Grand Committee

Wednesday 15th July 2015 Grand Committee

Wednesday, 15 July 2015.

Arrangement of Business

Wednesday 15th July 2015 Grand Committee

Announcement

15:45

[The Deputy Chairman of Committees (Baroness Harris of Richmond) (LD)]

My Lords, if there is a Division in the House, the Committee will adjourn for 10 minutes.

EU: UK Opt-in Protocol (EUC Report)

Wednesday 15th July 2015 Grand Committee

Motion to Take Note

15:45

Moved by

[Baroness Quin]

That the Grand Committee takes note of the Report of the European Union Committee on The UK’s opt-in Protocol: implications of the Government’s approach (9th Report, Session 2014–15, HL Paper 136).

[Baroness Quin (Lab)]

My Lords, the report for today’s debate focuses on the Government’s policy on the opt-in protocol, which allows the UK and the Republic of Ireland to opt in to or out of EU justice and home affairs measures. The report concerns, in particular, the Government’s approach to measures—most often, international agreements—which do not have a justice and home affairs legal base. The policy of the Government is one that the former coalition Government applied from 2010 onwards, during which time both the EU Select Committee of your Lordships’ House and Sub-Committee E, which is the Justice Sub-Committee, had occasion to question its lawfulness.

The inquiry that led to this report was triggered by a letter from the then Justice Secretary and the then—and current—Home Secretary in June of last year setting out the Government’s opt-in policy in some detail. The novel reasoning underpinning that letter prompted us to hold a short inquiry. We wanted to seek the views of legal experts on a dispute that had hitherto been confined to us and the Government. We were also prompted by a series of judgments from the Court of Justice over the previous two years that appeared to put the Government’s policy in some doubt, so we wanted to seek the views of legal experts on those cases also.

While our inquiry at first glance may appear to have focused on a very narrow area of government policy, we felt that the Government’s approach raised wider concerns. First, we were increasingly concerned that the approach violated basic EU principles. We also thought that it could give rise to legal uncertainty in the many international agreements that the EU concludes and therefore cause the third countries negotiating those agreements uncertainty. We were also concerned that the Government’s approach could be counterproductive to our interests in the EU and could possibly undermine our good standing and our reputation with our partners.

In essence, the main issue that we wished to resolve was whether the opt-in protocol could be applied when the Government alone, unilaterally, considered that a proposal for EU legislation contained justice and home affairs content or whether a formal justice and home affairs legal base, under Title V of the Treaty on the Functioning of the European Union, had to be cited.

While we were concentrating on this very specific aspect of government policy, we noted—and our report makes this clear in chapter 2—that,

“the opt-in Protocol has provided the UK with a very effective safeguard against participating in legislation with a legal base in Title V, particularly internal EU legislation”.

This fact is clearly demonstrated when you look closely at the Government’s annual opt-in reports, but it was not mentioned at all in the Government’s evidence to the inquiry, which is why I stress it here today.

I should also add that the recent balance of competences review undertaken by the outgoing Government does not seem to suggest that, in justice and home affairs with the opt-in and opt-out processes that are available to them, the Government have had any particular difficulties in safeguarding their position on these issues. Overall, from the Government’s point of view, the system seems to have worked satisfactorily—perhaps the Minister can confirm this in his reply—whereas so often the general impression seems to be given that the EU is somehow constantly a threat in this area of policy and has to be constantly resisted.

Before I turn to the substance of our conclusions, however, let me mention our concern with the Government’s way of co-operating—if that is the right word—with our inquiry. Four months elapsed from the launch of the inquiry until the Government submitted written evidence and confirmed their willingness to attend to give evidence. By that time, all our other witnesses had given evidence and we were contemplating having to report without the Government’s own evidence. The Government explained that the delay was caused by a judgment of the Court of Justice of the EU, delivered last June, which they had been considering, but in our view that judgment, although complex, did not justify such a long delay in the Government’s co-operation with the inquiry. We stated as much in the introduction to our report, and we hope that similar delays will not occur in future Select Committee inquiries of this House.

It is also disappointing, of course, that we have not had the Government’s formal response to this report today. It would, I am sure, have better informed our debate. After all, our report was published on 24 March and the Government are normally obliged to respond within two months. Obviously, we had a general election, which meant that purdah was in place, but in accordance with this an extension for a response was given until 22 June, yet we learn that the Government are still considering their response. I would like to hear from the Minister today whether he has a firm date for the formal response to be sent to us. Even though time is fast running out, can we be assured that this will be before the parliamentary Recess next week?

I now turn briefly to summarise the committee’s conclusions under our chapter headings. In chapter 3, we looked at the meaning to be given to “pursuant to” in Articles 1 and 2 of the opt-in protocol. None of the expert evidence we received in the course of the inquiry supported the Government’s broad interpretation of “pursuant to” in that protocol. We felt that this was significant in itself and we noted in particular that the Republic of Ireland did not follow the UK’s practice of applying the opt-in protocol in the absence of a Title V legal base. We agreed with all our witnesses that a legal base was also necessary to define the source of the EU’s power to act and that this was consistent with the principle of conferral. We therefore concluded that the phrase “pursuant to” had an accepted legal meaning and that in the context of the opt-in protocol it meant that the Title V legal base was required before the opt-in could apply.

We also felt that the Government’s very broad interpretation of “pursuant to”, of the merits of which they tried to persuade the Court of Justice, would actually give the EU wide powers to increase its competence in many other policy fields where it is mentioned in EU treaties. We queried whether this was a consequence the Government wanted. It certainly seemed to us to be potentially counterproductive—a word I mentioned earlier.

In chapter 4, we looked at the issue of determining the legal base of an EU measure with JHA content. Again, all the evidence we received here contradicted the Government’s approach to determining the legal base of a measure with JHA content. We accepted the weight of that evidence and concluded, as a consequence, that the Government’s distinction between whole, partial and incidental JHA measures was misconceived and that the Government should reconsider their approach.

In chapter 5, we looked at the issues of legal certainty and loyal co-operation in the negotiation of international agreements with JHA content. While we accepted that there is a distinction between actual and potential legal uncertainty, we concluded, none the less, that the potential for the Government’s policy to create real legal uncertainty was considerable. We concluded, too, from our point of view in terms of parliamentary scrutiny, that the Government’s approach creates legal uncertainty around parliamentary scrutiny, as the two examples we gave in the introduction to the report showed. These two examples related to the fourth money laundering directive, an important measure, and Kosovan participation in EU funding projects.

We were concerned that the Government’s unilateral interpretation raised questions about their acceptance of the uniform application of EU law. We were therefore also concerned about what impact that might have on the UK’s reputation among other member states. Finally in this section, we concluded that the Government’s policy puts them at risk of breaching the duty of sincere co-operation, under which member states have a duty to co-operate strongly with European Union institutions in the negotiation and implementation of international agreements.

In chapter 6, we looked at how the opt-in protocol had been interpreted by the EU institutions, because the Government put it to us that they believed that the Commission had actively pursued a policy of “legal base shopping”, in order to undermine the UK’s opt-in rights, which was a serious charge to make. Certainly, in one specific case they provided evidence that lent some support to this allegation in respect of the former Commission, and perhaps in particular a former Commissioner. However, it must be said that in this particular case the European Council of Ministers, quite rightly, supported the UK’s point of view, and the UK in the Council was able to overturn the proposal for the legal base that the Commission had made, pointing out that it is related to the substance of a measure and cannot be related to whether that measure might have a certain geographical coverage or not. However, despite that exception, which the Government had drawn to our attention, we concluded that there was no persuasive evidence at all to suggest that the Commission had circumvented systematically the UK’s opt-in rights.

In chapters 7 and 8, we looked at the case law of the European Court of Justice and the Government’s litigation strategy. While we recognise the Government’s concerns, again we concluded that there was no evidence to suggest that the court for its part had sought deliberately to undermine the safeguards in the opt-in protocol. We concluded that it was highly unlikely that the court will change its established approach to determining legal bases, including for measures with JHA content, as the Government suggested it might, and we therefore recommended that the Government review their litigation strategy in the light of these conclusions.

Rather than just criticising the Government’s strategy, we also made one suggestion, that if they wanted to raise these concerns with their partners, they could consider the feasibility of an inter-institutional agreement on the scope of Title V. I would be interested to know whether the Minister feels able to respond today to that suggestion made in the report.

In conclusion, and in looking forward to hearing what other noble Lords may say on this matter, I will say that the sub-committee’s report was strongly endorsed by the EU Committee of this House and, therefore, comes here with all-party and non-party approval. I thank very much all colleagues who contributed to the inquiry, in particular my former colleagues on the EU Justice Sub-Committee, with whom it was a pleasure to work.

We believe that it is essential that the Government carefully consider the evidence which the inquiry received and which casts doubt on the legality of the Government’s policy. While the formal response to the report is still awaited, I none the less hope that the Minister can give us some reassurance here today. I beg to move.

15:58

[Lord Richard (Lab)]

My Lords, I thank my noble friend Lady Quin for the way in which she chaired this committee. It was done with skill, charm, and to great effect. I also thank the clerks to the committee, who performed with their usual skill, as did our legal advisers, who in this particular case were absolutely essential.

I am delighted to see the noble Lord, Lord Faulks, here. As a former practitioner, with many years at the Old Bailey, may I say how much I have admired, watching him in this House over the years, the charm and skill with which he advocates some of the worst causes it is possible to devise? Professionally, therefore, I am delighted to see him here.

This is an extraordinary debate. First, I have never known a report which, frankly, was quite so universally critical of the Government’s legal position. Usually, in an issue which involves disputes of this sort, you find somebody, somewhere, who is prepared to stand up and say, “Yes, I think the Government are right”. In this case, we could not find anybody who was prepared to do that. Secondly, I think this is the first time I have ever taken part in a debate on a report of one of your Lordships’ Select Committees in the absence of a response to that report from the Government.

As I understand it, a number of deadlines were passed and it was felt that this debate had to proceed. Quite why there has been no response is as yet unclear. If it means that the Government are actively and seriously reconsidering their current position, that is to the good and this debate is perhaps premature. If not, why has there been such an inordinate delay? This is offensive to the committee and contemptuous to the House. As my noble friend Lady Quin said, we waited a long time to receive the Government’s evidence to the committee. When it came, it was negative and sparse.

As I see it, there are three issues that ought to be considered here: first, whether the Government’s view as to the effect of the protocol is accurate, and particularly whether their interpretation of the words “pursuant to” is right; secondly, the effect of the recent judgments of the European Court of Justice and whether that case law is undermining the scope of the opt-in protocol; and, thirdly, whether there is any evidence that the Commission has deliberately tried to subvert the scope of the opt-in itself.

I will deal with these three issues separately. I think it is worth while to begin at the beginning; namely, with the terms of the treaty itself. Under the terms of the Lisbon treaty, the UK was given an opt-in protocol to replace its loss of the right to veto. That protocol allows the UK not to participate in justice and home affairs legislation. A recital to the protocol explains that it is intended to,

“settle certain questions relating to the United Kingdom and Ireland”.

The relevant articles of the protocol read as follows. Article 1 provides that the UK,

“shall not take part in the adoption by the Council of proposed measures pursuant to”—

I emphasise those words because they will become extremely important—

“Title V of Part Three of the Treaty on the Functioning of the European Union”.

As a consequence, Article 2 establishes that,

“no measure adopted pursuant to that Title, no provision of any international agreement concluded by the Union pursuant to that Title, and no decision of the Court of Justice interpreting any such provision or measure shall be binding upon or applicable in the United Kingdom or Ireland; and no such provision, measure or decision shall in any way affect the competences, rights and obligations of those States”.

I do not think I need to read the rest of the article.

