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Every year that report would come forward to Parliament and it would be made available for debate in your Lordships’ House and another place. It would then form the basis of noble Lords’ understanding of the Government’s strategic approach for the year. The European Union Committee would be informed of comments made during those debates, which would help it to understand where your Lordships felt that there were issues that needed to be addressed in greater detail and issues that might be brought forward again. At the end of the year, we would reverse the process and produce a retrospective report that said what we had done, what the application of the protocol for opt-in had been, where we had opted in and where we had not opted in. That way noble Lords would see both ends of the annual spectrum, if I can put it like that.

When it comes to individual dossiers, the Government will put an explanatory memorandum before Parliament as swiftly as possible. We already agree that we would do it within 10 working days. “As swiftly as possible” means that we will endeavour to do it more quickly than that, but the maximum timeframe would be 10 working days. That would set out the proposal and, where possible, specific views as to whether or not the Government thought that it would opt in and the factors that were taken into account in making that decision. The committees in both Houses would then have the opportunity fully to review the proposal and the approach that the Government had taken on whether to opt in.



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Let me recap on the opt-in procedure. The Government have precisely 13 weeks from the proposal being given to make the decision whether to opt in. If the Government do not opt in, they cannot participate in the working group discussions, support other colleagues in the European Union or affect what happens in debate on the issue concerned. They have the right, once the decisions have been finally taken, to opt in at the end of the process with the permission of the Council and the Commission, but they will not have been able to participate. Not opting in to a proposition that we might wish to is a serious matter for your Lordships to consider.

Provided that the committee presents its views on what the Government are proposing within 13 weeks, the Government will take into account the committee’s opinion on whether the UK should opt in. During that time, committees can, as now, call a Minister to give evidence and they can make a report to the House. If they wish to make a report to the House recommending a debate, perhaps on a Motion on which there can be a vote, they can do so. In other words, within the timeframe that we have set, the committee can bring to your Lordships’ House for debate an issue that it believes is significant and that your Lordships would wish to consider and it can propose to your Lordships that there should be a vote, which the Government would take into account.

In putting forward this proposal, the Government commit to find government time for such a debate, which would be agreed, as ever, through the usual channels. As I said, where this is done within eight weeks, we shall seek not to come to a conclusion before that, where possible. However, there is a tiny exception to that. When I looked back at all the different decisions that had been made, I noticed that there was one area in which decisions had been made more quickly, which related to the final text of a readmission agreement. These are often concluded with third states late in the day and concern people being returned to third states. Sometimes these come forward much more quickly to allow signatures to be sought at meetings. However, the committee will be familiar with those situations. Where a need to move more swiftly suddenly arises, we undertake to talk to the committee about how to deal with this procedure in that light. However, I stress that it is exceptionally rare for that to happen. I merely put it on the record for completeness. We shall ensure that we keep the committee fully informed if that were ever likely to happen.

We shall ensure that a Minister is available to appear before the committee. We suggest that this package of measures—comprising the annual reports at the beginning and end of the year, the explanatory memorandum, the guarantee of ministerial appearances, the Government’s promise not to make a decision within the eight weeks, the right of the committee to bring forward debates and the right of your Lordships’ House to vote on that—can be reflected in a code of practice. We also believe that, to obtain certainty in your Lordships’ House, we should either amend the scrutiny reserve resolution or bring forward a new resolution to sit alongside it. Lest your Lordships fear that we might pull a fast one by putting forward an

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unamendable proposition, the resolution will be able to be amended in your Lordships’ House. It would also be voted on in your Lordships’ House and in another place. It would incorporate all that I have said, after we have gone into the finer details with the noble Lord, Lord Grenfell, and his committee to ensure that we have captured absolutely everything. Your Lordships would then see it and agree to it or amend it to ensure that it was scrutinised. The noble Lord, Lord McNally, proposed that we should review this whole process—it is always good practice to do so—within three years to ensure that it is functioning properly.

