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Queen’s Speech

My Lords, as chairman of the European Union Committee, I am not able to take part in partisan debate on these issues but, as usual, I found the speech of the noble Lord, Lord Tugendhat, extremely wise. In discussing the European Union, this year’s gracious Speech was able to move on from the incessant discussion of institutional issues to consider the effective role the Union can have in sustaining economic recovery and combating climate change. However, as we meet here, the European Council will be beginning to meet in Brussels to try to decide who will be the President of the European Council and the High Representative for Foreign and Security Policy. I do not intend to discuss those names, but shall instead look at the way the implementation of the Lisbon treaty after 1 December will affect parliamentary scrutiny of European matters. The first of these is the new powers given by protocol 2 of the Lisbon treaty to national Parliaments to submit reasoned opinions on subsidiarity to the European Parliament, the Council and the Commission. The principle of subsidiarity in the European Union, whereby the Union shall act only if and in so far as the objective of the proposed action cannot be sufficiently achieved by the member states at central, regional or local level has been explicit in European law since the treaty of Maastricht. It has been an issue that the European Union Committee has watched carefully, and it is interesting to note that in the past 12 months questions on subsidiarity have been raised by the committee in correspondence with Ministers no fewer than 31 times. A recent example was a proposal from the Commission for a Council recommendation on seasonal influenza vaccination that was considered by the sub-committee on social and consumer affairs last month. The sub-committee shares the Government's doubts about the compliance of this recommendation with the subsidiarity principle and has held it under scrutiny, but it has done more than that. It has notified other Parliaments and their scrutiny committees of its concern and understands that they have followed it up with their Governments. The Lisbon treaty, which invites national Parliaments to submit reasoned opinions, also makes a provision whereby if a given proportion of Parliaments submit reasoned opinions arguing that a piece of draft legislation breaches subsidiarity within eight weeks of its publication, it will oblige the Commission to review the legislation and, if a majority of Parliaments have submitted reasoned opinions—the so-called "orange card"—it is obliged resubmit it to the Council and the European Parliament. In addition, under Article 8 of the protocol that will come into effect on 1 December, we as a Chamber of a national Parliament are given the right to refer enacted legislation to the European Court of Justice in respect of subsidiarity. All of this represents significant increases in the powers of national Parliaments with regard to European legislation. In recent months, your Lordships’ European Union Committee has been giving a good deal of thought to how this will operate in practice. This is set out on its webpage and in appendix 8 of its annual report, which was published last week. The second development following the entry into force of the Lisbon treaty will be effective parliamentary scrutiny of opt-ins. The United Kingdom has had the right to opt in or not to opt in to legislation on visas, asylum and immigration and the free movement of persons since the treaty of Amsterdam when those parts of the justice and home affairs areas ceased to be subject to unanimity in the Council. Under the treaty of Lisbon, unanimity will also come to an end on other matters of justice and home affairs; namely, police and judicial co-operation. The UK will now have the right to opt in to legislation on them as well. If the UK wishes to involve itself in the detailed negotiations on such proposals, it must indicate its decision to opt in within three months of the draft legislation being published. Noble Lords may remember that during the passage of the European Union (Amendment) Act 2008, both the European Union Committee and the Select Committee on the Constitution argued that there was a need to have a proper parliamentary procedure for considering UK opt-ins. Our then Leader of the House, the noble Baroness, Lady Ashton of Upholland, assured us that, ""except where an earlier opt-in decision is necessary"—" the example given was readmission agreements with third countries— ""they would not opt in during the first eight weeks of the three month period; that if during this period this Committee published a report on the proposed opt-in recommending a debate, time would be made for one"." Such a debate, ""would be on an amendable motion, allowing for a vote; and that the Government, although not bound by the views expressed, would take note of them"." As with the subsidiarity changes, this will clearly require changes not only to the working arrangements for the European Union Committee, which we have now agreed, but to the scrutiny reserve resolution that was passed by the House and to the committee’s terms of reference. We are in discussions with the Government about these matters, but we hope that there can be an early decision as your Lordships’ Procedure Committee will also need to consider changes to the procedures of the House. An example of problems in the application of opt-ins can be seen in recent work by our sub-committee on justice and home affairs. When the protocol allowing opt-ins was negotiated as part of the treaty of Amsterdam, no thought was given to the situation that would arise if the Commission proposed amending a regulation or directive into which the United Kingdom had opted. What would happen if the Government did not wish the new version of the measure to apply to the UK and did not opt in? This is precisely the situation that arose earlier this year. The Commission is proposing entirely new versions of all the main instruments that govern the common European asylum system, and last December it proposed a new version of the directive that laid down the reception conditions for asylum seekers. The Government do not like it and have not opted in. Once the recast directive applies to the rest of the European Union, will the existing directive continue to apply to the UK? For the Home Office, which believes that its repeal will extend to the UK, the answer is no. However, the committee pointed out that the repeal is made by a provision in the new directive, none of which applies to the UK because we have not opted into it. The recast directive includes the repealing provision. The Home Office was not persuaded by our arguments, but we sent our report to the Commission, whose response, which was received last month, comes down firmly on the side of your Lordships’ House. It states unequivocally: ""The Commission considers that the UK would remain bound by the unamended form of the Reception Conditions Directive. That directive would not be repealed for the UK"." These issues did not seem to have occurred to the Commission or the Home Office until they were raised by the Select Committee, but they are not technical matters; they have arisen again in two further proposals received this month on the reform of the common European asylum system, and will arise increasingly when the treaty of Lisbon is in force and the UK opt-in applies to all justice and home affairs measures. In every case, if the Government do not opt into an amending proposal, there will be a difference of view between London and Brussels as to whether the existing European Union measure continues to apply in this country. Your Lordships’ European Union Committee intends to continue to pursue this matter to clarify this unsatisfactory situation. The third consequence of the Lisbon treaty, as far as parliamentary consideration is concerned, is the significant increase in the amount of European Union legislation that will now be subject to co-decision by the Council of Ministers and the European Parliament. As well as extending co-decision to the remaining justice and home affairs issues, as I mentioned, it will apply in future to decisions on trade and agriculture, on which up to now the European Parliament has had to be consulted but has not had the right to co-decide. The distinction between compulsory and non-compulsory expenditure will also be eliminated, which means that the Council of Ministers and the European Parliament will have to reach agreement on all parts of the European Union budget in future. Earlier this year, the European Union Committee conducted an inquiry into the impact of co-decision on national parliamentary scrutiny. We examined the suggestion that the growth in agreements between the Council of Ministers—in practice, between the country holding the rotating presidency of the Council of Ministers—the European Parliament—in practice, the rapporteur for the committee of the Parliament concerned who worked on the dossier—and the Commission in informal "trilogues" made national parliamentary scrutiny more difficult. To continue to perform scrutiny effectively will require a regular flow of information from UK officials in Brussels to the committee and its sub-committees. It also raises the question of our continuing contacts with Members of the European Parliament. With increased co-decision these become more important. The Lisbon treaty includes specific references to co-operation between national Parliaments and the European Parliament. The Speaker of the Swedish Parliament has convened a meeting of the conference of European Speakers in Stockholm in early December to discuss these and I shall represent the Lord Speaker. We already have COSAC, which brings together the committees dealing with European matters in the 27 member states and Members of the European Parliament. The future lies in developing that body and not in creating any new institutions.