This dispute has arisen because of the Government’s interpretation of “pursuant to”. In their written evidence, the Government said—and this is the nub of the argument—that Articles 1 and 2 of the opt-in protocol,

“are not restricted to provisions in agreements concluded under a Title V legal base, but to those adopted or concluded ‘pursuant to’ Title V. This is a broader test which, in the Government’s view, extends to any provision in an international agreement that contains content where the EU competence for negotiating, signature and conclusion of that agreement flows from Title V of the Treaty on the Functioning of the European Union or TFEU, that is, JHA content”.

It is in respect of that issue that we heard a number of witnesses.

The clerks of the committee made efforts to find lawyers who actually agreed with the Government’s position on this. They failed. I have never known a body of evidence from a number of distinguished witnesses which was so definitively in the same direction. They were asked whether they thought the Government’s interpretation of “pursuant to” was legally reasonable. None did. Professors Peers, Chalmers and Barrett were unanimous in their view. Professor Peers said the Government’s interpretation was “unconvincing”. Professor Chalmers concluded that it was “particularly challenging”. Professor Barrett thought it was a “singularly unlikely interpretation”. Dr Bradshaw concluded that “pursuant to” should be interpreted as “requiring a legal basis”. Professor Cremona thought the Government’s approach was “misconceived, legally speaking”.

The only body that advocated the Government’s interpretation were the Government themselves. No academic, no Government, no institution supported them. It is worth pointing out, as my noble friend already has, that Ireland, the other beneficiary of this opt-out procedure, has declined to follow the Government in their stance. It has not argued for a similar definition of “pursuant to”; I do not think it has even raised it.

It seems to me that the ordinary meaning of the expression “pursuant to” is more than an alternative way of expressing “following upon”. It requires, as our evidence says, a direct link with the parent measure. As was pointed out by Professor Peers, if the drafters of the protocol had intended the broad notion of the words advocated by the Government, they would have made it clear with different wording. Professor Cremona thought that the French version, “en application de ce titre”, and the Italian version, “a norma di detto titolo”, clearly expressed the concept of being based on or adopted according to that title.

This view is fortified by the fact that “pursuant to” appears in no less than 99 places in the EU treaties, protocols and declarations. The Government apparently take the view that the words should be interpreted in relation to the context in which they appear. Since this could lead, potentially, to 99 different versions of what the phrase means, it seems to me that that approach is somewhat fanciful. The Minister was a distinguished legal practitioner and will know that, if the words are clear, they should be given the same interpretation wherever they appear.

The committee therefore concluded that it was unpersuaded by the Government’s interpretation of “pursuant to” and found the argument that “pursuant to” in the opt-in protocol should be interpreted differently from elsewhere in the treaty equally unconvincing. The committee therefore called on the Government to reconsider their interpretation. That is the nub of the dispute that the committee had with the Government, although there were other issues, which I have briefly touched on.

I can deal with the remaining two issues that I raised rather more shortly. In chapter 7 of the report, the committee analysed six recent Court of Justice judgments. It also had the benefit of the opinion of the expert witnesses on Title V case law. It concluded in accordance with that evidence that the court’s approach to determining the legal base in the six cases we analysed did not differ from established case law and that the Government’s view that those cases do not have an impact on their opt-in policy lacks credibility. The committee thought that they clearly did.

In the course of the evidence, we heard rumours, particularly from the then Lord Chancellor, Mr Grayling, that the Commission in its choice of legal base was actively trying to subvert the opt-in. However, when the evidence was produced, it was less than convincing. The committee concluded that,

“the Government’s letter of 21 January provided no persuasive evidence of Commission circumvention of the UK’s opt-in rights. There is certainly no evidence to support any allegation that such circumvention is systemic”.

In only one case—the draft PIF directive—did the Government, in the committee’s view, provide some evidence that lent some support to this allegation. We should not forget that in that specific case the Government appealed to the Council, the Council agreed with the Government, and the legal base was changed to Title V.

To sum up the situation, it seems to me that the Government have just got it wrong. I am not wholly convinced that the advice given to the Government by their legal advisers was designed to express their view of what the law really is. When I joined the Foreign Office many years ago, I was told that the function of government legal advisers was not to tell me what the law was, but to tell me what legal arguments were available for me to use to justify the policies that I wanted to pursue. There is nothing wrong in that, except that it deserves to be recognised for what it is. The Government’s lawyers have indeed produced some arguments. I do not find them convincing, and nor did the committee. I hope the Government will change their position. They certainly should.

16:09

[Baroness Ludford (LD)]

My Lords, it is a privilege to take part in this debate. I did not have the pleasure of serving under the noble Baroness, Lady Quin. I am a new member of the Justice Sub-Committee under the chairmanship of the noble Baroness, Lady Kennedy of The Shaws, and I look forward very much to continuing to work on that committee. I spent 15 years in the European Parliament on the relevant committee dealing with justice and home affairs issues. In the five years between the Lisbon treaty coming into force and my stepping down, involuntarily, from the European Parliament, I became very familiar with the exercise of the opt-in under the protocol, and indeed with the whole exercise of the block opt-out, which we will no doubt discuss in the next debate.

As I listened to the noble Lord, Lord Richard, in particular, I could not help trying to suppress a giggle as I thought that this would make a very good satirical sketch. However, the serious point is that the Government are creating a great deal of confusion and legal uncertainty, first, for this House and the other place over the correct parliamentary procedures that should apply to this area. The scenario that we seem to have is that the Government decide after the three-month window, “Oops, we’ve discovered some microscopic JHA element very late in the day—too late to let you guys know that the opt-in enhanced scrutiny procedure applies”. We had a letter dated 3 June 2014 from the Justice Secretary and Home Secretary saying breezily that,

“there may be occasions where the Government fails to recognise JHA content in an EU proposal at the outset. We are endeavouring to keep these occasions to a minimum by raising the profile of JHA content in otherwise non-JHA dossiers across Whitehall”.

There are two possible reactions to that. One is that it cannot be very significant if it is not easily spotted, so why are the Government bothering about it? The second is: get your act together a bit earlier and check what is actually in the proposal.

The second, and perhaps more important, area where confusion and legal uncertainty will be created is with the EU institutions, with the other 27 Governments and with our international partners. That is brought out very well in paragraph 91 of the report, which says that the uncertainty about when and whether Protocol 21 applies is,

“particularly problematic in the context of international agreements, as it would mean that third countries might be unable to assess, when they conclude an agreement with the European Union, to what extent the Union assumes liability with respect to the United Kingdom. This will ultimately affect the correct implementation of the pacta sunt servanda principle, a cornerstone of international law”.

So we have the situation where the Government say, “We think there is JHA content but we didn’t manage to secure a Title V legal base. None the less, we don’t regard the UK as bound by the JHA element”. To say that this is “not an ideal outcome”, as the Government did in a letter of 3 April 2014, is an understatement of the highest order, but of course they assert that the situation did not give rise to legal uncertainty—we just put a statement in the Council minutes and everything is hunky-dory.

It seems to me that, to use a popular phrase or saying, this is no way to run a whelk-stall. There are serious implications for the rule of law, for the uniformity of the EU legal order and for the confidence that our partners, both European and international, can have in our dependability. I cannot see any possible advantage for a country that this year has celebrated 800 years of Magna Carta and the rule of law, which has one of the most admired legal systems in the world and which surely trades on the rule of law probably as much as any other country in the world—indeed, it relies on the rule of law and on everyone else meeting it.

Perhaps I am being rather party political, but the idea that there is a conspiracy against us seems to sum up everything that is wrong with a Conservative-dominated or Conservative-only Government’s attitude to the European Union—“They are out to get us”. Of course it is fair enough to be vigilant and ensure the correct application of the treaties. That in itself is an application of the rule of law. There may be cases where the Commission tries to push the envelope, more out of a sense of, “Well, the Commission would, wouldn’t it?”, because that is the institutional way of trying to ensure that the EU competence is at its maximum, but as the noble Lord, Lord Richard, said, the way to push back against that is to use political and legal arguments with the Council and the Parliament and eventually, if necessary, with the court. Various examples of this have been cited, such as the PIF directive and the road traffic offences directive, where both the Council and the Parliament were convinced that, because of the criminal law element, a Title V legal basis was needed.

Indeed, a current example can be found in the proposed arrangements for Greece, where the Commission is apparently trying to use funds from the European financial stability mechanism, on which I am far from an expert, as bridging finance. That would bring in the UK. The Chancellor may well be right to say, “No, it was agreed in 2010 or 2012 that the UK would not be outvoted in the use of those funds”. In certain circumstances it is perfectly right to use political and legal arguments to make sure that the UK’s legal rights are protected.

Secondly, there seems be an attitude that we find reasons to stay out of projects and be isolated, instead of finding reasons, within the proper framework, to contribute and be seen as a source of positive energy rather than always adopting a negative attitude.

Thirdly, there seems to be so much nitpicking on this matter—arguing for the sake of it. I cite the arguments about the phrase “pursuant to” as a classic example of this. The committee brought this out very well on the money laundering directive. You really could not make it up, but the Government were,

“considering challenging the legal basis of a measure it strongly supports solely to preserve its position on the application of Title V”.

That is the definition of shooting yourself in the foot.

Fourthly, this is the complete opposite of winning friends and influencing and shaping EU policies. I feel strongly that justice, like security and law enforcement, is an area where the UK has a big contribution to make. While respecting all our legal rights, it does us no credit whatever to act in this capricious way.

I wish that the last but one Government, the Labour Government, had never negotiated the opt-in protocol in 2007. I personally believe that we could have relied on our political heft and the emergency brake mechanism, but we are where we are, and since we have to operate it, let us at least work in a spirit of sincere co-operation—not subjugation to Brussels, but as a reliable and dependable member state.

16:19

[Lord Tunnicliffe (Lab)]

My Lords, first, I thank the members of the committee for their excellent report, which should give much food for thought for the Government and for the Home Secretary in particular. I pay tribute to the mover of today’s debate, my noble friend Lady Quin, as the former chair of the EU sub-committee on justice. Her stewardship as chair shone brightly, if all too briefly. My noble friend Lady Kennedy of The Shaws has a challenge to follow in her footsteps.

Unlike the noble Baroness, Lady Ludford, we on these Benches support the concept of an opt-in. Indeed, it first came about under a Labour Government. Opt-ins can offer important guarantees and safeguards on key measures. We believe in retaining our co-operation with Europe on policing and criminal justice. Indeed, we agree with the committee when it says:

“The Government’s annual opt-in reports demonstrate that the opt-in Protocol has provided the UK with a very effective safeguard against participating in legislation with a legal base in Title V, particularly internal EU legislation, when it does not consider it to be in the national interest to do so”.

It nevertheless seems that the opt-ins and their processes are being misused. We can only conclude that they are being misused deliberately.

We on these Benches and the Benches of my opposition colleagues in the other place have repeatedly criticised the Government for their approach and the way they have dealt with opt-ins, putting party interest above national interest and creating confusion. In many cases, the Government seem to try to tell their Back-Benchers and supporters that they are the awkward squad in EU negotiations, yet they know that they need the co-operation of other EU countries in pursuit of justice.

Perhaps the most obvious example of this was the Government’s handling of the European arrest warrant in the other place at the end of the last Session. This was quite spectacularly mishandled. The one issue that everybody wanted to talk about was not in the Motion before the House, but many rather anodyne measures were.

That brings me neatly on to the direct matter at hand—the report of the committee. It should make pretty uncomfortable reading for the Minister and his boss. It is pretty clear that the Government have a completely perverse approach to the whole process. At the heart of the issue is whether the opt-in protocol can be interpreted to mean that it is the content of an EU measure which determines the application of the protocol rather than a legal base under the JHA title of the Treaty on the Functioning of the European Union—Title V. In responding to this point, the committee said:

“All the evidence we received contradicted the Government’s approach to determining the legal base of a measure with JHA content”.