That is the process that we have put forward. I shall not say much more about it except to mention that I checked how many opt-in resolutions or proposals we thought there would be over the coming three to five years, bearing in mind the new position. At present the average figure is about 30 to 40 a year. Due to the coming out of and going back into a whole series of measures, your Lordships will be faced with between 50 and 90 opt-in proposals a year. Therefore, I consider that the filter mechanism of the committee determining which should come before your Lordships’ House is even more important. I hope that that is helpful to the House.

Lord Hunt of Wirral: My Lords, that is very helpful to the House. I thank the noble Baroness the Leader of the House for the tremendous work that she has put in to try to find a way through this. I also thank my noble friend for the work that he and his committee have done. As he rightly said, these are matters of fundamental constitutional change. Therefore, I thought that it might be helpful if I indicated at an early stage the reaction of the Opposition to these proposals. Thanks to the noble Baroness I received at lunchtime today a copy of the proposals, entitled Statement on JHA Opt-Ins.

I think that we are very well served by the committees of this House. I therefore pay tribute not only to my noble friend and his Constitution Committee but also to the noble Lord, Lord Grenfell, and the work of his European Union Committee. Indeed, I had the opportunity of sitting on that committee for a number of years.

We welcome this very important amendment. It takes us to the heart of our relationship with the European Union in general and our entire approach to the treaty. It has never been an easy relationship. Every time I see the noble Lord, Lord Roper, in his seat, I defer to him on the details, but as my noble friend just reminded us, our accession to the then European Economic Community perhaps happened only because 69 Labour MPs—guided personally by the noble Lord, as I recall it—rebelled in one historic vote. Then the small Liberal group in another place stuck to its guns and supported the Heath Government in some very tightly contested divisions on the European Communities Bill. As my own party’s troubles on Maastricht and other matters European proved, it does not necessarily get any easier. None the less, all those stresses and strains are the price we rightly pay for living in a parliamentary democracy.



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It is, I suppose, a reflection of our troubled relationship with the European Union that these questions of protocols, opt-ins and opt-outs should arise at all. It is all a far cry from that original unifying vision of the six back in the late 1940s and early 1950s. But as the Union expands, so it must learn to show greater tolerance and flexibility. Indeed, as the noble Baroness the Leader of the House will know, in Clause 6 there are a number of provisions that follow the words:

All the instances are covered from (a) to (i).

As I understand it, the noble Lord’s amendment seeks to add to this list. The amendment makes it clear that he and his colleagues are addressing a recommendation from the Constitution Committee to ensure parliamentary approval of the decision to opt-in to any freedom, security and justice provisions. In order for parliamentary approval to be given, a Motion must be moved by a Minister of the Crown that,

I think that that is agreed on all sides. That is the purpose.

We must put all that into context for a moment, as we seek to respond to the very detailed proposals that the noble Baroness has put forward. We are, of course, dealing with red lines. On 18 June 2007, when he was Prime Minister, Tony Blair stated to the Liaison Committee in another place that,

What could be simpler than that? As I understand it, this amendment seeks to prevent the Government deciding suddenly, between now and the next election, to completely change their view and to seek to go against that undertaking. But we have a new Prime Minister and new Ministers and we do not know what will happen tomorrow; we may have further people in charge. That is the fundamental constitutional change that we are talking about, together with Schengen.

Let us judge what the noble Baroness is putting forward. I have always taken the view that it is a very good idea always to seek to improve our scrutiny procedures. That must be a given. I commend the noble Lord, Lord Grenfell, on his constant attempts to try to make sure that we move forward in our reforms. Here, we have a draft code of practice to ensure that Parliament’s views are fully considered. That is a point that we on these Benches find difficult to accept, because there is no scope for even having the Clause 6 proviso here if the amendment does not form part of the Bill.

3.30 pm

I recognise that the noble Baroness is determined, if she possibly can, to avoid any amendment to the Bill, but this is not a fatal amendment; far from it. It does not in any way affect the treaty of Lisbon, but it does affect the way in which we in Parliament approach the serious constitutional changes that may or may not take place if the Government decide to opt in. The noble Baroness the Leader of the House is committing

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to table a report in Parliament each year on whether the Government would opt in and—if any views are forthcoming within eight weeks—to take account of any opinions of the committees regarding whether the UK should opt in.

