HL Deb 20 May 1999 vol 601 cc435-8

(" . This Act shall not come into force until a Minister of the Crown has laid before each House of Parliament a report setting out

  1. (i) the legal basis on which Council Directive 96/6I/EC was agreed to, and
  2. (ii) the cost-benefit analysis produced for the Directive,
and that report has been approved by resolution of each House.")

The noble Lord said: My Lords, in moving Amendment No. 5, I shall speak also to Amendment No. 6. For the purposes of the official record, Amendment No. 6 states: No power conferred under this Act to make regulations may he exercised to implement Council Directive 96/61/EC until a Minister of the Crown has laid before each House of Parliament a report on the implementation of that Directive in other member states, and that report has been approved by a resolution of each House".

It will be noticed that the amendment picks up a point raised earlier by my noble friend the Duke of Montrose.

The two amendments pick up on our debate last week (at cols. 1392 and 1394 of the Official Report) when I queried the validity of the EC directive on the grounds that the European Community might not have followed Articles 174 and 175 of the treaty establishing the European Community. I was prepared to bet the Minister that the Commission had not produced the requisite cost/benefit analysis which those articles in the Treaty of Rome require before any valid environmental directive can be issued. I also queried the validity of the directive under what is now Article 5 of the Treaty of Rome, which is the famous subsidiarity clause. It requires that for an environmental directive to be valid it has to be justified by the scale and effect of the proposed action. In order to know whether the directive is valid, one needs to know what the other countries are doing about it. If they are doing nothing, very little, or they are not all following it, then we need not do anything either.

Last week the Minister assured the House that: We are transposing the directive in this particular way. Other countries are doing likewise".

He continued: To agree to the amendment would delay the adoption of the Bill. That would bring the whole procedure into legal danger. We should be subject to infraction proceedings [in the Luxembourg court]".—[Official Report, 13/5/99; col. 1393.]

That would not be the case if the documents were readily available. If the cost/benefit analysis is readily available, perhaps I may ask for an assurance from the Minister that he will place a copy in the Library in order that we may judge the quality of the document. If other countries are transposing the directive in the same way as ourselves—which I doubt—then will he place a report to that effect in the Library? If the Minister can give an assurance about that—I did not follow up the point last week and the Minister did not reply—I am prepared not to divide the House on the issue that these reports should be subject to approval by both Houses of Parliament. I hope that that is helpful to the Minister. I look forward to his reply.

This is an important area. I accept what the Minister said last week: that the Treaty of Rome does not work in that way; that it is not the way the Commission behaves; and that no one has yet taken the Commission or the Community to the Luxembourg Court for failing to obey the Treaty of Rome. This Bill is a good opportunity to raise precisely that prospect. When they do not follow the Treaty of Rome and when they produce directives as inconvenient and as unconstitutional as this directive has become in its effect on the Environmental Protection Act 1990, perhaps we should be taking the Commission and the Community to the Court. I beg to move.

Lord Whitty

My Lords, I thank the noble Lord for trying to be helpful. I think that I can help him on at least some of his questions. As I said last week, the legal basis was clearly Article 130s of the Maastricht Treaty. I also assured him then that the cost/benefit analysis that is required is set out in an explanatory memorandum to the directive (COM93/43) which has been placed in your Lordships' Library. More importantly, the directive is fully consistent with the spirit of the treaty in as far as concerns costs and benefits.

On the subsidiarity point, subsidiarity was not raised by any Member during the passage of the Bill and has not been challenged since. Indeed, the previous administration were probably the moving light in achieving this directive and have much of the credit for it. The noble Lord asked about transposition of the directive by other countries. In the time since the noble Lord tabled his amendment in this form, I have tried to check precisely the point reached by a number of other member states. I do not have the full picture, although I have a reasonably coherent picture in relation to Germany, France, the Netherlands, Ireland, Italy, Portugal and Sweden, all of which are transposing the directive in line with their existing legislation; or, if their existing legislation already provides for it, they are doing it in that way. I undertake to write to the noble Lord and place a copy of that letter in the Library explaining the position of other member states. I hope that is helpful to him and that, therefore, he will not press the amendment.

