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Since most of our law is now made under this process, do we want to go on with it? Surely it is the very antithesis of our democracy, with the House of Commons and your Lordships’ House wholly excluded from the process of making the majority of our law. I imagine that I will be asked: if the Commission does not have the quasi-monopoly on proposing legislation, who should have it? My colleagues and I do not believe that that right should be vested in the European Parliament. If it is to happen at all, it should rest with the Council of Ministers. But, of course, we do not want it at all; we want out of the whole thing. Were the project to continue, that would be our recommendation.

I conclude by asking the Government what they think of this arrangement, which now makes most of our law. I also ask the Conservative Party whether it is happy with it. I beg to move.

Lord Hurd of Westwell: It is a pleasure to follow the noble Lord, because he has directed us away from detail—although this is Committee—to what he called the “big idea”. He may be broadly accurate in his idea of what the big idea originally was.

However, it has been clear to most people for considerably more than a decade that the big idea as he defined it was not going to happen. If the big idea was going to be carried into effect, the Commission would be in the driving seat. It would not simply be proposing and executing; it would be deciding. But the whole point and essence of the European Union as it has evolved is that that is not so: the driving seat is occupied by the Council of Ministers. The noble Lord briefly and rather hurriedly mentioned that there was such a thing as the Council of Ministers, but he gave us the impression that it was more or less being squeezed and abolished. But that is not so. One can speak only from one’s own experience. Having been to

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dozens, or hundreds, of Council meetings, my worry during them, as the afternoons wore into the evenings, was not whether the compromise that might emerge would suit or please the Commission—that was a secondary emotion in my mind—but what my colleagues in the Cabinet, the Prime Minister and, above all, the House of Commons would think, and what would happen at 3.30 pm the next afternoon if I had to make a statement on the compromise which I had reached. That was my worry, and I suspect that it is still the worry of Ministers who come and go to Brussels.

This argument is familiar, particularly to someone who helped take the Maastricht treaty through the House of Commons. We were constantly warned by the noble Lord’s predecessors, who were not equal to him in eloquence or persistence but, nevertheless, did not make a bad job of it. It was perfectly clear from everything they predicted about the treaty of Maastricht that all our laws would be made by the Commission and basic sovereign policies would be swept away, into the maw of Brussels. This was predicted during the Maastricht debates by people with great passion and conviction. I observe today that, contrary to their expectations, the Queen is still safe and happy on her throne; British taxes are put up by the Chancellor of the Exchequer, with the approval of the Prime Minister; British interest rates are fixed by the Bank of England; and we go to war at the behest of the Americans, and not of Brussels. This is all absolutely contrary to the predictions so confidently made by the noble Lord’s predecessors. That is the situation at present, and would be the situation if the present treaty were ratified into effect. The real, basic points, which ordinary people associate with political decision-taking, would and will remain with the Council of Ministers and, above all, in most of these matters, with the British Parliament and Government.

Lord Willoughby de Broke: I rise to support the amendment of my noble friend Lord Pearson and I am grateful to the noble Lord, Lord Hurd. I will stick rather more closely to the amendment than he did in straying rather wider. We have always been enjoined by the noble Lords opposite to stick to the amendments. Perhaps the noble Lord, Lord Hurd, was not there when those strictures were first voiced. I simply underline that this is about the Commission’s sole right to propose legislation. This amendment is about removing the Commission’s right to do that. It seems extraordinary that both this place and another place are happy to accept that a large majority—I will not put an exact percentage on it—of our law is made in Brussels by the Commission. It does not come from the Council of Ministers; it does not come from Parliament; it comes from the Commission. That is the whole point of this.

We have it on the authority of the German ministry of justice, which two years ago produced a report, that some 80 per cent of the legislation relating to Germany is made in Brussels and not by the German Parliament, which prompted the German ex-President, President Herzog, to ask whether Germany can still unreservedly call itself a parliamentary democracy. On that basis, we should ask ourselves the same question. Almost exactly a year ago, a legal advice firm called Sweet and Maxwell produced an interesting report, which said

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that 98 per cent of British legislation over the past 10 years has been produced by statutory instrument. One of the advisers on that paper was professor of law at the University of Cambridge, Professor Len Sealy. He pointed out that over the last 10 years there has also been a massive increase in EU law that becomes UK law without being passed by Parliament, either as a statute or a statutory instrument. In other words, Parliament simply does not see it at all.

