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EU: Codecision (EUC Report)

My Lords, the report and this debate are about ensuring that the House is as well placed as possible to scrutinise the decisions taken by the Government on our behalf in Europe. I put on record my thanks to three successive Ministers for Europe: Caroline Flint, the noble Baroness, Lady Kinnock of Holyhead, and Chris Bryant for their generally constructive approach to our inquiry. Our report made a number of recommendations to improve the scrutiny system, and the Government have already accepted the majority of them. I also express my thanks to the staff in the Foreign and Commonwealth Office and the Cabinet Office who provided very valuable evidence. This, for the first time, put sections of the Government's internal rules on parliamentary scrutiny of European Union proposals into the public domain. I hope that they will be able to make all this guidance public soon. The report is a thorough analysis of the scrutiny system operated not only in this House but also in the Commons. It also looks at whether the system provides effective scrutiny of proposals now decided under the codecision, or ordinary legislative procedure, of the Union. The report is therefore important because almost all European legislation is now negotiated under this procedure. This includes some of the most important legislation currently under consideration, such as the proposed measure on hedge funds. The headline conclusion is that there are aspects of the ordinary legislative procedure which make it more difficult for us to scrutinise effectively. Our sister committee in the House of Commons has expressed similar concerns in its recent annual report. Other national parliaments are having difficulties, as shown by the written evidence submitted to us which is appended to the report. It is, for example, interesting that the Danish parliament, which has a particular form of mandating, finds this particularly complicated in the circumstances of codecision, and makes that clear in its evidence to us. We are therefore concerned that negotiations on legislation are conducted for the most part in small, informal and private meetings between representatives of the European Parliament, the rotating Council presidency and the Commission. This makes it hard for us to feed in our views and for the Government to take full account of them. In the report, we make a number of recommendations to address these difficulties. These aim to ensure, first, that the right information is provided to Parliament at the right time; secondly that the Government have the opportunity to take our views into account before the decision is taken in the Council; and, thirdly, that all government departments work hard to ensure that we are kept informed of the progress of negotiations without the delays that we have unfortunately sometimes experienced in the past. I shall go into this in more detail. The Treaty of Lisbon has renamed what we have called "codecision" as the ordinary legislative procedure. It is the European Union legislative procedure whereby a proposal from the European Commission is negotiated and adopted jointly by the Council of Ministers and the European Parliament. In practice, it means that, like the situation between the Lords and the Commons here, every word of a legislative procedure must be agreed between the Council and the European Parliament. The process operates somewhat like "ping-pong" on a Westminster Bill, in that as soon as agreement has been found, the process stops. Therefore, although there is discussion in the European Parliament of three readings, in practice, there is only a single reading of a piece of legislation. Personally, I support the idea that the European Parliament should be on an equal footing with the Council in negotiations on legislation. This provides a valuable counterpoint to the decision reached by the Council and provides additional layers of democratic accountability. In the past where the Council has legislated on its own, there has generally been less transparency. Of course, agreement between the Council and the European Parliament does not happen by accident. It happens because representatives of the rotating Council presidency, European Parliament and Commission meet in a series of small, informal meetings called, in the jargon, informal trialogues. It is in these meetings that the decisions are taken by three key people: the European Parliament's rapporteur for the particular proposal; the representative of the rotating presidency, representing the whole of the Council; and the representative of the commissioner. These meetings are not public and no minutes are published. We heard a great deal of evidence that negotiating legislation in this way presented difficulties, including for national Parliaments. The European Parliament has also had problems with the arrangements and with the experience of using informal trialogues to make legislation. It has now agreed a code of conduct to try to ensure that agreements are more transparent and not so rushed that there is time for proper consideration within its committees. We welcome this. This code of conduct makes things marginally easier, but two important issues remain. First, the informal and confidential nature of trialogue meetings is still not transparent, and so it is difficult for us to follow negotiations and comment usefully to the Government. Secondly, because the negotiations are conducted by the representative of the rotating presidency on behalf of the Council, it can be difficult for Governments to follow the negotiations and hence to present the views of their national parliaments. Addressing the