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Baroness O'Cathain: My Lords, like the noble and learned Lord, Lord Woolf, I am a member of the Select Committee on the Constitution; in fact, I am the seventh member of the committee to speak. I ought to point out to Members of the House that we are all speaking as individuals, even though we are members of the committee. This is not like a debate on a Motion to take note on a Select Committee report. We have all come to our conclusions—sometimes different and sometimes the same—based on the information that we have had, the data that we have seen, the witnesses from whom we have heard and, above all, what the Lord President said when she kindly came to address us last Wednesday. It is a shame that she does

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not have a copy of the verbatim report of the proceedings, but I have looked through it and I do not believe that that matters at all.

I have only a few comments to make and will not detain your Lordships. The whole debate has gone from tiny details to huge issues. We were told that the British Government would die in the ditch for the red lines. I have always believed that to be so. Why, therefore, are the Government afraid of presenting their views on a situation in which we would want to opt in? Why are they afraid of presenting their views to both Houses of Parliament for debate, as is the normal procedure for debates in this House and as is the normal procedure for any government proposal in the Queen’s Speech? This is the old, time-tested formula that has been in existence for centuries.

I do not buy into the suggestion that, if we did not grasp something that came out of Brussels and go for it within eight or 10 weeks, we would be doomed for ever. That message is coming out from those who do not want to support the admirable proposal of the noble Lord, Lord Goodlad. I also do not buy into the view that a review in three years’ time is a great thing and utterly praiseworthy. By that time, we will have absolutely no hope whatever of changing anything. We can review, but the purpose of a review, particularly in business, is to ensure that we do not make the same mistakes again. By that time, there would be nothing to make a mistake about. I do not buy into that idea.

This is not about dealing with between 50 to 90 opt-ins. We are dealing with just those on the justice and home affairs issues that are fundamental to our constitution. We are not dealing with anything to do with the size of this, the price of that or the length of the other; this is fundamental to our constitution, so we should not bypass Parliament and the normal procedures of scrutiny and debate. I come unstuck with what some speakers have already said because we are not talking about the House of Lords saying, “You cannot do this”; we are talking about the normal procedure. We would, as we always do, ask the Government to review something, the matter would go back to the House of Commons and we would know where the final decision would be made. I really want us to think clearly about this issue. We should think not about the 50 to 90 opt-ins or opt-outs, but about what we are doing to our long-term jurisdiction as parliamentarians.

Lord Wallace of Saltaire: My Lords, the noble Baroness referred to the wisdom of the centuries on the British constitution, but in earlier centuries we did not have ease of travel between Britain and the Continent. Much of what has happened in justice and home affairs has been a response to the ease of travel between here and the Continent because of, for example, the invention of the aircraft; I think that the noble Baroness has some familiarity with the airline industry. Are we not partly dealing with adaptation to the revolution that is globalisation and Europeanisation, in which the noble Baroness has the opportunity, as we all have, to travel easily between Britain and the Continent, as do many other people who are not so law-abiding?

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Baroness O'Cathain: My Lords, I very much admire the noble Lord, as he well knows. We have these sorts of discussions. The reality is that that is the way in which law evolves. This is something completely new and obviously we need parliamentary scrutiny even more so than on something that has been around for generations.

Baroness Quin: My Lords, like many other speakers, I am a member of your Lordships’ Constitution Committee. On this issue, the noble and learned Lord, Lord Lyell, and the noble Baroness, Lady O’Cathain, are on the other extreme of arguments from me, although perhaps the use of the word “extreme” in relation to a moderate body such as the Constitution Committee is not appropriate. There is a spectrum of views in the committee. The noble Baroness, Lady O’Cathain, rightly referred to the fact that we are speaking as individuals in this debate.

I warmly endorse the comments made by the noble Lord, Lord McNally, particularly in reminding us that parliamentary involvement in European affairs will be greatly improved overall by this treaty. That is particularly true with regard to justice and home affairs, where national parliaments across Europe—not just here—will have a more prominent role in JHA co-operation through the subsidiarity mechanism, through evaluating Eurojust’s work and through greater scrutiny of Europol, as well as through a power to veto moves from unanimity to QMV in certain key areas. I believe that the arrangements that have been outlined for the Houses of Parliament in this country represent a considerable improvement on what has gone before. That is an important context within which we should view the current debate.

