Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Baroness Morris of Bolton)
My Lords, before the Minister moves that the national policy statement be considered, could I remind the noble Lords that the Motion before the Committee will be that the Committee do consider, rather than approve, the national policy statement? If there is a Division in the House, the Committee will adjourn for 10 minutes.
Draft National Policy Statement for Waste Water
(13 years, 8 months ago)
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Lord Henley
That the Grand Committee do report to the House that it has considered the Draft National Policy Statement for Waste Water.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Henley)
My Lords, the Planning Act 2008 enables a Secretary of State to designate a national policy statement which sets out the national policies which drive the need for particular types of development. National policy statements are the key documents used by the Infrastructure Planning Commission and its successor, the Major Infrastructure Planning Unit, to determine or make recommendations on applications for development consent.
The draft National Policy Statement for Waste Water is based on advice provided by the Environment Agency and reviewed by Ofwat as part of the Environment Agency’s national environment programme. It sets out the policy framework for new infrastructure based on current statutory requirements and environmental considerations. We have worked closely with the Department for Communities and Local Government to ensure that the waste water national policy statement is fit for purpose and consistent with other national policy statements.
Waste water infrastructure is necessary as, without suitable treatment, the waste water we produce every day would damage the water environment and create problems for public health, water resources and wildlife. Proper collection, treatment and discharge of waste water and correct disposal of the resulting sludge help to protect and improve water quality in the United Kingdom.
The draft national policy statement has been subject to an appraisal of sustainability and a habitats regulations assessment. The appraisal of sustainability is required by the Planning Act and helps to ensure that national policy statements and the Government’s assessment of sites take account of environmental, social and economic considerations, and contribute to sustainable development. The habitats regulations assessment considers whether the national policy statement is likely to have an adverse impact on particular habitats which are protected under European law.
The draft waste water national policy statement details two projects of national significance; these are the sewage treatment works scheme at Deephams in north-east London and the Thames Tunnel, which is a sewage collection and transfer scheme. The justification for both these developments and the alternatives considered are fully explained in the national policy statement.
Consultation on the national policy statement ended on 22 February this year. Officials are currently considering responses and they are discussing the results with policy-makers and stakeholders. The report on the draft national policy statement from the Select Committee in another place has been published today. This provides some useful recommendations, which offer some degree of support to the policy framework in the national policy statement. We will consider carefully the report and the issues raised by your Lordships in this debate, taking due account of them when revising the national policy statement prior to designation. However, this is not the last opportunity for people to have their say. Developers must consult communities before submitting an application to the Infrastructure Planning Commission, and people will have the chance to provide input at application stage. This consultation has provided people with a chance to shape the guidance that the Infrastructure Planning Commission will use to inform its decisions.
We are not here to debate how the schemes detailed in the national policy statement may be delivered. Our purpose is to discuss whether the draft national policy statement fulfils its requirements under the Planning Act 2008 and is therefore fit for purpose. The draft national policy statement is critical in bringing forward infrastructure developments and ensuring that the right framework is used in the consideration of development consents. I strongly believe that the draft waste water national policy statement provides robust justification for the new infrastructure proposed. I welcome today’s debate and look forward to responding to the points raised by noble Lords. I beg to move.
Lord Teverson
My Lords, as everybody else seems to be hesitating, I shall just make a couple of comments. I thank my noble friend the Minister for his introduction to this debate. First, it is interesting that the documents and the draft statement include and spend time on two particular projects: Deephams and the Thames Tunnel project, both of which are most important to waste water issues in the capital and need to move forward quickly. I should like to hear from the Minister whether there are other schemes. How often are such schemes likely to come up? I think that the cut-off point is a project serving around 500,000 people, but I would be interested to know how frequently the department sees such projects as being likely to come along.
I should also like to understand, through this statement and in being able to get on with these projects, whether the infraction proceedings by the commission, which I think have already started, will be met. Will the commission then see the actions being taken as sufficient at least to stall those proceedings, so that UK taxpayers do not have to pay any fines for contravention of the urban waste water directive? I was particularly interested to see on page 3 of the document, in paragraph 112, that the Thames Tunnel project, important though it is to the capital, does not meet the thresholds contained in the Planning Act. If that were laid down in primary legislation, I do not, therefore, understand how the Government could remove the matter from local planning issues and put it to the current planning commission. Under what powers are the Government able to do that?
However, I certainly welcome this statement. Waste water is an important issue. With continued flooding and development, it will be an even more important issue for the future. It is good to see that the Government have a comprehensive strategy for this, to ensure that decisions can be made in the proper way.
Lord Dixon-Smith
My Lords, if I could follow my noble friend with a slightly different question to the—
Lord De Mauley
My Lords, I am sorry to interrupt. Perhaps noble Lords are not aware that there is a speakers list. Having said that, I am sure that if the Grand Committee—
The Deputy Chairman of Committees (Baroness Morris of Bolton)
My Lords, there is a speakers list, so it is possible to speak in the gap. We are in the gap now.
Lord Dixon-Smith
My Lords, that is an amusing correction: to find myself up in the right place and being corrected for it. I would like to follow on a little from what my noble friend Lord Teverson has said to my noble friend the Minister.
The question here is the definition of an infrastructure project. I wonder whether, in his response, the Minister could give us some inkling as to why the national infrastructure policy is defined as covering projects affecting a population of more than 500,000. Why is it not some other figure? I ask this question with deliberate intent, because we will be putting major projects through a somewhat simplified but none the less well-defined planning process that will work much more rapidly. Whatever its future legal status may be as a result of coming legislation, we think that this process will work more rapidly than the normal planning system.
I suspect that I could make a good case for suggesting that the threshold of 500,000 people affected should be reduced to 250,000 people. This would bring a much greater number of schemes within the scope of this policy statement. It would, therefore, make accessible to the provision of those schemes an accelerated planning process, which would facilitate improvements to water quality across a wider field.
That figure, to me, is the critical figure in this report; all the rest of it, you might say, is procedure. However, we are dealing with how you define a national policy statement. I accept that there is always a difficulty with that sort of definition and the judging of nationally significant projects, particularly in the field of electric lines and so on, given that they affect a large number of people. However, I am not sure that you could always say that a particular electric line, which would come within the scope of the national policy statement for power generation and transmission, would always affect more than 500,000 people. I strongly suspect that many of those schemes would impact on a much smaller number of people, but, none the less, they are part of the national policy statement structure.
I would be grateful if the Minister would take away with him the thought that that figure should be considered a bit more. I sincerely ask him to consider whether it would be practical to put in a lower figure to facilitate the accelerated planning process that would then come forward to help major schemes. A scheme that affects 250,000 people is still a major scheme.
Baroness Quin
My Lords, I thank the Minister for his explanation of the draft national policy statement on waste water and for outlining the Government’s approach to it. As he said, we are dealing with something that is very important; this is essential for public health and for a clean environment, as it is expressed on the Defra website. When we consider that much of our infrastructure for waste water, and for our water supply generally, was established in the 19th century, we remember its importance in tackling some of the prevalent diseases in our urban populations at that time, such as typhoid and cholera. We are therefore dealing with something that is of vital interest to us all.
It is important that we meet our European and international obligations. The noble Lord, Lord Teverson, mentioned the importance of meeting our EU obligations, whether that is under the urban waste water treatment directive, the water framework directive, the habitats directive, and so on. He also mentioned the danger of infraction proceedings, and I echo his question to the Minister about that.
These issues are important with regard to climate change. A couple of weeks ago, on the Floor of the House, we had an interesting debate on a report on agriculture and climate change, in which a number of Members took part. We must think here about the possible greater pressure on the waste water system from greater climate variability, the possibility of more intense rainfall and so on, as well as the pressures as a result of urbanisation and population growth. These are important issues, and given that this is a draft statement, I hope that we will have the opportunity to come back to this in due course.
In responding for the Official Opposition, we are happy to endorse the broad approach to these issues taken by the Government, which seems similar to that taken by the previous Government. However, there are a number of questions and concerns about particular aspects, and I will raise some of those this afternoon.
First, I must express a certain amount of frustration, because I do not feel that I am as well prepared for this as I would have liked, partly because the Environment, Food and Rural Affairs Committee of the House of Commons produced its report on the draft national policy statement only today. I have had a chance to read the report, but I have not had a chance to read the mountain of evidence submitted to the committee that would have been relevant to the debate today. With hindsight, the timing of this debate would have been better if we could have had it a couple of weeks hence, perhaps after the Easter Recess, rather than at this time. It has certainly been frustrating not being able to read all the evidence that was given to the House of Commons EFRA Committee.
I also found it quite difficult to get hold of the appraisal of sustainability. It was not in the Printed Paper Office. I tried to get it via the Defra website. I know the Minister has heard me complain mildly about the information on the website. Every time I tried to get the appraisal of sustainability, I was informed:
“Our website is changing and links will have changed … Our old website remains available for some time”.
In the end, I did not manage to get the appraisal of sustainability at all, although I have read some of what it contains via other sources.
The Minister also mentioned the consultation, which ended on 22 February, and the fact that the department is currently considering the responses raised in the consultation. Again, given the timing of this debate, it would have been good to have greater feedback from the Government about what issues the consultation had raised and how the Government propose to deal with them. However, since this is a draft statement, I hope there will be an opportunity to come back to some of these issues in due course.
In its report, the House of Commons committee said that it felt that the consultation process on the NPS could have been given a higher profile. It was disappointed that the rate and number of responses were not as great as it would have liked. I noted that Defra organised various drop-in events in relation to the consultation; I saw the dates of 31 January and 1 February. Both events were held in London. Could the Minister give us some report on how those events went? Were they simply about the draft national policy statement itself or, because they were in London, were they more specifically related to the two London projects, which are also dealt with in the NPS document?
A more fundamental point about the consultation that the department held was made in the report of the EFRA Committee in the other place. It said it felt that in some ways the consultation could not perhaps affect the outcome of the NPS. The point that relates to that in the EFRA Committee report is in paragraphs 67 and 68, which say that in two areas the NPS seems already to have adopted a hard and fast position. The report states:
“For example, the draft NPS states that it must be designated if the UK is to meet its obligations under”,
EU directives. Secondly,
“the draft NPS appears to offer a fait accompli in regard to the Thames Tunnel, citing it the ‘preferred infrastructure solution’”.
The committee therefore recommends:
“Defra should clarify in its response to this Report how it has taken into account responses to all aspects of its draft NPS consultation in order to fulfil the Government’s requirement that formal consultation should take place at a stage when there is scope to influence the policy outcome”.
I would be interested in the Minister’s reaction to that if that is possible today. I appreciate that the Government, too, have only just been confronted with the committee’s report. Therefore, I am trying not to be unreasonable in my expectations. Presumably, however, these are issues to which the Government have given some thought.
Another thing that was raised by the EFRA Committee, and which I was also keen to raise, was the format of the NPS document itself. I was puzzled when I first looked at it. Half seemed to be a generic document, relating to the general principles governing such projects, and the other half related to two specific projects, both in London. The EFRA Committee has made a recommendation that the format be different; it would prefer a generic document, with back-up information relating to specific projects that could be contained in an annexe. The committee’s report makes the fair point that there is a lot to do with the two specific projects that does not relate to the overall objectives in the generic document, and that has little to do with it but a lot to do with very specific locational issues.
The noble Lord, Lord Teverson, raised another issue that the committee was concerned about—that, under the Planning Act 2008, waste water transfer schemes are not included. Given their importance, the committee suggests that the Government should rectify that and amend the 2008 Act. I wonder whether the Minister is in a position to comment on that.
I have some sympathy with another point that the committee made—that, even in the generic section of the NPS rather than the section that deals with the two London schemes, there is a danger of falling between two stools, and that the section is neither a succinct checklist for decision-makers nor a fully descriptive resource. Given the wide-ranging nature of the issue and the fact that so many organisations and other initiatives are involved, I totally accept that it is difficult to cover everything. However, the committee made the fair point that there needs to be clearer signposting and cross-referencing in the generic part of the report, to give people more comprehensive information or at least to tell them where such information can be found.
The committee also feels that the Government should give more details about the possible alternatives to these big infrastructure schemes, particularly through the sustainable drainage systems approach, which has the most wonderful acronym—SuDS. The use of SuDS and how they might mitigate some of the problems that we are dealing with is important, and it would be useful it the Minister had any comment on that part of the EFRA Committee report or the alternatives to such major schemes generally.
The overall feeling is that the London schemes are necessary but that they raise problems in connection with particular sites and in some of the details. My understanding is that the Thames Tunnel was originally costed at £2 billion and is set to rise to £3.6 billion. Could the reasons for that be forthcoming?
The consultation procedure has probably been better and more detailed in relation to the two London schemes than to the draft NPS. That is probably not surprising in a way, because the draft NPS deals largely with general principles, whereas the two London schemes affect specific neighbourhoods and large numbers of population. For that reason, it is not surprising that there is a great deal of consultation; I commend the consultation process that has taken place, which is not yet finished—I understand that a second stage will begin in the autumn. However, we have seen a considerable number of signatures; the Evening Standard reported last week that there were 10,000 signatures objecting to parts of the Thames Tunnel scheme. There have been some high-profile objectors, including Helen Mirren and David Bellamy objecting to parts of the Rotherhithe and Wapping sections of the tunnel, including the King’s Stairs Gardens. An important point was raised in relation to that park, which is that the objectors feel that there are alternative brownfield sites so there is no need for the use of any greenfield site. That is an important principle, which we are normally very keen on. If the Minister is able to comment on that, that would also be very useful. It is accepted that the main adverse effects of the schemes are likely to be restricted to the construction period, but I do not know if the Minister has information on concerns regarding the longer term effects of the two schemes that are included here.
On a completely separate issue, there is concern about the planning process, as mentioned by the noble Lord, Lord Dixon-Smith, in terms of speed, efficiency and the provision of certainty for potential investors. That is an important aspect and although I realise that it is difficult to reconcile all these different demands, they are important elements that need to be considered. I note that the regulations on the transfer of private sewers to water companies have not yet been brought forward, even though the new system is supposed to be in force by October. Although that it is not dealt with specifically in the NPS, does the Minister have any information as to when these regulations are likely to be forthcoming and, if not, could he write to me to let me know?
My final question relates to another point that the noble Lord, Lord Dixon-Smith, raised, which was the threshold for these schemes. Is this likely to be looked at again or, if not—I think that the noble Lord, Lord Teverson, also made this point—how frequent are such schemes likely to be in future? Is this likely to be limited to large urban areas? It is perhaps understandable that the first two are in London, the largest conurbation of all, but it would be useful to at least get some idea about the Government’s thinking on the scale of this.
I raise these questions not in opposition to the draft NPS on waste, but as a way of trying to echo some of the concerns expressed in another place about ways in which it could be improved and to make sure that, as this is a matter of such importance to the country as a whole, we will be able to come forward with the best possible system to meet our needs.
Lord Henley
My Lords, a large number of questions have been raised and I will address as many as possible. I will start by echoing what the noble Baroness said about the importance of dealing with waste water, not only in terms of improving our water quality but in terms of health. One only has to walk down the Embankment—I forget where exactly it is—to see the memorial to that great Victorian engineer, Bazalgette, and to remember that the work of such engineers saved far more lives than any doctors have ever managed to do. For that, we should be grateful and we should also be grateful for the excellent work of those Victorian engineers and for how long what they made has lasted; however, improvements still have to be made in due course. I also echo what the noble Baroness said about how important these matters can be in terms of climate change.