I am always nervous of the phrase “to seek”. I am not going to quote The Scarlet Pimpernel, but to commit to seek to arrange a debate is not as forceful as arranging a debate. It is certainly not as forceful as saying that a debate and parliamentary approval are necessary before a matter can proceed. The final words of the memorandum are very clear; they are a commitment to ensure that Parliament’s views are fully considered.

It has also been my privilege to see the transcript of what the noble Baroness the Leader of the House told the Constitution Committee, which I believe is in draft form at present. I have a copy, and I hope that it will be made available. If I quote the noble Baroness incorrectly, perhaps she will take the opportunity to correct me. Let me quote her first—

Baroness Ashton of Upholland: My Lords, I have not had the pleasure of seeing that transcript. I have no idea why the noble Lord has a copy; I do not have one.

Lord Hunt of Wirral: My Lords, we hope that all these documents are open to everyone in the House.

The noble Baroness acknowledged, on the idea of a vote, that it would not be binding on the Government. The noble Baroness nods. That is what worries me the most. She goes on to say that the technical answer is that the Government would remain in control of it. The whole procedure is under the control of the Government. Again, the noble Baroness nods. The noble Baroness was then asked whether the Government would feel legally bound by a vote. The noble Baroness said that she would not. Those quotations do not do anything other than remind us that we are dealing with some very important constitutional issues. The amendment is quite simple; it clearly says that if the Government are to proceed to cross a red line, they would need to come to Parliament to seek approval. I remind noble Lords that the words of the amendment are:

That is the question before this House.

It has been a traditional role of this place, which we prize beyond price, that we hold the Government to account. We are not debating scrutiny so much as parliamentary accountability. It is accountability that the debate turns on. I am afraid that the noble Baroness, for all her valiant attempts to seek to find a way through without amending the Bill, has neglected to give us the opportunity of utilising a crossing of the red line in the same way as we are going to deal with parliamentary control of decisions in Clause 6.

I am reminded that Mr David Heath in the other place, who has some very strong views on this issue, said that we must take seriously the question of parliamentary approval. That is what this debate is all about. Will Parliament be given the opportunity of

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giving approval to a crossing of the red line, and indeed the breaking of a firm commitment by Mr Blair, that we would not in any circumstances give up our ability to control our common law judicial and police system?

The noble Baroness is to be congratulated on trying to find a way through. I hope that we will be able to resolve today that parliamentary approval will be required if the Government decide to proceed in this direction. Whatever the result of this decision, if it means that the Bill goes back to the other place, the other place will have an opportunity to participate in the debate, which, because of the timetable Motion, it has not yet had the opportunity to do. It is vital that the other place, the elected House, has the same opportunity as we have to express its view on this important amendment, which I hope my noble friend will press to a vote.

Viscount Bledisloe: My Lords, I am a member of the Constitution Committee, chaired by the noble Lord, Lord Goodlad, and I have added my name to this amendment. As your Lordships have heard, the noble Baroness the Leader of the House has toiled nobly and valiantly to discuss all the proposals with us. The question is: are the proposals on paper sufficient to enable us not to press the amendment, or should we insist on it? It is obviously right that these proposals do not amount to the totality of the amendment—government proposals in response to amendments seldom do so. But are they sufficient? In my view, they are. The difference is that under the amendment no opt-in could take place without an affirmative resolution of each House. Both Houses would have to decide to opt in, to opt out or to do anything different. Under the noble Baroness’s proposal the Government need only ensure that there is a debate. Perhaps I may say to the noble Lord, Lord Hunt, that it is very hard to criticise the noble Baroness for using the words, “seek to arrange the debate”. I am certain that a whole lot of constitutionalists in this House would have stamped their feet loudly if the Government had said that they “would” arrange a debate, because it is not in their gift. The noble Baroness should not be criticised for that, but I leave that on one side.

If both Houses vote no, it is extraordinarily unlikely that it would happen. It would be a brave Government who went ahead and did it none the less. Of course, the other place might vote yes with the Government and this place might vote no. There would be no use of the Parliament Acts; there is no way that the view of the House of Commons can be imposed on your Lordships. So, there would be deadlock. I do not think that the Government can be criticised for saying that that would not be acceptable in the long run. They will consider the views of noble Lords but must have the power, if needs be, to override them. There may be ingenious behind-the-scenes diplomacy where it is badly needed. It would therefore be better if your Lordships did not press the amendment and accepted what the noble Baroness said.