In Committee, the view was frequently expressed that we should be careful about Governments trying to sneak important things through without Parliament being aware of them in the area of justice and home affairs. Indeed, my noble friend the Leader of the House referred to this when she used the phrase, “pull a fast one”. Other noble Lords have referred to this concern. I am not sure that there has ever been a real danger of that happening. In my own fairly brief experience as a Home Office Minister, when I regularly attended Justice and Home Affairs Councils, I was not aware of major decisions being made that were not brought to the attention of Parliament or on which we did not have a good idea of what Parliament’s views were. I am not making a party-political point because I am not aware of previous Governments operating in that way in the European sphere, either.

However, the additional changes that the Leader of the House has outlined are welcome, particularly the proposals for a report to allow both Houses to give a strategic overview of justice and home affairs, the reporting-back mechanism, whereby we can review more effectively what has happened in this area, and the timetable for specific proposals on opt-ins. A number of speakers have already referred to the fact that there can be a large number of opt-ins. My noble friend Lord Rowlands rightly said that the aim was not to give Parliament a cumbersome system that meant examining all kinds of minor proposals that, through the normal scrutiny process, would have been deemed

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to be acceptable in any case. However, the procedure that the amendment envisages would be applicable in any possible consideration of opt-ins and so would give Parliament a cumbersome procedure. I believe that the arrangements that the Leader of the House has outlined are a great improvement on the ones envisaged in the amendment. I hope that the compromise that is on offer will be grasped with enthusiasm by Members of your Lordships’ House.

I conclude by saying that, although I did not support the amendment in the Constitution Committee and do not feel as strongly on this issue as others do, I recognise that the pressure exerted by the committee has resulted in real change. For that reason, I pay tribute to the committee and its members.

Lord Campbell of Alloway: My Lords, I have listened to this entire debate and the arguments. I have heard no wholly convincing argument for rejecting the proposal of my noble friend Lord Goodlad on parliamentary approval. The only alternative is the suggestion made by the noble Baroness the Leader of the House. In principle, if there were nothing else, I would of course accept that. However, there is something else. There is no real justification for choosing what the noble Baroness has said and rejecting the amendment. I hope that your Lordships will support it.

4.30 pm

Lord Jopling: My Lords, I am goaded into contributing to this debate, having done so in Committee, not because I have the honour to be chairman of the sub-committee of the committee of the noble Lord, Lord Grenfell, that is likely to have to deal with these home affairs matters, but by the remarks of the noble and learned Lord, Lord Morris, endorsed by the noble Lord, Lord Rowlands—both friends of mine—which were entirely wrong.

The noble and learned Lord, Lord Morris, said that this was not scrutiny but scrutiny-plus. I profoundly disagree. Over the next moment or two, I shall speak on the whole spectrum of parliamentary scrutiny. The proposal is clearly second-class scrutiny. Let us look at other forms of parliamentary scrutiny. Some statutory instruments are subject to affirmative resolution. Parliament is faced with 150 to 200 of those statutory instruments, which the Minster is not allowed to sign and turn into law unless there is a positive, affirmative resolution by both Houses.

The proposal of the noble Baroness the Leader of the House denies that procedure to issues of opt-ins and opt-outs. Opt-ins are significantly the more important, so I hope that the noble Baroness will explain, when she responds, why there should be an inferior form of scrutiny for them. As the noble and learned Lord, Lord Woolf, said, there are issues here that go to the heart of the judiciary. They are of huge importance. Many of those 150 to 200 statutory instruments are of infinitely less importance. They often go through both Houses on the nod, without debate, but must also be approved by both Houses in a debate.

I ask the House to consider carefully whether it is wise, when we can equalise the level of scrutiny between statutory instruments and this issue, to give a future

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Government the opportunity, to quote the noble Baroness the Leader of the House, to “pull a fast one”. She acknowledged that, under this procedure, Governments could “pull a fast one”.

