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I shall add one point to this, which perhaps is a subject for another inquiry. Most other national parliaments also have useful and constructive co-operation between their national Members of the European Parliament, their national scrutiny committees and themselves. We do that remarkably little. Perhaps the European Union Committee might inquire into that further.

11.04 am

Lord Astor of Hever: My Lords, I thank the noble and learned Lord, Lord Mance, for raising this important debate and I congratulate him on an excellent maiden speech. I agree with my noble friend Lord Bowness and the noble Lord, Lord Wallace of Saltaire, that the House will miss the Law Lords’ technical expertise on subjects such as this when they no longer sit in the House from next year.

There has been much highly charged and contentious discussion about EU legislation over the past Session. It is right that we should continue such scrutiny over an issue that can have a major effect on policies and functions in this country. One area on which the Government’s reply to the report focused was ways to improve the quality of EU legislation. They were right to do so. Nevertheless, while quality is often more important than quantity, it is not always the thought that counts. The plethora of legislation being pumped out of the EU is disturbing in itself. The current Prime Minister famously said,

Every year, more than 1,000 European documents are put into Parliament. Of these, only a very few are fully debated in the House. This is worrying. It further serves to illustrate how important it is to analyse and scrutinise every area of initiation and production of EU legislation.

I therefore welcome the useful report on the initiation of EU legislation and applaud the work of the cross-party European Union Committee in producing it. As stated in the intentions, it sheds some light on an area of EU activity that is not often examined. I echo the point made by my noble friend Lady O’Cathain and the noble Lord, Lord Wallace of Saltaire, that House of Lords committee reports are widely respected.

As this report states, its principal function is descriptive. Nevertheless, it reaches a clear conclusion:

“Developments since the establishment of the EU have not cast doubt on the validity of the arrangements and we believe that the Commission should retain the right of initiative”.

That is all well and good, but we still need to recognise the democratic tensions inherent in the system.

The report rightly underlines that this general monopoly of initiative is a great power. Paragraph 150 states that the power conferred,



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In nation states, that power normally belongs to elected Governments, who change as voters decide. No such limit exists for the Commission. This explains why dossiers tend to keep being pushed until the other European institutions accept them. The Commission’s persistent support for a European public prosecutor is a good example. Yet perhaps the unhappy disconnect between bottom-up democracy and the need for the Commission to act impartially in the general European interest is irreconcilable. If so, it makes it all the more important that national parliamentarians are scrupulous in holding this power to account and making sure that scrutiny is maintained to the utmost level. I am cautious about regarding the issue of the right of initiative as closed.

Furthermore, if the Commission is to retain the right of initiative, it is imperative that our own Parliament has the chance to consider whether the legislation meets the principles of proportionality and subsidiarity. One of the few improvements in the Lisbon treaty is on national parliaments’ rights in this area. If any national parliament considers that this does not apply, they have a period of eight weeks to send a reasoned reply. The sheer amount of legislation pouring from the EU means that that is far too short a period. The report states that member states should,

How true. In their reply, the Government state that they would like to see this period extended to 16 weeks. What action have the Government taken to promote that proposal, and have there been any developments? Do the Government agree with the European Scrutiny Committee’s recent report that,

This same level of scrutiny should be maintained across the board. The report describes lobbying, which the noble and learned Lord, Lord Mance, mentioned, as,

with the careful caveat that it should be “transparent and appropriately regulated”. The report also states that the members of the committee,

The report states that,

as the noble and learned Lord told us earlier. That seems to me to be a rosy view. Do the Government share our view that the European legislative system can sometimes be a dangerously closed loop, with the European Commission funding EU-wide bodies that then provide vocal support for EU-wide legislative initiatives? Is there not a conflict of interest there?

As the noble and learned Lord said, the report also focuses on the role of impact assessments. We welcome the fact that these have become standard practice. They are there not least because of the persistent pressure from Conservative MEPs and others who share our view that too often in the past European

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legislation has been initiated with little thought as to its costs. I pay tribute to the Barroso Commission for the notable improvements in this respect.