difficulties posed by informal trialogues is all the more important because, although the ordinary legislative procedure, as I mentioned, allows for a maximum of three readings of legislation, there has been a trend to seek earlier agreements whenever possible, so much so that in the five years to the 2009 European elections, almost 70 per cent of legislation was adopted after only one reading. In other words, the informal trialogue is now the primary way in which compromises between the Council and the Parliament are obtained for European legislation. I turn now to how we meet the challenges it poses. Succinctly put, we conclude that for us to conduct effective scrutiny, the Government must provide us with the right information at the right time. Currently, the rules governing what is provided to Parliament are set out in guidance issued by the Cabinet Office. Broadly, this guidance is good, but in the case of legislation negotiated through informal trialogues, it has caused us problems. These problems are set out fully in our report, and I will not take the House's time now to go into them in detail. Suffice it to say that we recommend a number of significant changes to the guidance to stop this happening again. Most importantly, we argue for an update from the Government every time a change with policy implications is agreed or proposed between the Council’s representative and the Parliament. This strengthens the previous requirement for an update only where the change is significant, which is, of course, a matter of opinion. I am happy to report that the Government have agreed to this. Secondly, we should be provided with all presidency compromise texts, which aim to restart negotiations on a stalled proposal. This is because these are the documents on which the real negotiations take place, and on occasion departments have refused to provide them to us. Again, I am pleased that the Government have agreed. Finally, we should be sent an update in advance of a decision taken by the Council, or by the meeting of ambassadors, to agree to amendments to be proposed by the European Parliament. The Government have agreed to this too. Unfortunately there are two important points on which we have not yet received answers from the Government, even though our report was published in July last year. First, some of the documents we need for scrutiny are marked "limité" by the European institutions. This is not a classification, but rather a distribution marking indicating that they should not be made publicly available. As a result, the Government do not generally provide such papers to us. However, we took evidence from the Council's legal service that it sees "no problem" with national parliaments being able to access such documents. We know that in other national parliaments scrutiny committees have access to these documents. The Government have yet to commit to providing us with limité documents, even though we have made clear that we need them to be able to scrutinise effectively. Secondly, as I mentioned earlier, the Government’s internal guidance on provision of European documents to the committee is not currently publicly available. The written evidence to our inquiry is the first time that aspects of the guidance have been made public. We conclude that the whole guidance should be made publicly available. Again, the Government have yet to commit themselves on this. I have given the Minister notice of both these points and I will listen carefully to his reply to hear whether the Government have made their mind up on them. I turn now to one further point which came out of the inquiry: the differences between how well departments deal with parliamentary scrutiny of European proposals. Some departments have excellent records. Unfortunately, however, our experience is that some departments do not. Documents are provided late, or sometimes not at all. This can lead to Ministers reaching agreement in the Council where there has been no parliamentary oversight. This is a serious matter. In the future my committee will be active in seeking oral explanations from Ministers or Permanent Secretaries whose departments do not fulfil their obligations to Parliament. I am sure that your Lordships will agree to this more rigorous approach. I conclude with some reflections on the relationship between my committee and Members of the European Parliament. The primary purpose of parliamentary scrutiny of European affairs is, and will remain, holding the Government to account for the agreements they reach in the council. However, increasingly we have detected from MEPs interest in our reports and conclusions. For example, Arlene McCarthy MEP, then chair of the European Parliament’s internal market committee, told us in evidence to our inquiry that she had found a report from Sub-Committee G useful when her committee discussed the proposed timeshare directive. Indeed, she tabled amendments taken directly from our report. Following this report, we will seek to make the results of our scrutiny available to MEPs working on particular negotiations. This will be in addition to making my correspondence with Ministers available on the internet. In this connection, I should mention the regular meetings which my committee holds with UK MEPs and our sister committee in the Commons. There are three meetings each year: one in the Lords, one in the Commons and one in Brussels. They are valuable opportunities to exchange views on current legislative proposals with MPs and MEPs. I take this opportunity to thank the noble Lord, Lord Sewel, and the noble and learned Lord, Lord Mance, who chaired the committee during this inquiry, as I was absent for medical reasons. I beg to move.