I remind the noble Baroness that, at this stage, the NPS is only a draft. We have had the consultation, and the report that came out only today from the EFRA Select Committee in another place, and we are now having this debate. We are very grateful for the EFRA Committee’s report. It will be considered in due course and we will make an appropriate response. I have to say that it was purely fortuitous that it happened to come out today, the day on which the usual channels had scheduled this debate. However, that is a matter for the usual channels and, as we know, even Homer occasionally nods, and obviously the usual channels did not get it exactly right, but we may have other opportunities in due course.
The noble Baroness also had some complaints about our departmental website and its definitions of sustainability. I offer her, at some stage, a teach-in on the subject, in which officials will take her through the Defra website and thus I hope that we will make some progress in dealing with these matters and that that will assist the noble Baroness. However, as she is a former Minister—I cannot remember whether it was in Defra or one of its predecessors, MAFF—she will understand that one cannot get everything absolutely right, but I am sure that officials will be more than delighted to give her that training.
The noble Baroness reminded us that the Select Committee in another place would have liked a higher profile for the consultation which ended on 29 February. I have to say mea culpa, if not for myself then for one of my colleagues. We will try to ensure that an appropriate profile is given to such matters in the future.
As regards the noble Baroness’s question about the drop-in sessions on 31 January and 1 February, they were attended by quite a number of members of the public and boroughs, particularly the London boroughs. However, the events were about the NPS only, and site-specific issues will be covered later by the developers. We received some 43 responses, overall, to the whole consultation and those will be considered in due course.
The noble Baroness then discussed the comments of the EFRA Committee’s report on the format of the document—that half of it was generic and half specific to the two sites that we have been talking about. I have a sneaking feeling that, if we had made it totally generic and had not mentioned those two large sites, there would also have been complaints that we had not included them. It is always difficult to get the balance right on this. It is possible that the suggestion of moving them into some appendix would be appropriate, but I doubt it. We are certainly happy with what we have done but, again, I emphasise the fact that this is only a draft.
The noble Baroness then moved on to the specific London schemes and asked whether they were a fait accompli and definitely what we were going to do. She also raised questions about the costs and why they had increased. As she knows, there is a definite and established need for a solution to the sewage overflows. The report looked at the problems and found that a tunnel is the only solution—that was back in 2005 and nothing has changed since then. However, while the need for a tunnel is established, the route has yet to be finalised and that means that there may be a number of different routes and means of building tunnels. As she said, in terms of the objections, it is often during the construction phase that most of them will arise. Thames Water will be working on those options and is consulting widely. However, I can well understand that some people—the noble Baroness mentioned a number of celebrities who objected to it—have concerns because of the disruption at the construction phase. I have recently been down to Brighton, where I have seen another similar quite large project beginning to come to a conclusion, but that took some 14 years, I am told, in the planning process, because of all the objections and concerns from people from Brighton and all the towns along the coast to the east about how these matters were being dealt with. However, in the end, I think they will find that they have much cleaner seas and better water, and they will be grateful for what has happened, and I think the same will be true for what the Government are proposing.
I appreciate that the costs have gone up. Some of that is due to what I am told is referred to as an optimism bias. The original costs were produced in 2007, and we have moved on four years. The noble Baroness will be well aware of how costs can rise, particularly when the preferred route has changed and the original estimates did not include costs for that optimism bias.
I am grateful that the noble Lord, Lord Teverson, agreed that we had included these two projects, because it is important to do so. He then asked whether other schemes would be appearing in due course and if so, how often they would appear. All I can say is that we do not think that any are likely to be considered in the next five years. Five years is, therefore, about as long as these sorts of policy statements should continue. We will respond to those matters in due course as other projects come on stream and as we develop new policy statements.
The noble Lord then talked, as did the noble Baroness, Lady Quin, about the danger of infraction proceedings. I am pleased to say that I do not think that the United Kingdom Government have yet been fined at any stage for infraction of directives of one sort or another, but it is obviously a real risk. It is important to ensure that we are moving as fast as we can to do what we can to achieve the right objectives. The plans that we have made to ensure that the tunnel is built will mean that we are complying with the directive. I hope that the commission will take that into account in due course.
My noble friend Lord Teverson also asked why we included Thames Water when it does not meet the requirements in terms of size. My understanding was that although tunnels are not necessarily caught by the thresholds in the Act, which cover only water treatment works, it would be appropriate to include them on this occasion because of the large numbers of people affected. Noble Lords would have found it odd had we not included them.
This brings me to the last point I want to make, on the question asked by my noble friend Lord Dixon-Smith about why our definition as to who is included only included those projects affecting above 500,000 people and not some figure below that. He suggested, possibly rightly, that one should lower the threshold to 250,000 people or some other figure. At the moment, 500,000 is the figure imposed by the Act. We might want to look at it again in due course. I give no guarantee to my noble friend, but it should always remain under review if appropriate and if we are finding these matters difficult. For the moment, we feel that 500,000 is about the right figure. It is the figure selected by the previous Government when they passed the 2008 Act.
I do not know whether I have dealt with every single question. If I have not, I certainly offer to write to noble Lords to deal with these matters. I emphasise what I said at the beginning: this is only a draft statement. We have had the report from the EFRA Committee. We are still considering the results of the consultation that closed in February. Before we produce the final statement, there are the parliamentary hoops that have to be gone through. We will consider all the points that have been made by noble Lords in the debate this afternoon.
House of Lords
Burundi
(13 years, 8 months ago)
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The Lord Bishop of Wakefield
To ask Her Majesty’s Government what assessment they have made of Burundi’s role in long-term regional stability and regional integration strategies in the light of their decision to cease bilateral aid for Burundi.
Baroness Verma
Burundi’s location at the centre of the Great Lakes region and its membership of the East African Community mean that its stability and economic growth are closely linked to the rest of the region. The Secretary of State for International Development has therefore decided to continue to support Burundi’s economic integration into the East African Community from 2012 through a regional approach.
The Lord Bishop of Wakefield
I thank the Minister for that Answer. Does she agree that the UK should be supporting a political, and certainly non-military, solution to regional stability throughout the Great Lakes region, which crucially requires Burundi’s involvement?
Baroness Verma
My Lords, the right reverend Prelate raises some very important points. However, through our regional work on economic integration and expanding focus on free trade, we think that our greatest support will be through developing Burundi’s ability to integrate into the East African Community through trade. That will be the determining factor for its growth. We will also work incredibly hard with the Burundi Government to ensure that peace comes through all sorts of means.
Lord Boateng
My Lords, the Minister’s recognition of the centrality of Burundi in the Great Lakes region is welcome. Given the fact that this is not only one of the poorest countries in the world but the most fragile in the region, how, in the absence of either a country programme or a resident ambassador, will it be possible to influence that country for good?
Baroness Verma
My Lords, the noble Lord is aware that our programme in Burundi was quite small, but we do support programmes through the EU and the World Bank. Through those programmes we feel that we are better placed to provide aid. We are also working very much with Trade Mark East Africa, which we have launched in the region, to ensure that Burundi is able to grow its private sector to develop economic growth.
Lord Chidgey
My Lords, what progress are the Government making in helping Burundi strengthen its revenue collection authorities in comparison, for example, with Rwanda next door? What impact do the Government believe this will have in helping Burundi to meet its millennium development goals?
Baroness Verma
My Lords, Burundi has not met any of its MDGs at all. The president has promised universal education, which will go a long way to meeting the primary education goal. We feel that the rest of the goals will be achieved through strengthening Burundi’s infrastructure, which will come about through Burundi being a free access market to the countries in that region.
Baroness Kinnock of Holyhead
My Lords, does the noble Baroness recall that the Secretary of State for International Development said that we will be dealing with people who live in extreme poverty and in very conflicted societies? Does the noble Baroness therefore agree that Burundi certainly qualifies on both counts? Can she account for the inconsistency of a Great Lakes policy that includes increased commitments to the DRC and Rwanda but closes the United Kingdom’s office in Bujumbura?
Baroness Verma
My Lords, as the noble Baroness has just heard, we believe that we are better placed to put some of our funding through the EU and the World Bank, where we are large contributors. Our funding programme that will end in 2012 was only a small programme of £10 million. We believe that putting in an agency that will actually help Burundi grow through its economic development will benefit that country far more than the £10 million that we were giving.
Lord Tomlinson
Will the noble Baroness accept my congratulations on the fact that in her answers she has suddenly made multilateral aid through the EU respectable? Thank you very much.
Lord Patel
My Lords, given that Burundi is one of the worst performers as regards millennium development goal 5, what plans do the Government have to help Burundi to achieve that goal?
Baroness Verma
My Lords, we believe that our funding through the EU programme that takes on the role of looking at maternal and child mortality will assist through an agency that is better placed to deliver that.
International Labour Organisation
(13 years, 8 months ago)
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Lord Clinton-Davis
To ask Her Majesty’s Government whether they will reconsider their decision to withdraw discretionary funding to the International Labour Organisation.
Baroness Verma
My Lords, the UK’s multilateral aid review found that there was no longer a case for voluntary funding from DfID to the ILO. However, the department remains open to providing project funding to the ILO at a country level, now and in the future. The ILO will continue to receive an annual, assessed contribution from the UK paid by the Department for Work and Pensions. This amounts to £16 million in 2011.
Lord Clinton-Davis
Does not the Government’s stance reflect their prejudices rather than seek to improve the ILO in dealing with the many matters with which it has to cope? Is it not a fact that just 12 months ago DfID said conclusively that the partnership between the Government and the ILO would continue? How do they react now?
Baroness Verma
My Lords, the United Kingdom, led by the Department for Work and Pensions, remains a fully paid-up member of the ILO governing body. We will continue to engage proactively with the International Labour Organisation and we will pursue a range of reform-related issues, including the reform of the workings of the governing body and improving audit arrangements. All this will carry on, and the ILO, on a country-by-country, programme-by-programme, basis, is still able to apply to DfID for funding, as long as it has a provable business plan.
Lord Chidgey
My Lords, what was the basis of the multilateral aid review’s findings on the effectiveness of the ILO as a development organisation, particularly as regards inputs to and impacts on the millennium development goals? What discussions are planned with the ILO in that regard on in-country funding and specific projects?
Baroness Verma
My noble friend is aware that the ILO has published a review of our decision. It found that while the multilateral aid review recognised the value of standard-setting and policy-making, unfortunately, it found no evidence that a difference was being made to poor people in developing countries.
Lord Foulkes of Cumnock
Will the Minister explain her answer to the previous question: that multilateral assistance through the European Union and the World Bank is good, whereas multilateral assistance through the International Labour Organisation and UNESCO is bad? Is there not a political agenda there?
Baroness Verma
My Lords, the noble Lord does not seem to understand. The point I am trying to get across is that we had the multilateral aid review because many programmes were not delivering the work that they were supposed to deliver. Therefore, particularly in these constrained times, we need to make sure that every penny we spend is spent well. The multilateral aid review considered the ILO to be one of the organisations that was not performing to its best.
Lord Tebbit
Will my noble friend consider setting up a discretionary fund, run by the Government, into which noble Lords who want to give more money to the ILO can contribute? It would be a very agreeable experience for noble Lords opposite to put their money where their mouths are.
Baroness Kinnock of Holyhead
My Lords, the noble Baroness will be aware of the excellent ILO programmes on the elimination of child labour, which have been responsible for getting millions of children out of hazardous work and into school. Is she also aware that the ILO is committed to ending the worst forms of child labour by 2016? Will she therefore agree that it is certainly not the time effectively to end the UK's partnership with the ILO when such critical development objectives as child labour and education are at stake?
Baroness Verma
My Lords, through DfID we will continue to focus on child labour issues by working through a wide range of partners, including the ILO. The Government's annual contribution of £16 million through the Department for Work and Pensions directly helps the International Labour Organisation combat child labour. In addition, we provide £12 million to the fairtrade labelling organisation, which effectively combats child labour and has robust systems to investigate allegations.
Lord Lea of Crondall
My Lords, will the Minister take this opportunity to state unequivocally something that is good about the ILO—namely, that it is tripartite? Workers’ representatives as well as employers’ representatives come together from every country of the world. One might say that the workers’ representatives in some countries are rather dodgy, but is not the principle that each country in the United Nations, going back to the First World War and the League of Nations, has to provide a grouping of workers’ representatives with a degree of autonomy, a remarkable force for good in many places in the world?
Baroness Verma
Yes, my Lords, I agree that we want to see fair, decent working conditions for all people. I assure the noble Lord that that is a core part of the Department for International Development's work. For example, in India, Nigeria and Bangladesh we helped to generate more than 1 million jobs. We helped 2.3 million women to access jobs. We provide support for social protection, including public works. That is why we are continuing with the £16 million support through the Department for Work and Pensions.
Lord Clinton-Davis
Is not the noble Baroness arguing that individual Governments should have the last word in this matter? Is that not a prescription for indecision and discontent?
Baroness Verma
No, my Lords, I cannot agree with the noble Lord. I have made it clear throughout my responses that we support raising labour standards in global supply chains. The number of fairtrade-certified producers has increased from 1.1 million to 2.5 million. That is an improvement. We are not going backwards, but we need to make sure that every penny we spend is spent well.
Lord Barnett
The Minister talks about spending money well. Will she tell us whether discretionary funding is still available to her department from the reserves available to the Treasury?
NHS: Joint Replacement Procedures
Lord Walton of Detchant
To ask Her Majesty’s Government what is their forecast of the effect that proposed efficiency savings will have on the availability of joint replacement procedures in the National Health Service.
Baroness Northover
My Lords, decisions about whether patients receive procedures, including joint replacements, need to be taken by patients and clinicians together, based on high-quality clinical evidence.
Lord Walton of Detchant
I thank the Minister for that reply. Is she aware that in 2010 1,200 fewer knee replacements and 350 fewer hip replacements were carried out in the National Health Service, that the Patients Association has said that there is evidence that waiting lists are increasing, and that the Medical Devices Agency says that companies that produce the prostheses for joint replacements are finding that demand is declining? Is it not likely that the so-called efficiency savings within the NHS will make this deteriorating situation even worse?
Baroness Northover
I thank the noble Lord for his Question and pay tribute to his long battle for patients in the NHS. I assure him that, if it is clinically appropriate for a patient to receive a joint replacement, they should do so. As noble Lords will no doubt know from their own experience and that of their relatives, people often find that their recovery is not as uneventful as they might have wished, and for some patients the joint replacement does not work as well as it might. There are other procedures. For some patients, the best road to go down may be that of other options, which may be a factor here. However, I assure the noble Lord that, if it is clinically advised that people should have a joint replacement, that is what is supposed to happen and, if there is any evidence that that is not being carried forward, we would certainly like to know.
Lord Winston
My Lords, joint replacement treatment of all sorts is a highly successful area of medicine but there are still failures and many joints give up. Improvements have been possible only with continued research. Can the noble Baroness tell the House how it is envisaged that such research will continue under the improved National Health Service that the Government are proposing when more and more private providers will be offering these services and there is no particular academic interest in this aspect of medicine?
