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If we report within the eight-week period and recommend a debate, we are relying on the usual channels to give time for that debate before the Government opt in. That is not spelt out in so many words in the statement that the noble Baroness the Leader of the House read, and I understand why, but we need to be sure that the usual channels will unfailingly deliver when the situation arises and when called upon to do so. Without that, we cannot do proper scrutiny and this House will not have a chance to give its verdict on a government decision to opt in.

Lord Morris of Aberavon: My Lords, I welcome the statement made by my noble friend the Lord President and the care and consideration she has given to our amendment. The noble Baroness came to the Constitution Committee—indeed, she invited herself—to explain Her Majesty's Government’s attitude to our amendment and the difficulties it posed. I welcome her initiative. More years ago than I care to remember, I was told that the first rule of Welsh politics was: go to the meeting, be there before the meeting, stay in the meeting and be there at the end of the meeting. That saved me endless trouble. I did not always succeed, but at least it was worth the effort, so I commend my noble friend’s dialogue, which frequently achieves a great deal.

The crucial point is that Her Majesty's Government have made a great deal of the importance of the red lines. The engineer is hoist by his own petard. The

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greater the importance of the red lines, the more important it is for there to be proper machinery to scrutinise if there is a change of heart. The Government have come a long way to meet our concerns in the Constitution Committee, but I would be the first to concede that they have not come all the way. They have proposed that there will be an opportunity to scrutinise and, importantly, that the Government will take account of the opinions whether to opt in or out.

The European Union Committee will be able to separate the minor items from those of much greater consequence, which will be the kind of matters that I anticipate they will put forward for debate. It will be able to make such a recommendation on those matters to which it attaches significance. The Government will undertake to arrange the debate within the usual conventions, through the usual channels.

Crucially, the Motion, which I surmise will be in the name of the chairman of the European Union Committee, will be amendable. That is of the utmost importance; it will not be a Motion merely to take note, but one that is amendable. Therefore, there will be an opportunity for a Division and, in practice, for the House to approve or not to approve. That is of fundamental importance. Ultimately, it is for the Government to decide. I have furnished myself with a copy of the draft transcript of the conversations that we had in our formal committee meeting. I hope that as it has been referred to, there will be no objection to my doing the same and that it will not embarrass the noble Baroness. She said,

If she emphasises the colossal embarrassment of going against the views of a committee of either this House or another place, she would do a great service to the House by emphasising the words in the draft, which so far have not been amended. I repeat that I am grateful to her for her efforts. It is the nearest we can get to a formal approval by the House. It would not be the end of the matter.

I want to add one other point. I refer again to the draft transcript, where I sought to press her about the need for some approval to be enshrined in her words. She said,

I believe that this is as far as we can go. There could be a difference in either House; the elected House or ourselves. At the end of the day, the Government have to govern. It is the nearest we can get, as a signatory to the amendment, to a formal approval. In my view, it is more than scrutiny; it is scrutiny-plus. That is this House’s role and I would be content with that.

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Lord Lyell of Markyate: My Lords, one is debating against the most charming opponent in the Lord President and one has to be deeply persuasive in order to carry the day. But, while I hugely respect the noble and learned Lord, Lord Morris of Aberavon, and the noble Viscount, Lord Bledisloe, I hope that this is not as far as we can get in the matter. As my noble friend Lord Hunt pointed out—I support his speech as well as the amendment—under Clause 6 there are a number of important occasions where it is necessary for the Government to obtain the approval by a vote in both Houses. Therefore, the concept of obtaining that approval is not something that does not exist or could not be added to.

We are talking about the Lisbon treaty. I have the honour of being a member of your Lordships’ Select Committee on the Constitution. Our committee issued a report that stated that the treaty was constitutionally acceptable and did not represent a grave danger to the constitution. However, as my noble friend Lord Goodlad pointed out, we were advised that, but for the relevant red lines—the provisions on justice, home affairs, criminal law and associated matters—it would have meant very great constitutional change. So we are discussing matters of very great constitutional importance.

The four red lines supported by Tony Blair and the Labour Government are an essential part of the present Government’s attitude to the treaty—I do not think that they have resiled from them in principle. They involve the possibility of opting out and opting in. As the noble and learned Lord, Lord Morris of Aberavon, said, there is no doubt that what the noble Baroness said has increased to a considerable extent our power of scrutiny.

