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Lord Cocks of Hartcliffe: My Lords, I refer briefly to paragraph 2, concerning the staff of the House. Will the Chairman of Committees confirm that all appropriate staff members of the House have proper contracts of employment?

The Chairman of Committees: My Lords, I am sorry but I did not catch the final words of the noble Lord, Lord Cocks.

Lord Cocks of Hartcliffe: My Lords, will the Chairman of Committees confirm that all the appropriate members of the House of Lords staff have proper contracts of employment?

The Chairman of Committees: My Lords, strictly speaking, I do not believe that question arises from the report of the Select Committee. I would--I assume safely--assume that they have indeed got that. If I am wrong, I will let the noble Lord, Lord Cocks of Hartcliffe, know.

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On Question, Motion agreed to.

Youth Justice and Criminal Evidence Bill [H.L.]

The Minister of State, Home Office (Lord Williams of Mostyn): My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That it be an instruction to the Committee of the Whole House to whom the Youth Justice and Criminal Evidence Bill [H.L.] has been committed that they consider the Bill in the following order:

Clauses 1 to 13, Schedule 1, Clauses 14 to 47, Schedule 2, Clauses 48 to 62, Schedules 3 to 5, Clause 63.--(Lord Williams of Mostyn.)

On Question, Motion agreed to.

Parliamentary Scrutiny of the Third Pillar: ECC Report

3.15 p.m.

Lord Kingsland rose to move, That this House take note of the report of the European Communities Committee on Enhancing Parliamentary Scrutiny of the Third Pillar (6th Report, Session 1997-98, HL Paper 25).

The noble Lord said: My Lords, after consultation with those concerned, I hope that the House will allow me to say that it has been agreed, contrary to the list of speakers that has been circulated, that my noble friend Lord Bridgeman will speak from the Opposition Front Bench before the Minister, in the normal way. I will then conclude the debate, also, I hope, in the normal way.

It is often forgotten that some of the most important work of the European Union is done inter-governmentally. We hear a great deal in your Lordships' House about the European institutions but in the inter-governmental work of the European Union, those institutions play no part. The only institutions capable of disciplining and controlling the decisions of Ministers in inter-governmental negotiations are the national parliaments. The Maastricht Treaty introduced that innovation.

Many of your Lordships are, to put it broadly, for the European Union but are suspicious that its institutions are undermining our own national institutions. It is therefore particularly important, for those of your Lordships who take that view, that inter-governmentalism should be made to work.

Your Lordships first addressed that matter in 1993, in a report that was completed and presented to the House during the ratification of the Maastricht Treaty. That report dealt with both Titles V and VI of the treaty. This report was made by a relatively new sub-committee of your Lordships's European Scrutiny Committee--

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Sub-Committee F. Because the sub-committee deals only with home affairs, the report addresses solely Title VI--which excludes any consideration of foreign and security policy.

Before being translated elsewhere, I had the honour to chair Sub-Committee F. I owe a great debt of gratitude to all noble Lords who were tolerant enough to serve with me during my time in that office. Noble Lords who have chaired committees of the House will be aware how much your Lordships owe to the work of the parliamentary clerks and advisers. In this case, because of the speed with which the report was completed, noble Lords who served on the Committee and I, as chairman, owe a particular debt to our clerks and advisers.

One of the greatest difficulties we faced in preparing the report was that, halfway through, the final text of the Amsterdam Treaty was published. That text had a significant bearing on our work. I will begin by briefly outlining its innovations and why they had an effect that made us reconsider some of our preliminary conclusions.

The Amsterdam Treaty redefined the Maastricht Third Pillar. In particular, it divided the Third Pillar in two. The first part, which originally dealt with asylum, immigration and visa matters, was incorporated in Pillar 1--that is, the traditional European Community's part of the European Union. It is now known as Title IIIA. The other part remained in the Third Pillar, largely comprising police matters and judicial co-operation in criminal affairs. The situation was further complicated by the decision of member states in the Amsterdam Treaty to incorporate the Schengen agreement in the Treaty on European Union. The United Kingdom and Ireland decided not to take part in either change.