Baroness Northover
I note what the noble Lord has to say. Of course, he will know that my right honourable friend in the other place, Vince Cable, has recently put a considerable amount of money into health research. Looking forward over the next few years, real-terms spending on health research will increase. The National Institute for Health Research will be co-ordinating this and it supports research in this area. As for the noble Lord’s question about new arrangements in the health service, it is of key importance that research is carried on within the NHS. The NHS has led in clinical research and we are very committed to ensuring that under the new arrangements that continues to be the case.
Baroness Gardner of Parkes
Is my noble friend aware that the construction and production of joints have improved enormously? In earlier days, many failed and had to be replaced a second or even a third time. Does she agree that it is a false economy to use anything but the best now? Have any records been kept of how many people on the long waiting list are waiting for a second replacement rather than a first?
Baroness Northover
I am aware of the failure rate of earlier replacements and the trauma of having to go through such a procedure again, often with all sorts of additional health complications. It is very welcome that the improvements to which the noble Baroness referred have come about. I do not have the figures here showing how many joint replacements are second replacements and I shall write to her about that.
Baroness Tyler of Enfield
My Lords, given the increased waiting times for elective surgery that we have heard about, can the Minister give her assessment of whether the proposed new commissioning arrangements are likely to exacerbate or increase this trend?
Baroness Northover
My information is that waiting times are stable, and that is obviously welcome. As regards commissioning in the future, it is extremely important for noble Lords to be aware—I am sure that in this Chamber people really are aware—of our ageing population and the pressures that that brings. That is why, in all our interests, we have to look at how best to deliver health in the future. Ensuring that people have access to good quality, timely care is central to that.
Lord Grocott
Given that yesterday the Health Secretary described the gap between the Committee stage and the Report stage of the health Bill as a natural break for the Government to go away and think again for a couple of months, can I urge the Government to consider following his example by having a natural break between Committee stage and Report stage of the Fixed-term Parliaments Bill?
Baroness Northover
That is somewhat wide of the scope of this Question. In relation to the natural break in the health service Bill, it does not seem to be reaching my responsibility any later than I thought it would.
Baroness Masham of Ilton
My Lords, what is the procedure if a patient is turned down for a joint replacement? Whom does she or he appeal to?
Baroness Northover
That is a very interesting question and one that we hope is addressed within the new NHS Bill. It is very difficult, as the noble Baroness knows, to get a response from some of the organisations that currently exist. However, the NHS constitution is still there and patients have rights under that; they have rights to treatment and rights within a certain amount of time. Trying to secure that, as we know, has been difficult. That is one of the challenges that we have to face and we have to ensure that new arrangements build in better ways of handling this.
Baroness Wall of New Barnet
Is the noble Baroness aware that there are still choices in hospitals and that orthopaedic surgeons can use whichever joints they want to? She makes the point about using the best and that is something on which they have discretion. However, there is always a question about what is the best: some people use different prostheses and find that they work well, but some people have to return for a second hip replacement. Is it not right that that choice should stay with clinicians?
Baroness Northover
I hear what the noble Baroness says. Clinicians are undoubtedly likely to be and need to be in the lead on this. It is extremely important that we have transparent evidence, but we always have to bear in mind that a patient is an individual and what may look like the best route for one individual may not work out quite like that. All of us have experience of that. However, if you are basing it on the best evidence possible, I hope that the patient will be able to see the real choices and that things will work out for the best.
Baroness O'Loan
My Lords, I declare an interest as a recipient of two finger joints and I am waiting for another one. Can the Minister tell us what work has been done to identify the cost of failing to replace joints and allowing waiting lists to grow—as they almost inevitably will in view of the present cuts—in terms of decreased mobility and the inability of people to sustain their own independent living?
Baroness Northover
This is a key area. The noble Baroness is absolutely right. The Leeds Musculoskeletal Biomedical Research Unit is carrying out research in this area. I find that extremely reassuring because it is right that there are consequences of not undertaking these procedures in terms of pain for patients which, in turn, reduces their ability to work, to look after their families or to undertake whatever other responsibilities they may have. It is very important that that is factored in.
Lord Barnett
When efficiency savings are proposed, does the department immediately make that money available to spend or does it wait to see whether the efficiency has been achieved?
Baroness Northover
The noble Lord, as ever, asks very challenging questions. The various sections of the NHS have been set various tasks in terms of efficiency savings, but with the responsibility of reducing bureaucracy—which has grown, as noble Lords know, over the past 10 years or so—as opposed to making any reductions in clinical services.
Police: Deployment of Workforce
(13 years, 8 months ago)
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Lord Rosser
To ask Her Majesty’s Government whether they expect serving police officers to be moved from front-line roles to cover back-office functions of civilian staff who have been made redundant.
The Minister of State, Home Office (Baroness Neville-Jones)
No, my Lords. As Her Majesty's Inspectorate of Constabulary has established, one-third of the police force—that is, 80,000 people—are not on the front line. There is significant scope for major savings in reducing bureaucracy and increasing efficiency in such matters as procurement and IT without touching the front line. Furthermore, in its recent report, Demanding Times, HMIC shows that front-line officers can be deployed much more productively. There is “significant variation between forces” in the visibility and availability of officers and PCSOs. Some constabularies manage to have only 9 per cent of their officers on the street at any one time; and the average is only 12 per cent.
Lord Rosser
I thank the Minister for that reply. However, in the light of the disclosure that in Warwickshire, full-time police officers are being removed from the front line to fill back-office vacancies caused by the government cuts; the finding by Her Majesty's Chief Inspector of Constabulary that 68 per cent of police officers and civilian staff combined are involved in the front line and will be very hard to retain in the face of the 20 per cent cuts; and the statement by the chief constable of Lancashire, who is the ACPO lead on police performance management, that with the scale of the cuts being experienced, they could not leave the front line untouched; can the noble Baroness confirm to the House that the undertaking by the Prime Minister that front-line police services will not be cut, but will be protected, still stands?
Baroness Neville-Jones
The Government believe that front-line services will not be affected by the savings that have to be made. As HMIC has established, there is considerable room for savings to be made without touching the front line. I have given some illustrations; many more could be given. To give one example, at the moment, the average percentage of available officers who are at any one time visible on the street is 12 per cent. That is 18,795 officers. If all the forces were to reach the best practice available, which is that of Lancashire, that would amount to 26,627 policemen. Very big increases in efficiency can be made.
Baroness Hamwee
My Lords, work is rightly going on by police forces and by the Home Office on reducing bureaucracy. Has any assessment been made of what savings can be made from consequent reductions in back-office requirements as a result of savings in bureaucracy?
Baroness Neville-Jones
My Lords, this is just the kind of work that needs to be done. It is not easy to make those head-count calculations until one has an idea of how each force is going to make the savings, but there is no doubt that if, for instance, one procures much more efficiently than we do at the moment, considerable savings can be made.
Lord Imbert
My Lords, does the Minister agree that this Question need not have been asked at all if only a proportion of the £200 million-plus which is planned to be spent on the election of police and crime commissars was to be spent on real policing?
Baroness Neville-Jones
My Lords, I think that the figure for the election of PCCs is £50 million, which will be every four years. It has been provided for in the spending round; it does not relate to the police budget.
Lord Mackenzie of Framwellgate
My Lords, will the noble Baroness give the House her definition of a front-line police officer, and does it include officers working under cover for some length of time?
Baroness Neville-Jones
I think we can rely on HMIC, which has given us a definition of front-line police officers—I am just looking for it. The inspector has said that it is indeed those officers on the street and also those officers who provide support, which he calculates as being the 60-something per cent that was mentioned. We now have a definition of front-line policing that the Government are happy to accept.
The Lord Bishop of Manchester
My Lords, may I press the Minister on her definition to make quite clear that she is giving an assurance on front-line policing of those who are police community support officers? Will she affirm the huge value that those members of the police give in preventive action in terms of crime that otherwise might occur within the community?
Baroness Neville-Jones
My Lords, we entirely agree on the value of PCSOs as well as that of warranted officers. Crime prevention is a very important part of policing, which is one of the reasons why the Government attach so much importance to police officers being visible on the streets.
Lord Mawhinney
My Lords, I am sure that the whole House is impressed by the efficiency of the Lancashire force, referred to by my noble friend. What power do the Government have to require other forces to get themselves in line with what is happening in Lancashire?
Baroness Neville-Jones
My Lords, the Government are not able to “require” forces, but would very much encourage it. HMIC leads the way in the assessment it does and the recommendations it puts to police forces about the way in which they can improve performance.
Baroness Farrington of Ribbleton
My Lords, as a Lancashire resident and formerly for 20 years a member of the Lancashire Police Authority, I am very proud of the service we achieve for the people of Lancashire. Will the Minister accept that, although she referred to money coming from different pots, it is my experience that the people of Lancashire would prefer to see their service maintained at the current high level rather than money being used to bring in a new system, for which I have yet to meet a single advocate in Lancashire?
Baroness Neville-Jones
My Lords, as I said, the police budget is in no way affected by the cost of the election of PCCs. I think that when the inhabitants of Lancashire have experience of elected PCCs, they will find that it turns out to be an extraordinarily satisfactory system and better than the one they have now.
Building Regulations (Review) Bill [HL]
Social Mobility Strategy
(13 years, 8 months ago)
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I wish to repeat a Statement that my right honourable friend the Deputy Prime Minister made earlier today.
“Today I am launching a cross-government strategy to improve social mobility: Opening Doors, Breaking Barriers: A Strategy for Social Mobility. This has been overseen by the informal ministerial group on social mobility, which I chair, and in close collaboration with key departments. I am placing a copy in the Libraries of both Houses and making it available on the Cabinet Office website.
Fairness is a fundamental value of the coalition Government. A fair society is an open society in which everyone is free to flourish and rise regardless of the circumstances of their birth. This strategy sets out a vision for a socially mobile society, the principal objective of the coalition Government’s social policy.
In Britain today, the income and social class of parents continue to have a huge bearing on a child’s chances. Gaps in development between children from different backgrounds can be detected even at birth. These gaps grow rapidly during the early years and widen throughout school, such that only one in five young people from the poorest families achieves five good GCSEs, including English and maths, compared with three-quarters from the richest families. This has a major impact on participation in further and higher education, and on success in the labour market. These cycles of disadvantage are repeated across the generations. This not only is a source of great unfairness but hinders our national prosperity, as talented individuals are denied the opportunity to develop to their full potential.
This strategy takes a comprehensive life-cycle approach. A person’s fortune should not be determined at the age of five, 15 or 30. By providing help and support at every stage, we aim to narrow the gap and provide second chances. The strategy seeks to improve social mobility at each life stage: the foundation years, nought to five; the school years, five to 16; the transition years, 16 to 24; and adulthood, aged 24 and over.
In the foundation years, we welcome the independent reviews carried out by Frank Field, Graham Allen and Dame Clare Tickell. Our approach puts supporting parents and providing affordable, high-quality early education and care centre stage. We are maintaining Sure Start children’s centres, recruiting thousands more health visitors, expanding family nurse partnerships and investing in free pre-school education for all disadvantaged two year-olds, on top of existing provisions for all three and four year-olds.
During the school years, our school reforms, giving schools greater freedom, raising the status and quality of teaching and improving accountability and transparency will raise standards in all our schools, while the pupil premium will provide an extra £2.5 billion a year to radically improve educational outcomes for the most disadvantaged pupils. We will also raise aspirations through high-quality advice and guidance, and through much greater engagement between schools, business, universities and wider society.
For young people, we will look to narrow gaps in educational attainment, raising the participation age and increasing funding for apprenticeships while ensuring fair access to higher education and developing a new strategy to increase participation in education and training.
During adulthood, we will continue to encourage fair access to jobs, with the Civil Service leading by example and a new business compact on social mobility asking business to do its bit. At the same time we will maintain a second chance to train and for lifelong learning opportunities, improve work incentives through our welfare reforms, support lower and middle-income earners through our goal of raising the personal allowance to £10,000 and help people to build up their assets.
Crucially, our strategy sets out a clear framework for holding the Government to account on our ambitious proposals. We are creating a new statutory social mobility and child poverty commission to assess progress on child poverty and social mobility, hold the Government and others to account, and to act on and advocate change. We have developed a set of high-level indicators that will be used to track progress; and for the first time, as departments develop their new policies, they will need to consider the impact on social mobility.
I will continue to chair a group of key Ministers to maintain this momentum for change. We recognise that the Government alone cannot single-handedly create a fairer society. This is a task for parents, communities, businesses, professions and voluntary organisations too. However, the coalition Government will help to create a fair and open society where opportunity is shared and everyone can flourish”.
My Lords, that concludes the Statement.
Lord Knight of Weymouth
My Lords, I am sure that on all sides of the House we welcome a commitment to improving social mobility. All of us who want a fairer society want more room at the top and people to succeed on the basis of ability and not birth. It is also clear that there is much to be done. The figures at the beginning of the strategy make that clear, and I agree with it that:
“The lack of social mobility is damaging for individuals”.
It also leaves the country’s economic potential unfulfilled.
The Statement says that the promotion of social mobility is,
“the principal objective of the coalition Government’s social policy”.
That is also welcome. In that respect, and in the appointment of my right honourable friend Alan Milburn to head up this work, the Government are continuing an emphasis that Gordon Brown gave the last Government when he became Prime Minister.
I am the first to say that the last Government—alongside lifting half a million children out of poverty, embedding the principles of Every Child Matters, establishing universal early years provision for the first time, and a record number of children getting GCSEs, and ensuring a record number of students going to university—could have done more on social mobility. That is precisely why Alan Milburn was commissioned to write his report at the beginning of 2009, so today’s strategy has a familiar feel to it as something of a reheat of the last Milburn report, and on that basis there is not a lot to criticise as far as it goes. On the three actions set out in the strategy, there is nothing wrong with establishing a new public body to monitor progress. I welcome the publication of indicators of progress. And, of course, the final action point of a group of Ministers chaired by Nick Clegg is bound to add significant value.
However, I am bound to ask: where is the beef? Is this it? How do these three actions counteract the damage already done by this Tory-led Government? Let us, like the strategy, take the life-cycle approach. Before a child is born, support for parents, especially the mother, is important. What will be the social mobility effect of abolishing the health in pregnancy grant? Then life begins and we find that the baby credit element of tax credit has gone, the Sure Start maternity grant is cut for a significant number of women, and the childcare element of tax credits and child benefit are gone for a growing number of middle- income families as thousands more move into the top rate of tax. Let us hope that the child is healthy, because there is a strong link between health inequalities and social mobility. Just last month, the British Medical Journal published a report saying that the shambles of the NHS reforms risks making child health worse because of the lack of access to specialist paediatricians, a general view supported by the Government’s own Commissioning Support Programme. Incidentally, how come the Government launched a consultation on these reforms yesterday, during local election purdah?
Let us hope that the child’s family does not live in private rented accommodation, especially here in London. Shelter estimates that housing benefit changes will force 129,000 children to move to more affordable homes with, as the Government’s own impact assessment says,
“an adverse impact on work to reduce child poverty and … children’s schooling could be affected”.