However, let me give just one example to illustrate the reason for worry. I happen to be a very strong supporter of the jury system. The present Government have made at least two—I think three—concerted efforts through Parliament to truncate the jury system. They were prevented by votes in Parliament. Would they have been prevented by non-binding scrutiny? I beg to suggest that they would not. I see the noble Baroness waving her hands. Obviously, she has a brilliant answer to this and no doubt at some point she will give it. I will wait until we hear what she says when she speaks again. I believe that Parliament should ultimately have control.

It has been said several times that it is for a Government to govern. Yes it is, but they govern if they have the support of Parliament. If they lose the support of Parliament, their entitlement to govern either in general or in particular should be either removed or truncated. It should be controlled in relation to these extremely important opt-ins and opt-outs. It is said that that is in practice very difficult; of course I defer to the noble Lord, Lord Grenfell, who has wisely warned the House that it is extremely important to keep to the extraordinarily tight timetable.

However—I welcome this—as the noble Baroness has said that what the Government plan to do will be the result of a report at the beginning of the year, if they plan to make some significant amendment to justice and home affairs matters, why do they not tell us then and arrange to get approval in advance—or at

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least arrange to get the debate going and get approval during the relevant eight weeks of the negotiation? It does not all have to be rushed ahead. If we were talking about small technical details, it might be very difficult. When I first heard from the noble Baroness, Lady Quin, that there were about 50 to 90 a year, or 400 overall, I began to think that this was a serious problem, but actually they would be packaged and the big issues would be identified in advance. Consequently, that is in no way insuperable. Indeed, it would be in the best parliamentary traditions to announce them in advance and obtain approval within a reasonable time. For those reasons, the amendment, as originally tabled by the Constitution Committee and before your Lordships today, is reasonable, sensible and in no sense extreme. I am not, as I think will be well known, a Eurosceptic. That will cause displeasure among some, but I am a great believer in the support of our fundamental constitutional rights, and it is important that we should defend them today.

4 pm

Lord Rowlands: My Lords, as a member of the Constitution Committee, too, I will explain where I stand on the position presented to us by the Minister.

From my parliamentary experience, the best possible Report stage of a Bill genuinely reflects the deliberations in Committee and consequently tries to address the issues that have arisen there. The process in Committee and between Committee and now is in the best possible tradition of a Committee-cum-Report stage. It is not only for the Minister to reflect on and address the issues, but for those of us who have spoken and who have argued the case, as I did in Committee, for the amendment. We must reflect on what we know. Do we know anything different? Do we know better? Do we need to adjust our position as a result of knowledge or experience gathered since?

I therefore draw the attention of the House to a couple of things that are influencing my thinking and my position. First, I frankly confess, although I am sure the vast majority of Members here today are not in my state of ignorance, that I did not fully appreciate the nature and number of these opt-in, opt-out decisions. Apparently they are nothing new. I have the list here. Since 2000, some 56 decisions have been taken to opt in and opt out.

I had the view, like the noble and learned Lord, Lord Lyell, that there were just three or four major issues on which we should focus and on which we should ensure that Parliament could decide. The truth is that this whole curious process, which I had not fully appreciated, is very different in character and content. There is a variety of opt-ins and opt-outs, many of them routine, technical or constitutional. It is therefore not feasible, as our committee originally suggested, that every opt-in and opt-out that the Government bring up can or should be subject to a parliamentary vote of approval. In one sense, therefore, the amendment does not make provision for the difference between the variety of opt-ins and opt-outs that are routine and technical and the select number that may or may not come before the House and that give rise to serious issues of sovereignty and parliamentary accountability.

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That was my revision. I now understand rather more about this opt-in, opt-out procedure. I therefore welcome the Minister’s concept of an annual report, because frankly most of the opt-ins and opt-outs passed me by, and as a long-standing Eurosceptic I have tended to watch these things rather vigilantly. I have a track record that goes back to voting for a general election before the 1972 Act ever came into force. I also have a track record, as Members opposite will know, on Maastricht; I belonged to a minority in the other House on the Maastricht treaty. I therefore address this issue as a Eurosceptic, but I genuinely do not think that it is feasible or possible for the House to consider and approve every opt-in and opt-out that comes before us. That is why there must be a fundamental filtering system that is run by our European scrutiny committee.

