HL Deb 14 October 2002 vol 639 cc672-90

8.2 p.m.

Lord Brabazon of Tara rose to ask Her Majesty's Government whether, in the light of the 23rd report from the European Union Committee The Scrutiny of European Business—provisional Agreement in the Council of Ministers (HL Paper 135), they consider that the adoption by Ministers of a provisional agreement is compatible with the scrutiny reserve resolution adopted by the House on 6th December 1999.

The noble Lord said: My Lords, I am pleased to introduce this report in the form of a Question to the Government. It is, as I am sure your Lordships will have noticed, one of the shorter reports of the Select Committee. But its shortness should not detract from its importance. The report deals with an issue which lies at the very core of the scrutiny process and which is crucial to its effectiveness.

The scrutiny reserve resolution provides that Ministers should not give agreement in the Council of Ministers to any proposal for Community legislation before it has cleared scrutiny. As the opening sentence of the report states, the scrutiny reserve resolution is the linchpin of the House's scrutiny of proposals emanating from the European Union.

The primary purpose of the report was to publish the correspondence between the Select Committee and the Government on the relationship between a "provisional agreement"—or "general approach", the term now being used—in the Council of Ministers and the scrutiny reserve resolution.

The story begins nearly 18 months ago, following the Justice and Home Affairs Council in May 2001. That Council considered a number of documents held under scrutiny. In respect of two of those documents, your Lordships' committee was told that a "provisional agreement" had been reached, but such agreement was subject to a parliamentary scrutiny reserve. What is clear from the resolution is that the Government should not enter into a "political agreement" without first clearing scrutiny, or, if overriding scrutiny, they must explain their reasons to the committee for doing so.

The correspondence started with the committee asking the Minister to say whether in fact "political agreement" had been reached. If not, how did "provisional agreement" differ? The reply and subsequent correspondence is helpful in explaining the decision-making practices of the Council of Ministers.

Presidencies are keen on marking up their successes during their six-month term. Accordingly, a practice has developed of reaching a form of agreement short of "political agreement" or formal adoption of a measure on texts which are, but for some formality, such as receipt of the opinion of the European Parliament, unable to be adopted definitively. The Government contend that it is compatible with the scrutiny reserve resolution to participate in such a "provisional agreement" or "general approach" without prejudice to parliamentary scrutiny. The text is not a definitive one and therefore can be changed.

However, it appeared, and still appears, to the committee that the reaching of a "provisional agreement" or "general approach" is an important step in the political and legislative process. We cannot recall any case where the Government have taken on board a point following that stage. What the correspondence has yielded, however, is a clear undertaking from the Government to consider all points from the two scrutiny committees on their merits. They admit, however, that timing may limit that consideration. We are nonetheless grateful for that undertaking. We continue to differ on the interpretation of the scrutiny reserve resolution. This is not something that should be left unresolved and we shall be revisiting it in the context of the review of our scrutiny process that we are currently conducting following the Leader's Group review on the working practices of the House. The House will therefore have the last word.

As your Lordships will note, the correspondence on provisional agreement ranged more widely. Both the committee and the Government agree that a number of issues might best be left over pending the outcome of the work of the Convention on the Future of Europe, and in particular its working party on national parliaments, and our own review. There is, however, one matter on which I should comment—the timetabling of debates on Select Committee reports. This is not a new matter. My predecessor, the noble Lord, Lord Tordoff, vigorously raised the issue on a number of occasions. To those on the government side it might have seemed to have been "on every possible occasion".

As the Government acknowledge, there can be timely debates. The example given is the European arrest warrant. But that was the exception, not the general rule. I cannot recall a time when we did not have a backlog of reports awaiting debate. We have six reports in the queue at the present time. And it is not unknown for the Select Committee to have to withdraw its recommendation for debate because the subject matter—for example, the draft of legislative proposal—has changed substantially in the negotiations in Brussels. The House would therefore have missed the opportunity to discuss the proposal and make an input at a key stage in the legislative process.

There are obvious benefits on all sides from bringing reports forward for debate quickly. The House can consider a report when it is still fresh, when the text of a draft proposal remains current and before too many minds have become set or positions taken around the negotiating table in Brussels. The Government can also clear scrutiny provided there are no later material changes. In their response, the Government point to a number of developments which may help here—for example, the greater use of Grand Committee for Bills should mean more time for debates of all kinds. This is again something that we shall be revisiting in the context of our current review of the scrutiny process. I would add that this debate today, being taken in the form of a dinner hour—or, rather, after dinner hour—Unstarred Question is perhaps a way forward for shorter reports which attract a similar number of speakers.

I am grateful to the noble and learned Lord the Leader of the House for having provided us, on 4th October, with the Government's response to our report. I look forward to his response to our debate this evening, as, indeed, I look forward to the contributions of other distinguished noble Lords.

8.8 p.m.

Lord Grenfell

My Lords, I begin by congratulating our chairman, the noble Lord, Lord Brabazon of Tara, on steering us towards a very helpful report which reflects the doggedness with which he, as chairman of the Select Committee, has pursued this matter, which is of constitutional importance.

We have come quite a long way since my honourable friend the then Minister of State at the Home Office addressed to the committee that letter of 6th June 2001 which set all the alarm bells ringing. We are now clear about the guidance given to the Council by its own legal services, identifying the three categories of decisions or outcomes at the Council. In place of "provisional agreement" we now refer to "general approach".

