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I have read the reply of the Leader of the House and, frankly, I am not impressed by it. It has, I fear, been put up to her by the Foreign Office and I understand fully that it represents the view of Her Majesty’s Government. It states:
“Parliamentary control on individual opt-in decisions ... would impede our ability to participate fully and effectively”.
I should like to know a little more on that. What a nuisance Parliament is to our man in Brussels. Like the man in Whitehall in the 1940s, he knows best. Are we not part of the legitimate democratic machinery that is available at the moment in this country? Should not we—I speak not for the Commons—have our opportunity to scrutinise?
The noble Baroness goes on to say:
Why was three months put in during the negotiations? Why was not a longer period put in? That question was put to the Leader of the House by the noble Lord, Lord Kerr, during questioning, but I do not think there was any real answer. Why did anyone think that there are different parliamentary procedures in each part of the European Union? Some of them can move swiftly and others take a little more time. I do not think we can be faulted on that basis.
The noble Baroness set out in her evidence to the committee her experience—substantial experience, if I may say so—of how fast-moving discussions are in Brussels. I heard the noble Lord, Lord Owen, tell us of his experience last night; other noble Lords have had a similar experience. Decisions are taken very late in the night; decisions are taken as a result of negotiation. We should, however, be able to have the Government’s thinking and be able to anticipate in what way we are going to be tied down by such an agreement. We are in new territory and the Leader of the House says that it would be extremely difficult to have machinery of this kind. Very wisely, she says that it is not impossible. I am sure if there was a danger of missing a particular deadline that Parliament would find the means, double quick, to ensure that it played its part in the process and that we would not be prejudiced in that way.
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It was Churchill who said that democracy is a poor way of running a country but he could not think of any better. I paraphrase and borrow some of that sentiment in emphasising to the Chamber the need for appropriate parliamentary control. I support the noble Lord’s amendment.
Lord Grenfell: I am grateful to the noble Lord. As the noble Lord, Lord Goodlad, mentioned, the noble Baroness the Lord President appeared before the Select Committee to give evidence on this just a week ago today. I note that this was after the exchange of letters between herself and myself from which the noble and learned Lord, Lord Morris of Aberavon, has just extensively quoted.
The Lord President was very helpful to the committee. We made the point very strongly that we regard proper parliamentary scrutiny of opt-ins as crucial and the Lord President clearly took the point. We will be discussing with government departments, and maybe taking further evidence on, how this can best be done. There are some very important issues regarding timing, given the 90-day restriction that has been mentioned. We will need to begin our scrutiny as soon as possible after the proposal reaches Parliament direct from the European Commission. We need and expect a Government Explanatory Memorandum as soon as possible, giving the Government’s intentions on opting in and the reasons for that. However, we may not necessarily want to wait for their final views before beginning the scrutiny process. In those circumstances, the presentation to the Government of our committee’s own emerging conclusions might prove helpful to the Government in their deliberations.
Our bottom line is that the normal scrutiny process must be pursued. If the Government were to opt in before the scrutiny process was complete, that would be viewed very seriously by the committee and I am sure on the Floor of the House as well. We need time to decide how the present scrutiny system can be adapted, if it needs to be, to take into account these new requirements. We should therefore not rush into this too hastily.
Lord Rowlands: I support the amendment. Since I was first involved in European Union legislation—it was with the very first Bill, the European Communities Act 1972—I have applied a parliamentary sovereignty test to any such Bill that has come before us, including those relating to Maastricht, Amsterdam and Lisbon. Although it sounds old-fashioned, I do not think that it is a bad test for any parliamentarian to apply. To what extent, if we agree to these treaty arrangements, will there be some concession of parliamentary sovereignty or, if one prefers the phrase, pooling of sovereignty?
As the noble Lord, Lord Goodlad, pointed out, the evidence we received about the Lisbon treaty is that it is a major treaty that effects fundamental changes. It alters fundamentally the European architecture that emerged from Maastricht. It collapses one of the three pillars that emerged from Maastricht and brings the areas of justice and home affairs into the acquis communautaire, Commission-driven policy, ordinary procedure, QMV and the jurisdiction of the European Court of Justice.