Once we have had that scrutiny and our scrutiny committee has, I hope, identified serious issues with serious consequences that carry issues of sovereignty, the question is: what should be the procedure of the House? I do not believe that scrutiny for its own sake makes any sense. The whole idea is that it should inform the House so that it can make a better decision. But the House has to have the right to make a decision. Does my noble friend’s proposal make that possible? I understand why she has rejected an affirmative resolution procedure as exists in Clause 6. I assume it exists in Clause 6 because that clause deals, in passerelles and simplified procedures, with amendments to the treaties themselves. It is a treaty-amending process and, presumably, has a dimension of its own. I am very encouraged that my noble friend and others have included those provisions so that we cannot be bounced into treaty changes without the full knowledge and, indeed, the pre-knowledge, of both Houses.

Since that case has been made, should that procedure be applied to opt-ins and opt-outs? Opt-ins and opt-outs are matters of important public policy—for example, law and order, justice and home affairs—which governments should bring to the people and to both Houses. Like the noble Viscount, Lord Bledisloe, on reflection, I do not support the principle that this House should have a unilateral veto over such procedures, which is what we have recommended until now. They are matters of public policy and the view of the other place should prevail if there is a difference. Therefore, I do not think that I can support a total old-fashioned affirmative resolution procedure, which puts in the possession of this House a veto over opt-ins and opt-outs.

I am waiting for my noble friend to clarify further the process by which noble Lords at least will have the right to test the opinion of the House and to express an opinion in the House. I believe that that will be built into my noble friend’s provisions and will be made available to the House. If the committee recommends that this issue is of sufficient importance, we are guaranteed two things in this code of conduct; first, that the matter will come before the House and, secondly, that it will be brought before the House in such a manner and way that it can be voted on and amended if need be. That means that this House

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would have the right to express its opinion on any issue of consequence that the noble Lord, Lord Grenfell, and his committee might bring to our attention.

In this provision, we have at least the guarantee that noble Lords will be able to test the opinion of this House on a serious issue of opt-ins and opt-outs, and to vote on it. Therefore, I do not believe we should demand that further step and say that we should have a veto over such a proposal, especially if the other place goes another way. We are not just looking at issues of scrutiny. We are looking at scrutiny-plus, as my noble and learned friend Lord Morris suggested.

Another of my concerns and why, initially, one may have looked at putting a provision in the Bill and, therefore, enshrining it in statute is the concept of a code of conduct. Codes of conduct do not have the same binding force, et cetera, as a clause in a Bill or a section of an Act. But my noble friend again has come a long way to what members of the Constitution Committee pressed her on when she came before us last week; namely, that a code of conduct should be embedded by parliamentary procedure to ensure that it cannot be unilaterally changed or altered by this Government or future Governments. If it has to be changed, the Government should have to come back to this House and the other place and seek to amend it properly. That provision was not in the original draft. I think that the noble Lord, Lord Norton, proposed it specifically and the rest of us supported it. If the code of conduct was embedded in the process, it would give an extra assurance to both Houses that no Government could change or alter the process without agreement.

It is not feasible for this House to deal with every opt-in and opt-out that comes before us, but given a proper degree of scrutiny, a process by which the opinion of this House can be tested and voted upon and therefore exercised, and the embedding process that will ensure that this code of conduct can and will be truly accountable in parliamentary terms, I feel that I can support my noble friend’s proposals. In Committee, I gently suggested to her that the kind of proposal that was in our amendment, and is now in her proposal, chimed in with the Government’s attempt to bring constitutional renewal. We are doing so many other things to improve parliamentary accountability. I believe that my noble friend’s recommendation chimes in with, and is part and parcel of, a process of parliamentary accountability. As someone who has been around in one way or another since 1966, and has seen parliamentary accountability wane and wax under governments of all complexions, I believe that, with this and a number of other suggestions, we are enhancing our parliamentary accountability. For that reason, I shall be supporting my noble friend.