The Amsterdam Treaty also contains certain matters that concerned the scrutiny of the Third Pillar. The first and perhaps most important came under Clause K11 of the revised treaty, which, for the first time, obliged the Council of Ministers to consult the European Parliament on all Third Pillar matters. A minimum period of consultation of three months was laid down; but that period can be extended. Unlike the Community Treaty, once the period has elapsed, irrespective of whether or not the parliament produces an opinion, the European Council is entitled to go ahead and legislate.

The second change, which comes in Article K6, was the new requirement for Third Pillar proposals, made by member states or the Commission, to be published in the Official Journal. I trust your Lordships agree that that is a significant step forward. One of the greatest difficulties in trying to scrutinise Third Pillar legislation in national parliaments is identifying the actual text that is before the relevant Council working party or steering group.

The third change, which appears in a clause that has yet to be fully worked out, requires that once a Third Pillar proposal has been published, in circumstances where that proposal is made by the Commission, a period of six weeks shall elapse until the matter can be put on the Council's agenda.

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One final matter to which I would like to refer your Lordships are the new proposals in Articles 191 and 151 on transparency, both of which will give the citizens of the European Union the right to gain access to certain documents issued by the European Parliament, Council and Commission.

When we began the work in committee, we knew none of that. Although we tried our best to incorporate those changes in our final recommendations, we were not always successful. I trust therefore that the Minister, when he kindly replies, will--if at all possible--set his reply in the context of the Amsterdam changes.

The committee is essentially asking, in order to fulfil its scrutiny task, to have before it the right documents at the right time. I concede that that request is not as simple as it sounds. Unlike legislative procedure in your Lordships' House, or even in the European Community, there is little by way of structure in the operation of the Third Pillar. Decisions are made at five different levels. They are the level of the Justice and Home Affairs Council, COREPER, the so-called K4 Committee, three steering groups, and below these a morass of working parties.

Either the presidency or a member state, or in some circumstances the Commission, can introduce, at any moment into any one of those committees, a proposal for a change to the law or for some other common action. Once that is done, there is no limit to the speed at which--or there was no limit, until the Amsterdam Treaty, and there is no limit at the moment because the treaty has still to be ratified--the Council could act. A document, for example, might appear before your Lordships' scrutiny committee on the Friday of one week and on Wednesday the following week it could become a decision of the European Council, without any opportunity for the House to exercise proper scrutiny.

One of the reasons for that was that in 1993, when your Lordships debated the previous report, we could only extract from the Government a commitment to show us the text of the Third Pillar proposal once it had been agreed by all member states. One only has to make the point for your Lordships to understand why scrutiny by your Lordships' House had become, at that stage, otiose.

One of the most positive features of the work of Sub-Committee F was the extremely positive way that both the Home Secretary--the right honourable Jack Straw--and his officials responded to our new proposals, particularly in respect of the matter that I have just drawn to the attention of your Lordships. It appears--and I eagerly await confirmation from the Minister--that the Government will now accept that once a proposal is initially made by the Presidency or a member state or the Commission, in the form of a text, and whether that text is put to COREPER, the Council, the K4 Committee or a steering group or working party, that text will be placed before Sub-Committee F and your Lordships will be able to begin work on it. If your Lordships recall that, following the changes to the Amsterdam Treaty, no decision can be taken on the text before three months plus six weeks, this will

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dramatically change the ability of your Lordships' House to get to grips with any serious problems posed by the text.

Home Office officials cautioned us that the text being seen by this House at an initial stage will be subject to negotiation and change. However, I understand that the Home Office will make its best efforts to keep your Lordships' committee abreast of any substantial changes that will be made in the course of negotiations. So those, if they are to be confirmed by the Minister, are indeed big steps forward for this House.

There has also been some renewed flexibility in the kind of documents that your Lordships' House will be entitled to scrutinise at this stage. Until now, essentially, your Lordships' House has been able only to consider documents that would ultimately end in primary legislation. But now your Lordships will also be able to consider, along the lines that I have already explained, proposals that will lead to secondary legislation, and, I believe, proposals that affect any of the human rights obligations of the United Kingdom. Those, if confirmed by the Minister, will also be substantial steps forward.