Before they get to school, the parents and the children might be lucky enough to get support from one of the remaining Sure Start children’s centres. Much has been made of 15 hours of free pre-school support for some two year-olds and all three and four year-olds, but where will they go for this support? Children’s centres are fundamental to the early intervention that Frank Field’s poverty report put such stress on; yet despite the Prime Minister’s spin in the other place, the fact is that hundreds are closing and thousands are reducing their services.
Then we get to school. The concept of the new pupil premium is welcome, but the reality is that, as the Institute for Fiscal Studies has noted, schools in more deprived areas will receive a smaller pupil premium than similarly deprived schools in more affluent areas. In order to pay for it, the two most successful schemes that academics tell us narrowed attainment gaps between rich and poor children, London Challenge and Extended Schools, have been either scrapped or allowed to wither on the vine. If a child is not academic, he or she will be written off and turned off school by the English baccalaureate that exclusively values academic attainment and thus incentivises schools to narrow their focus. However, if a child is not too disengaged by the narrower focus of school, will he or she stay on after 16? Some 600,000 students who would have received the educational maintenance allowance will no longer qualify for financial support, even with the new replacement scheme. That is another attack on middle- income families.
If children manage to stay on, what about university? Most universities are now trebling their fees. Despite warnings, it appears that the Government cannot afford this and look set to reduce the number of student places accordingly. What does that do for social mobility? Does the Minister really believe that families who just miss out on a bursary will think it worth encouraging their children to take on all that debt, and will not some universities go out of business? London Metropolitan University has more black and Afro-Caribbean students than the whole of the Russell Group put together. Can the Minister assure us that universities of that kind will be protected to aid social mobility?
Finally, what about work? Unemployment is up 600,000 since the election; it was falling when I left office as Employment Minister. There are 60,000 more unemployed young people. Unemployment among women has risen every month for the past eight months. Graduate unemployment is at a record high. And what is the government offer on work—that most basic tool of social mobility? Well, there are some mini work experience opportunities and now some internships, including at Cowley Street for the Liberal Democrats. It is reported that these were being advertised yesterday as unpaid, as voluntary. Obviously, that is better than the Tories auctioning them off as a fundraiser, but how does it sit with compliance with the minimum wage brought in by the previous Government? How does it compare with the half a million opportunities for young people that I was responsible for? Our young person’s guarantee was scrapped. The guarantee of training, a job or work experience for 18 to 25 year- olds has gone. The Future Jobs Fund has gone.
A life-cycle approach in this strategy is welcome, but I wish the Government luck in making it work after the destruction of the past 10 months. Social mobility is an important cause for us to rally around, but I am not sure that people will take this strategy seriously. It is short on positive action and it does nothing to address the attacks on social mobility already launched by this Government. If the Deputy Prime Minister wants to be taken seriously on this, as with other things, he will have to do a lot better.
Lord McNally
My Lords, I thank the noble Lord for that warm welcome for this initiative. At least he gave a warm welcome for the fact that Alan Milburn is continuing his work, which I freely acknowledge he started before this Government came into power. I am pleased that he has continued to make a contribution from his experience. However, there was a little bit of a clue in what the noble Lord said. He said that Mr Milburn started his work in 2009. If my mathematics work right, that is 12 years after the Labour Government came into office. This initiative is within the first year of the coalition Government, a sign that we have hit the ground running in our commitment to this issue.
I know that it is hard for Labour to accept, but the truth is that social mobility flat-lined under its stewardship. There were many reasons for that and I know that attempts to tackle it have been a problem for succeeding generations. My first job was with the Fabian Society of Brian Abel-Smith and Richard Titmuss. Successive Government have looked at this problem of poverty traps.
It is not fair to ask, “Where’s the beef?”. As I said, we are already providing help for disadvantaged two year-olds, 4,200 more health visitors, the pupil premium, to which the noble Lord referred, funding for disadvantaged learners, the national scholarship fund and new access rules for universities.
The noble Lord talked about non-academic children. This Government have addressed in a way that previous Governments perhaps did not do for 30 years the question of apprenticeships. We have expanded the apprenticeships programme to offer 360,000 new apprenticeships at all ages. We are reforming welfare so that work pays and we are raising income tax personal allowances.
Of course, it is easy to snipe at the internship programme and the business compact, but at least this Government have acted in retaining the services of Mr Milburn and asking him to do the preparatory work for a new body. We will keep track of what these initiatives produce and we are willing to be judged by the assessments made by the new body and the progress made by these initiatives.
Lord Laming
My Lords, I am sure that the Minister will acknowledge that a number of Sure Start centres are being closed. That being so, what steps are the Government taking to ensure that the centres that remain are made available to the children of families in the greatest need?
Lord McNally
That is certainly the Government’s intention. The initiative on Sure Start is still at local authority level but the intention is that it should remain a targeted benefit for those in greatest need, as the noble Lord said.
Lord Dholakia
My Lords, I thank the Minister for repeating this important Statement in your Lordships’ House and I ask him to congratulate the Deputy Prime Minister on it. The area of internships has rightly been identified. Does my noble friend accept that in some parts of the country, particularly in the poorest areas, disadvantage and discrimination are an everyday reality in the lives of many people? In many cases, people are still disadvantaged by being in the same place as the one allocated to them when they first moved to this country. What sort of monitoring mechanism will be put in place to ensure that no one suffers discrimination or disadvantage on the basis of their background?
Lord McNally
I am hopeful that this will be one of the jobs of the new body that Alan Milburn is setting up. I agree with my noble friend that, of the many problems that we have to tackle, one of the most intractable is social mobility among those from ethnic backgrounds, who often find themselves trapped not only by poverty but by other forms of discrimination.
Baroness Armstrong of Hill Top
Does the Minister accept that he is not able to make any announcements today because we are in the middle of the purdah leading up to the local elections? Does he acknowledge that the strategy will end up, as my good friend and fellow north-easterner Alan Milburn said this morning, as motherhood and apple pie unless there are serious changes to some policies, including the way in which mainstream services are funded? The specific attention that is given to areas of higher deprivation is being changed so that, for example, Alan’s and my home county—Durham—is losing money in the funding formula on health to places such as Norfolk, while areas of high deprivation in education are losing more than the pupil premium will give them back. As my noble friend on the Front Bench said, areas that have the highest deprivation will suffer most. What is the Minister going to do in the committee to address this issue, which will signally send social mobility the wrong way?
Lord McNally
I am grateful to the noble Baroness, Lady Armstrong, for pointing out that I cannot make detailed announcements today. There may be two reasons for that, one of which is the purdah that she mentioned. The danger of this being motherhood and apple pie is always there. This has been a long, intractable problem in our society. Somewhere in my brief there are details of the fact that, even in a time of high unemployment, we still have skills shortages. The mismatch between need and opportunity continues to be there. There is a real determination in the Statement, and in the intentions of the Government’s strategy, to make sure that such resources as are available—I will not go through the mantra about the decrease in resources available to the Government—are genuinely targeted at those in need. If one can comment on the last Government, no one could deny that they put vast amounts of money into some of these problems. One of the questions that we must now ask in politics in general is why, with the resources that they undoubtedly put into areas such as education, social mobility remained so stubbornly difficult to move.
Lord Martin of Springburn
My Lords, while welcoming what has been said on apprentices, may I ask for assurance that any apprentice who is given an apprenticeship gets both the practical on the factory or shop floor and the theory in the vocational colleges? Also, will the House authorities ensure, given the fine craftsmen here, including chefs in the kitchens, that we have a full capacity of apprentices in the Palace of Westminster?
Lord McNally
My Lords, on the last question asked by the noble Lord, Lord Martin, I will certainly take that excellent suggestion to the House authorities. If we are going to lead by example as far as the Civil Service is concerned, as my right honourable friend said, we should also do so in the Palace of Westminster. As the noble Lord said, we see excellent craftsmanship at work in many parts of this building. To enable young men and women to obtain skills here would be a good example.
I also agree with the noble Lord on his first question. I always thought that the fall-off in apprenticeships in the 1980s was a waste and that we have had to make a great effort to catch up. It was a loss of real skills. The old apprenticeship scheme was a very valuable part of the skills base in our society. We are only just beginning to put that back. I agree with the noble Lord that there must be both on-the-job training and the use of the full benefits of further education. Another part of the strategy is that the study of an apprenticeship should have, where it merits it, academic recognition to allow somebody to go on into higher education. This is something that we are going to press with the authorities.
Lord McNally
My Lords, I am on my feet, so noble Lords have to sit down. As we have 12 minutes, I suggest that we go to my noble friend Lord Willis, then to my noble friend Lord Ryder and then to the noble Lord, Lord Richard.
Lord McNally
I may get it wrong but I am trying to help the House, with 12 minutes to go.
Lord Ryder of Wensum
Can my noble friend please clarify why the Statement that he has just given to your Lordships’ House apparently bears scant resemblance to the Statement given earlier by the Deputy Prime Minister in the other place? I picked up a copy of the Deputy Prime Minister’s Statement in the Printed Paper Office just before coming into the House and I would like to know the reason why the two Statements are markedly different. Was it because the committee under the Deputy Prime Minister met between the two Statements, had an argument and decided to change the text?
Lord McNally
No. I am not aware that there is a difference between the two Statements. If there is, I apologise. This was the Statement I was given to read. Well done to my noble friend for such a helpful intervention. I am sure that his long experience in government has come to his aid. Perhaps somebody would like to work out what the differences are. Otherwise, I will write to the noble Lord if there are marked differences.
Baroness Smith of Basildon
My noble friend Lord Knight of Weymouth welcomed the strategy, but he was obliged to give a list of actions by the Government that undermine the principle behind it. He missed one very important action, and that is the cuts that have been made to voluntary and community services and to charities, many of which have tried for many years to do invaluable work in helping social cohesion and looking to improve social mobility. In my own town HomeStart, a valuable organisation giving families the support they need in life, will close in the next few weeks because of cuts to its funding. How does that improve social mobility?
Lord McNally
I listened to the Statement at the other end. Local authorities across the country are making cuts and it is very easy for people to leap up and say, “How does this strategy match what is going on?”. This strategy is trying to deploy the fewer resources we have in a much more focused way. We are going through a period of economic difficulty and it will be easy to pick up on the impact of the various changes, but today we have laid out a strategy that focuses resources on the most needy and addresses some of the issues that have been identified as causing a lack of social mobility. What we cannot do is return public expenditure to the level at which it was being run by the previous Administration—who were, as the noble Baroness knows, planning to make cuts as well.
Lord Willis of Knaresborough
Does my noble friend agree that this is a highly important issue and social mobility is something which nobody on any side of this House or in another place has solved for a great number of years? It behoves us to find practical solutions to the issues rather than simply throwing insults across the Chamber. Today I received a letter from a parent in Greater Manchester who informed me that it previously cost 60p each way per day to send his two children to sixth form in Oldham. The fact that concessionary travel for 16 to 19 year-olds has been removed means that it now costs £3.90 each way per day. Is that what we believe to be increasing social mobility?
Lord McNally
No, it is not; but I thought that my noble friend was moving away from that kind of question when he opened his remarks. Funds being targeted at the neediest families will also address problems of travel. I am not standing here saying that there are no cuts or difficulties. I am saying—and I welcome my noble friend’s idea that, at least on some of these issues, we might try to establish a cross-party consensus—that the roots of social mobility have puzzled us as a society at least since the war. I believe that what my right honourable friend has given today, partly building on some of the work of the previous Administration, is a clear sign that we—rather like the Attlee Government after the war, who also faced very difficult economic situations—are not abandoning the causes of welfare reform, work reform or social mobility, or putting them to one side during difficult economic times.
Baroness Garden of Frognal
My Lords, we have not yet heard from UKIP. May I suggest that we do so and then hear from the noble Baroness?
Lord Pearson of Rannoch
My Lords, the House will be relieved to hear that this is not a European question. Does the noble Lord agree that teacher training is the soil in which the roots of our education system feed, and that it has been very unsatisfactory for many years, serving the poorest children worst? For instance, the average A-level attainment of those entering bachelor of education courses has often been as low as two Es at A-level, according to government Written Answers. I know that the Government are seeking to address this problem. Can the noble Lord give us any news of progress in this deep but fundamental area?
Lord McNally
I am not sure that I can—all my briefing for the noble Lord, Lord Pearson, refers to Europe, so I am not sure. I also see too many educational experts around for me to play this one on the hoof. I do know—as we all know over our lives—that some of the most inspirational people we have ever met have been our teachers. We also know that some of the people who take the toughest jobs and help the very young people we are talking about are teachers in deprived areas. So I am not going to make any comments on teacher quality. I am pleased with the scheme that encourages graduates to go into teaching for a time. It is a very good idea and I am pleased that some of them, having experienced it, stick to it. But I am sure that the noble Lord is right that a high-quality cadre of teachers is part of the solution to social mobility.
Baroness Howe of Idlicote
My Lords, perhaps I may take a rather different line. Quite a lot of criticism has been coming in the direction of the Minister, but I should like to congratulate him and the coalition Government on the approach that they have taken to the issue, particularly the fact that the issue now appears to be high up on their agenda. However, as we are referring to the life-cycle approach, I should like some reassurance that this will include, and not place in a separate category, the need for early intervention as described in the two important reports by Frank Field and Graham Allen which we have discussed in your Lordships’ House. That alone would enormously help the whole business of social mobility.
Lord McNally
I fully accept what the noble Baroness says. With regard to the source of those reports and Alan Milburn’s involvement, I hope that we can attempt this with some degree of cross-party consensus. It is not the case that we have just discovered the problem of social mobility; as I said before, it has been around for a long time. Without playing prolier-than-thou, I come from a working-class background and in my childhood I was surrounded by what I call the aspirational working class. My father, who was a process worker, was one of the best-read men I know. How we instil in some of the more deprived families the kind of aspiration that there was in, say, the Welsh mining community and other, older working-class communities, I do not know. As my noble friend Lord Dholakia said, one sees it in some of the immigrant communities. There are factors that hold people back but poverty and deprivation are not the only ones. That is why just throwing money at some of these problems is not the solution either.
The fact that this has been announced—slightly differently from the way I announced it, evidently—by the Deputy Prime Minister, with the machinery in place overseen by Alan Milburn to check against results, means that this is not just about motherhood and apple pie but is a genuine attempt, building on some of the work of our predecessors, to be tested against results, to try to deal with a problem that, as I say, has challenged our society since at least the Second World War.
European Union Bill
(13 years, 8 months ago)
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Lord Kerr of Kinlochard
Lord Kerr of Kinlochard
Roderigo in “Othello”, Flavius in “Julius Caesar” and Bernardo in “Hamlet”—the House will instantly recognise what these three guys have in common. They get to start the play, they are completely unimportant characters and they have no influence whatever on how the plot subsequently develops. Afterwards will come the captain and the kings—I see that the names of five former Cabinet Ministers are attached to some of the more than 60 amendments that we are to debate—and of the 37 speakers at Second Reading on 22 March, more than 80 per cent were fiercely critical of the Bill. However, Shakespeare knew that, as the house shuffles its feet and settles down, first up should be a very minor character. The Bill has caused considerable concern on all sides of the House and the soliloquies from the stars will be worth waiting for. I hope that the play will not prove a tragedy, but I am merely playing Bernardo.
