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EU Legislation (EUC Report)

My Lords, I thank the noble and learned Lord, Lord Mance, for raising this important debate and I congratulate him on an excellent maiden speech. I agree with my noble friend Lord Bowness and the noble Lord, Lord Wallace of Saltaire, that the House will miss the Law Lords’ technical expertise on subjects such as this when they no longer sit in the House from next year. There has been much highly charged and contentious discussion about EU legislation over the past Session. It is right that we should continue such scrutiny over an issue that can have a major effect on policies and functions in this country. One area on which the Government’s reply to the report focused was ways to improve the quality of EU legislation. They were right to do so. Nevertheless, while quality is often more important than quantity, it is not always the thought that counts. The plethora of legislation being pumped out of the EU is disturbing in itself. The current Prime Minister famously said, "““it is unacceptable that 50 per cent or more of regulations come from the European Union””." Every year, more than 1,000 European documents are put into Parliament. Of these, only a very few are fully debated in the House. This is worrying. It further serves to illustrate how important it is to analyse and scrutinise every area of initiation and production of EU legislation. I therefore welcome the useful report on the initiation of EU legislation and applaud the work of the cross-party European Union Committee in producing it. As stated in the intentions, it sheds some light on an area of EU activity that is not often examined. I echo the point made by my noble friend Lady O’Cathain and the noble Lord, Lord Wallace of Saltaire, that House of Lords committee reports are widely respected. As this report states, its principal function is descriptive. Nevertheless, it reaches a clear conclusion: "““Developments since the establishment of the EU have not cast doubt on the validity of the arrangements and we believe that the Commission should retain the right of initiative””." That is all well and good, but we still need to recognise the democratic tensions inherent in the system. The report rightly underlines that this general monopoly of initiative is a great power. Paragraph 150 states that the power conferred, "““should not be under-estimated … The right to wield the pen provides the power to select among the many ideas for legislation which come forward from other parts of the system and outside it””." In nation states, that power normally belongs to elected Governments, who change as voters decide. No such limit exists for the Commission. This explains why dossiers tend to keep being pushed until the other European institutions accept them. The Commission’s persistent support for a European public prosecutor is a good example. Yet perhaps the unhappy disconnect between bottom-up democracy and the need for the Commission to act impartially in the general European interest is irreconcilable. If so, it makes it all the more important that national parliamentarians are scrupulous in holding this power to account and making sure that scrutiny is maintained to the utmost level. I am cautious about regarding the issue of the right of initiative as closed. Furthermore, if the Commission is to retain the right of initiative, it is imperative that our own Parliament has the chance to consider whether the legislation meets the principles of proportionality and subsidiarity. One of the few improvements in the Lisbon treaty is on national parliaments’ rights in this area. If any national parliament considers that this does not apply, they have a period of eight weeks to send a reasoned reply. The sheer amount of legislation pouring from the EU means that that is far too short a period. The report states that member states should, "““take advantage of the opportunities provided … to contribute to the development of EU legislation””." How true. In their reply, the Government state that they would like to see this period extended to 16 weeks. What action have the Government taken to promote that proposal, and have there been any developments? Do the Government agree with the European Scrutiny Committee’s recent report that, "““we doubt whether the Lisbon Treaty’s new subsidiarity provisions about the role of national parliaments would make much practical difference to the influence presently enjoyed by the UK Parliament””?" This same level of scrutiny should be maintained across the board. The report describes lobbying, which the noble and learned Lord, Lord Mance, mentioned, as, "““both inevitable and useful to the initiation and development of legislation””," with the careful caveat that it should be ““transparent and appropriately regulated””. The report also states that the members of the committee, "““initially found it surprising that the EU provides funding for interest groups who are engaged in lobbying the Commission””." The report states that, "““in practice, NGOs are not afraid to bite the hand that feeds them””," as the noble and learned Lord told us earlier. That seems to me to be a rosy view. Do the Government share our view that the European legislative system can sometimes be a dangerously closed loop, with the European Commission funding EU-wide bodies that then provide vocal support for EU-wide legislative initiatives? Is there not a conflict of interest there? As the noble and learned Lord said, the report also focuses on the role of impact assessments. We welcome the fact that these have become standard practice. They are there not least because of the persistent pressure from Conservative MEPs and others who share our view that too often in the past European legislation has been initiated with little thought as to its costs. I pay tribute to the Barroso Commission for the notable improvements in this respect. We welcome the fact that in 2008 the Government expect to have carried out 200 of these impact assessments. The Government will doubtless quote their shadow price of carbon scheme to use as the, "““basis for incorporating carbon emissions in cost-benefit analysis and impact assessments””," which should aid impact assessments. However, I cite the examples of the impact assessments into biofuels and renewables targets, which both went far further and had a far greater impact than the assessments predicted. We welcome the production of these documents, but if they are not done well they run the risk of being relegated and becoming just jargon. Lord Denning once pointed out that, as more legislation increasingly came under the scope of the European Court of Justice, the unhappy conflict between the English common law and the civil law of the European Union would become more apparent. The Government themselves have recognised that this is a problem, stating that, "““the Common Law system needs to be more widely understood within the Commission and taken into account when legislation is developed on justice and home affairs””." The action taken to support that position, however, is of questionable effectiveness. Examples include arranging for, "““Commission lawyers to visit the UK to increase their understanding of Common Law””." What evaluation have the Government made of the effectiveness of such measures? In conclusion, we welcome this report and are encouraged by the amount of useful information contained within it. Nevertheless, I urge the Government to consider the important caveats that I have mentioned.