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Had this protocol not been in the treaty, I would not have been able to support the Bill, because the change to our constitution and issues of sovereignty is so fundamental. Fortunately, however, the Government have negotiated a protocol that represents some of the deepest red lines of their original negotiating position. The admirable analysis of the justice and home affairs area by the European Committee—dealing with opt-ins and opt-outs, past, present and future—demonstrates that the Government have achieved a very robust, comprehensive protocol, which has safeguarded not only the Executive’s position but that of parliamentary sovereignty.
Because I attach such significance to the protocol—it is the reason I will be able to support the Bill—if, at any time, this or a future Government should seek to introduce or opt in to significant parts of the justice and home affairs area, as the protocol allows, express approval should be sought before doing so. We may assent to the Bill and therefore assent to the ratification of the treaty; future Governments may decide to opt in and surrender a degree of sovereignty as a result, but such action should be subject to express parliamentary approval.
There are two specific reasons why that should be so. First, when the Government of the day negotiate an opt-in, they are not negotiating away their sovereignty in the process of negotiating away Parliament’s sovereignty. It is not just a question of an Executive action; the consequence of that Executive action is the surrender of parliamentary sovereignty as well as of Executive sovereignty. In that respect, I was somewhat surprised by my noble friend’s response to Question 2 in the European Committee’s evidence session when she said that she thought that final decisions and opt-ins rest with Ministers and the Executive. I know that they are Executive decisions, but surely they have to be subject to some kind of parliamentary debate and approval. We are not swapping royal prerogatives for Executive prerogatives. I do not think that one can say so baldly that this is for the Executive to decide and that Parliament does not have the right to seek approval.
The second reason for accepting the principle behind the amendment is that, whether we like it or not, Parliament can do and undo things at will, as it were. But in practical political terms, once the Government opt in to any of these major measures, they opt in for good. It is a permanent and irrevocable decision. That is the second reason, along with that of parliamentary sovereignty, why I believe that such decisions should be subject to express parliamentary approval.
My noble friend described vividly in a letter to the noble Lord, Lord Grenfell, how Parliaments complicate and sometimes inconvenience ministerial negotiations. There are enough of us here to know that Parliaments can make life difficult for the Administrations of the day, even in the negotiating process. But that is a price worth paying for parliamentary democracy. Even if it does make life more complicated and issues of confidentiality arise, nevertheless, as the noble Lord, Lord Goodlad, said, parliamentary scrutiny and approval are an overriding priority.
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3.30 pm
I was rather interested in an exchange in the European Union Committee where the noble Lord, Lord Kerr—I hope I am not going to put words in his mouth—suggested to my noble friend that there would not be an insuperable problem, that a UK Minister is talking to European-equivalent Ministers, all who come from parliamentary democracies. He or she should be able to explain the quirks of the UK parliamentary system or the difficulties that might arise. This is the reason therefore why fellow Ministers in the European Union should accommodate the need for a process of parliamentary approval, because others might have a very similar problem. I accept, however, that ours is unique because we are the only opting-in party.
I believe that the noble Lord, Lord Kerr, suggested in his question to my noble friend that from his own immense experience in negotiating in Brussels and Utrecht, it would not be very difficult to come to an arrangement with fellow European Ministers to ensure that, in the timescales concerned, we could build in this parliamentary approval procedure. He indicated that it would be in the interest of fellow European Ministers to accommodate the United Kingdom because they would want us to be opting-in at that stage. They should therefore be able to accommodate us in the issue of parliamentary approval.
I gently suggest to my noble friend that the principles behind the amendment are in true keeping with the spirit and the thrust of the new constitutional renewal programme that the Government have embarked upon in the past six months. In my view, it is part and parcel of and very much in keeping and in tune with, the whole of the Government’s—I cheer them in this respect—constitutional renewal programme. After years of suffering a kind of executive phobia about the idea that Parliament might get involved in having to approve the waging of war, that problem has suddenly been overcome. As a result of the Government’s determination, we shall now have a parliamentary approval procedure for the waging of war. We will have the parliamentary approval procedure for the dissolution of Parliament and an enhanced parliamentary procedure for treaty making. It will be rather curious if we now suddenly decide that opt-ins, in the context of the European process, are somehow to be excluded from this concept of enhanced parliamentary responsibility, supervision and oversight.