I will not repeat what I said at Second Reading about why I thought that the scale of the referendum requirements in the Bill was absurd in conception and damaging in effect, given that the requirements are for binding, mandatory referenda with no threshold on issues, many of them very minor and on all of which by definition the Government and Parliament have agreed. Nor will I say anything today about why I fear the chilling effect on our negotiators and on the perceptions of us in other EU member states or about the risk that, if we enact this Bill in this form, we will be repeating the Messina mistake and isolating ourselves from the future development of the European Union—I think that that is a risk, but I will not dwell on it now. Nor will I explain again why I believe that this is a bad Bill, which would damage both parliamentary sovereignty at home and our national influence and standing abroad.
Lord Davies of Stamford
The noble Lord said that he would not say anything about the potentially damaging effect on our negotiating position or negotiating leverage if this Bill is passed into law. I was disappointed to hear him say that, because there are few people in the world who have greater experience of negotiation in Brussels than he has. Does he agree that, when you are negotiating in any context in life, you have a certain leverage if at the end of the day, when you are persuaded and you have done a deal, you can actually deliver? However, if it is known in advance that you cannot deliver because you need a referendum to deliver—the Government are obviously not going to have a referendum on some subject of tertiary importance—does he agree that you will not really have any negotiating leverage at all, because no one will make concessions to you in the expectation of getting agreement if you cannot give agreement in the first place?
Lord Kerr of Kinlochard
The noble Lord exaggerates my experience, but I think that he is quite right in his point. It is the case, I believe, that this Bill, if enacted, would oblige British Governments to oppose in Brussels reforms that were acknowledged to be in the UK interest, because they would not wish to have to face a referendum on the issue in this country. We are talking here not about big issues but about relatively minor reforms that most people in this House would find useful.
However, I do not want to be drawn any further down that track for the moment. What Bernardo actually says at the beginning of the play are words to the effect, “Midnight has struck; fly home to your bed”. We were after midnight when we finished Second Reading and I was rebuked fiercely from the government Front Bench for contributing to the length of our debate. Therefore, rather than going back over ground that I touched on then, I will concentrate on the amendment that stands in my name.
The amendment would delete the first reference in the Bill to Article 48(6), which concerns treaty revision procedures. I am sure that I do not need to refresh your Lordships’ memory of Article 48(6), which we could probably all recite—and perhaps should have recited before we began considering this amendment—but let me just recap for a second. We are dealing with two treaties: the Treaty on European Union and the Treaty on the Functioning of the European Union. The first, the TEU, is about principles, values and institutions; the second, the TFEU, is about the competences and, in its Part 3, the policies of the European Union, how those are to be determined and how they are to be implemented.
There are also two amending procedures. The first, the traditional procedure, involves an intergovernmental conference, which is now to be preceded by a convention of the kind on which the noble Lords, Lord Tomlinson and Lord Maclennan of Rogart, and the noble and learned Baroness, Lady Scotland of Asthal, served in 2002-03. That is the principal means of reforming the treaty. The second procedure is a simplified means—this is what we are talking about in Article 48(6)—which allows the European Council, or heads of Government, to decide without a prior convention or intergovernmental conference. Both means of course require absolute unanimity among the heads of Government of the member states and both means require ratification by member states by whatever means they choose. Since the treaty is a treaty and does not purport to lay down how we handle our domestic affairs, it says nothing about how we or anyone else goes about ratification.
So why are there two methods? The difference between the two methods is that the simplified procedure cannot be used to amend the Treaty on European Union—the treaty about principles—nor can it be used to amend the part of the Treaty on the Functioning of the European Union that is about the competences of the Union. It follows that Article 48(6), reference to which is what my amendment suggests be removed from Clause 1, cannot be used to effect any transfer of competences or powers from the member states to the Union. Adding belt to braces, it actually says that. Article 48(6), after referring to the previous steps in the process, says in its last sentence that the decision referred to in the previous paragraph,
“shall not increase the competences conferred on the Union in the Treaties”.
This article is not about the famous or infamous passerelle; that is something completely different, dealt with in Clause 7. We are talking about Article 48(6), which is covered in Clause 3. The question for me is: why is it there? This is the question that my amendment is designed to probe.
I may have misunderstood something, as the Bill is extremely densely drafted and hard to construe, but I listened carefully to what the noble Lord, Lord Howell of Guildford, said in his elegant and thoughtful speech at Second Reading and I confess that I am still puzzled. I am also now a little worried. In introducing the Bill, the noble Lord, Lord Howell, described its primary purpose. He said that,
“where a treaty change is deemed to transfer competence or power from the UK to the EU, it will in principle require the approval of the British people in a referendum”.
After explaining very helpfully how Clauses 2 and 3 are concerned with the ordinary treaty revision procedure and the simplified revision procedure, the noble Lord went on to say:
“Both clauses also provide that, where a treaty change of either type would also transfer power or competence from the United Kingdom to the EU, such a change should also be approved by the British people in a referendum”.—[Official Report, 22/03/11; cols. 600-02.]
That is, indeed, an accurate description of the Bill, but it seems to me to reflect a misreading of the treaty. Article 48(6) cannot be used in a way that would transfer any competence or power from the UK to the EU. Therefore, it seems to me that the references to Article 48(6) and simplified revision procedure in the Bill are otiose. The only other explanation for them could be that the Government envisage referenda on EU issues where no transfer of powers or sovereignty is envisaged.
What did the Minister mean by a treaty amendment “of either type”? A treaty amendment is a treaty amendment is a treaty amendment. You amend the treaty whatever the process that leads you to the amendment, so what are we talking about? Why are we distinguishing a subset of treaty amendments? There are lots of other things with which I disagree in the Bill, but on this minor technical point I see no reason for any specific provisions in relation to Article 48(6) other than, possibly, the parliamentary ratification procedures. However, that is not what the noble Lord, Lord Howell, was talking about.
It follows that I see no need for Clause 3 or for the specific reference in Clause 1, which is the subject of the amendment standing in my name. In moving the amendment, I seek enlightenment. I apologise for troubling the House with these arcana; they are arcana, but the arcana are in the Bill and that is very troubling. Exit stage left.
Lord Tomlinson
My Lords, it will not surprise anyone who was at Second Reading that I not only support the amendment so ably moved by the noble Lord, Lord Kerr, but think that no part of Part 1 is worth preserving. It is therefore axiomatic, as someone who is opposed to the whole of Part 1, that I support every aspect of deletion of the Bill—hence the various notices that I have given, along with colleagues, to vote against clauses standing part of the Bill. However, if the House were to be persuaded by the more gentle logic of the noble Lord, Lord Kerr, in relation to particular aspects, such as Article 48(6), I might well be prepared to concede, if individual clauses are so useless by the time they are amended, that a Motion to delete a clause might not be necessary.
Let us be absolutely clear—and the noble Lord, Lord Kerr, made it particularly clear—that Article 48(6) and the procedures laid down by it were debated in this House and in another place when we endorsed the Lisbon treaty. The article was endorsed by both Houses in the ratification process. All that it does, as our Constitution Committee pointed out with abundant clarity, is allow for the provision of Part 3 of the Treaty on European Union relating to internal policies and actions of the EU, and to them only, and subject to a restriction that this kind of decision shall not increase European Union competences.
Under this provision, the European Council, when it is debating anything proposed under Article 48(6), is required to consult the European Commission and the European Parliament and then to act in unanimity. In these circumstances, I should be very interested to hear from the noble Lord, Lord Howell, precisely which type of issue his normally extremely fertile mind can determine might be one to which we want to agree in the Council but we are fearful that we will incur the wrath of the British people and, therefore, may have to hold a referendum. It would help your Lordships’ House if we heard one or two illustrative examples of the sort of potentially excessive transfers of powers to the European Union that are causing Foreign Office Ministers to have sleepless nights.
I support the amendment. It is the least change that would be acceptable to many Members of your Lordships’ House. It should be carried if there are no persuasive arguments to retain this provision. If that happens, it may not be necessary to delete Clause 1, although obviously that option will remain available to us when we have completed the debate.
Lord Deben
I hope that the noble Lord, Lord Howell, can help us on this occasion, because I fear that if he does not, two problems will occur. The first is the way in which the Bill has been explained to people such as me, who hold the same view about Europe that we started with and have no intention of changing it because it is even more important now than it was when we began. We have been told that the Bill is merely a means whereby we can give the British people confidence that, should some very large change be made, there will be an automatic opportunity for them to give their view.
I do not believe in referenda in any circumstances. They are wholly unsuitable in a parliamentary democracy; they are a foreign invention used by people for ulterior motives; and they have never been part of the sort of society in which we live. I am ashamed that my Government have brought this forward. I am even more ashamed that the Liberal Democrats allowed an agreement with the Conservative Party to contain this element. I look forward to hearing an explanation from some noble Lords who stood side by side with me in debates again and again yet who allowed this to happen. However, it has happened and the excuse given to people such as me is that it is all right because it will be used only in extreme cases when probably one would want the information anyway, and we have to understand that we have moved on when it comes to referenda.
I have still to be convinced, and this does not help the convincing. The suggestion is that we reserve the right to have a referendum on something that cannot take powers from this country and give them to the European Union. Later I shall point out that there are many things that we need. I will mention quickly the need for greater European competence in energy, so that the Spanish will be able to feed their energy into the grid and will not be stopped by the French who want to protect their nuclear industry. That needs specific European powers. I can imagine going up and down the country, trying to explain to people why we have to have a referendum on energy moving from Spain to France, because the Government have trapped themselves with the Bill. However, that is for later. Here we are giving the Government powers to ask for a referendum on something that they do not need in the rest of the Bill; it is the most amazing proposal. I will come to my second reason when I have given way to the noble Lord, Lord Foulkes.
Lord Foulkes of Cumnock
The noble Lord referred to competence on energy. Is not an even more powerful example that of the environment? I heard the noble Lord chair an international conference on the environment; he chaired it splendidly. Is that not a perfect example of where a European competence is even more vital?
Lord Deben
Well, we could go into the referendum and opinion poll mechanism of running government, which of course means the Daily Mail running government—let us be clear what the purpose of this is. If we ran government by opinion poll, we would exempt from the Bill anything to do with the environment, because an overwhelming majority of people believe that the environment is better protected on a European basis. They understand that half the emissions we create we give to the rest of Europe, and half the pollution in this country comes from the rest of Europe. One cannot have an air pollution policy unless it is European, and that is true of most of the issues about which we talk.
I will give my noble friend Lord Howell the second reason why we need to be very careful about this; it is for his own protection. If this is in the Bill, the head-bangers, of whom there are some in both Houses, will say, every time there is any decision in the European Union, “What about this?”. We all know who they are; it would be quite wrong of me to mention any names, but they will rise to their feet again and again because they are utterly committed to doing anything to stop—I give way to the noble Lord, whom I have not named.
Lord Pearson of Rannoch
My Lords, I think we all know whom the noble Lord is talking about. Does he agree that the head-bangers now include a growing majority of the British people?
Lord Deben
I would say that a large number of people spend a great deal of time misleading as many people as possible on the European Union and it is not surprising that some of it has rubbed off. However, I named no names and I will not do so now. That intervention shows us exactly that what I have said is true. Any Government proposing anything in Europe will come to this part of Europe and present it to the House of Commons, and someone will say, “Why are you not moving for a referendum to be held under this part of the Bill?”. There is no subject which would not come under it. I say to the noble Lord that this is a serious issue for any future Government because, if this part of the Bill goes through, no Government will be free of it in any decision they make. What will be the result of that in the Council?
Of course, I yield to the experience of the noble Lord, Lord Kerr, in negotiations but I think that my experience as a Minister is at least as long as that of anyone else in the country. Sixteen years of that experience was spent in the European Union, much of it in agriculture dealing with the detail of tiny issues that really mattered and much of it in environmental matters. However, I do not see how I could have negotiated, because any bit of this part of the Bill could have been brought up. Therefore, I say to the noble Lord that, if there is something of an argument here, can we please present it in a different way which does not bring all this baggage with it? If there is nothing here, it should be his devout wish that the Committee divides and he loses on this amendment, because it will damage Governments of all kinds. However, what it will damage most is the country that I love—the United Kingdom. It will mean that no Minister will be able to negotiate with the freedom of any other Minister in the European Union. We will be like the Belgians, who, for any decision, have to go back to three Ministers, all of whom have different views, and, as a result, they decide and contribute to nothing.
Therefore, I simply say to the noble Lord that, if he can move on this, he will give me confidence in the claim of my Government that this provision is intended merely to prevent huge changes being carried out without the consent of the British people. If he can move on this, he will protect this and other Governments from the effect of the provision, and I think he will find much of the rest of the debate very much easier. However, if he does not, I fear that many of us will have to vote again and again against a Bill which, for me, is the Conservative version of the Hunting Bill. It has been brought forward to look after a particular group of atavistic individuals and it is not in any way sensible. Everyone else knows that it is not sensible and that it is there for a purpose, and I am ashamed of the Liberal Democrats for not making sure that it was never there at all.
Lord Goodhart
My Lords, my noble friend Lord Deben will no doubt be pleased to hear that I agree with every word that he has just said, and I do so with a good deal more feeling than I agree with the views of the coalition.
In her speech at Second Reading, the noble Baroness, Lady Symons, said that the use of referendums in this Bill is unprecedented in terms of constitutional practice. That is absolutely true, but I would go further than that because I believe that important parts of the Bill are unconstitutional. Those parts of the Bill are the provisions that will require, for effective enactment, favourable decisions from both Parliament and a referendum. Here, when a Bill comes before Parliament, the decision by Parliament to enact the Bill may be overridden by its rejection in a referendum. Nothing like that has ever happened before in this country. What is proposed will set a precedent which could, and may well, lead to referendums being put on an equal footing with decisions by Parliament. We could, of course, consider a fundamental change to our constitution that would enable referendums to be incorporated into our system of legislation. However, this Bill is definitely not the place for doing that. I believe that once a Bill has been approved by Parliament, it is the law and cannot be overridden by a referendum imposed not by itself but by Parliament at an earlier date.
Lord Hannay of Chiswick
I support my noble friend's amendment. It is the practice in this House to start a Committee stage with an extremely abstruse point and this is certainly extremely abstruse. However, I argue that it is the tip of a rather large iceberg which is the overload of the list of things that have to be subjected to referenda set out in the rest of the Bill. This is the kind of entrée for that and it is absolutely right that we should have a serious debate about it now and not just treat it as a minor and abstruse matter.
The inclusion of decisions taken under Article 48(6) is a very clear symptom of a disease which seemed to be caught by the Government when they sat down to draft this Bill. Instead of opting for a very simple Bill, which would have subjected actual treaty changes to a referendum requirement—changes either to the Treaty on European Union or the Treaty on the Functioning of the European Union—they included a large mass of other material, including Article 48(6). That is likely to multiply by quite a lot the damaging effect that this Bill, if enacted, would have. I hope that the Government will think again about the inclusion of these issues within the scope of the Bill and thus be willing to look kindly on this amendment.