Baroness Ashton of Upholland: I did not, my Lords.

Lord Jopling: My Lords, we should not give Governments the opportunity.

Lord Maclennan of Rogart: My Lords, I am glad to have the opportunity to follow the noble Lord, Lord Jopling, who, like me, serves as a member of the European Union Committee. As its chairman, the noble Lord, Lord Grenfell, reminded us earlier today, that committee has not taken a common stance on the amendment tabled by the noble Lord, Lord Goodlad.

I profoundly disagree with the remarks that we have just heard from the noble Lord, Lord Jopling. Not all statutory instruments are subject to affirmative resolution. Not all matters that will be subject to opt-ins will be of profound importance; some of them may be quite unimportant. What is attractive about the procedure that has been advanced by the Lord President and was considered by the Select Committee is the possibility that scrutiny-plus will allow that committee to take into consideration the seriousness and the priorities of the issues and to table a Motion that will be amendable. Amendable Motions go beyond the normal scrutiny of statutory instruments, which are usually either rejected or affirmed. This seems to me a more sophisticated form of parliamentary scrutiny than what we have enjoyed before. For that, it is welcome.

I congratulate the Constitution Committee on raising this issue. I do not find it surprising that it should have put forward a proposal that is on the surface in line with the provisions of Clause 6 of the Bill. However, it has to be acknowledged that the matters covered by Clause 6 are very different in kind from those that will be considered under the opt-in or opt-out arrangements that relate to justice and home affairs. The Clause 6 provisions, which provide specifically for a new form of control over the negotiating authority of the Government, are a new, almost revolutionary form of ex ante control and relate to the decision-making process of the European Union. They do not relate to substantive issues of policy, which are normally allowed in our parliamentary democracy to be matters for the Executive, subject, of course, to the approval of Parliament. The superficial similarity of treatment between the provisions of Clause 6 and the proposals in the amendment in the name of the noble Lord, Lord Goodlad, and his colleagues can quickly be seen to be inapposite, because what is at stake in the case of the passerelle or different methods of decision-making can have a long-lasting effect on a wide range of issues. The matters that are covered by the opt-in and opt-out are precise, specific and eminently to be considered and decided by the Executive, subject to the approval of Parliament. It is wrong to erect such—

Lord Lawson of Blaby: My Lords, the noble Lord keeps saying that the proposal that the Government have put to us means that these questions of opt-in

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will be subject to the approval of Parliament. However, as the noble Viscount, Lord Bledisloe, made clear in his intervention, these, however important, will effectively be at the very most subject only to the control of one House of Parliament—the House of Commons. That is the issue that faces us today.

Lord Maclennan of Rogart: My Lords, I do not read the statement made by the Leader of the House in that sense at all. It is clear that the forthcoming Motions would be amendable and could be considered by this House, following consideration by the Select Committee. As I said, that seems to me a more sophisticated approach, enabling this House to take a balanced view on the importance of the issue before it. That view may be affected—as it should be—by the consideration that the opportunity to make a move may not necessarily recur quickly, which is something that the Government may be well placed to recognise in their continuing negotiations.

This whole debate has shown our Parliament in a remarkable light. It has not been an occasion on which positions have been taken up that are fortified by party allegiances or even stem from party allegiances; it has been a debate in which views have been advanced and modified. I suggest with great humility to the noble Lord, Lord Hunt, that he should modify the view that he expressed by listening to the views expressed by several members of his committee, which I believe were profoundly persuasive. I refer to the views of the noble Viscount, Lord Bledisloe, the noble Lord, Lord Rowlands, and the noble and learned Lord, Lord Morris. It seems to me that the House has moved forward since that important report was produced and has acknowledged the strength of the argument advanced by the noble Baroness the Leader of the House, which I hope will win the day.

Lord Marlesford: My Lords, we started this debate talking about the problems and pleasures of herding cats but I found myself thinking more and more of the problems and pleasures of herding weasels. I have never heard so many weasel words being used—inform, concede, consult, listen, debate, vote and take into account. I hope that what we are discussing today is not parliamentary consultation and influence but parliamentary control over the Government. I say that for two big reasons. First, I was lucky enough to be a member of the committee chaired by the noble Lord, Lord Grenfell, and I am now a member of the committee chaired by my noble friend Lord Jopling. How often have we seen that great phrase “scrutiny override” used? What is the reason for that? It is not so much that Ministers are ill intentioned but that they are often powerless.