Further, we were assured by my noble and learned friend the Leader of the House in his letter to our chairman dated 4th October that a "general approach" marks no more than a step towards agreement and does not constitute a definitive position since the opportunity remains to raise outstanding issues.

Last but not least, the Government have, through the process of preparing this report, been made fully aware that our concern to see that no governmental action in Council undermines the purposes of the scrutiny reserve resolution is a continuing one, and we shall be vigilant.

So it seems that we have made some progress since mid-2001. But our vigilance remains important because we are still faced with what one might call the "thin end of the wedge" risk—which has just been cogently argued by our chairman.

I, too, am concerned that the conditions which the Government appear to attach to their re-opening of a text after a general approach has been agreed, as a result of concerns raised by our Parliament, are pretty restrictive, if not downright prohibitive. Our concerns would have to correspond to the Government's own policy stance on the measures in question, and they must not have been previously pursued. In her letter of 6th September 2001, my honourable friend the then Parliamentary Under-Secretary of State at the Home Office set out a third condition—that there was a realistic prospect of securing an amendment to the text.

I am not unaware of the attractions to governments of such restrictions at that late stage in the legislative process. But it does seem to me to point to the importance of not allowing texts to reach that stage in the process without there having been adequate time provided to parliaments to apply effective scrutiny at an earlier stage. That is largely out of our control and is up to the other partners in the process to ensure.

I conclude my brief intervention with three brief ancillary observations. The first is that the temptation facing presidencies to go for incomplete agreements to make their score cards look better will, one hopes, diminish as and when the present highly unsatisfactory six-month rotating presidency rule is abandoned for something more businesslike and effective. The rationale for "general approaches" should then be less tenable.

Secondly, it is interesting, at least to me, to speculate on what effect the "early warning system" proposed in the convention might have on parliamentary scrutiny. There seems to be no small amount of support for the proposal of the Working Group on Subsidiarity, also endorsed by the Working Group on the Role of National Parliaments, that where a third of the national parliaments concluded that a proposed law put forward by the Commission over-stepped the boundaries of subsidiarity, the national parliaments, without reference to their governments, could intervene directly with the Commission to have it think again. We seek that as a possible role for COSAC and may be able to discuss the matter in Copenhagen later this week. That would be quite an innovation if endorsed by the convention plenary and agreed in the IGC. I mention it now because it seems to me that no "general approach" could anticipate the outcome of a direct: intervention by the national parliaments with the Commission.

I know that Government Front Benches have little liking for hypothetical questions, so I do not expect a comment from my noble and learned friend on the substance. But it would be good to know that the Front Bench is at least aware of the implications for scrutiny of such a far-reaching innovation, which seems to be gathering quite a lot of support in the convention.

Finally, I offer an observation on a more parochial matter. The noble Lord, Lord Brabazon of Tara, has referred to this but it is worth repeating because it might drive the lesson home. My noble and learned friend reminded us in his letter of 4th October that the Procedure Committee in its recent Fifth Report contemplated the possibility of extending the scope of Grand Committee from legislation to debates.

I can speak only for myself, but I regard such an extension as not merely welcome but essential. European Select Committee reports are, in almost all cases, having to wait far too long for debate. At the risk of being accused of special pleading, I am compelled to mention the report on European Union aid to the Balkans published as long ago as 16th April this year which is still undebated by your Lordships. To coin a phrase, a lot of water has flowed under the bridges of the Danube—those that were left standing—since that report came out. It risks being irrelevant if we do not debate it soon, yet no date has been set. That is symbolic of a worsening problem in this House. Extending the scope of Grand Committee is probably the only way in which we shall be able to solve it.

8.16 p.m.

Lord Scott of Foscote

My Lords, the scrutiny reserve has constitutional importance. It is not simply a matter of convenience. It is the legislature—Parliament—not the executive that has constitutional responsibility for legislation. That is the inevitable and desirable consequence of the principle of the separation of powers, the foundation stone of modern democratic constitutions. Our unwritten constitution provides a number of examples of breaches of that principle. Most of them do not matter, but some do, and the separation between the functions of law-making and law executing requires to be carefully watched.

So far as concerns domestic subordinate legislation, Parliament retains its control. Subordinate legislation by Ministers is, invariably, in peace-time at least, subject to affirmative or negative resolution procedure. Parliament, if it does not like it, can vote it out and get rid of it. That power is rarely exercised but the power is there; the control is exercisable if need be.

But the position is otherwise as regards European legislation emanating from decisions taken in the Council of Ministers. Once European directives, framework decisions and regulations are in place, it is too late in practice for Parliament to reverse them. That is so, even if there is to be primary legislation implementing the decision or the directive as the case may be.

That is why the arrangements for parliamentary scrutiny of proposed European legislation are so important. It is the reason why the resolution passed by this House in December 1999 is so important. The resolution was intended to make sure that government consent to proposed European legislation would not be given until the Scrutiny Committees of both Houses of Parliament had first had the opportunity to consider the proposal, to express objections to it, to suggest improvements to it and, if necessary, until each House had had the opportunity to debate it.