We welcome the fact that in 2008 the Government expect to have carried out 200 of these impact assessments. The Government will doubtless quote their shadow price of carbon scheme to use as the,

which should aid impact assessments. However, I cite the examples of the impact assessments into biofuels and renewables targets, which both went far further and had a far greater impact than the assessments predicted. We welcome the production of these documents, but if they are not done well they run the risk of being relegated and becoming just jargon.

Lord Denning once pointed out that, as more legislation increasingly came under the scope of the European Court of Justice, the unhappy conflict between the English common law and the civil law of the European Union would become more apparent. The Government themselves have recognised that this is a problem, stating that,

The action taken to support that position, however, is of questionable effectiveness. Examples include arranging for,

What evaluation have the Government made of the effectiveness of such measures?

In conclusion, we welcome this report and are encouraged by the amount of useful information contained within it. Nevertheless, I urge the Government to consider the important caveats that I have mentioned.

11.15 am

Lord Davies of Oldham: My Lords, I begin with a brief apology. The Government would have preferred that the Minister replied to this debate but, as noble Lords will have appreciated from their television screens, my noble friend Lord Malloch-Brown is somewhat preoccupied with the disastrous developments in southern Africa, particularly in relation to the cholera epidemic in Zimbabwe, and it will be appreciated that he is doing such distinguished and sterling work with regard to that aspect of the Foreign Office that it precludes him from responding to a debate of this significance today.

It therefore falls to me to respond and to begin by congratulating the noble and learned Lord, Lord Mance, on what I think was a unique maiden speech. A maiden speech that is also a sad swan-song is an interesting concept. The noble and learned Lord also indicated that it might be a little while before the House heard from him again because of the constitutional changes that are being effected. In due course, however, I hope that his maiden speech will be looked upon as the first of the contributions that the noble and learned Lord will make to the House. We have all valued his work; strange it is that that work should be done by

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someone who has not spoken in the House before and yet has made such a contribution, as represented by the report. I both congratulate him on the report and thank him for the precise, accurate and effective way in which he made his maiden speech today. I did not detect the bundle of nerves that normally besets some of us when we first address the House, but then the noble and learned Lord has been with us for several years and has been doing sterling work alongside his colleagues. We very much respect that contribution.

The Government broadly welcome the report and recognise that it points to ways in which we can be more assertive about the need for reform in Brussels. In a moment I shall come on to the various contributions to the debate that have raised issues of principle. The noble Lord, Lord Willoughby de Broke, presented his case with his usual forcefulness. That case is not related to the constructive concepts of this report but is to damn the Commission and all its works as having failed any conceivable democratic test. Therefore, there is not much that the report can possibly have in the way of enlightenment for the noble Lord. However, he will appreciate that my noble friends Lord Tomlinson and Lord Rosser had partly anticipated that onslaught, as indeed had the noble Lord, Lord Bowness. Having worked so hard on the report and on how we can make European institutions and the Commission more effective, they were concerned to present a rather robust, principled position on the role the Commission plays. I do not have time to deploy that case in full; indeed, that has already been done successfully for the Government by the three noble Lords to whom I have made reference. Instead I shall respond to the report, which identifies where we can effect greater reforms in Europe to improve the work of the institutions.

The Commission is much misunderstood in Britain. That is not surprising. The noble Lord, Lord Willoughby de Broke, berates the Commission—we have heard the noble Lord, Lord Pearson, do the same on other occasions—for being very different from any structure that we know of in the United Kingdom or indeed in other parliaments and democracies that follow our model. The Commission is different because the European institutions are different in their approach to representation of the democratic will and to how decisions are taken in Europe. Of course I understand the extent to which criticism against the Commission can be voiced, but let us not exaggerate. The noble Lord, Lord Astor of Hever, indicated that he had reservations about the amount of legislative proposals that emerge from Europe. There was a time under a former Administration when there were a very large number of regulations relating to the essential building work of establishing the single market. We are all aware that a large amount of cross-European legislation was necessary.

A House of Lords Library report indicates that about 8 per cent of our legislation emanates from Brussels. So let us not be caught up in the myth that the United Kingdom has handed over its law-making capacity to Brussels. That is just not so, and it needs to be understood.