It went on to say:

“Its effect is to make a clearly established legal principle inordinately complex”.

It is clear that it is the latter principle that should be applied, but the Government’s mess with their party’s substantial anti-EU base means they are constantly trying to please the unpleasable. Yet we know on these Benches that there are good Ministers and officials who are trying to make sensible progress on negotiations. It really is a mess. I fear that the small majority the Government enjoy in the other place may make these matters worse rather than better. This muddle has direct consequences, as the committee’s report says, in that it gives rise to legal uncertainty and,

“risks breaching the EU legal duty of ‘sincere cooperation’”.

It appears that the Government have been trying to blame others, namely the Commission, for some of their woes. Yet this report makes it clear that there is no evidence of any underhand activity by the Commission; nor does it find evidence that the Court of Justice of the European Union has,

“sought deliberately to undermine the safeguards in the opt-in Protocol”.

The report then suggests the Government review their litigation strategy.

The tail continues to wag the dog. Only yesterday, I heard that the Minister’s colleague, the Europe Minister David Lidington MP, had dismissed claims that UK was seeking working rights opt-outs in the EU renegotiation as “rumour and chatter”. That is not much of a denial.

The way in which the Government have approached the protocol is a scandal. It does not seem that they have behaved much better in their relationship with the committee, and it is totally wrong that they have not yet responded to it formally. Can the Minister tell us when the Government plan formally to respond to the committee’s report? I look forward to the Minister giving some indication of their response to the stinging criticisms that have been made.

In summary, it seems a great shame that the Government are subverting and confusing a straightforward process for EU opt-ins. We see this as being only for reasons of political management within their own party—and for a group that will never be satisfied. Is it not time that they simply did the right thing, accepted the recommendations in this report and embraced the very real power that they have in respect of EU opt-ins to protect our national interests?

16:25

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, I begin by thanking the noble Baroness for securing this debate. I thank her for her very clear and elegant opening of the debate, and indeed I thank all noble Lords who have participated in it. Protocol 21 plays an important role in protecting the United Kingdom’s interests in Europe. I pay tribute to the noble Baroness and her committee for the comprehensive work that she undertook as part of the inquiry into how the Government have applied it.

Before I try to respond to the various points made in the debate, perhaps I may say something about the protocol and its significance. I appreciate from the debate that there is not unanimity about the desirability of the protocol in the first instance—a difference between the Liberal Democrat position and—

[Baroness Ludford]

I apologise for interrupting, but I want to make it clear that I was expressing a personal opinion.

[Lord Faulks]

I am grateful for that clarification—a difference between the view expressed by the noble Baroness, Lady Ludford, and that expressed on the part of the Labour Party by the noble Lord, Lord Tunnicliffe.

The United Kingdom’s and Ireland’s justice and home affairs opt-in has been in existence for civil justice, asylum and immigration measures since 1997. It was extended to policing and criminal matters with the Lisbon treaty, which came into force in 2009. The intention was to allow the United Kingdom to protect its specific interests, such as the common law legal system and border controls, while retaining the ability to take part in EU justice and home affairs measures where that was in the national interest.

The noble Baroness, Lady Quin, asked whether the JHA opt-in has proved an effective safeguard. I note that her committee expressed no view as to its desirability—expressly so—but she posed that question and asked whether it was an important or even an essential safeguard. I can tell the Committee that it has been used on numerous occasions to protect the United Kingdom from being required to participate in measures which might adversely affect our border controls or our fundamental legal principles. However, the debate with which we are concerned is essentially about the scope rather than the utility of Protocol 21.

The areas covered by Title V of Part Three of the treaty include some of the most sensitive for us as a nation: immigration and border controls, policing and criminal law. The United Kingdom also retains an ability to opt out of measures that build on the Schengen acquis. The UK takes part in police co-operation and judicial co-operation aspects of Schengen but does not participate in any aspects of the acquis relating to border controls. The Government have not applied to join the Schengen provisions on visas and border controls and have no intention of doing so. Any such move by a future Government will require a referendum, thanks to the 2011 Act. I know that that measure was opposed during its progress through this House, but I now understand that it is part of Labour Party policy that there should be a referendum in those circumstances. I shall not go into more detail on the Schengen opt-out, as that has not been the focus of today’s debate.

Protocol 21 was included in the treaties to make sure that any new proposal that was presented “pursuant to” Title V would not bind the United Kingdom unless it chose to be so bound. However, it is the Government’s view that the drafting of the treaty has created a lack of agreement about when the United Kingdom is able to exercise these rights—whether it is necessary for there to be a Title V legal base cited on the face of a proposal or whether it is where the EU’s competence to act flows from Title V, regardless of the legal base cited.

The noble Lord, Lord Richard, rightly focused on “pursuant to” and what he said was a pretty unambiguous interpretation of those words. Of course, the treaty could have said “under” rather than “pursuant to”. As he and the Committee will know, in the government lawyers’ view, “pursuant to” is capable of interpretation rather more broadly than many, or even most, of the academic lawyers who were called before the committee said.

I recognise that the approach of the previous Government—I know that the noble Baroness, Lady Ludford, distanced herself from the previous Government, although it was a coalition Government—is not shared by others, and that it created some challenges. But it is important to recognise that we do not have a definitive legal view on which interpretation is correct. While I accept that the European Court of Justice has taken some decisions on what is or is not JHA content, it has not set out definitively whether the opt-in applies in the absence of a legal base. Unless and until it does, the Government and others must work according to their interpretation of the treaty. I respectfully suggest that describing the Government’s approach as capricious is a little harsh.

The report on which today’s debate has centred helpfully sets out some of the issues flowing from this lack of agreement. These can be very complex and challenging, and the Government must decide on the basis of the evidence before them—

[Lord Richard]

Before the Minister leaves “pursuant to”, if he looks at the French version—“en application de ce titre”—it is impossible to claim that those words mean merely “following on from” without a definitive link. It is quite clear that the French text, which I imagine expresses the substance of the argument, refers to the application of Title V. In those circumstances, how can he claim that “pursuant to” means something totally different?

[Lord Faulks]

The French and German interpretations are also referred to in the committee’s report. Of course, the protocol has to be read as a whole on what its intention was. While I do not want to weary the Committee with the evidence that was given by government lawyers, the noble Lord will recall, no doubt, the fact that Article 1 should be read in the context of Articles 2 and 3. Indeed, I remind him of what John Ward said in his evidence to the committee, when the then Secretary of State for Justice and the Home Secretary gave evidence. He said, in answer to a question from the noble Lord, Lord Elystan-Morgan, that,

“I think it is important that the words ‘pursuant to’ need to be read in the context of Protocol 21. Protocol 21, we say, is different because of the particularly sensitive nature of justice and home affairs matters. But it is clear, looking at the context of the rest of the treaty, that it is fully recognised that justice and home affairs matters are difficult and sensitive, which helps to interpret Protocol 21”.

[Baroness Quin]

I would like to pursue this further. The phrase “pursuant to”, which my noble friend Lord Richard referred to, generally has an accepted meaning, both in English and in the other language versions, which applies throughout EU legislation, and it is simply the Government who have one view and everyone else has another view. Is that not the case?

[Lord Faulks]

Of course, I do not dispute the evidence that the committee heard. The argument that was used in the course of the questioning by the noble Lord, Lord Elystan-Morgan, was that we should be looking at the natural, ordinary meaning, which is the traditional way of interpreting a statute in British law. A purposive interpretation would admit a rather broader interpretation of what the protocol was intended to achieve in terms of the opt-in and opt-out.

These are deep legal waters, and we could spend a great deal of time debating this. I accept that the preponderance of legal opinion was against the government interpretation, but I respectfully refer the Committee to the fact some of the difficulties were acknowledged by the committee in the course of its evidence—not, I accept, specifically to deal with the “pursuant to” aspect, but to do with the choice of legal basis. Paragraph 119 of the committee’s report states:

“Dr Bradshaw said that the Law Society had no insight into the Commission’s thinking, but noted that the choice of legal basis was ‘a matter of profound disagreement on occasion, not just between the EU institutions and the member states, but also within and among the EU institutions’”.

Indeed, the conclusions of the committee at paragraphs 184 and 185 were:

“We agree with witnesses who have suggested that the CJEU’s approach to determining the legal base of international agreements means that the complexity of an agreement is not always reflected in the resulting choice: it renders somewhat invisible the ancillary or secondary objective, including ancillary or secondary JHA objectives. We understand why this would cause concern to the Government”.

[Lord Richard]

Will you read the next paragraph?

[Lord Faulks]

I was going to do that very thing.

“Nevertheless, this does not, in our view, amount to a deliberate undermining of the safeguards in the opt-in Protocol. We note that for internal EU measures on JHA policy, the opt-in Protocol is a very effective safeguard for the UK”.

I note that in the course of the debate there has been a very firm disavowal that there was any deliberate intention by the Commission to, as it were, get round the Title V question, but there is an acknowledgement that it may not always be easy to choose the correct title.

The most recent annual report on the application of the JHA opt-in and the Schengen opt-out, which was published in February 2015, shows that the previous Government took 33 decisions under the two protocols during the period between December 2013 and the end of November 2014. Thirty-one of them were taken under the JHA opt-in. Of those 31 decisions, 18 applied to proposals which did not cite a Title V JHA legal base. They included a directive on customs infringements and sanctions, a decision establishing a European platform to enhance co-operation in the prevention and deterrence of undeclared work and several third-country agreements which created legal obligations in the JHA field.

These are all examples of legislation with a JHA impact on the UK that did not cite a Title V legal base. If unsuccessful in changing the legal base, these are the types of cases where a change of approach might mean that the UK cannot exercise its right not to be bound.

The Government are committed to considering carefully any changes to their approach to the opt-in to ensure that we can lawfully exercise the UK’s right under the treaty to protect our national interests by retaining control of our policing, justice and immigration systems. The committee’s detailed report has given the Government a great deal to consider. We do not believe it is in anyone’s interest to rush the process of responding to it, although of course I take on board the criticism that has been made of the delays.

The Government have sought to ensure that the committee and Parliament are kept updated and sighted on developments in individual cases and the policy as a whole. As was acknowledged in the debate, the Justice Secretary and the Home Secretary wrote recently to the committee to let it know that this subject is still under consideration and that the Government would provide a response to the committee shortly. That raises the question of what “shortly” means. I am afraid that the answer is that it will not be until after the Recess. I know that there has been regret about that, but it is important that the content of this detailed report, and indeed of the debate, are fully taken on board by the new Government.

The noble Baroness asked about one particular issue which also forms part of the conclusions—whether we should be thinking of an inter-institutional agreement. I think the noble Lord, Lord Dykes, asked questions about that in the course of the evidence. It is something that will certainly be considered. When the Government have concluded our consideration of the policy as a whole we will take forward such engagement as is appropriate.

The issues relating to the protocol are complex and technical, and go, as I am sure the Committee will accept, to issues of sovereignty in the very sensitive areas that JHA co-operation deals with—policing, criminal and civil law, and immigration and asylum. As the noble Lord, Lord Tunnicliffe, said, the JHA opt-in is extremely important to us.

We note what has been suggested about the litigation strategy. That is something that will be taken very carefully into account.

The Government are concerned, of course, to reflect the protection that the opt-in gives the United Kingdom on these important areas. We will consider carefully our approach to that. The process is not yet complete and we believe, as I have indicated, that we should take time to get it right.

The debate as to the proper approach and whether it should vary from that taken by the coalition Government will be influenced very much by the careful consideration by the committee and the evidence that it called for, which is well summarised by the report. I am grateful for all the contributions to this debate.