According to Professor Sealy, there were more than 2,000 of these regulations in 2006 alone. Their scope was quite astonishing. I rang him up because I could not believe that this was true. There were more than 2,000 pieces of legislation in one year alone that had become part of British law without Parliament ever seeing them at all. Professor Sealy confirmed that these regulations, which, I stress, are not seen at all by Parliament, cover a wide range of matters. Their scope is astonishing, ranging from cross-border insolvency to the importation of bed linen. I find that quite hard to believe.

People in this country are aware that Parliament has less and less say in making laws, yet the people whom they elected, they elected to make our laws. They can appoint them, dismiss them and elect them—but they cannot do the same for the European Commission, whose members are not elected and seem to be unsackable. So they are getting deeply resentful of a position in which a majority of our law is made not by the people whom they elected but by the European Commission.

I have a few examples of such laws that we have had in front of us in this House and the other place, which include the end-of-life vehicles directive, the landfill directive, the drivers’ hours directive, the vibration directive, the fallen stock directive, the horse passports directive and the absolutely disgraceful curd cheese regulations—which was opposed by our colleagues on the Liberal Democrat Benches, I seem to remember. These were all Commission initiatives that had to be put into UK law. Yes, we can amuse ourselves, as we did, by debating them; we can have Prayers against them and spend long, happy hours of sunlit afternoons talking about them and saying why we agree or not with them—but, in the end, it does not really matter. They have to be put into UK law, willy-nilly, whether we want them or not. With qualified majority voting, a number of those initiatives that we did not agree with were put into British law. But Parliament is impotent to do anything at all about it; not a word, syllable or comma of any of those directives or regulations can be changed by the other place or this House.

Are we really happy with this state of affairs? I read this morning in the papers that Members of the other place are going to get a large increase of some £15,000 a year. I do not want to stray into territory into which I should not stray, but why are they getting that increase if so much of our law is made not in the other place or here but in Brussels by the unelected and unsackable European Commission, when our elected Parliament cannot change a word of it?

This amendment will bring laws much closer to the Parliament that the British people want, which may do something to reduce the lack of interest in elections

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here, which has been quite pronounced. People always wring their hands and say that they do not understand why the electorate is so uninterested in voting in British elections—and it is true that the percentage of voters has gone down and down. This is just a theory, but I think that it is because people realise that Parliament has much less power and that the people whom they elect do not make most of their laws and cannot amend them as they wish. We have to take these things, swallow them now and swallow them whole. I warmly support my noble friend’s amendment.

Lord Clinton-Davis: I speak as a former member of the European Commission. The speeches of the noble Lords, Lord Pearson and Lord Willoughby de Broke, are essentially pure fiction. To pretend that the European Commission does not have regard to other bodies is utterly untrue. All sorts of representations are made to European Commissioners, when legislation is introduced, by outside bodies and the European Parliament. The Commission is ever mindful of its responsibilities towards the European Court of Justice. When I introduced legislation on transport or environment matters, I would invariably have before me Members of the European Parliament, who would make representations about the legislation. But it is not confined to that: other bodies also affect it, and they are not slow to make their representations heard. Quite apart from the fact that debates went on before the legislation took effect, to pretend that inside the European Commission everything was absolutely silent is utterly untrue. Inside the European Commission, the Commissioner responsible had to argue his case.

In my day there were no permanent members. It is absolutely essential that that should be the case. There is no passport to immunity, and undoubtedly it is untrue to say that the Commissioner is impervious to the representation made. In my day—admittedly a long time ago, in 1985 to 1989—the Commissioner responsible had to argue the case for the legislation before various bodies, and he was demonstrably concerned about getting the right answers. The situation which has been described today is, putting it mildly, frivolous.

3.30 pm

Lord Stoddart of Swindon: I—

Noble Lords: Minister!

Lord Stoddart of Swindon: It is no good anybody shouting “Minister”; my name is on the amendment. The noble Lord, Lord Clinton-Davis, describes what previous noble Lords have said as mere fiction; it is not mere fiction at all. Since 51—I think that is the government figure—items of policy have now been changed to QMV, this is the proper time to have a look at the process. The process is completely outwith what Members of this House and Members of the House of Commons are used to. We were used to Cabinet Government. We have a Civil Service, the head of the Civil Service and departmental Permanent Secretaries. They propose policies to an elected Cabinet, which then decides which ones should be put before the House of Commons and eventually this House, which then have to agree to them.