Lord Pearson of Rannoch: My Lords—



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Lord Davies of Oldham: My Lords, I guessed that I would not get very far with this presentation without the noble Lord intervening, and I gladly give way.

Lord Pearson of Rannoch: My Lords, what, in that case, do the Government say to the former president of Germany, Roman Herzog, and the German federal justice department, which put the figure at 84 per cent of national law? Of course we are not talking about local government law covering street cones or statutory instruments which follow on from other law, but about the body of national law. There, I think, many of us are comfortable with a figure of some 70 per cent at least.

Lord Davies of Oldham: My Lords, the danger is that we could engage in a debate which I think has been sufficiently aired already this morning. I know that the noble Lord looks at the small print of everything that emerges from Brussels, so he will be acquainted with the fact that a great deal of the work of the Commission is as a result of initiatives taken by others. The myth that the noble Lord and others wish to present is that the Commission is the sole driving force of law. That is not so; of course the Commission has a very important role to play in this area, but more than a third of its work is in response to scientific, economic and social data and another third relates to international obligations, in which it is responding to initiatives which are part and parcel of the modern world in which we live and a reflection of the European community to which we belong. Another fifth of the Commission’s initiatives is in response to direct requests from member states or other EU bodies such as the European Council or the European Parliament.

I know that that will not do, but we all know the burden of the onslaught from certain Members from the other side. If the European Commission were transformed rather more into some aspect similar to the British Civil Service—which it is not—then they would set about describing how illegitimate the European Parliament was. That would be the next base for the argument that there cannot be institutions that are democratic in Europe. On these issues of principle, the Government do not agree, and nor, I think, do the vast majority of British people. Nor do I think it is relevant to bring these issues into a report which is careful and precise about what it wants to see done.

Inevitably, the noble Lord, Lord Willoughby de Broke, referred to the Lisbon treaty. That is of some apparent concern in the light of the developments of the past few days. On Monday, noble Lords will have an opportunity to deploy that case again as there will be a Statement in the House resulting from the ministerial meeting. When the Lisbon treaty is ratified, it will give Europe’s citizens the right to propose ideas for legislation, compelling the Commission to consider legislative proposals if there is a large enough body of opinion behind them.

A change is being effected to extend the democratic institutions of Europe. However, this report covers discrete and precise areas in which we could effect improvements. The Government very much welcome it and look upon the recommendations identified by

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the noble and learned Lord, Lord Mance, in his speech and by other constructive contributors to this debate as ways in which we can improve the position. We certainly want to see the Commission act as transparently as possible, so we welcome its code and register of representatives and lobbyists, which were introduced in June this year. The noble Lord, Lord Wallace, referred to that. We look forward to the results of the Commission’s review of the register and code after its first year in operation. I have no doubt that transparency is of very great import for the Commission, and we are grateful that the point was identified in the report.

Concerns were raised in the report about whether the common law system was sufficiently taken into account in developing legislation on justice and policing. This is always a challenge for us specifically in the United Kingdom because of the different legal basis between our own position and that which obtains in Europe. There are significant exchanges between the Commission and our lawyers to improve understanding of these issues. We paid host recently to the entire civil law unit of the Commission, which was here for a two-day working visit. The noble and learned Lord, Lord Mance, would have not have chaired the committee with the distinction that he did if he had not emphasised the importance of understanding on both sides the way in which we can improve legal contributions to the work of the Commission, and the particular dimension of common law nuances which are bound to play their part in the British interpretation of European law.

We also consider that national Parliaments have a voice and a role to play. In September this year, the Commission published its 15threport on better law-making, reviewing the activity over 2007. It said that the House had sent the Commission 18 opinions on its new initiatives under its new system for communicating with national Parliaments. We made more submissions than any other Parliament except for the French Senate and the German Bundesrat. We are active in meeting the challenge, to which the noble Lord, Lord Astor, referred, between the obvious discontinuance in the British approach to political decision-taking and the role of the Commission and of European law. That will always be a challenge; we recognised it from the very first days of joining the European Community. I can reassure the House that the noble and learned Lord’s plea in his report that constant work should be addressed to these issues is being continued by the Government.