Lord Pearson of Rannoch

My Lords, that is indeed helpful to me because I will be able to judge the success or otherwise of the subsidiarity clause on what the Minister has to say. From the list he gave, there seemed to be quite a few countries whose position is not yet clear.

I accept, as the noble Lord said last week, that this directive is taken under what used to be Article 130s but is now Article 175 and comes under the general environmental provisions of the treaty, which used to be Article 130r and is now Article 174. Be that as it may, I shall not bandy treaty clauses with the noble Lord. I am grateful for what he has said. I think it will enable the House to get a better idea of how the Community is following the Treaty of Rome and the treaties setting up the European Communities. In anticipation of the noble Lord's letter, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 6 not moved.]

Schedule 1 [Particular purposes for which provision may be made under section 2]:

[Amendment No. 7 not moved.]

An amendment (privilege) made.

Lord Whitty

My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.—(Lord Whitty.)

Lord Dixon-Smith

My Lords, I shall not detain the House for more than a few moments. The Bill has had a somewhat bumpy ride through the House. We are all aware of the reason for that. The Bill was not satisfactory when it arrived. I am bound to say that now that the Bill is leaving the House it is in better form. It is still not satisfactory in my view. I do not regard it as a good thing that we transpose primary legislation and turn it into secondary legislation. My noble friend the Duke of Montrose has already raised the point, as I have done on other occasions, that this kind of practice will strain the conventions of the House on the way in which we deal with secondary legislation.

I particularly want to place on record, however, my thanks, first, to the Delegated Powers and Deregulation Committee and its chairman, the noble Lord, Lord Alexander of Weedon, for its initial report on the Bill which has done so much to help and guide all our debates on this matter. I wish also to thank my noble friends on this side of the House and other noble Lords from all parts of the House who have played a significant part in making the Bill better. Lastly, and perhaps most importantly of all, I should like to thank the noble Lord the Minister, who has guided the Government so that the Bill leaves this place in its better state. I am most grateful to him.

Lord Pearson of Rannoch

My Lords, perhaps I may reiterate what my noble friend Lord Dixon-Smith said about the Bill. If we were not a little pressed for time I would be considerably ruder about it than was my noble friend. However, I should like to congratulate the Minister on what he has been able to do for the Bill even if, as it leaves your Lordships' House, it is still a very bad Bill. I am quite sure that unless the regulations which eventually emerge are truly satisfactory this House will be stretched into breaking the present tradition that we do not vote on statutory instruments. That tradition is not a very old one in any case. As I understand it, it crept in in 1978 when my noble friend Lord Denham was the Opposition Chief Whip. A deal was done then in the closing days of the previous Labour administration to facilitate the passage of legislation. So we are not dealing with a great pillar of British parliamentary tradition in this matter. I would say to the noble Lord that it will probably be a changed House of Lords that will be looking at the statutory instruments and delegated regulations when they come forward. I hope that he and his officials will bear that in mind in the interests of everyone and in the interests of the purposes which the Bill sets out to achieve. With that, I wish the Bill well but without much hope.

Lord Renton

My Lords, I should like to endorse what my noble friend Lord Dixon-Smith said about the part played by the Minister in attempting to improve the Bill. But I have to confess that after 53 years in Parliament, first in one House and then in the other, I do not remember a Bill—although in wartime it did happen, before some of us came into the House—in which so much of importance was to be done by regulation instead of by primary legislation. I do not apologise for repeating this again. I repeat it because the Delegated Powers and Deregulation Committee, which took a similar view, said that it was not to be regarded as a precedent. I most earnestly hope that the Government will regard this Bill as quite offbeat and not regard it as a precedent and that we shall never have a Bill presented to us in future which contains the fundamental flaws which this Bill still does contain.

Lord Whitty

My Lords, I thank noble Lords for their kind comments. However, I hope that noble Lords do not mistake flexibility in response to constructive criticisms for softness in the head. The Bill is substantially improved. It is a very good Bill now. It will be an effective Bill in achieving its objectives. I beg to move that the Bill do now at last pass.

On Question, Bill passed, and returned to the Commons with amendments.