On the more general question of imposing a scrutiny reserve, which exists for Community legislation under the First Pillar and which the Government have always resisted under the Third Pillar, I await the Minister's comments with great interest. A long debate took place in your Lordships' sub-committee about this matter. It seems to members of the committee illogical that the Government should continue to resist a scrutiny reserve. One of the arguments advanced by the Home Office is that, in cases both of primary and secondary legislation, another place and this House will always have the opportunity to debate these matters in public. But as noble Lords are well aware, once an agreement has been made by the United Kingdom Government in the Council of Ministers, there is very little flexibility left in the national parliaments.

It is therefore my submission to the Minister that the concession of the scrutiny reserve in Third Pillar matters should not be a difficult one to make and, in the context of the timetable that will inevitably be imposed on the Government by the Amsterdam Treaty, will be easily containable without prejudicing the urgency that governments sometimes feel is needed in relation to particular pieces of legislation.

The sub-committee was extremely keen to have, as early as possible, agendas of the meetings to which I have already drawn your Lordships' attention. I believe I am right in saying that the Home Office has again reacted generously to this proposal, although I understand that there may be some difficulties in producing agendas for working parties and steering committees, only because those agendas tend to emerge very shortly before the meeting.

In conclusion, I once again thank those of your Lordships who worked on the sub-committee with me and all the Clerks and advisers who served the committee. Without their help, this report would have been impossible to produce. I beg to move.

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Moved, That this House take note of the report of the European Communities Committee on Enhancing Parliament Scrutiny of the Third Pillar (6th Report, Session 1997-98, HL Paper 25).--(Lord Kingsland.)

3.32 p.m.

Lord Wallace of Saltaire: My Lords, I joined the committee for this inquiry and was happy to serve under the noble Lord, Lord Kingsland. I much regretted his moving on to other matters and that I was then forced to take over as chairman.

I wish to emphasise what an important area of scrutiny this is; how rapidly the area of co-operation in justice, home affairs, policing, judicial matters and civil liberties is, and how rapidly it has grown over the past 10 years. Perhaps anticipating the remarks of my colleague, the noble Lord, Lord Beloff, I also wish to emphasise how much this would continue, whether or not Britain were inside the European Union. The European Union enables us as a Parliament to get something of a handle on what is going on internationally.

International integration, whether European or global, has the consequence of transferring authority from legislatures to executives. Governments negotiate; and when they have negotiated, they cannot unpick what has been agreed. If parliaments are to have a handle on this growing field of international co-operation in policing, intelligence, security, visas, asylum seekers and refugees, this is one of the important ways in which we can begin to do that.

I also wish to thank the Clerks who assisted the committee. Also, we were much assisted in our work by the development of a small group of non-governmental organisations concerned about civil liberties and the legal dimensions. I refer in particular to the Immigration Law Practitioners Association, Justice and Statewatch. I wish that there were more such organisations. This is an area that has not yet begun to break the public surface. It worries me that, as it grows, it will in time throw up particular scandals and difficulties which the popular press will begin to pick up. It is therefore part of our job to educate the public, in so far as we can catch their attention, and tell them what is happening and how rapidly matters are developing. After all, throughout the experience of British participation in European integration, it has been the British habit to allow new areas of integration to develop by stealth, not admitting the implications to the public or the press. So on the whole government has not spelt out the implications of discussions under way or obligations about to be assumed in relation to discussions by working parties or proposals put advanced.

I remember Kenneth Clarke, when he was Home Secretary, arguing fiercely in terms of the ratification of the Maastricht Treaty. One of the strongest arguments, he said, for ratification was that it would for the first time bring this large and important area within the purview of the European Union--after which he added, "And even if we don't ratify the Maastricht Treaty, we shall have to go on co-operating because it is a necessary part of our Home Office business."

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It is also in the nature of this area, as the noble Lord, Lord Kingsland, remarked, that it is not easy to catch documents as they go through. There is a flow of policy; there are discussions, particularly under the Third Pillar, as under the second, and because the approach is informal, matters move from general discussions and working parties to agreement, sometimes very rapidly. It therefore seems appropriate to us as a committee of this House that we should take a broad approach to scrutiny, examining detailed proposals but also attempting to follow the general drift of policy and co-operation. Scrutiny which looks at only each specific proposal may see only the trees and miss the wood.