The constitutional importance of the scrutiny process and the ability of each House to debate the proposal is that they allow some degree of parliamentary control over European legislation. I respectfully suggest that the provisions of the 1999 resolution constitute the minimum that constitutional and democratic propriety demand. The need for government to pay full and proper respect to the provisions of the resolution seems to follow.

Paragraph 2 of the resolution makes it clear that Ministers, except in some special emergency, should not consent to a proposal for legislation while the scrutiny process is continuing. The prohibition is not to be side-stepped by some convenient form of words. Paragraph 2 imposes the ban on agreement to proposed legislation. It bans also agreement to a "recommendation" for legislation. It bars agreement to a "common position" and a so-called "political agreement". The practice by Ministers, to which the noble Lord, Lord Brabazon of Tara, referred, of giving provisional agreement to proposed European legislation, now to be substituted by agreement to what is called a general approach, raises serious questions as to the efficacy of the scrutiny process.

In his letter, to which reference has already been made, the noble and learned Lord, Lord Williams of Mostyn, said: The Government's view is that agreement on a general approach does not breach the provisions of the security reserve Resolution". He continued: Whilst our interpretation of the Resolution is that agreement should be defined as the final point in the legislative process, the term 'general approach' marks a step towards agreement and does not constitute a definitive position since the opportunity remains to raise outstanding issues". But "provisional agreement", "an agreement on a general approach" or on "a general position on a particular text" constitute some sort of agreement in principle. It cannot do other than tie the Minister's hands to some extent. I suggest to the noble and learned Lord the Leader of the House that the Minister should not be entitled to commit the Government at all while the scrutiny process is in progress.

Let us suppose that this House, on a debate on a report from the European Union Select Committee on proposed European legislation, were to object in principle to the proposal, on which the Minister had already agreed a general approach with European state colleagues. Does the Leader of the House think that it would be constitutionally acceptable for the Government to assent to the proposed European legislation notwithstanding that one of the Houses of Parliament had objected to it? On the other hand, how could the Government, having committed themselves by agreeing the general approach, then withdraw or qualify that agreement?

Other member states have dealt with this problem in different ways. In countries such as Finland, Sweden and Denmark the legislature can mandate the Executive as to how it will deal with proposed legislation in the Council of Ministers. Perhaps that would not work in this country. However, at the least, Parliament ought to be entitled to debate the proposed legislation if it so wishes before it becomes a fait accompli in principle. Of course, it will not have become a fait accompli in detail, but it may have become so in principle. The Government's indication to their European partners of their approval in principle of the proposal should await the result of the scrutiny process and not prejudge the result of scrutiny by giving any commitment in advance.

Can the Government give some assurance that they will refrain from committing themselves in support of proposed European legislation until each House of Parliament has released the proposal from scrutiny? If that is not accepted by the Government, and if the present trend of "provisional agreements", "agreements on a general approach", and so on, continues, the danger of a perceived lack of democratic legitimacy of European legislation will increasingly present itself. It is Parliament not the Executive that must be seen to be able to control the bringing into effect of new legislation that citizens of this country are expected to obey.

8.23 p.m.

Lord Inglewood

My Lords, this is a very important report because it goes to the heart of one of the most significant political conundra that parliaments all over the world seem to face. As the world becomes increasingly economically and politically interdependent, more political decisions must be taken collectively, away from the floors of the parliaments of the countries that will be affected.

Recently in France a Conseil d'Etat analysis concluded that approximately 50 per cent of all the new rules coming into effect in France now owe their origin to the European Union. If that is true in France, it must in general terms equally be true in this country. It is important that we be clear, first, that the issue is associated with, somewhat similar to, but not exactly the same as the questions posed by the problems of subsidiarity. Secondly, equally I believe nothing in this debate is inherently to do with the European Union as such. We are not talking about either a pro- or anti-European Union issue; we are talking about problems facing parliaments in countries such as ours in an increasingly globalised world. For society to be able to get on with daily life in an ordinary and sensible way, and for governments to function properly, rules must be in place. I find it increasingly difficult to see that it will be possible to get rules in place if every national parliament at every stage of the process can put a lock on what the governments involved in the appropriate negotiations are doing. Simply, I think that it will lead to gridlock.

Furthermore, if, as the noble and learned Lord, Lord Scott, mentioned, there is a system whereby parliamentary committees mandate governments, before we know where we are we have given away our own Government's negotiating position to other parties to that negotiation, to the national detriment. It is important to realise that it is the nature of the diplomatic political process involved in such international decision-making that sometimes one must strike when the iron is hot. Unexpected twists and turns can unravel laboriously put-together arrangements. I speak from personal experience as having been a member of the European Parliament's team at the Conciliation on the Takeover Directive last year. The European Parliament rejected the conciliation delegation's conclusions, which led to 13 years' work shattering in pieces on the floor.

Having read the exchange of letters attached to the report, I believe that the Government understand the basic point, as can be seen from the ingenious verbal gymnastics they go through in trying to justify their position. What I say next will, I dare say, horrify traditionalists. It is important that we do not stand on our dignity in this matter. As decision-making changes, so the way in which Parliament responds to those changes should vary and adjust. Of course, we should be extremely jealous of our role as the source of legislation in this country and of our function to hold governments to account and to scrutinise what they are doing on our behalf. But, at the same time, we must be flexible and imaginative in how we do that.