[Baroness Ludford]

Before the Minister sits down, I want to clarify that, although he said that I distanced myself from the previous Government, I did not. I distanced myself only from the attitude exemplified in the report. I am, in fact, very proud of the heavy lifting done, in particular, by the former deputy Prime Minister which ensured that the UK stayed in the 35 policing and criminal justice measures. It is no secret that there was disagreement between the coalition partners on these matters. While I am at it, let me say that I was expressing a personal view on Protocol 21, but that does not, of course, extend to the Schengen protocol, which governs border issues.

[Lord Faulks]

I am not going to go into the detail of who was or was not in favour of particular matters that were opted into or opted out of. The noble Baroness referred in the course of her speech to the rule of law, Magna Carta and “pacta sunt servanda”. I assure her that this Government take the rule of law and the desirability of honouring agreements extremely seriously. The commitment of this Government to those remains extremely profound.

16:42

[Baroness Quin]

My Lords, even though this has not been a long debate with many speakers, it has been a high-quality debate with many powerful points made. I am very grateful to my noble friends and to the noble Baroness, Lady Ludford, for all the words they have said in support of the work of the committee and of its report. I echo strongly the words of my noble friend Lord Richard about the excellent work that the clerks of the committee did. In my experience they worked assiduously and are immensely able. They certainly guided me, as a non-lawyer, through some complex legal territory which might have become a legal quagmire without their assistance.

I also thank the Minister for the manner in which he responded. His defence of the Government’s policy as it has evolved so far did not elicit much support from those who spoke in the debate, but I hope that in the Government’s consideration of this matter—which, given the long delay, I hope will be very serious—will take on board the points the committee made. Although I am no longer chair of the sub-committee and no longer a member of the EU Select Committee, I have a feeling that this subject will not go away as long as the Government persist in following this approach. I say that to the Minister in the hope that I may convince him and his colleagues to look more favourably on the report’s recommendations than we think may be the case at the present time. Having said that, I once again thank all those who have taken part in this debate.

Motion agreed.

European Union Committee on 2014–15 (EUC Report)

Wednesday 15th July 2015 Grand Committee

Motion to Take Note

16:45

Moved by

[Lord Boswell of Aynho]

That the Grand Committee takes note of the Report of the European Union Committee on 2014–15 (1st Report, HL Paper 11).

[Lord Boswell of Aynho (Non-Afl)]

My Lords, I am delighted to introduce this debate on the European Union Committee’s annual report for the previous Session. European scrutiny is one of the key activities of the House. During the previous Session, the EU Committee, together with its six sub-committees, involved at any one time 74 Members of the House, who are supported by 24 members of staff. The levels of expertise and helpfulness among those staff are truly remarkable. Together, this constitutes one of the most exhaustive systems of national parliamentary scrutiny of European legislation throughout the European Union. The former President of the Commission, Jose Manuel Barroso, said:

“The House of Lords is one of the best in Europe in terms of analysis. Very, very competent analysis of the legislation”.

I should like also to take this opportunity to put on record my thanks to the chairman and members of the six sub-committees, and in particular the contribution of the many members who have just stepped down from the committees, including three sub-committee chairs: the noble Lord, Lord Harrison, the noble Baroness, Lady O’Cathain, and the noble Baroness, Lady Quin, who has just recently addressed the Grand Committee.

The report considers the work of the committee and its sub-committees in a thematic way. First, our core business is to scrutinise proposals emanating from the European Union institutions, together with our Government’s policies towards them. During the previous Session, the committee scrutinised almost 150 European legislative proposals, together with other significant documents. These covered a broad range of issues, including: the climate and energy policy framework; occupational retirement provision; a single market for telecoms; structural reform of European credit institutions; the European Police College; data protection; and the handling of asylum applications. The committee also conducted detailed scrutiny of key issues and processes, including: the Commission work programme for 2015; the draft budget of the European Union; and, as was referred to in the earlier debate, the United Kingdom’s block opt-out from justice and home affairs measures.

While there has been an improvement in the performance of some government departments in meeting their obligations to the scrutiny process, the Government’s handling of scrutiny came under pressure in some cases. I regret that there was an increase in the number of avoidable overrides in 2014-15, so I ask the Minister, who I welcome to her place, what she can tell us about the steps that are being taken to prevent such occurrences and to spread best practice in the handling of scrutiny across government departments. I emphasise to the Committee that we draw what I think is a reasonable and practical distinction between scrutiny overrides that are essential because of the exigencies of times and those which are avoidable and should be a matter of concern to Ministers.

Our committee has also been extremely active in its inquiry work. Across the Session, we heard oral evidence from 180 witnesses and received 161 written submissions. We examined a number of issues of central and current concern, including: the impact of the European Public Prosecutor’s Office on the United Kingdom; the post-crisis European financial regulatory framework; the European Union and Russia; the civilian use of drones in the European Union; a new European alcohol strategy; the UK’s opt-in protocol, as already mentioned; regional marine co-operation in the North Sea; the capital markets union; and the coalition Government’s review of the balance of competences between the United Kingdom and the European Union. We have also undertaken follow-up work in relation to a number of previous inquiries. Our experience across this Session has demonstrated to us that, as well as the traditional model of long and fully detailed inquiries, there is considerable value in such follow-up work and in issuing shorter reports when there is a need to respond quickly.

Another significant innovation was the introduction of pre-European Council evidence sessions with the Minister for Europe, giving the committee an opportunity to examine publicly and influence the Government’s negotiating position on key issues before the event. Although I think it is fair to say that there was some initial resistance from the Foreign and Commonwealth Office, two such pre-Council sessions were held in the second half of last year and one in March this year. We recommend that the practice should continue in the new Parliament, and I invite the Minister to confirm the Government’s commitment to doing this.

We have also taken steps to enhance our communication of the work of the committee. When I had the honour of taking the chair of the committee some three years ago, some concern was expressed about our communication. We took on board a very strong message that we should work hard on this area, which is one reason why this report is submitted for debate. The committee’s work was featured in nearly 400 broadcast features and print articles. Some of our reports, notably the one on EU-Russia relations, gained national, European and even international media coverage.

I am sure that your Lordships will be interested to know that in October 2013 a dedicated Twitter account for the committee was launched: @LordsEUCom. The account is used—by my staff, not by me—to communicate our scrutiny and inquiry work, as well as news about events such as international conferences, debates in the House and other relevant matters. The account has gained followers from EU institutions, other national parliaments, think tanks, commentators, commercial organisations and members of the general public. It has helped to raise the profile of the committee, particularly outside the UK. We will seek to build upon our recent involvement in social media but I emphasise that we also take seriously our responsibility to communicate our work effectively to Members of the House. We have a joint commitment—to communicate inwards to colleagues here and to continue to seek innovative ways of communicating our work to a wider audience.

The committee’s terms of reference require it,

“to represent the House as appropriate in interparliamentary cooperation within the EU”.

We have attended 19 interparliamentary conferences and have also worked hard to enhance our working relationship with colleagues from the House of Commons, the devolved legislatures and the European Parliament.

One of our major priorities during the Session has been to take forward the recommendations of the report we issued in April 2014 on the role of national parliaments in the European Union. In October, we met the incoming Commission First Vice-President for Better Regulation, and also for relations with national parliaments, Frans Timmermans, and we used the meeting to put forward our proposals for reform of the reasoned opinion procedure. We welcome the fact that the streamlined Commission work programme for 2015 suggests that the Commission is seeking to avoid the clashes over subsidiarity which have occurred in the past. We also warmly welcome Mr Timmermans’ emphasis on the Commission engaging with national parliaments and taking their views seriously. We have been pleased to meet a number of commissioners already this Session. In fact, two have been in London before our committee this very week.

The committee has also worked hard to promote the establishment of a green card mechanism whereby national parliaments can, as well as scrutinising and giving their opinion or caveat on European proposals, play a positive, constructive role in setting priorities for collective EU action where that is appropriate. The committee has proposed a pilot green card, urging the Commission to take action to tackle food waste, building on the report on that important subject produced by our Energy and Environment Sub-Committee. The pilot initiative has gained the support of more than one-third of the varying chambers of national parliaments. Other parliaments would have signed up to this, but have various constitutional or procedural reservations, although their political commitment is clear. Accordingly, I will shortly be writing to President Juncker to urge the Commission to respond to this proposal.

The role of national parliaments is, of course, a key element of the Government’s proposals for reform of the European Union ahead of a referendum by the end of 2017. Although I stress that it is not the committee’s task to advocate a yes vote or a no vote, which is a decision for the British people, nor is it technically our responsibility to scrutinise the European Union Referendum Bill shortly to arrive before your Lordships’ House, because that is domestic legislation, although it bears on Europe, I can assure noble Lords that the committee will be scrutinising the reform and referendum process closely and, as I hope we always have done, objectively and impartially. In this Session, we have already taken helpful evidence from the Minister for Europe on the subject and plan to publish a short report on the renegotiation process before the end of July with, probably, follow-up reports as appropriate either on specific areas or thematic issues.

In that climate, and in the context of other pressing current issues, such as the Greek financial crisis, the Mediterranean migrant crisis and the continuing difficulties in relations between the European Union and Russia, I submit that the work of the European Union Committee is more important than ever. I am grateful for this opportunity to bring forward and discuss its work. I am looking forward to the Minister’s reply and to contributions from Members from all parts of the House. I beg to move.

16:59

[Baroness Scott of Needham Market (LD)]

My Lords, I shall focus my remarks on the work of the Energy and Environment Sub-Committee, which I have had the honour and pleasure of chairing for three Sessions. Working at close quarters with so many Members of this House whose expertise and experience is unparalleled across a wide range of disciplines has been a truly rewarding experience for me. It would, of course, be invidious to single anyone out, but I am going to do it anyway and reflect on the noble Lord, Lord Plumb—Henry Plumb—who has been running his family farm for 63 years. He was a vice-president of the National Farmers’ Union in 1965 and is the only Briton to have been President of the European Parliament. With that sort of expertise on a committee, it is quite difficult to go wrong.

I also offer a word of thanks to a number of other noble Lords. First, and in particular, I thank the noble Lord, Lord Boswell, whose leadership and encouragement, both personally and to the main Select Committee has been an enormous help, especially in these recent months when the UK’s very participation in the European Union is being called into question. Secondly, I thank former members of the sub-committee who, in our wonderful House of Lords phrase, have been rotated off as a result of recently introduced procedural changes. Their dedication and good humour have made chairing the sub-committee nothing short of a joy. Finally, I thank the three continuing and eight new members of the sub-committee, who already, in a few short weeks, have approached the various topics put before us, which range from the Paris climate change conference in December and the common fisheries policy’s discard ban to the use of financial instruments in rural development.

The recent changes in sub-committee membership, put into effect by what is known in your Lordships’ House as the rotation rule, became known on my last committee as the slaughter of the innocents. The introduction and strict retrospective enforcement of a three-year rule for European Select Committees was, in my view, an extremely misconceived idea, and I remain of that view. Eight out of the 12 members of my sub-committee were rotated off at the end of the last Session, and that was replicated across the other committees. This of course will be repeated every three years, and a large number of members will need to be replenished, which has huge implications for the retention of expertise on our committees. Although I can absolutely see that there is an increasing demand for Select Committee places in general, I have no evidence that that applies to the work of EU scrutiny committees, which are highly specialised. Therefore I take this opportunity to urge the Chairman of Committees and the usual channels to look at this matter once again and pay particular attention to the effect of the change on the EU Committee and its sub-committees.

I also put on record my very grateful thanks to the professional team who support me: our clerk, Patrick Milner; Alistair Dillon, our policy analyst; and Mark Gladwell, our committee assistant.

