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EU Legislation (EUC Report)

My Lords, I, too, as a member of the Law and Institutions Sub-Committee, thank the noble and learned Lord, Lord Mance, for his comprehensive explanation of and introduction to the report. Whatever the merits of the constitutional changes that we are facing, it will be a considerable loss to your Lordships’ House that a serving Law Lord will no longer be able to chair that sub-committee of the European Union Select Committee. Although the subject of the report may sound dry to some of your Lordships—and, I am sure, to the media, who have probably given little or no attention to the report—it makes interesting reading and should be compulsory reading for those who still believe that the European Union is a conspiracy led by non-elected Commissioners and their officials. Previous speakers have addressed a number of the most important points, but I make no apology for emphasising some of them. First, the Commission may enjoy a near monopoly of the power to initiate legislation—the only exception, as the noble and learned Lord, Lord Mance, said, being matters under the Third Pillar, which is a relatively small part of European Union legislation, although very important, and, it has to be said, not terribly successful, where member states have had the right of introduction. The Commission nevertheless has the power to propose but not, as the report describes it, the power to dispose. That rests with the Council of Ministers—that is, the member states—and with the Council and the Parliament. As the noble Lord, Lord Rosser, said, it is clear that, although the power to propose legislation is important, it is not exercised in total isolation. The European Council, the Council and the member states, especially through the medium of the presidency, have an influence. They have their programmes and produce conclusions. Although the Commission may not be bound to bring forward legislation in the light of conclusions, it does not act in a political vacuum and account will be taken of the ambitions of member states. The noble Lord, Lord Rosser, referred to the general terms in which the European Council may propose action. I suggest that, if the Commission interprets those general terms too widely, it is to the European Council—that is, the member states—that your Lordships should direct their criticism for not having been sufficiently specific. It was surprising to learn in the evidence that we received from Sir Kim Darroch that, in his memory, the Council has only once used Article 208, which gives it the specific right to request the Commission to bring forward legislation. Perhaps that is because the Commission is sufficiently sensitive to political realities, so that the article does not need to be used. The Commission recognises that Council conclusions represent the collective and decided view of the Council—that is, and I do not apologise for emphasising this again, the member states, with all that that implies. I also draw attention to our conclusion that the Commission operates in a very open fashion, perhaps more open than in our domestic procedures. The procedures followed before legislation is published and when a draft is produced provide considerable opportunities for interested parties to influence events. I suggest that parliaments need to ensure that their procedures enable the maximum benefit to be derived from that openness and from the Barroso initiative, which sends Commission documents direct to national parliaments. Of course I understand the difficulty in finding time and the right ways in which Parliament can make its views known at the right time on these issues, but it is a matter that clearly needs to be addressed as more legislation, in ever larger and more significant areas, comes forward. In your Lordships’ House, the main vehicle is the European Union Select Committee, but there may be times when the views of the House should be sought. The opt-ins and opt-outs on justice and home affairs matters are obvious candidates if the treaty of Lisbon comes into force. Are there any lessons that we could learn from this report? I believe that the most important ones are to stop perpetuating to the British people the myth that the Commission is the sole arbiter in these matters, to understand that the right of initiation is not the right of disposal and that different vehicles exist for member states and citizens to make their views known on particular proposals and, indeed, to press for the introduction of measures. The member states have the opportunity to do so through the European Council and the Council; citizens have the opportunity through the lobby groups that have been referred to and through their Members of the European Parliament; and national parliaments have the opportunity if they take advantage of the information that is out there and ensure that they make their views known at the earliest time directly and through their national Governments. This may involve changes to how we carry out our business, but if we do not do it, others will. Brussels is not a secret society, but we must engage with it and not merely sit on the sidelines complaining after the event when we could have had some effect before the event.