The report looks at the meaning and implications of the so-called 'co-decision' procedure, whereby EU ministers meeting in the European Council have a more or less equal say over decisions as the European Parliament. Those decisions which are not subject to co-decision are usually taken by the Council acting alone.
The Lisbon Treaty proposes to extend the use of the co-decision procedure to 40 more policy areas, so that just about all decisions made by the EU are decided jointly with the European Parliament (as oppposed to about 75% currently).
But the House of Lords report finds significant problems with exercising national parliamentary scrutiny of EU legislation under the co-decision procedure, which could be set to worsen if it is extended under Lisbon.
The report reads, "Should the Lisbon Treaty come into force, these difficulties will be magnified by the expansion of codecision into new areas: notably agriculture, fisheries and justice and home affairs."
The report finds that, under co-decision, more and more legislative proposals are reaching a first-reading agreement in the European Parliament and Council, or an early second-reading agreement (as opposed to going to proper second and third readings). This reduces the amount of time that the legislative process takes, but also consequently reduces the (already meagre) amount of time that national parliaments have to scrutinise proposals and give their feedback to government ministers, in order to inform national positions on amendments and negotiations.
Even pro-Lisbon ex-MEP Richard Corbett (who gave evidence to the Committee) admitted that first reading agreements "limit" the "advantage" national Parliaments have, saying second and third reading agreements make Parliamentary scrutiny potentially easier.
The report finds that, when first-reading agreements are reached, they are often the result of "informal trilogue" meetings which take place before the official readings, in order to negotiate an acceptable text. These trilogue meetings contain representatives from the Commission, the Council and the European Parliament. The French Deputy Permanent Representative to the EU who gave evidence to the committee said, "the real negotiation takes place in the trilogue" and the Lords committee says the use of these has increased to the point that they are now the primary form of negotiation between the European Parliament and the Council.
The problem is that, as the Lords report found: "informal trilogues, whilst helpful to expeditious agreement of legislation, make effective scrutiny of codecided legislation by national parliaments very difficult."
If national Parliaments receive a Commission proposal, they may be scrutinising it while it is already being negotiated and amended by the Council and the EP. Unless national Parliaments receive up-to-date information about how the proposal is changing, scrutiny becomes even more of a redundant exercise, as it fails to reflect what the final outcome of the negotations will look like.
In that respect, the report is critical of both the Government's track record in keeping Parliament in the loop about the development of EU proposals, and the speed of co-decision negotiations, which make updates difficult.
The Lords EU sub-Committee on environment and agriculture said that "the emerging consensus between the European Parliament and Council can be almost impossible to determine. Updates from the Government are usually too infrequent, and negotiations proceed too rapidly and opaquely for accurate tracking of the inter-institutional negotiations."
The same sub-Committee also found that DEFRA was "sluggish" in providing updates on the progress of inter-institutional negotiations, sometimes giving them only when prompted. Notification on the Common Position (the Council's position on the European Parliament's amendments to a proposal) reached on the Plant Protection Products (Pesticides) Regulation was not received until three months after the vote in the Council. This particular proposal was modified in co-decision and subsequently became more controversial in its implications for the UK.
The report also cites the EU's Climate Change Package as a prominent example of how early agreements are being sought on important, and controversial proposals, in order to push legislation through.
The report concludes that the expansion of the scope of the co-decision procedure and the use of these informal trilogues makes national Parliamentary scrutiny increasingly difficult.
Since this is exactly what Lisbon proposes to do, things can only get worse.