We also appreciate the fact that the right level of regulation is important for Europe’s credibility and competitiveness. Europe has an increasing role to play in tackling the big challenges of climate change. Although I hear criticism from time to time about the intrusion of Europe upon certain aspects of our way of life, I hope that even the noble Lords, Lord Willoughby de Broke and Lord Pearson, might think that on climate change, international co-operative action is the only conceivable way in which we will see the crisis situation resolved to safeguard the interests of all mankind. In those circumstances, the European institutions have a role to play.

We have been concerned that the Commission should show a real commitment to improving the quality of regulation. That is why the Commission is now involved

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in considerably more impact assessments—300 impact assessments have been completed since 2003. Its own Impact Assessment Board, which screens impact assessments for quality, has rejected some of them for being below par. It is critical of the work that has been done and we have no doubt that that is an important element in ensuring that European legislation proves to be successful.

None of us in this House regards the institutions of Europe as working as well as we would hope but none of in this House thinks that British institutions work as well as we would hope. That is why in a democracy there is a constant ferment of new ideas and pressure for progress, and the European institutions fit into that pattern. There is a great deal of work to be done. The Commission’s recent legislative and work programme for 2009 sets out to simplify Europe's regulatory environment and it will certainly be a key priority in this. We will ensure that that work gets high priority. We will continue to press the Commission to do more in this area and to do it faster.

This has been an extremely constructive debate aided by the fact that all noble Lords who contributed—with the exception of a dissonant voice, which is bound to be expressed on principle against Europe and all its works—supported the chairmanship of the noble and learned Lord, Lord Mance, and the work of the committee in terms of the constructive ways in which we need to improve the work of the Commission and European institutions. I congratulate the noble and learned Lord on his report. The whole House owes him and the committee a debt of gratitude.

11.32 am

Lord Mance: My Lords, I thank all noble Lords and who have spoken today and thank the Minister. This has been a constructive and lively debate over large areas of the sub-committee's report. There is not time to mention more than a few points.

The committee certainly sought to take and invited evidence on a broad basis. There has been some debate this morning about the extent to which the EU law-making process can be regarded as properly democratic. There was reference to the possibility of a long-term change in the mechanisms by which legislation is proposed, but at present, as a number of noble Lords emphasised, the Commission does not dispose: it proposes. Although it has discretion, it is not in any way the sole disposer. It operates subject to constraints—institutional and public as well as the underpinning legal constraints, through the European Parliament, of appointment and budget.

As the noble Lord, Lord Wallace, said, of all international institutions, the Commission might be regarded as the most democratic. It is certainly very open. Of course, that gives us opportunities that we need to take and to engage with. A number of noble Lords supported the proposal that the period for response be extended to 16 weeks from eight. There was reference to scrutiny in this Parliament and in particular in this House and to the possibility that the Select Committee might consider the procedural aspects of that. I am sure that that is something the Select Committee is likely to take up.



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The influence of reports of this House was mentioned. Of course we do not initiate proposals. Our role is to scrutinise proposals. In my limited experience, the scrutiny that we undertake can be and is effective. One example that I can mention immediately is the recent proposals relating to pre-trial supervision. We were roundly critical of the form in which they came forward and we received feedback from Brussels about the relevance and acceptability in large measure of some of the points we made. The ultimate proposal was far better thought through and far better drafted, and there have been several such instances. I believe that this House, through its scrutiny committees, has a real impact on European legislation; certainly that is what one hears.

There were references to the importance of British staff in the Commission and I welcome what was said in that respect in support of the committee, and in relation to the importance of common law and its role being understood. There have been some reservations about the Commission’s approach to the closed loop of lobbyists. Certainly that needs to be reviewed in the light of the publicity that should follow if the register is effective, although that is likely only if it is made compulsory. We hope it will be. I am grateful for the Government’s support for the report and for the Minister's response on matters in it. I look forward to his further response on outstanding points. I am grateful that he has indicated that they will receive attention.

Motion agreed.


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