As your Lordships may know, the remit of the committee which I chair includes agriculture, fisheries, environment, energy and climate change. Unlike the House of Commons, one of our big strengths is the ability to undertake cross-cutting inquiries which cut across the normal departmental disciplines. The last report authored by the sub-committee, on regional marine co-operation, which we called The North Sea Under Pressure: Is Regional Marine Co-operation the Answer?, is a good example of that sort of cross-cutting work. The North Sea, as one of the most industrialised seas in the world, is under many pressures. Both the European Commission and member states have a suite of policies aimed at the economic development of the sea and another whole suite of policies aimed at environmental management. It is not clear to us how these competing pressures will be managed at a strategic level; indeed, we found that such management is embryonic and sporadic. No existing body or mechanism has a broad enough remit to facilitate the sort of political co-operation that we need if these tensions are to be resolved in the North Sea basin. We argued for the re-establishment of a North Sea ministerial conference.

We have called for greater progress on electricity interconnection in the North Sea and for further support to be provided to the regional fisheries advisory councils. We also highlighted a lack of data: there is a problem with gathering data and, more significantly, there is poor sharing of data between sectors and between member states. This report was published in the wake of the new maritime spatial planning directive, and we hope that our conclusions and detailed recommendations will help to influence policy-making at both a national and an EU level as that directive gathers pace. Informal soundings suggest that our report has been very well received in other North Sea states, including Germany and the Netherlands. A number of stakeholders have submitted their own response to our report. I also echo the sentiments of the noble Lord, Lord Boswell, about the work of our press team, which I thought was really quite remarkable in what is actually a rather technical subject. We had a lot of coverage including, inexplicably for a report on the North Sea, from the Shropshire Star.

It is with some sadness that I say that the government response to our report was very late indeed. Despite an extended deadline, it took three attempts and a letter from the chairman before we finally received the response this morning. I can only assume that, knowing that this would come up in the debate today, they were aware that the Minister’s wrath would be swift and terrible had they not replied by this morning. However, I make the point in all seriousness that we had been as accommodating as we could be, and that really was not good enough.

As we have already heard, the sub-committee authored a report in 2014, Counting the Cost of Food Waste, calling for urgent action at a number of levels to reduce the proportion of the food we grow—currently a scandalous one-third—which is thrown away. In the course of the last Session I met a wide range of stakeholders to discuss potential solutions and measures in the light of our report. I think it is fair to say that the report has been widely acclaimed, both in the UK and across the EU, and has contributed to the well-deserved reputation of our Select Committee as a leader in policy impact and scrutiny. As we have heard, in the short term the sub-committee is seeking to influence the content of the circular economy package at European Commission level by using the green card which the noble Lord, Lord Boswell, spoke about. It is a powerful testament to the work of our committee if one of our reports on a subject such as food waste can act as a driver for real and tangible change right across the Union. I remain optimistic about this and I look forward to the result. On the principle of the green card initiative, I can do no better than echo the words of the Select Committee report, which said that,

“if the democratic legitimacy of the EU is to be renewed, national parliaments should be given a positive, constructive role in setting priorities, alongside the existing right of objection”.

I end by commenting briefly on the contribution that the committee and the House will make to the ongoing debate on the UK’s membership of the European Union. Over the coming months the voices on all sides will be very loud. That noise should not be allowed to distract our attention away from the important task of ongoing scrutiny. Others may decide to lay this task aside, but I do not believe that we should. We have been tasked with holding the Government to account and scrutinising their actions on matters both large and small, high profile and technical. I am sure that I speak for every member of my sub-committee when I say that we have no intention during this coming time of shying away from that crucial responsibility.

17:07

[The Earl of Sandwich (CB)]

My Lords, since I have just completed my service both on the EU Select Committee and the EU External Affairs Sub-Committee, I feel that it is the right time to thank the chairmen and colleagues of both committees, some of whom are present, for giving me such a rich experience. It is regrettable that I have had to step down from the sub-committee after only two years because of the terrible new rules on rotation mentioned by the noble Baroness. I agree completely with her that we can only pray for the staff of current and future committees who will have to accommodate an increasing turnover of Peers with varied overseas experience. The only solution I can think of is the creation of a new external affairs committee of the House.

Our committee was far-sighted in tackling a subject which should be of intense interest to EU watchers as we approach the referendum. It is simply known as interparliamentary co-operation. Our chairman has already drawn attention to the fact that it sounds like a boring topic, implying MPs enjoying more Latvian holidays, COSAC lunches and so forth, but I have learnt that it is actually a good deal more than that. The title of our report was, The Role of National Parliaments in the European Union, and the point of it was to help strengthen the role of parliaments in the process of EU decision-making.

This was carefully provided for in the Lisbon treaty, but since the powers of the European Parliament came under the spotlight, national Parliaments have been more or less overlooked. Yet that should be a fundamental part of the Government’s current approach to the EU: greater involvement by a national parliament, whether through greater subsidiarity, green cards or reasoned opinion, is surely exactly what this Government are seeking. We have not yet had the formal response to our report, but I hope that the Minister can confirm today not just that the committee was on target but that specific actions and recommendations will be followed up, some of them by parliaments themselves rather than by Governments.

Speeding up the reasoned opinion procedure would seem to be one urgent task for parliaments because the yellow card route has not been very easy to organise. In the case of the EPPO proposal in 2013—which I had come across when I was on the legal affairs sub-committee a year earlier—the objections of 14 member states to the new public prosecutor’s office were lodged with the Commission in time. This was ground-breaking stuff, and it was regrettable that those objections were not only ignored by the Commission at first but, in the end, rejected by the European Parliament on the grounds that nations by themselves were not catching up with half of their own fraud cases. It may or may not be right about that, but I am glad to say that in the end the UK decided not to opt in.

Meanwhile, as we have heard, a specific proposal has been put forward to introduce a pilot green card procedure—in this case, on the subject of food waste—and I wish it every success. Whatever the outcome of that initiative, it is extremely important that different parliaments learn to co-ordinate their approach to the Commission more effectively in future. I am expecting the Minister to confirm that the Government see the value of this process and will give it their active support where they can. Strengthening our valiant parliamentary office in Brussels would also help.

Incidentally, it has been extremely helpful for the committee to have our Minister for Europe present upstream of European Council meetings, and I strongly support the proposal to continue this practice wherever possible. I know that he is in favour of it. It is also helpful for him to hear the opinions of the committee on upcoming issues. Of course, it helps when the same Minister remains in post for a considerable time.

I want to come on to just one example of the work of sub-committees which I believe to be outstanding, and I played a small part in it. Noble Lords will have noticed that Commons Select Committees have benefited from a lot of propaganda lately, partly because of the newly declared virtues of elected chairmen. However, MPs also need to be more aware of the talents of Lords Select Committees and sub-committees, which are unashamedly nominated and perhaps in most cases carry a good deal more experience. Our Select Committee reports, as our chairman has mentioned, are otherwise universally recognised, not least in Brussels.

The example of a report that I give is: The EU and Russia: Before and Beyond the Crisis in Ukraine. This was the work of the External Affairs Sub-Committee, and we were lucky that through a persuasive chairman—the noble Lord, Lord Tugendhat—we were able to look at Russia and Ukraine at such a critical time. The report appeared in a burst of publicity, here and abroad, in March and it became a clarion call for all those who are still too dimly aware of the troubles on the EU’s eastern frontiers. I was glad to hear the Prime Minister say earlier today that the UK will continue to assist Ukraine in any way it can.

We consulted a wide range of experts. I shall not, of course, refer to any individual recommendations now, but the report opened up the crucial question of diplomatic awareness of eastern Europe within the EU and the UK. I feel strongly—to make a more general point—that these reports must not be the last words uttered by committees, nor must the knowledge fade away with changes in personnel. In the case of the External Affairs Sub-Committee, issues such as Somali pirates, the rule of law in Kosovo or, importantly, the effectiveness of EU aid on sanitation in Africa—all before my time—must not be confined to the reports but must be followed up through further evidence sessions. That is not possible in every case, but it should be done whenever it is.

I hope the noble Lord, Lord Bowness, will refer to this too, but the Select Committee made an epic study of EU enlargement, which will continue to be a vital issue for the future of the Union and the role of the United Kingdom, we hope, within it. The Government’s thorough, if now forgotten, review of competences should be enough to convince the public that we have to stay in Europe—should they ever broadcast it to them, which I doubt they will. A lot of work was put into that, and I would be grateful if the Minister could refer to it.

Finally, I put in a small plea that the expert staff and advisers to the committee should be acknowledged a little more prominently in the reports and the annual report, simply because of the outstanding contribution they make.

17:15

[Baroness Smith of Newnham (LD)]

My Lords, I am somewhat of an interloper here this afternoon as I think I am the only person who is neither a Front Bench spokesperson for foreign affairs nor a member of the committee or any of its sub-committees, whether rotated on or off. I am coming to this not with any experience of having served on the committee, but from the other side of the fence, having followed the work of the European Union Committee as an academic. The reference by the noble Earl, Lord Sandwich, just now to the work on EU enlargement reminded me that I have been reading House of Lords reports for more than 20 years. When I was a graduate student in Oxford, if you wanted to know what was going on with EU enlargement, the place to look was House of Lords reports which you always had sitting in hard copy in EU depositories and libraries. That was a very effective way of doing research 20 years ago, and the work of your Lordships’ committee remains outstanding. As the noble Lord, Lord Boswell, noted in his opening remarks, the fact that the former President of the European Commission has pointed out the excellence of the work is testament to the importance of the work that the European Union Committee has done.

However, there is a paradox. We are an unelected Chamber, yet the role of the EU Committee is recognised across the European Union. I was picked up on that when I gave a lecture a few months ago in Leuven. I was talking about national parliaments and Europe generally, but I said a little about the role of the House of Lords. I was taken to task during questions when somebody said, “It’s all very well for you to say what a good thing the House of Lords is, but it is not elected. How on earth can the House of Lords help improve democracy and legitimacy in the European Union?”. That was an important point, and wearing my academic hat I have to go away and think about it. The report on the committee’s work for 2014-15 and the programme of work for 2015-16 absolutely make the case for how important the committee’s role has been and how it is becoming more important. The decision to invite the Minister for Europe before Council meetings is hugely important. I seem to recall that in Governments up until 2010, the Prime Minister used to give pre-Council statements. We do not have that at the moment, but pre-scrutiny or holding the Government to account before Ministers go off to negotiate is very sensible.

The report was incredibly useful in raising some of the issues that perhaps go undiscussed and unannounced to most people, including interparliamentary co-operation, which has the danger of sounding as if it is about people just wanting to go and travel for the sake of it and have a nice lunch in a nice location or about who goes to which place and why. One academic colleague who follows interparliamentary conferences was greeted like an old friend at a conference that we held on national parliaments in Europe by none other than Sir William Cash, the very long-standing chair of the European Scrutiny Committee in the other place, which does not seem to have quite the same crop rotation or chair and membership rotation.

We discovered that if you keep talking to people, the discussions and the informal communications, thanks to interparliamentary conferences and interparliamentary co-operation, are incredibly important precisely because they give the opportunity not just for academics and practitioners to talk to each other but, far more importantly, for members of national parliaments and the European Parliament to meet on a regular basis and exchange ideas. Therefore, when it comes to issues such as the current yellow and orange cards and the prospect of the green card, the fact that members of parliaments know each other and can say, “Look, how about doing this?” is hugely important.

The fact that this report outlines the number of activities that Members of your Lordships’ House have attended is incredibly helpful. Even more interesting would be to have a sense of what the other place is doing as well—I realise this is heresy, and that this report was about only the work of the House of Lords EU Committee—because clearly it is engaged in many issues. It is disappointing that there is not more engagement between the two Chambers. Clearly, each Chamber is sovereign. We talk about interparliamentary co-operation in a general sense but there is not a huge amount of exchange between the two Chambers. Although both the noble Earl, Lord Sandwich, and the noble Lord, Lord Boswell, talked about the House of Commons, we have not yet found ways of creating effective synergies. At the moment there is still a danger of overlap or duplication—everyone wants to do a report on the role of national parliaments or on EU-Russia—or you get lacunae: between the two Chambers, we do not cover everything. If we could find ways of greater co-operation between the two ends of Westminster, that would be most welcome.

