the same scrutiny as any other report made under the terms of the new clause.

The memorandum will address specific aspects of the operation and development of the agreement that affect UK legislation and policy. For example, as the noble Lord suggests it could include statistics on recent trends in trade between the United Kingdom and EFTA. That procedure will allow your Lordships' committee on European Communities to consider developments in the European Economic Area. I agree with my noble friend Lord Beloff that there is no closer scrutiny than a committee of your Lordships' House. I hope that Members will agree that those procedures will ensure adequate reporting to Parliament.

We are saying that three pieces of paper will be introduced. The new clause will simply add a fourth produced by the same people. I hope that the noble Lord, Lord Bruce, will accept that the spirit of my comments is not to conceal information but to avoid unnecessary duplication. At Second Reading of the Bill the noble Lord said that anything that can simplify matters will be a great advantage. In particular, he identified the workload of Ministers in staying on top of European matters. I hope that in this instance he will not increase our paperwork.

Baroness Carnegy of Lour

Before my noble friend sits down perhaps I can ask about the report of which she spoke so interestingly and which she said would be open to parliamentary scrutiny. Have the Government considered whether the European Communities Committee of the House of Lords will have a role in scrutinising that report from time to time? Does my noble friend know whether that has been considered? If she does not, perhaps she will undertake to look at the possibility.

Baroness Denton of Wakefield

I am pleased to be able to reassure my noble friend Lady Carnegy that the procedure will allow your Lordships' European Communities Committee to consider the develop-ments.

Lord Harmar-Nicholls

My noble friend said that the Government are already doing what the clause asks for, but in another form. In order to avoid the extra paperwork to which she quite rightly objects, is there no way of making that which is being done a statutory requirement instead of a voluntary undertaking? That would make a great difference and give satisfaction to those of us with doubts.

Baroness Denton of Wakefield

I hope that my noble friend Lord Harmar-Nicholls and the noble Lord, Lord Bruce of Donington, will accept that by putting our intention on record today we are indicating that that is indeed our intention.

Lord Bruce of Donington

I am grateful to the noble Baroness for giving us that explanation in answer to the few remarks that I ventured to mention to the Committee on this subject. It occurs to me that she has given the Committee so many assurances that it may have been simpler and taken far less time for the Government to have accepted the insertion of the clause which puts the matter quite simply.

I did not expect to receive the support of my noble friend Lord Peston. I do not accept his view that the position is already covered in the agreement. I presume he has read the agreement; if so, he will know that that is not the case.

I am grateful for the assurances given by the noble Baroness and unhesitatingly accept them. In the interests of good government, public accountability and transparency I should have preferred specific responsibility to be laid upon a Minister. As the noble Lords, Lord Boyd-Carpenter, Lord Harmar-Nicholls and Lord Beloff pointed out, it would concentrate the minds of Ministers and possibly of the Cabinet Committee and may be welcomed by them.

I am aware that should I press the matter to a Division this afternoon, it would be impossible for the Report stage to be taken today. It has never been part of my policy to obstruct the wishes of the Chamber and the Government in proceeding with the business of the day. After giving good notice, which I trust the noble Baroness, the Government and my own Front Bench will take into account, I shall return to the question of public accountability and ministerial responsibility as regards EC affairs time and time again as long as I am able. Therefore, as long as these considerations are borne in mind, and after thanking the Members of the Committee and the noble Baroness for participating in this debate, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 6 and 7 agreed to.

Schedule agreed to.

House resumed, Bill reported without amendment.

Report received.