To conclude, I shall make three connected suggestions. First, where possible the existing arrangements should be adhered to—that goes without saying. However, we should recognise that there may be circumstances in which that will not be possible. Secondly, it would be desirable that there be much more ongoing, systematic contact between Ministers in the Council of Ministers and the various scrutiny committees that are examining their work. If they met regularly, not even necessarily with a formal agenda, they could get to know and understand one another and what is important to them. The relationship that can exist in the European Parliament between the commissioners and the committees that are responsible for the work that they do might provide a model to look at.

Thirdly, each House of Parliament should devise a system that is capable of censuring Ministers for disregarding Parliament's stated wishes, regardless of which House that Minister sits in. At least in theory, that should be the first step in a process that could culminate in a vote of confidence in the Government as a whole.

In conclusion, as the world changes, and Parliament cannot stop it, we should be prepared to change the way in which we work in order to carry out our core functions.

8.29 p.m.

Lord Williamson of Horton

My Lords, it is not unusual in European Union affairs to find oneself debating questions that are at first sight technical, or indeed barely comprehensible, but which would have a much wider importance if they were neglected or ignored. That is the case with the subject of this debate—provisional agreements in the Council of Ministers and their relationship with the scrutiny reserves of this House. The Select Committee on the European Union has done well to raise this issue and to obtain assurances from the Government, which I greatly welcome.

National parliaments have a limited number of ways to influence the preparation, discussion and adoption of European Union legislation. This House is among the leaders in the way in which it exploits those possibilities. Even so, we have only two main tracks: first, the influence that we can bring to bear through our own government or, to a lesser extent, through contacts with the European Parliament and the European Union institutions; secondly, the examination of legislative and other proposals through the scrutiny process. In that process, the scrutiny reserve resolution of 6th December 1999 is rightly described in the report as, the linchpin in the House's scrutiny of proposals emanating from the European Union". There are certainly ways in which we can improve the effectiveness of scrutiny. The Select Committee is actively looking at these now. In particular, we need the scrutiny as far upstream as possible in the European Union legislative process, at the level of Green Papers or consultative documents—which, I recall, scarcely existed some years ago in the European Union, but which are now quite normal—and at the level of the Commission's work and legislative programmes. In the past, I sometimes felt that it was as if we were to decide to examine the United Kingdom's legislative programme without any debate on the Queen's Speech. We also need to find better ways of scrutinising secondary legislation from the European Union—a favourite theme of mine. I hope that that might be looked at in the Convention on the Future of Europe.

The search for improvements must not detract from the vigilance with which we should protect the scrutiny reserve and the operation of the scrutiny reserve resolution. That resolution requires that no Minister should give agreement in the Council to any proposal that is still subject to scrutiny. As the noble and learned Lord, Lord Scott, said, it is specific about the type of agreement. It clearly defines the forms of agreement covered by that scrutiny system—it is not just for any agreement.

It is clear that the intention of the scrutiny reserve resolution is to ensure that the scrutiny reserve should not be bypassed simply because an agreement is described in a different way. That is why the Select Committee was concerned by the appearance of a number of provisional agreements in European Union business, particularly on justice and home affairs, which is known to be a contentious area of great interest to the House. The strict application of scrutiny is particularly important in that area. The first question at issue was whether a provisional agreement by the Government in practice risked making it almost impossible to enforce a scrutiny reserve, since other member states would not wish to go back on a provisional agreement. The second issue was whether the term "provisional agreement" was not an unhappy addition to existing terms such as "adoption" and "political agreement".

I was very pleased to see in the letter of 20th March from the noble and learned Lord, Lord Williams of Mostyn, to the chairman of the Select Committee that we had the guidance on terms from the Council's legal service and the Government's undertaking to seek to ensure that presidencies used only those terms and abandoned the term "provisional agreement'. The mist created by the description of some results as provisional agreements has to a large extent been dissipated. It is clear that, subject only to the override provision in paragraph 4 of the scrutiny reserve resolution, the Government cannot reach a political agreement in the Council or adopt a final text cleared by the jurists and linguists if there is a scrutiny reserve in effect. There is no dispute about that.

The only remaining point is on a decision described as a "general approach of the Council". The Select Committee was concerned that this should not be a provisional agreement by another name. Terrier-like, the chairman, the noble Lord, Lord Brabazon of Tara, fired off another letter, which can be found on page 23 of the 23rd report. In response, Ms Eagle stated explicitly that the Government, remain free to raise points arising from domestic scrutiny after a 'general approach' has been approved". Terrier-like again, the chairman sought an explicit assurance that where a general approach is adopted, all points made by the scrutiny committee would be considered on their merits and within a reasonable timescale. The Government have given assurances in Ms Eagle's letter of 13th May.

I shall follow up very briefly on the point mentioned by the noble and learned Lord, Lord Scott. I consider it perfectly feasible to move to the stage of a general approach but to state explicitly in the Council that it is subject to a parliamentary scrutiny reserve. I have attended innumerable Councils and I know that that can be done clearly. It is generally fully understood by the other member states. That is the right approach to protect the scrutiny reserves of this House.

On that basis, subject to that point, what has emerged from this correspondence protects the system of scrutiny reserves, and thus an important part of the role of Parliament in the passage of European Union legislation.