I therefore suggest to my noble friend that the principle behind the amendment is chiming with the whole of the Government’s view of constitutional renewal and, in particular, the right of Parliament to assert themselves on key issues such as those involved in opt-in. I strongly support the amendment.
Lord Roper: This is an important amendment, based on the report from the Constitution Committee, which those of us on the European Union Committee read with great interest. Indeed, we have listened today with interest to the speech of the noble Lord, Lord Goodlad. As the noble Lord, Lord Grenfell, said, last week we were able to get useful evidence from the Lord President. We were most grateful to her for what she said on that occasion. However, it is important to look carefully at these instruments on which the
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The particularity of these instruments, however, is that the UK will participate in negotiations only if it decides to opt into them. The question is, therefore, what arrangements should be made to deal with them. Noble Lords may have seen on page 165 of its impact assessment report that the European Union Committee suggested that we needed to think of a more systematic approach to deal with opt-ins than had been undertaken in the past—we have had opt-ins for some time, of course. That was the subject of our discussions with the Lord President last week.
The Lord President agreed that it would be important for us to begin scrutiny as soon as possible after the arrival of the instrument. I hope that that process, whereby the European Union Committee would carry out its own inquiry and give its conclusions to the Government, would contribute to their decision on whether to opt in. We would be making a contribution at that stage of an important parliamentary kind. It would also be possible, as always, for the committee to make a report for debate in the House, either at that stage or after the Government had made their decision on whether to opt in.
There are various options available to Parliament in considering how to deal with these European instruments, which will come to us in the future as they have in the past. One option—this may be to misinterpret the amendment of the noble Lord, Lord Goodlad—would be an affirmative resolution procedure alone. An alternative would be a scrutiny process, which could be either the normal scrutiny process, as is the case with every other instrument, or a scrutiny process followed by some other form of parliamentary procedure. That is for the House to consider with some care.
However, from my experience of European Union Committee work, I believe that it would be a great pity if the House were to make its decision purely on the basis of a relatively short debate, either in the House or in Grand Committee, without having had the scrutiny process. Therefore, I hope that we will hear from the noble Lord, Lord Goodland, that that was not his intention in the amendment. We would also be interested to hear from the Lord President how the Government see these matters and how far they feel that it is possible for us to involve Parliament effectively in the consideration of these important instruments.
Lord Blackwell: I have two brief points to make in support of the amendment. First, opt-ins are not just a question of opting into a particular measure and incorporating it into UK law. By opting into any measure, we are importing into the UK justice system the supremacy of the European Court of Justice in areas of criminal law and justice. It would be not only the original measure into which we opted; once we had opted in, any amendment made to that measure, which could be by qualified majority voting, would also be subject to interpretation by the European
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The noble Lords, Lord Grenfell and Lord Roper, spoke about the scrutiny procedure. Everyone would accept that it is ideal for both Houses to be able to use their scrutiny processes to maximum effect, but that does not in any way conflict with there being a parliamentary procedure following it. I do not think that anyone would assume that the role of the scrutiny committees is to pre-empt the judgment of the House on important issues; the role of the committees is to inform the House, which they do very well. However, it is for the House at the end of the day to be given the chance to take its view, as the other place, on issues that have major constitutional significance. The scrutiny and parliamentary procedures are therefore complementary.
Lord Harrison: It behoves us to pay attention to the noble Lord, Lord Goodlad, when he speaks, not only because of his vast experience in these matters but also because he is a good man from Cheshire. I support not only the Government but also the advice given to us by our chair, the noble Lord, Lord Grenfell, and supported by the noble Lord, Lord Roper, that the appropriate instrument by which these matters, especially of opt-ins, can be scrutinised and understood is perhaps through your Lordships’ committee designated for that purpose. I hope that, when she replies, my noble friend will indicate how we are setting about that task of ensuring that the expertise and experience found within the European Union Committee can aid and abet the Government in reaching their decisions.