One relevant point is that when this House ratified the Lisbon treaty and conveyed our instrument of ratification, which helped, along with the other 26, to bring it into force, we approved a whole series of ways of implementing Lisbon, of which the Article 48(6) issue is one very small part. We deposited our instrument of ratification and Lisbon came into force and the coalition Government accepted that. However, I think that the Government need to pause for a minute to think about whether we are really acting in good faith when we alter the means by which we will deal with these decisions somewhere along the line and introduce a different method of doing so. Noble Lords will gather that this argument does not apply at all to a decision to have a referendum on a change to the treaty. There would be no question of bad faith about that. I think that we would be quite wrong to do so, but if we wish to subject a future treaty change, a change to the Treaty on European Union or the Treaty on the Functioning of the European Union, to a referendum requirement, that is absolutely our own business. We can decide that and cannot be accused of bad faith.
However, when we start tinkering with the way in which we shall approve items that are, as it were, subcontracted under Lisbon to the Council acting by unanimity, and impose new requirements which were not there when we deposited the instrument of ratification, we are taking real risks with that intangible concept—but one which is important within the European Union—which is the confidence that every member state has in the good faith of the other member states.
I say that not because I have thought of that problem off the top of my head, but because it was brought to the attention of the committee set up in the other place to scrutinise European legislation, when it held an inquiry into the sovereignty issue, by the now retired director-general of legal services to the Council Secretariat, a man of extraordinary brilliance who gave successive British Governments massively good and helpful advice on many occasions. In his testimony, which is on the record for anyone to read in the proceedings of Mr Cash's committee, he very delicately said that if the British Government systematically involve themselves in subjecting decisions taken under Lisbon to a referendum requirement, at some stage there is a real risk that the issue of good faith will be raised.
I hope that the Government will look very carefully at this matter and see that we need to cut away a good deal of the areas listed for requirement—among them, most particularly, the one we are discussing now.
Lord Foulkes of Cumnock
My Lords, I support the amendment moved with such charming and disarming modesty by the noble Lord, Lord Kerr of Kinlochard. Only someone with a highland title could be so disarming and modest as well as eloquent in moving such an amendment.
I speak with reluctance because I was waiting to see who was going to spring up to defend the Bill and speak against the amendment. As my noble friend Lord Kinnock says from a sedentary position, “There won't be many of them”. I have been trying to find out over the past few days and weeks who is behind the Bill, who is the architect of it, who is the genesis of it, who is pushing it, who is keen to see it go through. I even had a conversation with the noble Lord, Lord Tebbit, and he certainly did not claim any responsibility for the Bill. At Second Reading, we had a number of contributions, almost none of them in favour of the Bill. Even those who were in favour were somewhat embarrassed and reluctant.
I wonder why we are taking up so much time in this House and in Parliament when there are so many other things that should be occupying our attention. The noble Lord, Lord Kerr, made a very eloquent Shakespearian beginning to his speech. If I can get a little bit of Shakespeare right, it made me think:
“Why should we, in the compass of a pale,
Keep law and form and due proportion …
When our sea-walled garden, the whole land,
Is full of weeds, her fairest flowers choked up,
Her fruit-trees all unpruned”.
A lot of things are happening outside in our land, this sea-walled garden, that need our attention, but we are being asked to spend so much time on this, it is really quite unbelievable.
I did not speak on Second Reading because I was at my first meeting of the European Union Select Committee. Excellent work is being done there scrutinising legislation that comes from the European Union. It is generally acknowledged that this House, in this Parliament, in this country scrutinises European legislation better than any other house of any other parliament in the European Union, something of which we should be proud. That makes it even more ridiculous that we are being asked to consider this Bill.
Lord Pearson of Rannoch
My Lords, can I test the noble Lord’s pride? Can he give us any examples of any proposals or changes to European legislation, put forward either by your Lordships’ Select Committee or the Select Committee in the other place, that have been accepted in Brussels in, shall we say, the past 10 years?
Lord Foulkes of Cumnock
I have just been put on the Select Committee, so I shall leave that to members such as the noble Baroness, Lady O’Cathain, my noble friends Lord Tomlinson and Lord Richard, and other noble Lords who have been on the Select Committee for many years and know it better than me. I am just beginning to get to know it, but I am sure they can give examples.
Baroness O'Cathain
I remind the noble Lord, Lord Pearson, about mobile phone roaming fees, on which we did an enormous amount. Not only are people in this country glad for the work that we did that led to the changes; so are people in other member states.
Lord Foulkes of Cumnock
I am grateful to my noble friend—I think I can call her that in relation to that contribution, just on this occasion.
I want to finish by following the point made by my noble friend Lord Tomlinson and asking the Minister to give us a few examples of the kind of things that would be dealt with. I suspect that we will not get many examples or, if we do get any, they will not be very convincing. The Government are reluctant to give us examples because, by giving them, ridicule would be poured on the Government because they are either so irrelevant or so minor.
Lord Tomlinson
If we cannot find prospective examples, can the Minister give us some retrospective examples of the things that the Government would have sought the authority in this Bill for?
Lord Foulkes of Cumnock
I am really grateful to my noble friend. That is exactly the kind of thing that I was seeking. I know this House, and I have the greatest of respect for the noble Lord, Lord Howell, who I have known for many years and who has been very helpful to me on many occasions. I really feel sorry for him that he has been asked to pilot this Bill through the House. I think it says a great deal for his dedication and his commitment that he is willing and able to do so.
Lord Pearson of Rannoch
My Lords, perhaps it is time to have the smallest voice against these amendments. I shall do so by commenting on what noble Lords who have spoken so far have said. Can the noble Lord, Lord Kerr, tell us of any treaty changes so far that have not actually conferred power? I do not much like the word “competence” because it implies someone doing something competent, whereas we know that the European use of the word “competence” means power, which is nearly always exercised with great incompetence.
Lord Kerr of Kinlochard
The answer is “legion”. The appointment of judges to the European Court of Justice requires an intergovernmental conference, as does a change in the number in the European Parliament, and a treaty change is required in both cases. The answer is “legion”, I promise the noble Lord.
Lord Pearson of Rannoch
My Lords, these are not examples of powers being returned to a country that enjoyed them before 1972.
Lord Kinnock
To assist the noble Lord, I point out to him the very explicit provision that ensures that powers are not transferred to the Union from member states. There is a provision in the treaty of Lisbon enabling states to leave the European Union. That rather contradicts the noble Lord’s view.
Lord Pearson of Rannoch
There is also, of course, the ability to repeal the 1972 Act, which means that we would probably not need to go down the tortuous route proposed by the Lisbon treaty. Noble Lords have not quite got the question I was asking. I was asking whether they can tell us of any treaty changes that have not transferred powers to Brussels. Can they tell us of any treaty changes, those powers once having been transferred, that have returned them to this Parliament? I can tell them that the present Government were unable to answer that question in a Question for Written Answer very recently.
Lord Hannay of Chiswick
I just want to help the noble Lord, Lord Pearson, if I can. Yes, pretty well all the accession treaties do not transfer powers to Brussels, and there have been quite a lot of them.
Lord Lester of Herne Hill
Another example is that, in the protocol to the treaty of Lisbon, there is a provision giving power to national parliaments to be able to refer to the Luxembourg court issues where the national parliament considers that the principle of proportionality is being breached by legislative proposals emanating from Brussels. That is an example of where the treaty of Lisbon enhances the powers of national parliaments.
Lord Pearson of Rannoch
My Lords, the noble and Europhile Lords are struggling to find examples.
Lord Pearson of Rannoch
I am afraid that I do not find them very convincing. The drift of all treaty changes, starting in 1972, has been to remove power from the nation states and to pass it to Brussels. Therefore, when we assume that under this clause provisions will come forward that do not transfer power from this country to Brussels, that really is the triumph of hope over experience.
Lord Grenfell
The noble Lord keeps referring to removing powers. Would he not accept that there is a principle of pooling powers, which is very different? It means that we share authority so that we can find results for the common good of Europe. Of course, when you pool powers you are not simply saying, “I give up all authority”; you are saying, “Together we will use our individual powers to find a means of pooling it for the common good”.
Lord Pearson of Rannoch
No. I am afraid that I am among those who regard sovereignty as being rather like virginity; you either have it or you do not. Certainly, in all those parts of the treaty that are now subject to qualified majority voting, where we have some 9 per cent of the votes, we have in effect given up power. I really do not think that there is any doubt about that.
Lord Deben
Perhaps I may talk about the question of virginity. In the matter of air pollution, we do not have sovereignty over half the air pollution that affects my former constituents and the noble Lord’s neighbours. By pooling our sovereignty, we now share the sovereignty over all the air pollution and we can do something about it. By doing that, we have increased our sovereignty. If I may say so, the noble Lord really misleads people when he talks about sovereignty as if it is something that in the modern world means keeping everything. I remind him of the biblical concept that if you want to gain something, you share it, which surely is the point of the European Union.
Lord Taverne
Perhaps I may put two further examples to the noble Lord. He is very conscientious and I am sure that he read carefully every word that was spoken at Second Reading. What about the examples that have been given? The noble Lord, Lord Kerr, previously referred to defence equipment, an area in which we would have an enormous amount to gain if we shared sovereignty. Presently, we do not.
My second example, patents, was given by the noble Lord, Lord Liddle. Are these not perfect examples of where we gain enormously from sharing a certain amount of authority instead of keeping it entirely in a narrow sense?
Lord Pearson of Rannoch
I cannot accept those points from the noble Lords, Lord Deben and Lord Taverne. Why could we not have done these great things by intergovernmental collaboration? Why did we need to pool our sovereignty to achieve them? On the environment, if the noble Lord, Lord Deben, as he did in his speech, is going to extol his 16 years in the Ministry of Agriculture, Fisheries and Food as an Agriculture Minister, is he really going to tell your Lordships that he is all that proud of that? What about the common agricultural policy and the common fisheries policy? These are also examples of the EU’s environmental control over what used to be our sovereign territory.
Lord Deben
I wonder whether the noble Lord, Lord Pearson, would like to say the same about the last 16 years of the Houses of Parliament. It would be quite possible to say that a lot of things were done here in a way that he does not like, but would he suggest that we should leave the parliamentary system because he does not like some of the things that are done? All we are saying to him is that sharing sovereignty gains and does not lose, and that this particular clause has nothing to do with sharing sovereignty because it actually excludes anything that does share sovereignty. Why is he talking about sharing sovereignty in relation to this particular amendment when it refers specifically to internal housekeeping decisions that have nothing to do with sharing or transferring sovereignty?
Lord Pearson of Rannoch
The noble Lord brings me nicely on to my next point, which was also raised by the noble Lord, Lord Hannay, when he said that we ought to have confidence in the other member states. Of course I accept that under Article 48(6) the Government of the day have the power of veto, but as I understand it, that is not what we are envisaging here. We are envisaging a Government of the day that have not used the power of veto and something has come forward which the British people might not like. I would say to the noble Lord, Lord Kerr, that pretty much anything put in front of the British people on matters European will be voted down in a referendum, and that the supporters of these amendments seem to be very fearful of the judgment of the British people.
When I say that the other member states, Brussels and the whole machine simply cannot be trusted to follow the treaties, I speak with history behind me. I would mention, for instance, Article 308, about which I have regaled your Lordships over many years. This article was put into the treaty to allow the Council of Ministers, by unanimity, to make small adjustments to the original Common Market and so on. I could take noble Lords through the abuse of Article 308 and all the powers that have been passed to Brussels under it, but I will not do so.
Let us take the abuse of Article 122 as recently as June before last. That article, which clearly allows member states to help each other in times of natural disaster, was taken under qualified majority voting—the British Government did not have a hope of stopping it—to force us to sign up to some 14 per cent of £50 billion for the European financial stability mechanism.
I really do not think that those of us on the Eurosceptic spectrum, of whom there are a few in your Lordships’ House, can accept that all this is going to follow properly in the Council of Ministers. I will not respond now to the noble Baroness, Lady O’Cathain, about roaming charges, but I think there was another one that had something to do with audio-visual equipment. That was in response to a long line of Questions for Written Answer from my noble friends Lord Tebbit and Lord Vinson. I am afraid I have to stick to my guns. With all due respect to noble Lords who sit on our European Union committees, I really do not think that they have made enough difference over the years to justify their existence.
So there it is. I think that this part of the Bill is reasonable if we envisage a British Government after this Government are no longer with us—this Government can veto anything, and they have said that they are going to, so this is not going to happen for five years —who have agreed to something in the Council of Ministers that ought to be put in front of the British people. I simply do not accept that the treaty will be obeyed, as it has never been obeyed in the past.
Lord Grenfell
My Lords, the noble Lord said that the European Union Committee has never made any difference—I declare an interest as I was its chairman for some years. Perhaps I may quote to him one fact. Many years ago, when Mario Monti, the Commissioner, set about a big review of the competition regulation, we got off the mark very quickly. We got hold of the Green Paper and did an extensive inquiry into it. We interviewed the Commissioner and presented our conclusions to Her Majesty's Government before they went in to negotiate in the Council. They said that they thought that what we said was extremely useful. They advanced their arguments, and it had an impact on the final result. So it is a little unfair to say that those 90 Members of your Lordships' House who work week in, week out on those committees do not make an impact—they certainly do.
Lord Pearson of Rannoch
My Lords, I really do not mean to offend the noble Lord, Lord Grenfell, or any of the other 90 noble Lords who sit on those committees. I merely point out—for instance, on the scrutiny reserve—that successive British Governments have over many years given an undertaking, which unfortunately is not legally binding, that they will not agree to any new piece of Euro-power-grabbing in Brussels if either the Select Committee in your Lordships' House or in the other place is still considering it and if it has not been debated. The latest Written Answer to me on this—I may not have got the statistic quite right—indicates that the scrutiny reserve has been broken no fewer than 434 times in the past five years. That is 434 pieces of European legislation that were under scrutiny by our scrutiny committees when the Government went ahead and signed up to them, because there was not time or because Brussels had moved ahead—all sorts of excuses.
My final word on your Lordships’ European Union Select Committee should be that perhaps one committee and a couple of sub-committees would do the job very well, and the resources could be freed up to do the work in committee which your Lordships' House does extraordinarily well. That is pretty well everything else apart from its European work. I oppose the amendments.
Lord Kinnock
My Lords, when the noble Lord, Lord Pearson of Rannoch, says that he wants to stick to his guns, I am inclined to hope that he goes very near to the muzzle of those guns—indeed, just in front—because that would be a suitable location. However, his courtesy prevents me taking up such a stance. I cannot, however, avoid straying just a little bit into his assessment of the consequences of our membership of the European Union and that of 26 other democracies. His conclusion—indeed, his starting point—is always that we are subject to what he calls a power grab and that powers have been given up, taken, removed and transferred. No concession is made by the noble Lord or those who agree with him to the reality that, in the modern world—where so few significant decisions can be taken by single states, no matter how big, how strong or how rich—it is sensible, strictly and literally in the national interest, to pool some power in order to extend the power of a democratic state. The illustration was given perfectly by the noble Lord, Lord Gummer.
Lord Kinnock
I am terribly sorry. I am sure that the new name is at least as attractive as the first name. I hope that the noble Lord never uproots himself from his Welsh antecedents by failing to call himself Selwyn. I hope that that stays at least.