As we discovered in another inquiry during the past year, this is an area in which nearly a third of the meetings currently serviced by the Council secretariat are concerned with the Third Pillar and over a third of the documents are concerned with the Third Pillar. The area also concerns the whole range of European Union external relations. The question of why immigrants attempt to enter the European Union--what is the "push" factor--concerns matters of aid, foreign policy, the stability of the regions from which they come. I was glad to discover in Brussels last week that on a Dutch initiative there is now at last a cross-pillar working group on the implications of aid, asylum and refugee policy for European Union external relations as a whole.

I hope that the Government will see this as an area in which public debate and public scrutiny are desirable as far as possible. We were helped in this inquiry by the extremely open response that we received from the then rather new Home Secretary, Jack Straw, who was very co-operative indeed. Throughout the time that I have so far served on the committee, we have had an extremely open relationship with the Home Office. Ten years previously, when I worked at a research institute, I had some professional relations with the Home Office as international police co-operation was developing. I remember then a classic Ministry of the Interior, deeply suspicious of talking to foreigners and by and large unable to admit that any of its members spoke any language other than English. The transformation one sees now is remarkable and creditable and I trust that this good relationship with our committee will continue.

The Schengen acquis experience, however, has not so far been encouraging. We did report on this separately, as fellow Members of the House of Lords will remember. The potential fog of signing an Amsterdam Treaty which incorporated an acquis which had not yet been agreed and which the British Government had not yet seen, but which the British Government had nevertheless agreed to opt out of while retaining the opportunity to opt into bits of it when they understood quite which bits there were, is not entirely one of the most creditable aspects of British international obligations, let alone our efforts to maintain parliamentary scrutiny. That is something which we intend to keep under scrutiny as far as we can.

We say in this report that co-operation between national parliamentary scrutiny and the European Parliament is something which we wish to develop. That is also included in the Amsterdam Treaty which will

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shortly enter in force. Over lunch today the Clerk to the sub-committee told me that, for the first time, the Civil Liberties Committee of the European Parliament hopes to convene a joint meeting with national parliamentary scrutiny committees on this subject in March. That again seems to me to be an area which we should be hoping to develop, not just between this national legislature and the European Parliament but with other national legislatures, as they attempt to do their job. Article 39 of Title VI of the revised Treaty of European Union spells this out, as does Article 67 of the revised EC Treaty.

May I emphasise the extent to which the Amsterdam treaty does transform this situation? The treaty itself will, as the noble Lord, Lord Kingsland, has already explained, transfer a number of these areas from the Third Pillar into the first. Visas, asylum, refugees, will thus become part of the Community pillar proper. There is already on the table, agreed at the Vienna European Council in December, an Action Plan for Freedom, Security and Justice, which is due to be discussed further at the first-ever special European Council devoted to justice and home affairs, to be convened in October in Tampere, in Finland. I am not sure, and I do not think anyone yet knows, quite what the agenda for the Tampere European Council will be. Perhaps the noble Lord the Minister will give us some indication in summing up. I hope that the Home Office will be able to consult with our committee before the summer on what the agenda for that special European Council should be. That seems necessarily to be part of what we should be doing as scrutiny.

I managed to dig out the German Presidency's statement of intentions for the first six months of this year in terms of what it sees as the major priorities for the European Union's future business. If I may quote:

    "The expansion of justice and home affairs policy pursued constantly throughout recent years will receive further impetus with the entry into force of the Amsterdam Treaty. The action plan to construct an area of freedom, security and justice adopted ... in Vienna sets ambitious goals in this field for the next five years. The German Presidency will do its utmost to ensure the smoothest possible transition from the Maastricht to the Amsterdam treaty regime. It will consistently use the extended possibilities and instruments for co-operation in the fields of justice and home affairs ... (It) will be guided equally by the desire to strengthen internal security and to guarantee citizens' rights".
We are therefore trying to scrutinise a rapidly moving, rapidly developing area.

Sub-Committee E reported earlier last year on the development of external relations in this area. The Americans are extremely anxious to co-operate with European police forces, intelligence services and others in combatting organised crime, drugs and other areas. I emphasise again, therefore, that this is not a purely European matter. It is a matter in which the British and our European partners are also engaged with the Americans, the Japanese and many other third governments.

