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EU Legislation (EUC Report)

That this House takes note of the report of the European Union Committee on Initiation of EU Legislation. (22nd report, Session 2007-08, HL Paper 150). My Lords, this report follows an inquiry undertaken by Sub-Committee E, which I chair. All going well, as I think I should say, I shall be the last serving Law Lord to have that privilege and pleasure. Our day-to-day work is the scrutiny of European legislative proposals so that the Government, when negotiating them, should take full account of the views of the national legislature. We also undertake inquiries on topics of particular interest. On the sub-committee’s behalf I thank all those individuals and organisations who contributed to the present inquiry. I thank the staff who supported the sub-committee as always so valuably and the members for their energetic contributions. The formal process by which European legislation is enacted is probably well known, set out in the treaties. Leaving aside obvious crises, such as the present financial turmoil or the events of 9/11, the impetus to legislation is not always so clear, and we thought it merited research. The noble Lord, Lord Triesman, estimated in this House in January 2006 that about half of all UK legislation with significant economic impact had European origins. Our aim was to lift the veil to some extent from the process of initiation of proposals. The first consideration is: who does that? The second is: what influences them to do so? The third is to ascertain what processes are in place to check that proposals are appropriate and to determine their character. The fourth is to consider what processes there are to ensure that legislation is easily applied or transcribed. The primary European legislator is the Council of Ministers acting under the First Pillar in co-decision with the Parliament, but neither initiates. The unique feature of Europe is the Commission’s monopoly right of initiative in the First Pillar. Only under the Third Pillar can member states also propose. The Council and Parliament from time to time have sought to oblige the Commission to bring forward proposals—for example, by writing into legislation that this should occur—but the Commission has steadfastly refused to be bound. Who or what then influences the Commission? Are the stimuli internal or external? The Commission acknowledges that a system has emerged where legislation results from a complex interplay of different actors. We heard differing views about the extent to which the Commission’s own role and internal culture might unduly encourage European legislative proposals. The Minister for Europe detected continuing proactivist instincts, but the noble Lord, Lord Brittan, was confident that no premium attaches to a staff member who encourages an idea at the expense of practicality. The noble Lord, Lord Kinnock, believed that there had been a genuine shift towards an approach based on less is better and self-regulation. We recently reviewed a report on the future of European justice policy which has indeed the flavour of consolidation not innovation. Both Council and Parliament increasingly influence the areas on which the Commission focuses, although they cannot bind. The Commission has undertaken to respond rapidly and appropriately to requests for proposals from either. Both have in practice often set overall strategy or general policy which the Commission has implemented. Five-yearly and annual strategies and plans are increasingly co-ordinated between all three institutions by structured dialogue. However, all three, and especially perhaps the Commission, are very open to external stimuli. They operate in Brussels in a context of highly active lobbying and also after considerable consultation. Lobbying by pressure groups is to be distinguished from consultation with interested parties. Both are useful and both, above all, need to be transparent. The European Parliament recently estimated that there are about 15,000 lobbying individuals and 2,500 lobbying organisations active in Brussels. Since 1996 the Parliament has had a de facto mandatory requirement for individual lobbyists to register in a publicly open register if they are to get an entry pass into the building. The Commission, in contrast, has only just introduced a voluntary register, in June 2008, with a code of conduct and a commitment to review it after a year. The committee in its report doubted the adequacy of this voluntary register. Since June 2008 it has apparently had a relatively slow take-up, particularly among the large law firms that count among the active lobbyists and among think tanks. Perhaps it is still early days. The committee was rather surprised to find that the European Union provides financial support for NGOs and think tanks, which then engage in lobbying the Commission. This involves some risks, but we were reassured that where such funding is received, it represents a relatively small proportion of the NGO’s total revenue and that NGOs in receipt of it have not been afraid to bite the hand that has fed them. Again, the key is transparency. We concluded that EU funding could assist to ensure that all viewpoints were represented and might be justified if transparent. The present register asks for disclosure of any such significant funding but, again, it will work only if all relevant NGOs sign up or it becomes compulsory. Consultation is key to ensuring that legislative proposals are both necessary and appropriate in their character. Commission consultation may not always have been as effective as it could have been. Workshops on the common frame of reference, a project of varying aim and direction in the field of contract, in which I participated personally as a judicial stakeholder, pointed to a considerable need to learn lessons in that direction. The Secretary-General to the Commission accepted that working with large groups of stakeholders was, to quote her, ““a voyage of discovery”” and required the Commission to learn some new skills. The committee’s report underlines the need for proposals to take account of differences between legal systems. The common law is one of the world’s great systems and is chosen and applied by businessmen internationally with London as a legal centre and a forum of choice, but in European terms, the common law is a small minority. There are potential differences in approach to the role and content of law and the function of courts, particularly in commerce and business, but also in areas of family, succession and criminal law. These differences need to be communicated in Brussels. The Commission, in establishing a forum of stakeholders to look at proposals in the justice field, insisted that only pan-European organisations be represented. That had the incidental effect of excluding any common law professional body. The Secretary-General assured us that, in principle, the Commission tries to involve someone with a common law background in its projects, and it is welcome that the recent expert group on the future EU justice programme, which I mentioned, has an Irish representative of the common law. The United Kingdom’s Ministry of Justice is also to be commended for recently inviting a dozen commission lawyers to this country on a two-day visit. I believe that that was valuable to both sides, and I should like to think that it demonstrates the common law’s wish for constructive engagement with Europe. The common law also needs to continue to be represented in the Commission at every level by lawyers posted or seconded there. Government assurance of support for this, particularly at the active junior level, would be most welcome. Impact assessments are critical to ensuring that legislation is necessary and appropriate. They should not be seen as ex post facto justifications for decisions already made. In the past, general assertions of relevance to the internal market have probably sometimes passed muster without question, but that will no longer do. In 2006, the Commission set up an impact assessment board within the General Secretariat to assess the quality and sufficiency of impact assessments. The committee welcomed this, but believes that some parts of the Commission are still more advanced than others when it comes to preparing good quality assessments. However, one has to say that this is an area where member states do not practise what they preach. Third Pillar proposals by individual member states are noted for their lack or the inadequacy of impact assessments. The final stage of any proposal is its drafting. The committee has concerns about the drafting of some proposals. Drafting is done by commission lawyers handling the proposal. The legal service of the Commission is formally involved only at a late stage. The committee considers that consideration should be given to introducing a cadre of specialist legislative drafters along the lines of the United Kingdom’s domestic parliamentary draftsmen. On 30 September, the Government wrote welcoming the committee’s report and analysis and indicating broad agreement with many points we made. They regarded our proposal for a specialist cadre of drafters as interesting, and we await their response to our question about whether they will actively promote it. As to the Commission’s role and right of initiative, the committee’s conclusion was that they had devolved as the European Union’s legislative system has matured. The history of the Third Pillar signals caution about breaking the Commission’s First Pillar monopoly. The committee would not go all the way with the noble Lord, Lord Brittan, in describing the present institutional arrangements as an act of genius, but the right of monopoly was designed with care and operates within a framework of checks and balances, and we concluded that it remains appropriate for the unique, multinational organisation that the EU is. I beg to move.