I have two further points. The first is in answer to the noble and learned Lord, Lord Morris, who asked whether we could introduce more delay to ensure that the proper parliamentary scrutiny procedures take place. At this point, we should remind ourselves what the Government achieved with the various red lines, protocols and so on in the negotiations on the Lisbon treaty. We are blessed with a series of exceptions and allowances of one sort or another not visited on or granted to other countries. Therefore, it behoves us also to remind ourselves that, in reaching our conclusions on opt-ins or on other matters, we should be reasonably speedy, without frustrating the proper scrutiny process, to conform to our comity with the other 26 European Union members.
My second point, which some may find distasteful, is about the practices of this House. As we have joined the European Union, we are required to modernise ourselves as a Parliament if we are to do an effective job of scrutinising important issues that come before us from it. The noble and learned Lord, Lord Morris, mentioned the 90 days given for such scrutiny. I remind your Lordships that the pattern of work in your Lordships’ House has remained largely unaltered and is not necessarily geared to respond to the pressing needs outside. After all, a few years ago, we introduced a September session of Parliament, which I thought had great utility, as it meant that we were here in Parliament to be able to respond to
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Lord Jopling: I have recently taken an interest in the matter of opt-ins and opt-outs as a member of both the European Union Committee and the sub-committee set up to look into this question. Like the noble Lord, Lord Rowlands, I was alarmed when I read the evidence of the Leader of the House—I am afraid that I was not able to be here last week—particularly the sentence that he read out, in which she said in answer to the second question that she thought that the final decision on opt-ins rested with Ministers and the Executive.
I will make one brief point this afternoon. Unless we have a firm system of parliamentary scrutiny, particularly with regard to opt-ins, Parliament as a whole will look foolish. I say that as someone who was a member of the Select Committee on the Merits of Statutory Instruments for the first three years of its life. One saw the whole range of statutory instruments that required, through the affirmative process, a resolution of both Houses. Frankly, many of the potential opt-ins—and the noble Lord, Lord Rowlands, referred to this—are infinitely more important than some of the statutory instruments that come before both Houses and which demand an affirmative resolution. If we do not have that type of strong parliamentary control over these opt-ins, that will be a negation of what Parliament should be about. For that reason, I am strongly in favour of the amendment.
3.45 pm
Lord Wallace of Saltaire: I have some history in this area, having been chair of the relevant sub-committee of the EU Committee in your Lordships’ House from 1997 to 2000. In producing a report on the Schengen agreement, we managed, for the first time, to get hold of and publish what was then known as the Schengen acquis, which had been accepted in the Amsterdam treaty but without being seen by several of the delegations that had accepted it. We published several reports on British opt-outs, pointing out that the British had opted out formally and then opted back into an awful lot of things in detail. We tried hard to get first the media and then your Lordships’ House to take an interest in this and, indeed, managed to find time for some of our reports to be debated in an empty House late at night. We have to be a little more honest with ourselves about the level of interest that we have had in the past 11 years in this development.
I can take my awareness of this matter back further. When I was still on the staff of Chatham House in 1988, I was asked to chair a conference of senior policemen on co-operation between the British police and their opposite numbers on the Continent. A very senior policeman from a county force in southern England commented at one point that he had just signed an agreement with his opposite numbers in France about the levels of co-operation on each other’s
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I regret some of the tone of this debate. The image of Brussels as hostile territory, of the European Court of Justice as being a threat and of British sovereignty being surrendered suggests that we see the European Union as something of which we are a deeply reluctant member. Several million British citizens live in other member states in the European Union, most of them highly law-abiding—although the Observer last Sunday carried an interesting article on the Liverpool criminal network, its activities in Amsterdam and its holiday homes in Marbella. Crime and therefore police co-operation—and the co-operation of prosecuting authorities—have to follow the extent to which we are becoming increasingly internationalised, which has implications for how British law enforcement authorities and British legal authorities work within a clear framework with their partners across the Channel.
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