Alan Clark’s Diaries state under the entry for 18 February 1986:

It is to enable Ministers to control Brussels that I believe we need to vote in favour of this measure.

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Lord Inglewood: My Lords, as I am neither a member of the Constitution Committee nor—for the time being, I hope temporarily only—have anything to do with the European Committee, I hope that my innumerable years’ service on the Legal Affairs and Constitutional Affairs Committees of the European Parliament will enable me to make a minor contribution.

In her elegant and plausible introduction to the Government’s policy the Leader of the House made an analogous argument to that on the scrutiny of policy. Yet, as we have seen from this debate this afternoon, at European level there are two separate issues for consideration: policy and competence. Competence is a different question from policy. One could describe our discussion in shorthand terms as concerning red lines and whether to cross them. I wish to make clear that I am not a Eurosceptic and I have no trouble with crossing red lines if it is in the national interest to do so. However, in the context of competence and red lines, we are talking about Parliament’s authority. In the context of whether parliamentary authority should be granted, I believe that Parliament and not the Government should be in charge. If too many proposals come before Parliament for it easily to handle, it is for Parliament to change its rules in order to be able to deal with them. This particular cart and horse should be that way round.

We have heard a lot about accountability but I do not believe this is about that; it is about authority. The citizens of this country understand the distinction between accountability and authority and expect it to be understood and included in the Bill.

Lord Lea of Crondall: My Lords—

Noble Lords: Leader!

4.45 pm

Baroness Ashton of Upholland: My Lords, I am in your Lordships’ hands because I have already spoken, but I felt that the time may have come for me to respond briefly to the points raised by noble Lords. I see the noble Lord, Lord Hunt of Wirral, nodding. I apologise to my noble friend but I did get that sense.

I am extremely grateful to everybody who has spoken. It is wonderful to see some people who I have not seen for a while. I promised myself that I would tell the noble Lord, Lord Lloyd-Webber, that I enjoyed “American Idol”, in which he featured. I am a huge fan of the programme and I think that the right guy won. The noble Lord will know what I mean by that.

At the beginning I said something about the transcript and that I was slightly shocked. I was shocked because I understood that the process normally adhered to is that members of the committee receive the uncorrected transcript, but normally the witness receives it as well and has a chance to comment. I had not seen it until after the noble Lord, Lord Hunt of Wirral, who is not on the committee, had made reference to it. I do not know how the noble Lord got a copy of it, and I have tried to find out exactly why I did not get one. I have no objection to the noble Lord having a copy, but if I looked startled, that was what it was about. I hope to get an answer to that today.

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I want to explore the myth that this 13-week timetable may be infinitely moveable, flexible or is somehow known about long before the proposals come forward. Although we may know in general terms where proposals might be coming forward, it is my personal experience—and probably that of other noble Lords who have been in the same position—that until the proposal is received on the first day of the 13 weeks, one is not sure exactly what is in the proposal and or what the position should be. I would not want that to be misunderstood. Equally, like other Governments, we believe very strongly in consulting properly on what is in those proposals. Indeed, the noble and learned Lord, Lord Woolf, will remember that he chaired meetings at the Bank of England for me on Rome I when we were looking at the proposals. So it is a very tight timetable and that is one of the factors that I have tried to take into account.

I am extremely pleased that noble Lords have thanked me for my contribution to the Constitution Committee. It was a great privilege to appear before the committee. I am delighted that of the four people who have put down their names to move this amendment, three have already indicated that they are satisfied with what I did. I accept that everyone is speaking in a personal capacity but I hope that the House will take note of that.

The noble Viscount, Lord Bledisloe, said that we must be absolutely sure that we cannot go backwards in a review. That will be written into the procedure to make sure that that could not happen. The review is intended to refine and move forward, not to dig up what is agreed in this process.

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