I would like to pick up on a couple of other things in the report. The balance of competences review, which has already been mentioned, ran to very many weighty tomes—I think it was 32 different reports—and the Minister for Europe and the former Minister, my noble friend Lord Wallace of Saltaire, spent many hours going through them. The balance of competences review is mentioned in the annual report with a suggestion of the analysis being important, and there is a criticism of the failure of the Government to produce a synthesis of the reports. An overall analysis is vital if the review is to have an impact on the wider public debate on the UK-EU relationship. I am rather sceptical because the previous Government tried to keep the debate off the agenda rather than putting it on to the agenda, and I think that that was a lost opportunity. There is a wealth of information in the balance of competences review which has tended to go under-reported, with the exception of the expert communications that the committee has achieved, as the noble Lord, Lord Boswell, pointed out: a lot of coverage for the report on the balance of competences review and the frustration of Members of your Lordships’ House at precisely the fact that it had gone under-reported and under-debated. So I congratulate the committee on its work and the traction it has got in the media.

There is a great similarity between committee chairs, who are obviously being told that they need more visibility, and academics, who are told to have impact and to engage more with practitioners. I think most academics working on the European Union would be incredibly grateful to welcome Members of your Lordships’ House to any of our academic conferences on co-operation between national parliaments and other EU institutions. There is clearly an opportunity for co-operation and co-ordination. A report has just gone to the Economic and Social Research Council a year after the project I was involved with was completed, where I was supposed to demonstrate impact so I stressed the fact that my colleagues and I had talked to the EU Committee and vice versa. I hope there is at least a half-life to such engagements between academics and practitioners so that the exchanges can continue.

My final point is about the future. I very much welcome the point that was made in the report about the upcoming referendum and the fact that the committee will be looking at ways of engaging with the renegotiation, considering how best to scrutinise both the renegotiation process and its outcome effectively and proportionately. The noble Lord, Lord Boswell, has suggested that the work will be done objectively and impartially. It is hugely important that such work is done, because it is not done by the media and it is not done effectively by Members of the other place. Academics may try to do it, but the more that it can be done by Members of your Lordships’ House, the better. Although my reading of the report is that it is down to the committee to engage in this way, I suggest that it is down to all Members of your Lordships’ House to ensure that there is a well-informed debate ahead of the referendum.

In light of the comments about following up reports, could there be further work on the eurozone and the potential of Grexit or associated issues which are already having a significant impact on the debate in the UK? This is being pushed particularly by Eurosceptics saying that the way Greece is being treated is clearly a reason for us to campaign for no, but there is a real danger that even among pro-Europeans, people are saying that the EU does not seem to be delivering, that there is no support for a country such as Greece. That is increasing the possibility of a no vote. While your Lordships may need to be objective and impartial on your committee and in its reports, I do not feel the need to be so impartial right now.

[Lord Boswell of Aynho]

Before the noble Baroness sits down, she will want to know that although there is no current representative of the EU Financial Affairs Sub-Committee with us, it held a very interesting evidence session today with some extremely big hitters on the specific current issue of the Greek situation. We are keeping a very close eye on that matter.

[Baroness Smith of Newnham]

I am very grateful for that. I was drawing towards my final point, so I shall not detain your Lordships any further.

17:27

[Lord Bowness (Con)]

My Lords, I thank the noble Lord, Lord Boswell, for his comprehensive introduction to the committee’s annual report for this last Session. I am fortunate to serve under the chairmanship of the noble Baroness, Lady Scott of Needham Market, who during the last Session expertly guided our sub-committee through the inquiry into regional maritime co-operation in the North Sea and through the follow-up work on food waste, which was a ground-breaking report. Noble Lords should appreciate just how much work the chairman has done to raise the profile of that issue, both at home and abroad. The report itself is a good example of the effectiveness of the committee’s work. I trust that the annual critics of the Select Committee—who, of course, are not here—will take note.

When the Select Committee made its original decision to set down its annual reports for debate, for some members, at least, there was the hope—I will not say the anticipation—that it would become an annual occasion for a far-reaching debate on European matters, covering, as it does, many of the key elements of EU activity in the past year and, indeed, looking, at least partly, to the future. Personally, I hoped that it would bring home to Members of your Lordships’ House that the work of the Select Committee is mainstream and not about obscure elements of foreign policy but about many elements of our own domestic politics. It is not just for the usual suspects, such as are collected in the Grand Committee this afternoon.

I shall also refer to the corporate knowledge of members, built up over the years, alluded to by the noble Baroness, Lady Scott of Needham Market, and the noble Earl, Lord Sandwich. I suggest that that contributes to the quality of the committee’s work and to its enviable reputation across the European Union. We really should make sure that our own domestic procedures and desire to involve more Members, with a good turnover of Members during each Session, does not adversely affect this.

The aspiration for a great debate has, I suggest, failed this year at least, as we are not in the Chamber for the first time, I think, although I emphasise that I make no criticism of the Select Committee for opting to take advantage of this opportunity to hold the debate in Grand Committee. But that sense of disappointment is alleviated by the presence of my noble friend the Minister. I am sure we are all delighted to see her in her place to respond to this important debate.

The report also looks to the future. For the sub-committee on which I serve, I believe that the work on the proposed energy union will be very important. I hope that the Minister will be able to share with us the Government’s views on the priorities of the proposal and what lead they are going to give, especially in the area of energy security and the encouragement and development of interconnectors and of pipelines to provide alternative supplies of gas, which will be needed for a long time, however much investment and effort is put into renewables. These will reduce the dependence of our partners and our immediate neighbours upon supplies from an increasingly erratic Russian Federation.

I am also sure that the Sub-Committee on External Affairs under the chairmanship of my noble friend Lord Tugendhat will have many serious matters before it. Having just come back from a meeting of the OSCE Parliamentary Assembly, one is reminded of just how fragile is stability in some areas of our near neighbours in the European Union. In the Union itself we have come to take that stability for granted. However, today armed clashes have been reported in western Ukraine, not eastern Ukraine, between the Government and extreme nationalist groups on the borders of two EU members, Hungary and Slovakia. There are serious political problems in Macedonia, a candidate country. Relations between Serbia, another candidate, and Kosovo are not resolved, although they are progressing. These events and those in Ukraine and Greece emphasise the need for our wholehearted commitment to a European Union in a form which goes far beyond a mere trading bloc.

Nationalism is not far below the surface in a number of countries, as are ethnic divides. These are encouraged, I am afraid, by some outside interests. It is very easy to mock Europe’s compromises, but where would Greece be today—sadly, it may still be—without some compromise by all parties? Despite all this, there are still nations in Europe, particularly in the Balkans, which want to be part of the Union—not just for trade and free movement but for what the EU symbolises—and we should not allow their aspirations to wither on the vine. A candidate country such as Macedonia is concerned not merely about the lack of progress towards membership of the EU and NATO and political instability within but the consequences of instability in Greece.

Whatever our views about the euro, austerity policies or the actions of the present Greek Government, we have an interest here in the UK in ensuring that Greece remains within the EU and is not allowed to fall under the influence of malign forces that are epitomised by the Russian Federation, which is very active in that part of the continent. I respectfully suggest to the Minister that it is in our interests to see the Greek economy start to grow, as it was doing before the present Greek Government came to power, and for the Greek people to be able to see an end to their ordeal, which has been far greater than that of other countries which have fallen into economic difficulties.

Apart from its own economic ills, Greece is struggling with the problem of migrants fleeing Syria through Turkey and into its islands. I know from the press that we here in the United Kingdom have not looked too kindly on suggestions that the European financial stabilisation fund could be used for assisting a further bailout. I know that my right honourable friend the Prime Minister claimed as a success the pledge that that fund would not be used for such purposes and that UK taxpayers are protected from any exposure. That was a very laudable aim and was an achievement at the time. However, circumstances and needs change, and perhaps as a country which takes pride in its foreign aid budget—which goes in some instances to countries whose needs and governance may be open to question—we may at least consider the needs of the Greek people and whether funds could be used, if not for bailout, for aid to stimulate growth, subject, of course, to safeguards.

It took the United Kingdom until 2006 to complete the repayment of post-war loans of some £27 billion—at 2006 prices—from the United States and Canada. That loan was a fraction of the amount owed by Greece, yet it still took us, with all our resources, 61 years to repay it. If self-interest is our guiding star, including in our negotiations over our future in the European Union, the need for stability of one of our partners in a key part of our continent may be reason enough for a change of heart and the expression of a little solidarity with the Greek people and our partners.

17:36

[Baroness Ludford (LD)]

My Lords, it is with great admiration and pretty much 100% agreement that I follow the noble Lord, Lord Bowness, in this debate. I have the greatest admiration for the committee, and I can say that because I have only recently joined the Justice Sub-Committee, as I said in the previous debate. Even when I was an MEP and not at all active in this House over the previous five years, I was always pleased to see the frequency with which the noble Lord, Lord Boswell, and indeed the noble Lord, Lord Bowness, were in Brussels. Several noble Lords have quoted the tribute from José Manuel Barroso, who said that,

“The House of Lords is one of the best in Europe in terms of analysis”—

although we could differ and say that it is the best. However, that is considerably to the credit of the noble Lord, Lord Boswell, whose personality also contributes to the high profile of the committee.

The committee’s work is more important than ever. Its strength is that, across the six sub-committees, it does not treat Europe as foreign policy but, as the noble Lord, Lord Bowness, said, as an extension of domestic policy mainstreamed into and connecting to the work of all the domestic Whitehall departments. Obviously, the Foreign Affairs Sub-Committee deals with foreign affairs, but those are the foreign affairs of the EU, not the EU as this country’s foreign policy. That is an extremely valuable asset of the committee.

The committee has two broad strands. One is the sheer weight of the expertise and analysis that goes into the reports, which one could say is for all kinds of reasons different to the work of the European Scrutiny Committee in the other House; the work in this House has a great deal more depth. However, it also tries to keep the Government honest as regards what they do in Brussels and what they tell us that they are doing there.

I have been in the House for nearly 18 years, but for 15 of those I was a Member of the European Parliament, which perhaps explains why this is the first time I have been involved in the work of the EU Committee. Therefore I have not yet had the opportunity or joy of being rotated off; I suppose that I have been spun on to a sub-committee for the first time.

In my first few weeks as an MEP, I remember meeting the noble Lord, Lord Tomlinson, on the Eurostar. I think that he must have been chairing Sub-Committee A on Economic and Financial Affairs, and he told me that he had managed to squeeze some money out of the budget for 300 copies of a report. Perhaps one would not do that now. The reports were being physically carried by him, or at least by some of his staff, on the train. He was, in a sense, putting his money where his mouth was in distributing them in the European Parliament. Nowadays of course, these things are zipped across by email—although I must admit that I have a weakness for paper copies, as I can then scribble on them and highlight certain passages, so I am not a very good model for electronic communication. I thought that that was a good example of spreading the message in practice. There is absolutely no doubt about the high regard had for, and high reputation of, Lords EU Committee reports in the European Parliament and among all those in the know across the EU.

Scrutiny overrides are a serious matter. The Government need to address them and to be rather more scrupulous in respect of the procedures. In the references to the overrides, I noted that one of the bad boys—or, let us say, bad girls—was my former colleague Jo Swinson MP, who was then a Minister in BIS. She got herself into hot water and was asked to explain a long gap in replying to the committee. However, since that evidence session, BIS has become an exemplar of how to handle European scrutiny matters. That is a tribute both to the committee and, if I may say so, to Jo Swinson. She obviously went back and achieved some action and some change, so well done her.