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The position is different in Europe. The Commission really should be in the position of the permanent Civil Service in this country. Unfortunately, it is not because it has this monopoly of putting forward policy items, and nobody else—certainly not according to the treaties—has the right to do so. Therein lies the problem.

The noble Lord, Lord Hurd, said that when he was making decisions—and this applies to all Ministers who go to ministerial councils—he would come back and have to be answerable to the House of Commons. That really is not so. If the matters have been decided by QMV, they have become European law. That means that Parliament can discuss the matters as much as it likes and make as many amendments as it likes to the legislation that has been agreed, but it will have no effect because QMV means that European law has taken precedence over British law, and the House of Commons can do nothing about it. There is a misunderstanding of what in actual fact happens with European legislation, and it is a democratic deficit. Although the European Parliament is involved on an advisory basis, nevertheless there is this democratic deficiency.

Lord Tomlinson: Codecision.

Lord Stoddart of Swindon: Yes, there is codecision, but the view of some of us is that that amounts to an advisory and not a legislative capacity. The European Parliament has no legislative function. In the end the Commission, together with the Council, can override what Parliament has said. That is the true situation.

Baroness Ludford: Will the noble Lord accept that that is not the case? In the majority of legislation now and in practically all legislation once this treaty comes into force, nothing can become law in the EU without the agreement of Members of the European Parliament as well as the Council. Last year I negotiated a measure called the visa information system and I directly negotiated with the German Interior Minister, Mr SchaĆ1/4ble, who was President of the Council. I assure the noble Lord—and I invite him to come to the European Parliament and see at any time—that in practice codecision means precisely that; it is codecided. Nothing can become law without the agreement of the European Parliament in the majority of cases now—and in almost everything from next January, if this becomes law.

Lord Stoddart of Swindon: That was exactly what I was saying. In fact, codecision means that the European Parliament is unable to throw out legislation which has been proposed through the Commission and through the Council. It can negotiate, but in the end the decision will be elsewhere. The noble Baroness is shaking her head, but I believe that is the case. As far as this country is concerned, once the legislation has been passed in Europe our Parliament can do nothing about it because European law is superior to British law. As we have seen in a number of cases, this Parliament has been told that there is nothing you can do about it whether you like it or not. As I said, this is a matter which concerns people. Apparently even those who study the matter do not understand exactly what goes on. The discussions are in secret. It is little wonder that the public are a bit confused about what goes on.

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Lord Clinton-Davis: Given that this legislation is in draft form, does not my noble friend agree that all sorts of representation are made to the European Commission, not only by British organisations but by others as well? It is utterly unbelievable that the situation is as he has posed it. The situation, in reality, is that many people make representations and some of those are listened to, but eventually Parliament also has its voice heard.

Lord Stoddart of Swindon: I have no doubt that much representation is made. The European Union Select Committee of this House often makes representations. It makes great reports which we are told are read by the European Union. But if the Government wish and the programme of the EU demands it, then there is the override procedure, which I understand has been used at least 187 times. The position is extremely complicated. I am surprised that noble Lords do not accept that the position is complicated; it is not understood by people outside and is not in accordance with the democratic procedures which we have built up over a very long period of time.

I am glad we have had the opportunity to discuss this matter because, to my knowledge, it is a very long time since we have done so. I am waiting to hear what the attitude of the Front Bench is.

Lord Bach: No discussion on the European Commission can take place in this House without first acknowledging the front-line expertise of several of its Members. My noble friend Lord Clinton-Davis, who has spoken in the debate, and the noble Lord, Lord Tugendhat, who is in his place, had distinguished periods as commissioners in the 1970s and 1980s. The noble Lord, Lord Brittan, and my noble friend Lord Kinnock were vice-presidents of the Commission. The noble Lord, Lord Patten of Barnes, held the crucial role of external relations commissioner. Of course, the noble Lord, Lord Williamson, was for 10 years a distinguished secretary-general of the Commission. So this House speaks with a lot of expertise and knowledge on the subject.