However, I would ask the noble Baroness to clarify one proposal. She did not mention in her summary the proposal that this should be reviewed three years after the treaty comes into force to ensure that the enhanced

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scrutiny measures are working effectively. Can she make it absolutely clear that the review is intended to improve detail and the efficiency of the system but that it cannot detract from what is promised in her statement? Subject to that, I suggest your Lordships do not press the amendment.

Lord McNally: My Lords, it may help to clarify the position from these Benches, as the three-year look at this was my idea. It would be exactly as the noble Viscount, Lord Bledisloe, just said. I am sure the Minister will confirm that. It seemed likely that people would like to see exactly where we were going. I am a strong supporter of looking at what we have done as well as what we want to do.

Like the noble Lord, Lord Hunt, I would like to put this in context. I will not go all the way back to 1973, although it is sometimes a little hard from these Benches to be accused of inconsistency on these matters. As the noble Lord rightly says, both individuals and parties here represented have been solidly consistent about the European issue during those years. Our approach to this Bill has been that, compared with both the original Act and the amendments to the treaty, it goes further than any other in the direction of strengthening parliamentary accountability. It did so even as it set off, which won favour on our Benches. Along with that commitment to Europe has been an equally strong, consistent support for greater accountability, as my honourable friend David Heath indicated in the other place.

What has impressed us is how the parliamentary process has worked in this Bill—the House should congratulate itself on that. We sought at an early stage bilateral meetings with the Lord President. We expressed a real and serious problem with parliamentary accountability, particularly in this area, and sought movement. At the same time, as the House has heard, she carried out negotiations with both the Constitution Committee and the European Union Committee. Looking at those discussions, again the process has worked. We are not being asked to accept either a pig in a poke or a done deal. We have been able to influence and develop the issue as the Bill has progressed.

Like the noble Lord, Lord Hunt, my approach on this has been to ask how we maximise parliamentary accountability and at the same time maximise the opportunity for European co-operation on real issues that affect real people: crime, people trafficking, drugs and the rest. There is a danger in wanting to belt and brace the parliamentary accountability. A number of noble Lords who have intervened have long experience in government of how we get the parliamentary accountability while Ministers who have responsibilities to make decisions at that moment are able to do so in a reasonable way.

It strikes me that because of what has happened during the passage of the Bill and the approach of the noble Baroness the Lord President, we have reached a point where Parliament now has within its grasp a greater opportunity for accountability on European matters. Of course, there will always be those who say that this does not go far enough and who want more

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guarantees—indeed, for a humble solicitor, the noble Lord, Lord Hunt, is always silky in his approach to these matters—but if we are looking for a practical advance in parliamentary accountability, along with the flexibility that the noble Lord, Lord Hunt, advocated, this goes a long way and should satisfy Parliament.

3.45 pm

Lord Grenfell: My Lords, I am grateful to the noble Baroness the Leader of the House for reading the statement. I should preface my remarks by emphasising to your Lordships that the European Union Select Committee has not taken a position on the amendment tabled by the noble Lord, Lord Goodlad.

I shall comment briefly on the practicality in the eyes of the European Union Select Committee of the scrutiny proposals that we have heard from the noble Baroness the Leader of the House. I am bearing in mind the fact that, in my view, parliamentary accountability is based on good scrutiny. We are grateful for the assurances that we shall receive an Explanatory Memorandum no later than 10 working days after publication of the proposal. It is important that that is strictly adhered to. I shall give the House an example. Sub-Committee F of your Lordships’ European Union Select Committee is currently studying a proposal for legislation which the UK would have to opt into if it wished to participate. The Explanatory Memorandum was signed six weeks after the date of the publication, leaving our committee with two weeks in which to examine the proposal. We have to avoid things like that. Eight weeks is a demanding timetable for the Government and Parliament, and we hope that the Government can be sure that we have proper time for examination of these proposals.

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