As this moves from the Third Pillar to the First Pillar, thus the Commission will become more heavily engaged. Having been in Brussels last week, may I just signal to the noble Lord the Minister that the

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Commission is currently utterly unprepared to take on that task, in terms of staff and in terms of having planned for the takeover. That seems to be an area where the British Government, having half opted out of the transfer, may not be in the best position to exercise influence. That is one of the problems of choosing to opt out; but at least in matters of good government we might persuade others who are more closely involved to push the Commission in the right direction.

I also note that there is an intelligence dimension here which, in the nature of events, our sub-committee has not touched upon. There is a committee of parliamentarians, the Intelligence and Security Committee, which does touch on this, and I have read their last two reports. I think the development of much closer co-operation between national intelligence services internationally is another reason why that committee of parliamentarians ought perhaps to be converted into a full parliamentary committee, because we need to know rather more of what is going on. After all, intelligence services are co-operating precisely in the fields of organised crime, organised immigration crime and the combatting of drugs. There is therefore rather more scrutiny needed in that area.

Third Pillar instruments are matters of international law and of international conventions and do not therefore, even under the Amsterdam Treaty, come under the full scrutiny of the European Parliament and others. My noble friend Lord Lester may touch upon the problem of making sure that conventions are given proper scrutiny in our House. I would end by encouraging the Government to be more open in informing and educating Parliament and the public, to thank the Government for being so co-operative with our committee so far, and to hope that that co-operation will continue.

3.45 p.m.

Lord Clinton-Davis: My Lords, may I at the outset pay a tribute, which I am sure will be echoed by the whole House, to the diligence and the scholarly way in which this committee has gone about its business under the guidance of the noble Lord, Lord Kingsland, and, latterly, the noble Lord, Lord Wallace of Saltaire.

One of my observations when I had the privilege of being a commissioner was how much attention was paid by the Commission to the works which were produced by this place and, indeed, elsewhere. It is idle to suggest, as perhaps some on the sceptic wing do, that notwithstanding its value it is ignored. It is not. The noble Lord, Lord Kingsland, will know that, too, from his tremendous experience in the European Parliament. May I also thank him and the noble Lord, Lord Wallace, for the very generous tribute they have made to my right honourable friend the Home Secretary for the way in which he co-operated with the work that they undertook. I am delighted that that happened. Of course, the proof of the pudding will be in the eating and there are many problems here, but nevertheless that was a good start.

Transparency, integrity, accountability, parliamentary scrutiny, all go to the heart of how we can best inform our public, not only in this country but elsewhere, about

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what is going on in Europe in so far as the entirety of the work of Europe is concerned--not simply the Third Pillar.

In ranging over the subject of public scrutiny and parliamentary scrutiny this important report deals with a number of key issues. Not least in importance is the observation on how these issues that we are deliberating impinge on the liberties and the lives of all the citizens of the European Union. It is therefore key in ensuring that decisions which are reached by Ministers are, and are seen to have been, considered properly. Parliament has a vital role in that regard.

Occasionally it is said that some parliaments elsewhere in Europe do not set a good example. Others, however, set an example that we would do well to examine carefully. Although it does not relate directly to the Third Pillar, I well recall going before the German Parliament to be interrogated on matters affecting both environment and transport issues with which I have dealt. Included in my interrogators were members of the European Parliament--without a vote, it is true, but perhaps better able to play a part in the interrogation of commissioners and officials, which is important.

In parenthesis, I have to say that I should like to see that happen in this country. I can see no real objection, other than blind prejudice, which would prevent it from happening. Why should we not look for help and advice in being able to scrutinise? After all, that is one of the most important roles that Parliament has to fulfil. It includes being able to examine the motives of those who help to make the law.

There are many issues, but an important one dealt with at the beginning of the report was the timing of the way in which documents are deposited for scrutiny. That is critical, because if Parliament is to have a substantive role in being able to scrutinise properly then it must have sufficient time to be able to examine the documents that are germane to those considerations. Overall, the message that I, as well as the House, received in relation to the report is that there should be an effective practical presumption in favour of depositing Third Pillar proposals in good time.

I believe that by their initial reactions the Government have shown that they are not likely to be grudging in that respect. I am delighted that that is the case. The role of government should be to co-operate to the maximum, within reason, and there are certain difficulties with which the report deals. I believe that the Government have established a good augury in relation to it.