Baroness O'Cathain: My Lords—

Lord Woolf: My Lords, I am most grateful. Noble Lords have just heard from a parliamentarian with great experience and are now hearing from a novice in parliamentary matters. I have the privilege of being a member of the Constitution Committee. I take that responsibility very seriously. As a newcomer, I was deeply impressed by the way the process occurred,

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with the Lord President coming before us and working to meet the genuine concerns of the committee about safeguarding the parliamentary position of both Houses, while at the same time recognising the practicalities of the European dimension that made the situation more complex than it would otherwise have been. As far as I know, this was a novel way of meeting and addressing that difficulty. As such, it would be desirable for it to have sympathetic and helpful consideration by this House. I am satisfied that it provides the protection that we need in regard to these opt-ins and opt-outs, which are not part of the everyday diet of this House. I see it as a way of achieving the same result, with deference to what the noble Lord, Lord Hunt, said, as would be obtained by the proposed amendment that was the initial way in which the committee sought to safeguard what we are all concerned to protect. Like some, but not all, members of the committee, I urge the House to accept this novel initiative.

I sought to press the Lord President on one matter of which I am very conscious. As we are dealing with questions that go to the heart of the concerns of the judiciary, there should be some indication of how the judiciary would be consulted about this immediate and quick process. So far, the Lord President has not found a way of accepting the suggestion I made, but I ask her to give it further consideration. It may be that there was no opportunity for her to do so in the time available, but if I may say so, the particular opt-ins I am talking about are of great importance to the judiciary. In the future it will not be possible for the Lord Chief Justice of the day to get in a taxi, come here and address your Lordships directly, which could have happened before, and I respectfully suggest that this concern needs to be taken into account. If the Lord President would find a way of doing that, I think that the judiciary would be most grateful.

4.15 pm

Lord Roper: My Lords, as a member of the European Union Committee, I thank the Lord President for what she has done over the past weeks to find a solution that seems to be widely acceptable to the House. As she will know, as well as the reference in the report of the Constitution Committee, paragraph 6.275 of the report on the Lisbon treaty by the European Union Committee, chaired by the noble Lord, Lord Grenfell, draws attention to the lack so far of any systematic scrutiny of opt-ins or opt-outs in the House and suggests that there is a need for us to work on that. We should congratulate the noble Lord, Lord Goodlad, and the Constitution Committee on tabling the amendment, because we have been able to move far faster on this as a result of that and of the consequent concentration of minds than we might otherwise have expected. We now have a set of proposals before the House, although we do not have the important scrutiny reserve resolution that we will see at a subsequent stage.

I take a different view from that of the noble and learned Lord, Lord Lyell, in that I see an important difference between these instruments and the passerelles. These instruments are of a special kind, on which the United Kingdom has to decide whether to opt in or

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opt out, but they are much closer to other instruments that come before the scrutiny committee. Here I agree strongly with the noble and learned Lord, Lord Morris, that we want a scrutiny-plus system, as we have established here, rather than something that runs in parallel with the passerelle system, the Clause 6 provisions. It is important that we should be able to carry out scrutiny within this period of six weeks, then two weeks and 10 days, which would give us up to eight weeks, and then have an opportunity, if the European Union Committee felt it appropriate, to bring to the House the instrument that could be opted in to.

I suppose that there could be occasions on which the Government would announce that they were not going to opt in, but the committee felt that noble Lords ought to be given an opportunity to consider whether or not they would want to recommend that course. The thing could work in more than one way in a debate. As the noble Baroness said in introducing her proposals, what is important is that almost every debate from the European Union Committee comes to the House on a Motion to take note—that is, the Motion is not amendable. This would be scrutiny-plus because, as the noble and learned Lord, Lord Morris, pointed out, it makes it absolutely clear that these would be amendable take-note Motions. It would be up to Members of the House—not the committee—if they so wished to table an amendment so that the House could express its view; indeed, that would be similar to the provision in another place. It would be surprising if, in those circumstances, when either or both Houses had expressed a clear view against a particular position, the Government would go ahead with it. Technically, the Government would not be bound, but there would be a significant political constraint. I believe, therefore, that we have found a satisfactory solution to this.

I end by thanking the Leader of the House for the amount of time that she has spent with her officials on finding the solution. We are anxious to see the scrutiny reserve resolution and we note that it is to be amendable, so if we are not satisfied it will be possible to have a further debate and, indeed, to make a change. In the mean time, I believe that we have a satisfactory solution and that it is therefore not necessary to support the amendment tabled by the noble Lord, Lord Goodlad.

Lord Jopling: My Lords—

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