The illustration given by the newly-named noble Lord and the anciently-named noble Lord, Lord Grenfell, is perfectly apposite. The problem, as we have to acknowledge yet again in these proceedings on this European Union Bill, is that the noble Lord, Lord Pearson, no matter what the strength of the arguments or the number of illustrations, will always argue and insist that the European Union is a larcenous conspiracy that has now lasted since 1958—a conspiracy between civil servants and politicians of every stripe and political colour—in order to usurp the sovereign powers of countries, to no good purpose other than to aggrandise themselves and to act in contradiction of national interests. I know that that is what the noble Lord believes.
I hope that I will not have to return to this issue, because it is in many ways a distraction from the debates that we need to have in examining the Bill. As the noble Lord, Lord Pearson, sees evil in everything that is done by the Union and is fearful of every form of relationship that the United Kingdom has with the Union, let us satisfy ourselves that he has a political hypochondria which is beyond cure, and, therefore, that he will have to be shown the excessive tolerance by which this House distinguishes itself.
The amendment—so ably moved, characteristically, by the noble Lord, Lord Kerr—refers to Article 48(6) of the treaty of union, so I thought that it might be as well for the purposes of this part of the debate to remind ourselves of what Article 48(6) actually says. This is not to detain noble Lords; I know that there is encyclopaedic knowledge available in this House on the issue, but as not everyone will be preoccupied with the minutiae of the detail of the Lisbon treaty, I shall take this opportunity to remind them.
First, any member state or the European Parliament or the Commission may submit to the European Council proposals for revising all or part of the provisions of Part 3 of the Treaty on the Functioning of the Union—step one. Secondly, the European Council may adopt a decision amending all or part of the provisions of Part 3 of the treaty. However, the European Council shall act by unanimity after consulting on certain financial issues with the European Central Bank, but in all cases after consulting the European Parliament and the Commission. That decision, if reached by unanimity, shall not enter into force until it is approved by the member states in accordance with their respective constitutional requirements—a further example of the deference of the Union to the interests, conventions, constitutional requirements and habits of member states—and, most importantly, especially in the context of the Bill, the decision referred to, taken by unanimity, shall not increase the competences of the Union in the treaties.
Here is an enabling provision with so many sensible constraints upon it that it not only has a belt and braces, it even wears a boiler suit with a straitjacket on top of it. In those circumstances, I join other noble Lords in wondering why the coalition Government have found it necessary to seek to make this provision in an Act of Parliament.
Lord Deben
Does the noble Lord agree that the British Government would have had to vote as part of that unanimity, thereby accepting that this would not change the nature of powers, but would then have to come back to Britain and say, “We voted the wrong way. We will now need to have a referendum, after saying that this did not increase the powers”?
Lord Kinnock
I am grateful to the noble Lord, and I will show him this piece of paper afterwards.
Lord Pearson of Rannoch
That is the point that I was attempting to make. As unanimity applies in this clause, we could have a British Government who say that the change, whatever it was, met the terms of this clause, whereas in fact—as we have often seen in matters European—it did not. That is the point that I was trying to make.
Lord Kinnock
As the conduit between two noble Lords of polar opposite opinions—and, as usual, in my role of gentle arbitrator, dispassionate and non-partisan—I could show this piece of paper to the noble Lord opposite at the end of this discussion. He will see, foolishly written down by me, “Gummer”, because that is the very point that I was going not only to make but to attribute to the noble Lord.
Reference was made earlier to a great Shakespearean tragedy, “Othello”. We have quickly moved from Shakespearean references to tragedy to the Bill’s references to farce. It is farcical for a provision to be made which would ensure that this member state and 26 others unanimously have to adopt a position, make it subject—rightly—to the constitutional requirements of each member state and then, because they have introduced a particular additional constitutional requirement of making a judgment on the significance of what has been before the Council, come back and either take the risk of saying—in accordance with what the noble Lord, Lord Pearson, would prefer—that they do not think that this change should be subject to a referendum, or make complete fools of themselves nationally and internationally by saying that they think that it should be subject to a referendum despite the fact that they have not only voted for it in the Council but come back and proposed it to this sovereign Parliament. What could be more idiotic or inane than that? I wonder why sensible people in both parties in the Government have allowed themselves to be subjected to that.
Lord Lea of Crondall
There is another consideration that my noble friend might wish to add. Not only would they say, “Here we have a referendum”; they would be honour bound to campaign on the wrong side in that referendum.
Lord Kinnock
I am sure that they would fulfil that duty with alacrity. The problem then arises—attention has been drawn to this so I need not dwell on it—that, in the event of refusal to have a referendum on this issue, the Government would attract great odium from sections of the press and some people engaged in politics. As a consequence, odium might be mobilised— if you can do that with odium—among the general public.
That would not be the only problem because this ministerial decision—the need for the Government to make a decision is made explicit in the Bill—could be subject to judicial review. We are in a situation where we have moved deeper into farce. Here is proposed a piece of legislation, boldly intended to put the referendum lock on any loss of sovereignty from this sovereign nation and from our sovereign Parliament, but which, in the very course of exerting that, subjects itself to the additional possibility that power could move in these circumstances from that sovereign Parliament to judges. It is just another illustration of the fact that the coalition does not lack a sense of humour. It would not be possible to get any film company to accept this as a serious documentary and I do not think many publishers would be willing to accept it as credible fiction.
My final point connects directly with that. The Government have defined the conditions that would trigger a referendum, not only in the case of treaty changes but also in the case of changes that could be produced under the provisions relating to Article 48(6) and therefore the Treaty on the Functioning of the European Union. The Minister for Europe, David Lidington, pointed out as long ago as September 2010 that the background note produced at the time by the Government said:
“The use of any major ratchet clause which amounts to the transferring of an area power to the EU would be subject to a referendum”.
I have a question on that which I have not seen answered satisfactorily anywhere given the interest that I have taken in this piece of legislation. What is “major” in the context of a major ratchet clause? If in this first examination of the Bill in Committee we can get from the Minister a definition of a major ratchet clause that could be required to be subject to a referendum, I am sure it will guide our deliberations commendably and illuminate all our discussions.
Lord Garel-Jones
My Lords, I can be very brief. My concern about this Bill centres on one issue alone: parliamentary sovereignty. I am opposed to referenda as a matter of principle, and many noble Lords have made that point. I know that giving the people a say has become the political equivalent of motherhood and apple pie but I will resist the temptation now of drawing to the Committee’s attention why this particular pie contains a poison that strikes at the very heart of our parliamentary democracy.
I hope I am sufficient of a realist to recognise that when a coalition is formed, concessions have to be made, not only between parties but between various factions within parties. My noble friend Lord Deben referred to them, rather generously, as head-bangers. My own view is that this has been and is a price worth paying as it has delivered a Government who are following, at the moment, a sensible and pragmatic approach within the European Union, always—as is Britain’s traditional role—with a degree of cautious, pragmatic scepticism. But if this Bill, as drafted, goes through, the kind of sensible approach to the European Union that we have seen from the coalition so far will be virtually impossible. As the noble Lord, Lord Kerr, pointed out, if referenda are to be introduced in matters that do not involve a treaty change and if, as the noble Lord, Lord Kinnock, has just pointed out, decisions taken by the Government are subject to judicial review, then the group of friends to whom my noble friend Lord Deben referred will for certain cash in on that, if I may put it that way, and the sensible and pragmatic policies that are now being pursued by the coalition will become impossible.
Lord Davies of Stamford
My Lords, I have a great many objections to this Bill under three broad headings. The first is the constitutional damage this Bill would do if it was enacted. I totally agree with what the noble Lord, Lord Garel-Jones, has said but, as he said himself, this is not the moment to go into that as we shall have other opportunities on amendments relating to referenda in Clause 18.
Secondly, I am concerned about the honesty of the Bill. I made the point at Second Reading that although it purports to offer referenda on a vast range of potential subjects, it seemed quite clear that there would in practice be no chance of referenda ever taking place on some of these secondary or tertiary issues and that the Bill is therefore something of a fraud on the public. I am quite concerned that there is another fraud going on here, which I will come to in a moment.
Thirdly, I am concerned about the practical implications of the Bill and there I agree again with what the noble Lord, Lord Garel-Jones, just said. The noble Lord, Lord Kerr, made it absolutely clear in moving his amendment that there is a serious discrepancy between the way that the Bill was presented as protecting the British public against any further concessions of power to the European Union—the entire rhetoric was that there will now be this block with a referendum—and the inclusion of decisions made under Article 48(6), which quite clearly and explicitly excludes any extensions of the powers of the European Union.
In fact, we have been offered a Bill with so-called protection for the public against a threat but which includes a provision that, by definition, could not form part of that threat. One has to ask why that has been done. Is it a matter of drafting carelessness? Surely not; the references to Article 48(6) are absolutely clear and deliberate. There are several of them throughout the Bill. Indeed, the noble Lord, Lord Kerr, and his co-signatories to the amendment have gone through the Bill and addressed them wherever they arise. There is clearly a deliberate intention here to go beyond what is in my view—I know it is a value judgment, but it is my view—the already extreme rhetoric with which this Bill was presented. The reality is even more extreme and one has to ask: why is that? Why is there an intention to have a referendum on matters which, by definition, cannot involve increasing the powers of or conceding capabilities to the European Union? I hope that the Minister will address this issue, as I cannot imagine that we could have an honest debate on this subject without it being explicitly addressed.
I also hope that there might be more contributions from the Lib Dems in the course of debate on this set of amendments. I suspect that a lot of Lib Dems were dragged, kicking and screaming, into supporting the notion of the Bill on the basis that all it did was to provide for a referendum in the event that further powers were being conceded to the European Union. In fact, the Bill that has come up is much more restrictive and goes far further. I do not know whether every member of the Lib Dem party has appreciated the significance of explicitly including Article 48(6) as it is being done, or of what that means. It puts much more of a brake on the European Union’s day-to-day activities, which I will come on to in a moment, than was ever suggested in announcing the intention to move forward with this legislation. It is particularly important that the Lib Dems, both in this Committee and in the country as a whole, have an opportunity to think really carefully about Article 48(6) before they decide what their ultimate attitude is towards the Bill. It would be artificial if we did not hear from more Lib Dems in the course of our proceedings, including on this amendment.
The third issue that concerns me about the Bill in general—I come particularly to the issues covered by this amendment—is its practical consequences. Before we pass any legislation, it is terribly important for this House to think through what its practical consequences will be. If you are sitting on a board of directors at a business and deciding whether to take a particular decision, you think pretty carefully about its practical consequences. You may ask your support staff and so forth, or you may ask legal advisers or other outside advisers such as management consultants, “What would be the consequences of our doing X, Y and Z”? You ask people, come up with as many possible answers as you can and weigh them carefully before you decide on the balance of advantage or disadvantage in going forward or not. It is important to look at particular cases.
Since the Government have set out for us in Schedule 1 the sort of issues which would require a referendum under the Bill, at least by way of an illustration which is not exhaustive and does not exclude other issues, we should think through in the course of the Committee’s proceedings what would happen if this Bill became an Act and was now on the statute book, and practical decisions needed to be taken in any of these categories. I shall take a few at random, without taking up too much time. Take, for example, Article 77(3) on,
“provisions concerning passports, identity cards, residence permits etc.”.
Some people would say, “We’re not part of Schengen so that doesn’t concern us at all”. If that were the case, why would we need a referendum on the subject? It baffles me. One can well imagine a situation in which we could not cut ourselves off from, let us say, immigration issues in the Schengen area. We remember the problems that we had with Sangatte, with a large number of illegal immigrants from France concentrating themselves in Calais with a view to trying to steal through the Channel tunnel in one form or another or on to ferries and come into this country. It was a serious practical problem for us. There was no point in using philosophical arguments to deal with it; it needed to be dealt with in a practical way. There are many possible scenarios that one can imagine where we will need to sit around a table with our partners and come to a sensible agreed solution to deal with, let us say, a massive and difficult immigration issue or threat that has suddenly arisen.
Lord Pearson of Rannoch
Surely the noble Lord would agree that if we had not pooled our sovereignty, as noble Lords like to call it, in the matter of immigration, which he has raised, if we had kept control of our borders and if the previous Government had not deliberately lowered our borders and our immigration, particularly to people from the European Union, the problem would not have arisen. Surely the answer is simply not to have been in the EU, not to be in the EU in future and to control our own borders. It is a no-brainer, isn’t it?
Lord Davies of Stamford
I think that by a “no-brainer” the noble Lord means giving the same answer to any question that is asked in any context whatsoever: that we should never have gone into the European Union. The noble Lord is fundamentally flawed in his analysis of the national interest in this area, but if I actually addressed his comments I should be making a speech about the reasons why we are in the EU. All I will say is that we have kept control of our borders. We have not joined Schengen although—and we should never forget this—we have a common travel zone with the Republic of Ireland, so we have a mini-Schengen. That is another reason why we cannot simply suppose that we can draw up the moat here and do what the devil we like; we need to discuss with the Republic of Ireland what it is doing in relation to Schengen at any one time, otherwise we should have to set up a border between Northern Ireland and the Republic or something of that sort, which would have all kinds of consequences that we would not want to contemplate.
I mention this to the noble Lord merely because, while I was not very optimistic that I would persuade him about anything, these matters are extremely complex and we cannot act as if we are in isolation in this world. There is a whole range of interdependencies—I was going to say “interdependabilities”—that we have with countries that surround us. That is a natural part of things and we should not reject it. We should be prepared to come to sensible, common-sensical, mutually advantageous arrangements with our partners on a pragmatic basis and we should not cut ourselves off from the possibility of reaching agreement with them—but that is exactly what the Bill does.
What would happen if there were a pragmatic, sensible solution of this kind dealing with, say, provisions concerning passports, identity cards, residence permits and so forth? The British Minister would be paralysed and would not be able to take part in the discussion at all. If the British Minister even started entering the discussion, he would immediately be guilty of bad faith. Everyone around the table would say, “This guy’s not serious; he’s not for real. Il n’est pas sérieux. He’s not going to have a referendum on this but he can’t agree it without a referendum, so why’s he sitting in the room at all? What’s this guy doing wasting our time?”. No one would be so rude and undiplomatic as to say that out loud, but that would be the effect. We would be sending Ministers to Brussels to find themselves in that extremely embarrassing situation. Do we really want to conduct our international relations, let alone those with such important partners and neighbours as our fellow members of the EU, on that basis? It is extraordinary.
Let us look at police co-operation, covered by Article 87(3). It does not need very much imagination, for people who have had some experience of public life like ourselves, to know that out of the blue you can suddenly have a very nasty threat. It can be something to do with terrorism, and clearly we are all concerned about that; there is a Bill going through the House at the moment. I sit on a Joint Committee with the House of Commons examining the contingent terrorist detention Bill, as noble Lords will know. We are rightly concerned that something will happen out of the blue. I will give way to the noble Baroness; I am just finishing my sentence.
Baroness O'Cathain
I thank the noble Lord for giving way. As a very interested observer in this debate, I would just like to know what the noble Lord’s latest comments have to do with the amendment. Surely we need just to get through this and see how we feel about it rather than have a great long diatribe about what might happen if we did not do anything else. His comments have nothing at all to do with this amendment.