8.36 p.m.

Baroness Park of Monmouth

My Lords, I hope that noble Lords will allow me to intervene briefly in the gap. I knew that I would not be able to be here to speak formally. I simply wanted to make two points. First, it seems to me that we are always up against pressure for decisions, for reasons that tend to be tactical and political—perfectly respectable reasons, but nevertheless tactical and political.

Scrutiny exists so that we can assess the permanent consequences for the country of any proposal, as we would if we were dealing with national legislation. We can change national legislation. We can have another Bill at another time and change things. There is very little prospect of being able to change a decision of the entire Community, so it is doubly important that scrutiny should exist and should be effective.

We are in danger of creating a false impression of safety in the country if we say that we have these wonderful committees that scrutinise everything but in practice the scrutiny is not necessarily applied and accepted by the executive.

I strongly support everything that my colleagues on the Select Committee have said in their admirable speeches. I welcome with interest what my noble friend Lord Inglewood said. I still feel that we need a cast-iron assurance that no decisions can be taken late at night, under pressure—for all sorts of tactical and perfectly respectable reasons—that are not in the interests of the country.

8.37 p.m.

Baroness Maddock

My Lords, I am one of the newest members of the European Union Select Committee in this House. I have served on it for less than a year, although for a little longer on Sub-Committee D. This topic of our 23rd report in this parliamentary Session has been going on since before I was a member of the committee.

There is virtually no disagreement between the members of the committee on the issue. I am taking part in tonight's debate to add support from these Benches to the points that have been raised in the report and many of the points raised this evening.

The noble Lords, Lord Brabazon of Tara and Lord Williamson, raised the core issue of the report, which is the way in which this House scrutinises European Union legislation. The noble Lord, Lord Grenfell, talked particularly about terminology. We had a little more explanation of that as the debate went on. As he said, we all recognise that we need to be very vigilant on that.

Many noble Lords also talked about timetabling, which I shall deal with later. As we came to know on the committee, the noble and learned Lord, Lord Scott of Foscote, is much more expert than some of us on the constitutional matters that are raised. He emphasised the constitutional importance of the scrutiny reserve.

As the noble Baroness, Lady Park of Monmouth, said, it was interesting to hear the view of the noble Lord, Lord Inglewood, who looks at the issue from a slightly different point of view from us, as a Member of the European Parliament. He made a valuable point that is worth considering not just on this issue, but more widely as we try to reform Parliament, of how globalisation is affecting the way in which we have to operate in the world today. The noble Lord also put in a plea for flexibility. Although some of us would agree on the need for flexibility, we also know that people can sometimes use flexibility in rather clever ways with which we would not totally agree.

I have two brief observations, the first of which is based on the fact that I was a Member of another place before coming to your Lordships' House. I simply do not think that most Members of another place have much idea about what we do in this place and how we go about our business. They are also scarcely aware of the very much lower level of resources available to help us carry out our work, not only individually but at the Committee level. How I miss the allowance which I had when I was a Member of another place to pay research staff to help me, and Members of another place have even more resources than they had before.

In my time on the European Union Committee, we have been able to employ a handful of new staff to help us deal with the mountain of legislation passing through the committee and requiring scrutiny. I am amazed when I think of the work done, with a little help, by the noble Lord, Lord Brabazon of Tara, and the Clerk in dealing with the correspondence between the Minister and our committee. The Minister has a whole department to help her deal with such matters.

I feel that Members of another place do not realise how timetabling works in this place. The Minister asked whether we could publish our timetable of debates a little earlier. I thought that that request showed a complete lack of understanding of how we timetable and work at this end of the building.

In the short time that I have been on the Select Committee, I have been greatly impressed by the quality of work and the amount of time put in by its members. I should mention that the chairman of my own Sub-Committee, Sub-Committee D, is in the Chamber. He does sterling work to guide us through our difficulties.

In short, I believe that the House of Commons and its departments have the resources to help us sort out some of the problems confronting us, some of which are elucidated in the report. Our committee has observed that, as each House runs a scrutiny system, there is inevitably duplication. Some people have suggested establishing a joint committee, but I realise that such a proposal would be quite difficult to pass through both Houses. We really should, however, look at ways of avoiding duplication. As the noble Lord, Lord Grenfell, said, it is the level of work that is causing many of our problems.

My last remarks are in line with some of the comments that have already been made. In the correspondence between Ministers and the Committee, the Government seemed to blame everyone but themselves for what has gone wrong. One exception to that is that they may have admitted responsibility for two minor problems.

I agree that the manner in which the presidency operates within the European Union makes the process more difficult. There will be evidence from our Committee and from many others to the Convention to try to help deal with that particular matter. Reading through the correspondence, however, I think that we could all do rather better. I also believe that the Government have the resources to help us do a better job. As the noble Lord, Lord Williamson, said, the provisional agreement of 1999 is the linchpin of what we do. Unless we clear up or clarify some of the matters surrounding it, the very hard work of all those serving on the committees of this place will be of little value.

I look forward to hearing the reply of the noble and learned Lord, Lord Williams of Mostyn. I hope that he will have one or two fresh things to say in addition to what we have already read in the correspondence.

8.44 p.m.