Our committees have done very important work in raising the profile of the role of national parliaments. As one might expect me to say as a former MEP, it is very important that there is no confusion between the role of national parliamentarians and that of Members of the European Parliament. National parliamentarians can never substitute for a directly elected European Parliament, but it is very important that on the one hand the European Parliament does not become a little snobbish towards national parliaments and, on the other, that national parliaments and the European Parliament work in partnership, as well as between themselves in the 28 member states.

Running throughout this annual report is a co-operative and collegiate approach to increasing pressure on the European Commission, as well as working with the European Parliament. There are some interesting remarks about pushing the Commission to take account of its own Impact Assessment Board reports. There is absolutely no excuse for the cavalier way in which the Commission sometimes approaches the advice given by its own advisers. The Commission must also give much more respect to yellow cards. The reaction to the EPPO reasoned opinions, perhaps led by the previous Commissioner for Justice, with whom I did not always see eye to eye, was deeply regrettable. It is well said that the Commission should publish the annual work programme in good time for constructive input. I was very interested to read about the dialogue with Vice-President Timmermans, which sounds very hopeful.

The committee asked the House’s Procedure Committee to look at whether the right to issue reasoned opinions could be delegated to it, but it decided not to proceed. I hope that it might take the opportunity to have another look at that, perhaps in order to make sure that there are no delays in the system. I find the reference to a possible green card very interesting—what with green cards, yellow cards, orange cards and a possible red card, we are going to have traffic lights not only for food labelling but for guidance from national parliaments.

I wanted to say something about two pieces of the committee’s work from the previous year. One was the work on the block opt-out and the opt back in on justice and home affairs, which exemplifies the two aspects of the committee’s work that I mentioned. One of those is the sheer quality of the analysis that the committee undertook. It played a major role in making sure that the underpinning and justification for the opt back in was there. It also tried, not entirely successfully, to keep the Government honest in the way that they dealt with this matter. Huge credit goes to the committee, specifically to its chairman, the noble Lord, Lord Boswell, for that.

The second piece of work, which I will not dwell on as I am running out of time, was on the balance of competences review. I can only agree with its conclusion in regretting the lack of a final analytical report bringing all those 32 individual reports together. A huge amount of work went into the balance of competences review, and it has been totally underexploited as a resource, which is an enormous shame. It could have been the basis—it could still be—for a multilateral reform exercise, instead of being a kind of unilateral repatriation or renegotiation exercise.

I can only congratulate the committee on its increasingly successful communications strategy. I follow it on Twitter and it follows me—they follow me. This morning, I was working at home and was able to listen to the audio version of the Grexit seminar in the Financial Affairs Sub-Committee. That was a very useful resource. The work that the committee has done in the past year bodes well for the scrutiny that it will no doubt apply to the negotiations that will be taking place for the rest of this year as a prelude to the referendum. I look forward to that work.

17:48

[Baroness Morgan of Ely (Lab)]

My Lords, I, too, thank the noble Lord, Lord Boswell, and his team for the incredible amount of work they have done over the past year. The quantity and quality of the work is worth marvelling at, and it is clear that it is having a significant impact, not just in terms of the accountability of the UK Government on EU matters but in informing debate across the whole of the EU. Yes, EU issues are foreign issues, but they are also about domestic issues, something that needs to be underlined.

Prior to coming to your Lordships’ House, the only contact I had with this place was through giving evidence as a Member of the European Parliament to one of the committees that came over to Brussels. Your Lordships were a formidable bunch then and are a formidable bunch now. The clarity of the work was deemed absolutely invaluable, not just by politicians in the EU but by the administration. The one comment I had at the time was that your Lordships’ brilliant work did not have the impact that it should have, because the committee was generally retrospective in its investigations and so it could not inform debate prior to a position being taken. That meant that a lot of the work was going to waste. The committee has addressed that concern to an extent, particularly in relation to Council meetings. The fact that the committee has implemented these pre-European Council evidence sessions means that difficult questions can be put to Ministers prior to negotiations rather than the committee dealing with a fait accompli with no prospect of influencing the debate. I congratulate the committee on this initiative. I suggest that it is about looking at what is coming down the pipeline. That is really important. That is the best way to influence debate.

The committee has also taken active steps to broaden the number of means by which it reports on its activities. This is an extremely welcome development. I am afraid that I was one of those people who were unaware that the committee had a Twitter account until I read the report. That probably says something. It is quite interesting that somebody like me is not aware of it; nor am I aware of when the committee meetings take place and who is giving evidence. Of course, I could go and look for this information but it would be quite useful to have some kind of push mechanism to let interested people know what is coming up so that if we were interested in attending those debates we would be able to do so.

The EU is undergoing the most fundamental challenges it has had to face in the past few decades. The direction and understanding of the European project—what it is all about—is being played out not just here in the UK but across the whole EU. That scrutiny role is essential in this time of increased uncertainty. This week we have all been absorbed in the Greek financial crisis and the question of where responsibility lies for the country’s debts and how and when democracy should be honoured. The crisis on the Mediterranean shores is testing the understanding of what is meant by social Europe and undermining that responsibility of burden-sharing.

Of course, the UK is now committed to holding a referendum on EU membership with these really difficult issues as a backdrop, and we are doing this at a time when there are political upheavals across the whole continent, with extremist parties gaining ground on both the left and right. One of the issues that the Prime Minister has put on the table in relation to British renegotiation is national parliamentary oversight, which does seem slightly hypocritical because this year the Government have pushed for more scrutiny overrides than has hitherto been the case. It seems very odd that the Government in charge of that negotiation, insisting on further domestic parliamentary scrutiny, are not respecting the current system of oversight to the extent that perhaps they should. Does the Minister think that each department should put in place mechanisms to ensure that, as far as possible, there will be an absolute minimum number of scrutiny overrides? As we have heard, BIS seems to have learnt its lesson and we want to know when the other departments will be following suit.

There are many examples of excellent inquiry work carried out by the committee. We have debated many of those reports: the one on the relationship between the EU, Russia and Ukraine on the Floor of the House; and the devastating inquiry on the balance of competences review, which did not suggest that a single policy area should be repatriated. We have discussed the role of national parliaments on the Floor of the House. I am a little sorry I was not involved in the debate on energy in the EU. I do not know if that came to the Floor of the House. I specialised in that area in the European Parliament so I am sorry I missed it.

We are aware that the Conservatives are deeply divided on Europe but I am afraid that the debate has started on the left as to whether the left and the centre-left should continue to support EU membership. I would like to take the opportunity, while we are discussing the EU, to outline why we should nip this debate in the bud and determine that we should fight for a reformed Europe which works for the people of Europe. The first thing to note is that despite the dreadful austerity and pain being imposed on the Greek people, Syriza, Alexis Tsipras’ party, has repeatedly said that it wants to stay in the EU and the euro—even the left in Greece has a subtle and refined understanding of how important the EU is to it as a nation.

The cause of Greece’s plight is not the EU or the euro but corruption, tax evasion and bad accounting, as suggested by Thomas Piketty and other distinguished left-wing economists recently. Of course, you would need a heart of stone not to empathise with the innocent people of Greece, who are suffering untold misery, but the leadership of the country must take its share of responsibility for the situation. Let us not forget that half of Greece’s debts were written off three years ago. It also had the biggest loan in international history. It was interesting to hear the Prime Minister today suggesting that a measure of debt relief for the country may be necessary.

The EU is not some kind of sinister self-contained planet doling out cruel and harsh austerity measures to innocent hard-working Greeks just for the sake of it; its decisions are taken by the democratically elected Governments of 28 member states. All bailout measures decided under the European stability mechanism have to be approved by the national Parliaments of the eurozone countries, so this talk about a massive democratic deficit at the heart of the EU is simply not borne out by the facts.

Without the EU, the UK would have little protection from a Government intent on diluting hard-fought workers’ rights which have been given extra protection due to our EU membership: health and safety, increased paid holidays, improved maternity rights, protection in redundancy and transfers, equality rights and protection from discrimination in addition to equal treatment for part-time, fixed-time or agency workers. This is particularly important at a time when the trade union movement is being challenged in such a fundamental way in this country.

The EU is the world’s largest donor of development aid. The EU is at the front of defending human rights and minorities nationally and internationally. Of course, EU institutions are not perfect, but rather than whingeing from the side-lines and spewing out grossly simplistic accusations which are not grounded in fact or evidence, the left and centre-left in Britain should be championing a modern vision of a progressive economy based on our traditional values of fairness, tolerance and social justice. Any retreat into isolationism and cheap denigration of our potential allies in Europe would carry a heavy risk in the longer term.

I concur with the noble Baroness, Lady Scott, that this is no time to take your foot off the scrutiny pedal. The European Committee of the House of Lords understands more than most that the EU has its flaws. I dearly hope that this time next year, when we are assessing the work of the committee, we will not be doing so for the last time. The consequences of leaving the EU would be devastating for our economy, our status in the world and the protection of our citizens.

17:58

[The Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con)]

My Lords, first, I add my tribute to the distinguished contribution of the noble Lord, Lord Boswell of Aynho. It is difficult for me to say “the noble Lord” as, although he is a Cross-Bencher, he has had a long and distinguished career as my noble friend in both this House and another place over a range of policy areas. Colleagues around the House have referred to the expertise of the members of the committee. The noble Lord personifies that expertise. In particular, I know that my right honourable friends the Foreign Secretary and the Minister for Europe, David Lidington, have found the analyses of the noble Lord, Lord Boswell, as chairman of the European Union Committee, insightful.

I also thank other noble Lords for their contributions today. I put on record my appreciation of the work of all those who serve or have served on the European Union Committee. Reference has been made to the way in which there has been rotation—it sounds like a guillotine—and also that we have a rather different way of appointment than the other place. I was part of the usual channels until last summer and had the duty of appointing people to European committees. Although the usual channels never blab, I can say that I always had a waiting list of people wishing to serve and work hard on the committees. They do not see it as a sinecure and a soft option for going on visits. These people work very hard and I value that.

The European Union Committee is rightly well renowned throughout Europe for its expertise and insight. It draws on some of the foremost experts on European issues, including former MPs, MEPs and Commissioners, as well as evidence from the private, public and voluntary sectors. Others, including the noble Baroness, Lady Ludford, referred to José Manuel Barroso’s comment last year when he said:

“The House of Lords is one of the best in Europe in terms of analysis. Very, very competent analysis of the legislation”.

We all benefit from that. It is clear that the committee is not only competent but, as we have heard today, it is enormously productive in the number of reports that come out, all of which are relevant and current.

During this Session the committee has scrutinised 150 EU legislative proposals and significant documents and has published 12 reports covering a range of important EU issues. It has attended 19 interparliamentary conferences and has been mentioned in almost 400 broadcast features and print articles. The numbers speak for themselves. This annual report reflects the breadth and depth of the committee’s work, demonstrating the impact and importance of cumulative work on issues over multiple Sessions. Its wide-ranging dialogue with MEPs and Commissioners has strengthened its recommendations. Similarly, the committee’s engagement with social media—I should say to the noble Baroness, Lady Morgan, that I did spot the committee’s Twitter feed; I got to it through a page on the intranet—has helped to ensure a well-informed public debate on the EU.