There should be no real disputes when it comes to the full text of the proposal, yet there have been. One of the points made in the report is that there is a need for guidelines to identify areas where genuine difficulties for governments to comply with their obligations may arise.

I was also pleased to note from the speeches of the noble Lords, Lord Kingsland and Lord Wallace, how much they praised the work of those non-governmental organisations which gave evidence to the deliberations. Justice, referred to in paragraph 26 of the report, identified the problems associated with the way in which some Third Pillar proposals are negotiated. The answer,

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or part of it, to the problem which was raised is spelt out clearly. It is that the Government should provide an explanatory note to the committee, giving the nature of the proposals, the implications for the country and how the Government stand in relation to those negotiations.

I was also glad to see the views of my right honourable friend the Home Secretary set out in paragraph 305 of the evidence and referred to in paragraph 33 of the report. They were that those matters within the Third Pillar proposals which have consequences for the United Kingdom's human rights obligations should fall within the major criterion of significant importance in determining whether a proposal should be deposited in Parliament. That is an extremely important observation.

What is clear and undesirable in the longer term is the variation of practices between different member states. I believe it is important to develop a common set of criteria. As I have indicated, there is already a great deal of room for co-operation between parliaments which is likely to happen. But in the interim, before Amsterdam becomes an everyday part of our political life, there is a need for effective guidelines here in the United Kingdom. Those should be at least as liberal, if not more so than the most liberal elsewhere.

At the heart of the problems which have been raised is the question of confidence and trust that are reposed by governments in the Parliament. It is of supreme importance that, where significant changes occur in the course of negotiations, the committee should be brought into the confidence of the Government. It needs to know at the earliest opportunity what those changes will be and how the Government stand in relation to them.

The scrutiny reserve regarding Third Pillar proposals is a most important issue because legislative actions often flow from that state of affairs. Parliament needs to have an input into those deliberations. Should there be a minimum time to scrutinise the instruments that are deposited? That is one of the critical questions raised in the report. I believe that there needs to be that. It is extremely important that, as paragraph 65 states, the committee must be able to have time to do what it did in connection with the report. That is, to take advice from outside organisations like Justice and the others referred to. Therefore, that degree of time is central to the successful operation of what is to be done in relation to scrutiny.

I shall not dwell on what the committee proposed in relation to the time limit because it was dealt with by the noble Lord, Lord Kingsland, but I think it is absolutely right.

I turn from that to the issues of secrecy and confidentiality. It reminds me in many ways of issues of confidentiality which are raised frequently by big business in areas like pharmaceuticals. It is often overdone. While it is important that, where absolutely essential, those criteria should be invoked, nevertheless the Government should be as willing to inform the committee on why they have taken a particular stance in that respect. There is a duty on the part of Ministers to be as open as possible. I hope that questions of secrecy and confidentiality will not be embarked upon

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too readily. The idea that certification should be required from the Speaker of another place and the Lord Chancellor here seems to be excellent. But Ministers should be prepared to explain when and why they are invoking secrecy and confidentiality.

I turn from that to my penultimate point, the role of the European Parliament. Of course, as the noble Lord, Lord Wallace, said, important new responsibilities will arise in this connection in relation to the Amsterdam Treaty. Those responsibilities will require the council to consult the European Parliament before adopting any framework decisions and various other matters.

As I understand it, the Government have had some reservations, especially in relation to the time that this will involve. There are very real advantages, and I was glad to see that these were spelled out by the former chef de cabinet of the noble Lord, Lord Cockfield, Mr. Adrian Fortescue. I do not need to embark upon those because they are spelled out very well, very vividly, in his evidence. I believe that what he has had to say in that respect is very pertinent indeed and I hope that it will be acted upon.

I conclude with the question of the role of the European Ombudsman. It has now been extended to the Third Pillar and the Government are entitled to take credit for the initiative that they took in that regard. It was an excellent suggestion. The Government proposed the amendment and were able to persuade other member states to agree to it. This can be a very powerful incentive to greater openness and transparency.

On this note I conclude as I began, by thanking those who participated in the outstanding work of the committee. I am sure that it will achieve very widespread notice, not only in this country but throughout the European Union.

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