Lord Howell of Guildford

My Lords, as this excellent and illuminating report from the European Union Committee observes, the issue for us this evening is limited but important. Although it is certainly limited, in that the precise matter is narrow, I do not believe that its importance can be exaggerated. It is part, but a very important part, of a much larger picture. It is part, for one thing, of the process of calling to account those who make EU or EU-inspired laws and decisions and the regulations, directives and other instruments that give expression to them. To coin a phrase, joined-up government needs joined-up accountability. In the case of the European Union, this is what we lack entirely. In the words of the excellent House of Commons Scrutiny Committee report on EU democracy and accountability, there are serious problems of disconnection and lack of legitimacy. I believe that those will very rapidly become very much worse. In other words, there is a gap and it must be bridged. We are dealing tonight with an important part of that bridge.

Behind all this there are two even deeper issues which we cannot go into tonight but which are nevertheless the context in which our discussion is taking place. The first is the allocation of powers between the centralised EU authorities and the nation states. That raises the whole issue, to which allusion has been made, of subsidiarity—who does what—and indeed of the acquis, the established acquisition of powers by the EU in the past and whether they are relevant to the future. I think that almost everyone agrees that those powers are far too great and far too centralised for a decentralising age and that they need thorough revision. Although I agree that that is a much wider issue, it is relevant to what we are discussing.

The other, even deeper issue is the age old question—in which your Lordships' House has been involved for centuries—of Parliament versus the executive in the matter of law making and the use of the executive prerogative. I believe that the noble and learned Lord, Lord Scott of Foscote, is absolutely right in saying that this is a constitutional issue and one which will, far from going away, become ever more serious as, in this democratic age, people become ever more determined to be involved in the decisions that shape their lives.

Those broader issues have been the subject of past debates, and they will be the subject of ever more intense debates. I return to the narrower issue, but I do not forget for one moment that those broader issues shape it and are in turn shaped by it.

Effective national parliamentary scrutiny requires both information and time. I have no hesitation, at the outset, in stating my own conclusion, which is that a national scrutiny reserve should be mandatory on all EU instruments. By that I mean that it should be incorporated in EU procedures as a necessary part of the accountability process, and that waivers and overrides should be permitted only in the most strictly defined circumstances which will be fully explained to both Houses of Parliament. Those circumstances should not just be matters of whim or convenience, or the acceleration of decisions because a six-month presidency is coming to an end, but serious and well-defined issues that Ministers can convince Parliament are justification for overriding the scrutiny reserve. That would be a big change from the past.

In other words, all ministerial agreements in Council should be made subject to parliamentary scrutiny and approval. It will immediately be said that that is not very different from the tone and indeed the content of the famous resolution of 6th December 1999. What I am saying, however, really does go further. I think that we need to go further. National scrutiny should be recognised as part of the formal EU decision-making process. It should not just be seen as an add-on to make Members of both Houses happy or feel that they have had some say. The House of Commons report to which I have already referred actually suggests that, normally, no Council decision should be made where there is one or more national scrutiny reserves outstanding. I agree with that.

The European Union, of course, cannot tell other parliaments what to do; nor can we in this Parliament. But we should certainly practise what we preach for a start and seek to promote that practice through interparliamentary groupings such as COSAC. COSAC is an important organisation, attended by Members of your Lordships' House, which is concerned with the additional scrutiny of second and third pillar issues as well as Community law; in other words, international law which emerges from the instruments arising from common foreign policy and common security policy. There are not many such instruments at the moment but there will be more. At the moment our own national Parliament has some sort of say. The European Parliament, of course, has none. In effect, there is absolutely no body or no entity which could be called to account for vital decisions made very close to our national interest in these areas.

Aside from all that, it follows that phrases such as "provisional agreement" should have absolutely no place whatever in that procedure. I am glad that it seems from the study of this marvellous correspondence, les belles lettres, which I think would make a best seller if it was published, that the Government indeed make that clear. The noble and learned Lord the Leader of the House makes clear in one letter that the Government have agreed not to use again the words "provisional agreement". That is an advance. I think that the same goes—indeed, it is specified in the resolution—for the words "political agreement". Neither of those is consistent with the pattern I describe of a surge in demand for more accountability and more say and influence by people in the decisions governing their lives which arise from the EU.

As regards the phrase "general approach", I believe that I am a little nearer the noble Lord, Lord Williamson, than I am the noble and learned Lord, Lord Scott. It is just possible that one could live with the proposition by Ministers that they agree a general approach providing, as the noble Lord, Lord Williamson, rightly said, that there are clearly and carefully expressed reservations that everything is conditional on parliamentary scrutiny. If that is made clear, perhaps I differ just marginally from the tone of one of the letters of the noble Lord, Lord Brabazon. However, the conditions are all important. In addition to that, the whole approach must go hand in hand with a proper span of time between texts coming out of COREPER, or revised texts suddenly popping up out of nowhere, and their agreement by the Council. It is in that span that the chance arises for there to be some degree of effective scrutiny. If there is no such span, or if the whole thing is squashed into 24 hours, no sensible scrutiny can take place.