The committee’s contribution to the balance of competences review was welcomed and valued, and it is leading the way with its work on the green card system to help national parliaments play a positive and constructive role in setting priorities for EU action. That work demonstrated in particular that national parliaments can have a tangible and constructive impact on policy-making in the EU. The noble Earl, Lord Sandwich, and the noble Baroness, Lady Smith of Newnham, among others, referred particularly to the report on the balance of competences, and perhaps it is right that I should say a word or two on that. The noble Earl wondered when we might respond to it. I am able to say that we expect to be able to respond before the Summer Recess, which is not far away. So I hear what I say—the trouble is, so do noble Lords. On the question of how the balance of competences review is being used, I can say that the Government consider that it has already had an impact on the debate, as evidence on engagement both in the UK and overseas testifies.

The review delivered 32 reports which examine almost every aspect of EU activity and how it affects the UK’s national interest. As such, it has provided a comprehensive baseline, establishing how the current arrangements are working and future challenges, providing a valuable contribution to our wider debate on the EU. Bringing all this evidence together in one place for the first time enables people to judge for themselves what works well and where there is room for improvement. I understand that for the 32 reports from October 2012 to the end of 2014, some 2,300 pieces of evidence were submitted, departments held more than 250 events, and meetings were attended by approximately 2,100 stakeholders. I can say that all the reports and their evidence are published online alongside press releases and Statements by the Foreign Secretary. However, I take the caution expressed by noble Lords today that perhaps both the Government and the committee need to look again at our strategy on putting out information. I know that sometimes it can be drowned out by the cacophony of sound across the media. We need to keep plugging away at this to make sure that in a democratic country this information reaches those who need to be able to see it.

I now return to the committee’s annual report. It shows the breadth and depth of the committee’s work. Throughout all this the committee has said that if the Government value the committee’s work, why do we have scrutiny override? That has been the other side of the question. I reassert that the Government are committed to a strong scrutiny system. We want Parliament to be able to hold us to account for decisions in Brussels. We want our national Parliament to have a strong role in decision-making in the EU. However, we have taken on board the points made by noble Lords today. We are continuing to raise awareness and improve scrutiny standards; we drove overrides down by almost 40% from 2013 to 2014, but as the committee has pointed out, there have been some slips. The committee’s report reflects that these were promptly addressed, but we need to avoid repeats and learn lessons.

The noble Lord, Lord Boswell, made it clear that we are referring here to avoidable overrides and the noble Baroness, Lady Morgan of Ely, asked that we keep such overrides to a minimum. I can say that we are taking steps to do exactly that by, for example, establishing best practice across Government and working with the EU institutions to ensure a smooth process between London and Brussels. FCO officials visited UKRep and the EU institutions in February to deliver scrutiny workshops to raise awareness of how it is done and of the need to be timely. We have launched new training and support, including the FCO’s Diplomatic Academy foundation level course, and from April, materials on scrutiny have been made available across Government.

It goes further than that. The Minister for Europe wrote to ministerial colleagues about scrutiny in the run-up to Dissolution at the end of the last Parliament. He chaired a meeting of Ministers at which scrutiny issues were discussed. In that period the Cabinet Office also chaired a meeting of senior officials to discuss scrutiny performance issues—departments are encouraged to draw on a range of best practice ideas which they can adopt. The Minister for the Cabinet Office also wrote to both committees earlier this year about scrutiny failings in his department and set out a range of actions taken within Government to raise standards. I hope that noble Lords can see that we have taken the criticism and accepted that it needs to inform improvement in the way we operate. There are difficulties across government, as there always are, in providing timely responses, but our job is to put in place the training and awareness which means that we can respond in a timely way. That is what we will continue to try to do.

As ever, we remain keen to work with the EU Committee to strengthen the whole scrutiny system, both in respect of the avoidable and the unavoidable. We want to look at all aspects of why the unavoidable happened too, in line with the Government’s response to the Commons European Scrutiny Committee report. We will continue to strengthen the process and our approach, maintaining high standards across the board; Parliament deserves nothing less.

There was a question from the noble Lord, Lord Boswell, about the ability of the committee to question Ministers before European Councils. Clearly, I cannot make any commitment on behalf of my right honourable friend David Lidington, the Minister for Europe, but I have heard Mr Lidington say time and again in front of his colleagues in the House of Commons that if they want a model of what works well in European scrutiny, they should look to the House of Lords and the system here rather than to his own House. I know that he values the opportunity to appear before committees of this House. He puts a high priority on his relations with these committees and I know that he has appeared twice ahead of European Councils recently. I am sure that he will do his best, although other things may intervene. However, noble Lords can be assured of his respect for the committee.

I turn to one or two other points raised during the debate outwith the exact remit of the annual report. Here, I ought perhaps to refer to the comments of my noble friend Lord Bowness concerning the EU energy union plan. I was interested that he raised that. Last week, on Thursday and Friday, I attended the Croatia Forum, when I discussed this exact issue with colleagues from across Europe and Foreign Ministers from countries as far afield as Turkey and Georgia. Of course, representatives from countries in south-eastern Europe such as Bosnia and Herzegovina and Kosovo were there, as well as the United Nations. We also had other members, including the Italian Foreign Minister.

Energy security is very much a matter of concern across all countries—not just in Europe, with regard to the EU plan, but elsewhere. The energy union was endorsed by leaders, who adopted the conclusions on the Commission’s communication at the European Council in March. The Commission will now start to bring forward the individual legislative proposals and other measures outlined in the communication. The first significant step towards implementation will be a package of measures to be launched today, comprising legislative proposals on the energy labelling directive and phase 4 of the EU Emissions Trading Scheme, together with a consultation on energy market design and a communication on barriers to investment.

The Government remain supportive of an energy union that has a fully functional internal energy market at its heart, and that is the message that I took to the Croatia Forum last week. I also made it clear that the UK has played a key role in securing an ambitious climate and energy framework through to 2030, including a target to reduce our greenhouse gas emissions by at least 40% by 2030. I have recently been involved in launching climate risk reports looking at these various issues—one produced as recently as Monday morning at the Stock Exchange.

I turn to the body of the report and to the wider horizons that have been referred to. As noble Lords have pointed out, Europe has never been higher on the agenda. We face challenges and we all have great concerns about the proceedings in Greece. As my noble friends have made clear here and as my right honourable friends have made clear in another place, the fact is that the future of the Greek economy has an impact on the rest of us, even those of us who are not in the eurozone. All countries need to work together to ensure that there is stability for the security of all our nations across the continent of Europe.

We are also seeking to tackle migration across the Mediterranean, as well as managing our own renegotiation, to which noble Lords have referred. Renegotiation brings us further opportunities. The Prime Minister has made it clear that he wants to reform our relationship with the European Union to make it a better and more easily functioning place for all to do business so that it is a reform that is of benefit not just to the UK but to all other member states. That was a message that I also took to the Croatia Forum: reform for all and competitiveness. Completing the digital single market, in particular, would be good. That is something which the euro accession states are very aware of and they are keen that it should happen. We should ensure that we tackle migration and make sure that our welfare systems do not act as incentives. Migration happens and is valuable but it is a case of migrating for work. We should remain out of closer union with Europe. It may be good for other countries but it is not good for us.

The Prime Minister, the Foreign Secretary, the Foreign Office Europe Minister David Lidington and, above all, I value the committee’s work when tackling all the complex questions that face us. The committee has set out an ambitious agenda for the next Session and has welcomed a swathe of new members, as we have been reminded today, with expertise from across the European spectrum. I look forward to seeing the fruits of the committee’s future labours and to engaging with the committee on its continuing work.

18:14

[Lord Boswell of Aynho]

My Lords, in conclusion, this has been a fascinating and constructive debate. I thank all those who have participated, including the Minister for her comments and her positive tone. I also thank noble Lords for the extremely generous and somewhat unmerited tributes that have been paid to my own involvement in this. If I accept them, I do so entirely in the name of the committee and all those who have worked so hard. If we have been vitiated at all, it is an endemic problem in that we do not always get those of the sceptical tendency to come and join in. However, they remain welcome, because there is no future in putting your head in the sand and resisting a challenge. We have to face and answer those challenges where they occur.

I will depart from my normal practice of not thanking individual members, because that is self-evident. To select one, if I may, without being invidious, I will mention the noble Baroness, Lady Scott, not only because she leads the Energy and Environment Sub-Committee with such distinction, as others have said, but because she has been very much directly involved in the path-breaking work on food waste and how it should be avoided, and we are taking that forward into the wider European agenda. However, I am sure she will feel that that is only exemplary of the work of the other sub-committees.

In my own office I look at more than 40 years of annual reports and at the remarkable wisdom of those who set up the structure in the 1970s, when we joined the European Union, providing for detailed, specialist scrutiny in sub-committees under the umbrella of an overall EU Select Committee, which enables us both to be specialists and generalists, and to draw those lessons together. That has been so valuable in the way it has worked.

In that context—I will reply only briefly to some points raised—I will say a word or two about relations with the scrutiny committee in another place. I assure noble Lords that it is good; at a personal level it is excellent. It occurred to me at one point, when the chairman of the other committee was being referred to—his appointment may or may not take place very shortly—that we had both played cricket in Corfu 50 years ago. That arose not because we were travelling to a cricket match but because we were travelling to a Greek parliamentary gathering on the Greek coast. We work well but, much more seriously, there is a huge interchange at professional and official level the whole time. That works extremely well and applies also to government departments. When, frankly, we beat the Government up on particular issues and failures of scrutiny process or other difficulties, we should all remember that that is the exception rather than the rule. It is a job that we have to do, but it sits on top of a great deal of constructive work. I also pay tribute to the work of the national parliament representatives in Brussels, who, again, work very well, because they are both located within the official structure and work very closely with officials there. We are always grateful, as indeed we were last week, for our exchanges with the official representation within Brussels, which is of such high quality and needs to be, given the challenges ahead.

I will also single out another area with regard to personalities—namely, our relationship with the European Parliament, which has been referred to, and other national parliaments. In putting forward these ideas regarding the green card, I have been at great pains, but rightly so, to acknowledge the role that has been played by other national parliaments. We did not start this, but we have somehow found ourselves in the driving seat, not by assassination, execution or rotation, but simply because people have had to move on to other responsibilities, including ministerial ones. However, it does not work if you go on an ego trip, saying how good we are and how nobody else counts. Equally, it would be unwise indeed and would be fruitless if we were to see ourselves as in any way in enmity or tension with the European Parliament. I can report to the Committee that I had an extremely positive and constructive meeting with President Schulz only last week. I think we are beginning to understand how we can do more together than if we put ourselves at enmity.

Very briefly, in winding this up, I say first that I am very conscious of the honour that is bestowed on me by the House by my appointment as one of its officers, which is the way the structure works. All those involved in Select Committee work will remember their obligations to this House, which creates them and provides the vehicle for these extraordinary, interesting developments and the inquiries and the scrutiny that we do. We need to bear in mind that obligation. We need to be self-critical about it and make sure that we do it properly.

What has come out—it has been touched on by a number of contributors today—is that there is a wider obligation, albeit that we do not have a direct democratic mandate. Nevertheless we have what might be called a democratic obligation to the citizens of the United Kingdom, particularly in a time of considerable test or responsibility in a referendum. The challenges I conclude on in terms of our committee are, first—and it applies to the Government, other national parliaments and our Parliament—that it is quite easy to say we are in favour of an enhanced role for national parliaments, but you have to think long and hard about how you are going to effect that and how you are going to work with others to make sure it takes place in a way that is helpful to the process of European reform rather than otherwise.

Secondly, and I think this is the cardinal point, I am tempted to quote “If”:

“If you can keep your head when all about you

Are losing theirs”.

We are going to have a period of stress, comment, pseudo-comment, excitement, doubt and perplexity, and we are going to ask the electorate a big ask to make a mature decision. I think that in a modest way our committee may, by continuing to fly the flag of objectivity, scrutiny, and fair comment, contribute to the education of people in that process, and so we will do our best.

Motion agreed.

Committee adjourned at 6.22 pm.