As regards the amendment, the Lisbon treaty contains provisions on the appointment, composition and role of the European Commission and the President of the European Commission, as well as certain provisions governing the new post of high representative of the Union for Foreign Affairs and Security Policy. Amendment No. 10A, which the noble Lord, Lord Pearson of Rannoch, has moved, would exclude paragraph 2 of the article from the UK’s implementation of the treaty.

Paragraph 2 sets out that the adoption of legislative acts will be based on the proposals of the Commission, except where the treaty provides otherwise. But the Commission has been part of the European institutional structure since the treaty of Rome in 1957. Frankly, Article 9D TEU draws on the existing provisions, making changes to enable the Commission to operate more effectively.

The point is that existing treaties already provide that the right of initiative for legislative acts rests largely with the Commission, except where the treaties

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provide otherwise. There is nothing new under the sun in that concept. It has been the position under treaties that have passed through both Houses of Parliament for many years.

The noble Lord, Lord Pearson, asks what is meant by,

and he asks for examples. The general rule is that the right of initiative for legislative acts rests with the Commission. The main exception is for certain JHA measures as regards the police and judicial co-operation in criminal matters. Other entities besides the Commission may propose non-legislative acts; for example, the ECB for monetary policy and the ECJ for court rules of procedure. I remind the Committee that as regards the CFSP, which no doubt we will be discussing this afternoon, the high representative and the member states have the right of initiative.

Perhaps I may mention one change that is important. Under the Lisbon treaty, any proposal in the area of justice and home affairs must be made by a quarter of the member states. As the EU Select Committee of this House set out in its report, this change will help to ensure a more co-ordinated and coherent approach to legislation, planned in line with long-term EU strategies rather than being based on topical national considerations. It is noticeable that the Law Societies of England, Wales and Scotland have welcomed this change.

Members of the Committee will also know that on 7 March this year Sub-Committee E of the House’s European Committee, which deals with law and institutions, launched an inquiry into the initiation of EU legislation. I believe that evidence has already been taken from Her Majesty’s Government and other interested parties and I am sure that the whole House, including the noble Lord, Lord Pearson of Rannoch, is looking forward to the publication of its report.

As far as the meat of this amendment is concerned, the noble Lord, Lord Hurd, in his effortless and extremely polite way, demolished completely the case put by the noble Lord, Lord Pearson of Rannoch, ensuring that I do not have to attempt to do so myself. It is clear that the Commission has played a leading role in this field and although, as the noble Lord, Lord Hurd, made absolutely clear, all kinds of dire consequences have been threatened for years, none of them has come to pass and there is no reason to believe that they will as a result of the treaty of Lisbon. I invite the noble Lord, with respect, to withdraw his amendment.

3.45 pm

Lord Pearson of Rannoch: I understand that the Conservative Party is not going to take part in this amendment, so we will be left in ignorance of its position. I meant the Conservative Front Bench—I was not suggesting that the noble Lord, Lord Hurd, who sits on the Back Bench with me, was necessarily speaking for the party. In fact, he says that he certainly was not. So we do not know where the Conservative Party stands.

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As to the remarks of the noble Lord, Lord Hurd, it may have felt at the time of Maastricht that he had to come back and face Parliament. It may feel like that now. However, even at the time of Maastricht it was not like that and it certainly is not like that now. Parliament—the House of Commons and your Lordships’ House—cannot propose this legislation. Of course we accept the point of the noble Lord, Lord Clinton-Davis, that the Commission receives all sorts of proposals from countries and lobbyists. However, that does not alter the fact that it has a near-monopoly of proposing legislation, which is then negotiated in COREPER and passed in the Council of Ministers. Once it is through the Council of Ministers, there is nothing that the House of Commons or your Lordships’ House can do about it.

My noble friend Lord Willoughby de Broke mentioned several examples—I have two that are going through now. One is the tax on the resale of art, particularly modern art, which is doing immense damage to the art market in this country. The other is the control of food supplements—vitamins and health foods—that the Government are also opposing in Brussels although it does not look as if they will succeed. So it is simply not fair of your Europhile Lordships to pretend that this is democracy as we have known it. We accept that the European Parliament can block legislation, but we repeat that it cannot propose it without the consent of the Commission.

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