It will be said that that will slow things down and slow down the EC legislative process. I do not believe that in practice it will, but if it does, so be it. That is the price of democracy. Democracy takes time, is tiresome and argumentative, but if it is to be genuine, there is bound to be some delay. It will also be said—this is a matter that worries my noble friend Lord Inglewood—that bringing everything more scrupulously back to the scrutiny process and allowing time for it makes negotiation and agile deals behind closed doors more difficult. To that too I have to say, exactly so. That need is always exaggerated by bureaucrats. It is precisely this appearance of distant deals behind doors for which no one seems accountable that we must get away from if the European Union is to regain people's confidence and is to be seen to be truly adding value to people's welfare. Besides which the cynic might add that many of the so-called "deals" for which we have given a lot in return for a certain amount have turned out to be not very good deals at all.

That said, I emphasise that while tough national scrutiny which we are discussing tonight is vitally important, it is not nearly enough. In a sense scrutiny as we practise it today, excellent though it is and assiduous though the European Community is, comes too late in the process and also too early in the process—a matter on which perhaps we can elaborate another time. But the general point I am making is that far more fundamental changes are needed to bring power back to Parliament and to give our citizens a proper chance to influence European Union decisions and call those who make them to account.

It has been said that 55 per cent of all the new legislation governing our lives originates with the European Union these days. National parliaments must regain real influence in EU decision making. Such devices as provisional agreement or political agreement among Ministers are simply not consistent with that essential goal and we must be completely rid of them. Until that is recognised, distrust and disinterest will continue to undermine rather than reinforce the cause of European unity.

8.55 p.m.

Lord Williams of Mostyn

My Lords, all governments need to be checked, particularly in arcane and esoteric areas. I respectfully agree with the noble and learned Lord, Lord Scott of Foscote—indeed, his views were echoed by the noble Baroness, Lady Park of Monmouth—that this is a constitutional question as well as a question of practicalities in the European context. I do not disagree with that proposition, but I put my counter observation that all constitutional arrangements must be capable of organic development. It seems to me that that question of organic development is what underlies most of what has been discussed this evening.

My own Working Practices Group recommended that the House might look at this area. I was grateful indeed for the response of the noble Lord, Lord Brabazon of Tara, as chairman of the committee. Indeed, I, too, like the noble Lord, Lord Howell of Guildford, enjoyed the correspondence. It can truly be said to be a volume of correspondence for the connoisseur. I believe that it was productive in the end.

A number of noble Lords, including the noble Baroness, Lady Maddock, and the noble Lords, Lord Inglewood and Lord Williamson of Horton, put their fingers on particular points. The noble Baroness, Lady Maddock, spoke of co-operative working between the two Houses in Westminster and, in a wider context, between Parliament here and the European institutions. I entirely agree and I shall come to that in a moment. The noble Lord, Lord Williamson, spoke of vigilance as a requirement, with which I also agree. The noble Lord, Lord Inglewood, has particular recent experience and he spoke of the need for flexibility.

I do not think that I could agree with the brutalist or purist approach of the noble Lord, Lord Howell, which is that the scrutiny reserve be made mandatory and legally binding not only on Parliament in this country but also, as I understood him, on all parliamentary assemblies in the European Union. I am not sure that that could work in practice, particularly when we think of the number of candidate countries ready to join us in the European Union.

The noble Lord, Lord Howell, tried to shoot my fox by saying that the inability to be flexible is normally a bureaucratic excuse and may be a bureaucratic shield. My experience coincides more neatly with that of the noble Lord, Lord Inglewood. It is sometimes necessary to be flexible. It is sometimes necessary to obey timetables if one has World Trade Organisation obligations or a treaty imposed timetable. It is difficult then to consult every parliamentary assembly if it is to be on the mandatory basis which allows for little flexibility, if any, which was proposed by the noble Lord.

My purpose not only for this evening but on a continuing basis—I repeat again that it was from my Working Practices Group that this issue came in one form—is to try to be of help in identifying ways of making the scrutiny process more efficient and more effective. I say that, first, because as a matter of deep principle, as the noble and learned Lord said, this is a constitutional issue, but, secondly, because it is a question of practical utility as regards the figures, for instance, which the noble Lord, Lord Howell of Guildford, recently gave us.

It is not generally known—certainly in the public mind and it may well be the case in the Commons—how important European derived legislation is. The key to it all, it seems to me, is not to go for the solution which the noble Lord, Lord Howell of Guildford, referred to, but to develop practices which are flexible, co-operative and efficient. The noble Lord, Lord Inglewood, for example, spoke of a closer relationship between the Lords committee and MEPs. On behalf of the Government, and recognising that this is a matter for the committee to invite MEPs to attend, I should certainly welcome moves in that direction because MEPs, it may be said, remain a largely untapped source of European Union expertise.

My noble friend Lord Grenfell raised the question of the application of subsidiarity as being part of the scrutiny work of the Lords committee. The Government certainly support that approach. We would support the creation of a political mechanism involving national Parliaments to scrutinise proposals for legislation on the grounds of subsidiarity and proportionality, to which my noble friend referred.

Bearing in mind the limitations of time, I shall give a small amount of background information. More than 1,300 documents were deposited last year and the number of overrides was very small: 28 so far this year, or less than 3 per cent. Some of those had been cleared by the Lords committee, but not by the Commons committee or vice versa.

I recently gave evidence to the Lords committee and indicated that we might consider whether there is wasteful duplication. The noble Baroness, Lady Maddock, is right in that regard. Not only is there duplication; there is also a lack of synchronicity—that is a dreadful word, which does not appear in my brief and for which I must take the blame—between the workings of the committee at the other end and at this end. Light has now been cast and willingly received. Work can be done in September. Importantly, that means that if the House goes to Grand Committee, there will be opportunities for prime-time discussion of an issue that is, as I said at the outset, currently esoteric but extremely important.

It is a great sadness to me that this is a virtually empty House. Apart from those who contributed to the debate, there is no one, with a handful of exceptions, here to listen. That is a pity and I am not sure that the House does itself enormous credit in relation to an issue of such fundamental importance.

We do our best to anticipate the flow of business but the Council's agenda is not in our hands. The timetables of Westminster do not always readily adapt to meet fast-moving developments in Brussels. If we could inform the presidency of the timetable for scrutiny consideration by this Parliament, that would assist the presidency in its planning and it would assist us to do our work. There are difficulties with timetabling but in the year 2002 they should not be insuperable.

My view is that there is merit in what the Commons committee recently said; that is, rather than looking at a statutory scrutiny reserve, we should focus on the convention working group chaired by my colleague, Gisela Stuart, to see how the Council operates, how we can improve it and how we can dovetail our own procedures to make them effectively co-operative.

By and large, "general approach" has been welcomed. It has been referred to in the correspondence and generally approved this evening. "General approach" describes a position on a text before the legislative preconditions for a vote have been concluded. I accept that that often happens when a presidency is keen to claim credit for whatever consensus may have been reached within its very brief six-month period of "centre glory". That obtains where the European Parliament has not given its opinion and/or when member states may still have reserved places in relation to part of the texts. We are clear that "general approach" marks a step towards agreement, as was said in the correspondence, but does not constitute a definitive position.

I shall give one or two examples because, as the noble Lord, Lord Williamson of Horton, pointed out, justice and home affairs matters often irritate and concern the committee. For instance, there are four items on the Council's agenda today and tomorrow where scrutiny by one or other Westminster committee has not been completed. I shall give the examples in some detail.

First, there is the directive on civil legal aid. The presidency is aiming to reach agreement on a text that provides for the provision of legal aid in cross-border litigation. My noble friend Lady Scotland wrote to the chairmen of both committees on 2nd October alerting them to the fact that the UK had secured significant negotiating gains since the summer and that, if the Danish presidency feels that it is in reach, we shall be signing up to political agreement on the dossier.

We must bear in mind the fact that if and when qualified majority voting comes into existence, our freedom of manoeuvre becomes to an extent more limited. We are therefore very grateful in that context that the Lords committee was able to give clearance on 9th October. The Commons committee has not been able to meet—or it did not meet—and it did not consider the document before today's Council. That illustrates what many noble Lords discussed. There should be more flexible, focused and functioning co-operative working.

The draft Council decision establishing mechanisms at national level in the fight against terrorism was cleared by your Lordships last week but remains under scrutiny in the Commons. The Government will not override the scrutiny reserve resolution but will instead explicitly state that there cannot be any agreement on this proposal until there has been further consideration by the Commons scrutiny committee. That illustrates what was requested by a noble Lord. We are therefore requesting that the item be removed from the Council's agenda.

There is a large measure of consensus on the draft decision on combating corruption in the private sector. The opinion of the European Parliament has not been received and one member state has outstanding concerns. We have told the presidency that we shall be maintaining a parliamentary scrutiny reserve, and we accordingly expect the presidency to declare a "general approach".

The draft Council decision on investigation and prosecution of war crimes and crimes against humanity likewise remains under scrutiny in both committees. In common with other member states, we have some doubts about the text but are content for the Council to arrive at a general approach.

In both of those "general approach" cases, if either committee in this Parliament raises substantive concerns with which the Government agree and which have not previously been pursued in the Council, the Government would feel at liberty to raise those points in the Council at a later date.

I shall do my best to summarise. This is an opportune moment at which to focus on extremely important work which has little publicity and few headlines. As the noble Baroness, Lady Park, said, Europe-derived legislation may well be among the most important legislation affecting the citizens of this country. I believe that this is an opportune moment, because we are reviewing our working practices. Although composition is something in which some chattering classes are interested, the way that we work may ultimately be more important.

Therefore, we have this opportunity. Personally, and on behalf of the Government, I have a great deal of respect for the chairmanship of the noble Lord, Lord Brabazon, and also for the work of the committee. I respectfully suggest that some of the remedies lie in the committee's own hands. It is extremely flexible in relation to its timetable. The question is whether our sister committee in the Commons is quite so flexible. Is a three-month holiday really necessary for everyone in 2002?

We shall start next year in September and I hope that two consequences follow. If there is an urgency and a dynamism, which I believe there to be in this House, to make the scrutiny work better, then that will be our opportunity. I suggest that the timetable will have to be more flexible. We should also be far more lateral in our thinking about the connections that we have with European institutions based in Brussels and possibly with parliamentary assemblies from the candidate countries which will soon be joining us.

I do not believe that anything has been said this evening with which I could disagree—at least, as a basis for further discussion and review. Personally—I say this quite genuinely—I look forward with eager anticipation and with a degree of gratitude to the results of the review of its own practices in which the committee of the noble Lord, Lord Brabazon, is currently engaged.

House adjourned at ten minutes past nine o'clock.