Lord Davies of Stamford
I am afraid that the noble Baroness is completely mistaken, as they have very much to do with the amendment. The amendment would have the effect of taking out of the scope of the Bill decisions falling under Article 48(6). If such decisions were no longer subject to a subsequent referendum, which would be the effect if the amendment of the noble Lord, Lord Kerr, was agreed to, the practical damage done to our country would be less. I hope that the noble Baroness can follow the logic of that. Perhaps she would like me to repeat the point. She is shaking her head, but I would be happy to do so if she does not understand the point because it is extremely important.
I repeat to the noble Baroness that the effect of the Bill as currently drafted is not merely, as she might have supposed from hearing the declarations of her Prime Minister and her Foreign Secretary, to ensure that there is a referendum if ever we have treaty changes or grant increased competence to the European Union. The Bill would have the effect of requiring a referendum on decisions such as those that I have enumerated, including, for example, on police collaboration. The effect of the amendment of the noble Lord, Lord Kerr, and his colleagues would be that we would not need a referendum on those other matters, which are decisions not involving a transfer of powers. That is an important distinction to consider.
I do not say that I would be happy with the Bill if it was simply amended in the way that the noble Lord, Lord Kerr, and his colleagues propose—I would still be very unhappy—but I would be less unhappy with it and the damage done to the national interest would be less, because the kinds of decisions that I am enumerating would be able to be reached. We would be able to take part in those decisions if this amendment went through. It is very important indeed that the noble Baroness understands that important distinction, and I am glad to have had the opportunity to go through it with her.
Let me carry on with the next example in Schedule 1, which is,
“Article 89 (cross-border operation by competent authorities)”.
Again, it is very possible to imagine scenarios in which some sensible, pragmatic arrangement needs to be reached with our European partners on cross-border issues, such as drugs, racketeering or human trafficking, which we are assured is a major problem. Under the Bill as currently drafted, such decisions could not be reached without a referendum, but they could be reached without a referendum if the amendment put forward by the noble Lord, Lord Kerr, and his colleagues was adopted. Perhaps the noble Baroness appreciates that point now.
Another example is,
“adoption of certain environmental measures”.
I totally agree with what the noble Lord, Lord Deben, said about that. It seems to me that it may very well be necessary, if we are to take any practical measures at all in defence of the environment, for us to reach agreement with our continental—and, indeed, Irish—neighbours. Once again, if we are half-serious about the European Union, that is an issue on which we should be able to do business without having to resort to a referendum the whole time.
Another example that is quite interesting—I will come on to “enhanced co-operation” in a second—is,
“changes to list of military products exempt from internal market provisions”.
Perhaps the coalition has not recognised this as yet, but we actually have a very major and successful defence industry—I know something about that—so it is very important indeed that, in so far as possible, our defence industry is able to sell its products within the European Union, where there are no problems of international conflict or anything of that sort. For that purpose, it could be a very good thing if the areas in which we are currently protected against single market legislation in the matter of defence goods should be reduced. That is something on which we may need to come to an agreement with others, so it would be absurd to have a referendum on a matter like that. Of course, once again, we all know that there never would be a referendum; if we enacted this Bill, we would simply be ensuring that, in practice, the Minister could never be party to an agreement.
As I said on Second Reading, it is clear to me that the consequence of enacting this Bill, including its present provisions whereby Article 48(6) decisions would be covered by the requirement for a referendum, would be not to bring the European Union to a halt or to stop the EU doing any business; the consequence would be that we would be de facto excluded from any decisions that were taken. We would simply find that we had a Minister present who had become an embarrassment to us and a joke to others. The Minister would be completely paralysed and unable not only to take part in a decision but to have any influence on that decision. We all know that you can influence discussion, negotiation or the exchange of views only if you can contribute something. I made that point in an earlier intervention. If it is known from the outset that whatever is agreed you will not be a party to it, by definition you have no leverage on the result.
The practical consequences of the Bill as drafted would be appalling. I congratulate the noble Lord, Lord Kerr, and his co-signatories on coming up with an amendment which would seriously mitigate the damage done by the Bill, though it would certainly not by any means remove all of it. However, it would at least reduce that damage, and in that sense is extremely welcome.
Lord Stoddart of Swindon
We have heard from the other side, so to speak. I feel very sorry for the noble Lords, Lord Howell and Lord Wallace, as they have been attacked not only by their enemies but by their friends as well. I ought to remind the Committee that before the general election the Conservative Party said that it would bring forward measures to ensure that no further powers would be transferred to the European Union without the consent of Parliament and the people. I believe that if there is a manifesto commitment to that effect, the Government should do their best to carry it out. Presumably, that is what the Government did when they promoted this Bill and brought it before Parliament.
I ought also to remind the Committee that this is a Bill of the House of Commons. The House of Commons—the elected representatives—had long discussions about this Bill. The Bill before us is the Bill which the House of Commons, as the representatives of the people, believes is right. We have a duty to scrutinise it. I do not think that the speeches so far have been so much about scrutiny as attacks on the whole concept of giving power to Parliament and the people. It has certainly been shown in this debate that there is a huge opposition to referendums. The noble Lord, Lord Goodhart, said that he did not agree with referendums.
Lord Goodhart
I wanted to say that I do not agree with the referendums in this Bill with the exception of the one about the euro. However, that does not mean that I disagree with referendums altogether.
Lord Stoddart of Swindon
I am glad that the noble Lord has clarified that because I well remember that when the Lisbon treaty was going through the House of Commons an amendment was moved by the Liberal Democrats to the effect that we should have a referendum on whether we should stay in or get out of the European Union. If I am not mistaken, the Liberal Democrats walked out of a Sitting of Parliament on that very issue. Therefore, we have to get this into perspective. I know that some people are against referendums.
Lord Hannay of Chiswick
The noble Lord raised two issues that he will recognise, after listening to the debate, are not very apposite. First, it is slightly ironic that he is nailing himself to the mast of the Conservative manifesto. Still, I suppose that there have been stranger bedfellows. The point that we are discussing in the amendment moved by my noble friend is about an article in the treaty that precludes the transfer of powers. The noble Lord’s argument is therefore irrelevant. Secondly, the noble Lord joined together everyone who spoke in favour of the amendment as people who are resisting the giving of powers to Parliament or a referendum. I am sorry to disappoint the noble Lord, but I am, as regards the amendments that I shall move, entirely content to give more powers to Parliament in this matter than were given at the ratification of the Lisbon treaty. There is no question of some of us opposing the giving of powers to Parliament. The difficulty is over giving powers through a referendum on matters that are pretty trivial and, frankly, on which it will be very difficult to carry out a reasonable consultation.
Lord Stoddart of Swindon
I hear what the noble Lord says. His career and mine have been perfectly different. I am in favour of a certain number of referendums on very important issues. He says that the Bill will allow referendums on trivialities. I do not see that in the Bill at all and I am quite sure that any referendums would be on major matters that would involve the transfer of significant powers to the European Union.
Lord Tomlinson
The noble Lord is missing the fundamental point that the noble Lord, Lord Hannay, is making. We are not discussing all those wider issues; we are discussing referenda that arise from Article 48(6), relating to issues that are already specified as requiring unanimity, with the precondition that there is no further transfer of power. Those are the limited areas that we are discussing.
Lord Stoddart of Swindon
It really would be nice if I were allowed to answer one question before I was asked another. I was going to say to the noble Lord, Lord Hannay, who seems to object to me taking up the issue of referendums, that the whole debate has been about referendums and whether noble Lords agree with them. I am trying to show that referendums are a perfectly legitimate way of testing people’s opinions. We have had lots of referendums. We had them about devolution in Wales, Scotland and Northern Ireland. We have had all sorts of referendums and the voices of the people have been heard. We seem to have been having a second Second Reading debate, at least until now. Incidentally, I mentioned the noble Lord, Lord Howell, not because he is a Conservative but merely because, if a party puts forward a policy before the election and tries to carry it out, that is the essence of democracy. It would be undemocratic for a Government not to put that policy into operation.
Allow me to carry on for a moment. I shall not speak at great length, although I should like to. However, we have been considering the amendment for an hour and 36 minutes so far. I want to say this: if we had had a referendum, as promised, on the Lisbon treaty, this Bill would probably not be before Parliament now. It is because so many people were so offended that a referendum on that Bill was not agreed and carried out that we are now seeing a great deal of public anger about the European Union. It is a great pity. When the issue was put to this House and to the House of Commons, the fundamental changes in that Bill were such that it needed the consent of the people. The fact that that was not sought has caused a great deal of difficulty throughout the country. That is why we have this Bill.
I will not go any further. I am sure that the opposition Front Bench will want to say a word, because if I remember rightly it was the noble Baroness who took through the Lisbon treaty. No, it was not; it was the noble Baroness, Lady Ashton. Nevertheless, I know that the noble Baroness will want her say and I am sure that it will be worth hearing. I doubt whether there will be a vote but, if there is, I am afraid that I shall certainly vote against the amendment moved by the noble Lord, Lord Kerr.
Lord Tomlinson
Will the noble Lord clarify one point? He said clearly that there was a promise to have a referendum on the Lisbon treaty. That was never the case. The promise was for a referendum on the draft constitution. If the noble Lord has not understood by now the difference between the draft constitution and what became the Lisbon treaty, he does not have the perception that I believe he has on these matters.
Lord Stoddart of Swindon
I must say that I read the constitution and the Lisbon treaty and could find no fundamental difference between the two. That is why the people of this country believe that they were cheated when a referendum was not given to them.
Lord Davies of Stamford
If the noble Lord reads the constitution and the Lisbon treaty, he will find that the whole of Part 3 of the draft constitution is not in the treaty.
Lord Stoddart of Swindon
I cannot confirm that now, but I will certainly check on it. However, there is little if any difference between what the constitution proposed and what was agreed in the Lisbon treaty.
Lord Taverne
My Lords, I apologise for speaking, but I have to leave at 5.50 pm. I thought that this debate would be over before then. I will briefly answer a point raised by the noble Lords, Lord Deben and Lord Davies. They asked why the Liberal Democrats had consented to this. One could also ask why some of the former Cabinet colleagues of the noble Lord, Lord Deben, who are now in the present Cabinet, have also consented to this. There is only one explanation: Homer nods. I have great respect for the other place, but in the deliberations there on the Bill the question of Article 48(6) was never raised. I have studied this; it was never properly debated. Many aspects of the Bill will be properly considered only when people outside the House read our proceedings. I trust that when my Liberal Democrat colleagues see the force of the arguments, they will recognise that there is no obligation under the coalition agreement to support legislation that is full of constitutional improprieties. When they realise that, I hope and trust that they will take the appropriate action.
Lord Richard
My Lords, I shall be extremely brief. We have debated the amendment for an hour and 41 minutes, of which at least 20 minutes have been in order and an hour and 20 minutes have not been in order. We are supposed to be debating an amendment. It was moved clearly by my noble friend Lord Kerr; indeed, I signed the amendment. It would be novel and helpful in the debate if we could concentrate on the issue, which is very simple and has been set out time and again in this debate. It concerns the effect of Article 48(6) and whether we have to have a referendum if something comes under that. I could go on for a very long time about the evils of referenda on minutiae, which is the great fault of the first part of the Bill, but I will not. It is time that we moved on and heard from the Front Benches.
Lord Liddle
My Lords, despite the remarks of my noble friend Lord Richard, I think that your Lordships’ Committee has got off to a cracking good start. There was certainly a flavour of a repeat of Second Reading but there were some memorable moments in it. Although in many respects I do not agree with the description given by the noble Lord, Lord Deben, of the Bill as the Conservative version of the Hunting Bill, I think that that is a very accurate political description of the politics that lie behind the Bill. The constitutional outrage of the noble Lord, Lord Goodhart, was well put, and I think that my noble friend Lord Foulkes is right that this is something of a threat to our sea-walled garden, although, at the risk of getting my metaphors mixed up, we need to live in a world of pooled sovereignty in order to protect our sea-walled gardens.
We started with a Shakespearean reference from the noble Lord, Lord Kerr of Kinlochard. He compared his role with that of Bernardo starting the play. If I may say so, I thought that he played the part of a minor character somewhat unconvincingly. Many noble Lords will probably be looking to him as the Committee stage proceeds for wise advice about the meaning of the various amendments before us, just as he has provided very wise advice in his various capacities in the past. Indeed, while we are on the subject of Shakespeare, I thought that my noble friend Lord Kinnock was right to depict the Bill as a move from tragedy to farce.
I turn my attention to the specifics of the amendment. They are, as I think the noble Lord, Lord Hannay, described them, rather abstruse technicalities. However, the core of this debate is whether the use of the so-called simplified revision procedure of the Lisbon treaty, under Article 48(6), should be included in this Bill at all. That is essentially what this group of amendments is about.
The purpose of the article is to give very strictly limited flexibility to member states, acting by unanimity and only by unanimity, to amend the treaty without having to go through the whole paraphernalia of treaty ratification according to their own constitutional provisions. It does not preclude proper parliamentary accountability for these matters for decisions taken under Article 48(6). Heads of Government are clearly accountable to their own national parliaments for any decisions they take in Brussels. In an extreme case, of course, a Government would fall as a result of a motion of confidence if they took a decision with which their parliament violently disagreed.
Therefore, the flexibility does not preclude accountability and under Article 48(6) it is limited. The EU treaties are clear. The Article 48(6) procedure cannot widen EU competence, and many of my noble friends—Lord Tomlinson, Lord Davies and others—have made that point with great force. However, it seems that the Government have drafted the Bill on the contrary premise that somehow or other matters under Article 48(6) can widen competence. The noble Lord, Lord Howell, shakes his head and I look forward to his explanation, but I think that, first, he needs to clear up this confusion. Why is something that under the treaty cannot extend competence regarded as being subject to the balls and chains put around our Ministers in the Bill?
That leads to two further problems with the inclusion of Article 48(6) in the Bill. One is a legal issue and the other is a good faith issue so far as concerns negotiation. On the legal issue, I turned to the Fifteenth Report of the Session of the Commons European Scrutiny Committee on the EU Bill. It took evidence from various legal experts about what this all meant. I think that the noble Lord, Lord Hannay, has already referred to what the Council’s former legal adviser, Jean-Claude Piris, said about it. Perhaps I may quote what the eminent legal expert, Professor Craig, said about the Bill. At paragraph 60, the report says that he,
“drew our attention to the conflict between clause 3 of the Bill, a clause which he described as ‘deeply problematic’, and the Lisbon Treaty. Article 48(6) TEU states expressly that a Decision made there under ‘shall not increase the competences conferred on the Union in the Treaties. Clause 3 of the Bill, by contrast, is predicated on the contrary assumption”.
So it is not just me making this up; this is an eminent legal expert. He goes on to say:
“To be sure Clause 3(3) embodies the exemption condition …This does not, however, alter the force of the point being made here: from the EU’s perspective no Article 48(6) Decision can increase EU competence; from the perspective of the … Bill some such Decisions can do so. This will inevitably lead to legal and political tension between the EU and UK”.
He also goes on to point out that further clauses of the Bill,
“in imposing constitutional requirements where none is foreseen by the Lisbon Treaty, may be in breach of EU law”,
and he sets out why he judges that to be the case. I think that in Committee it is perfectly reasonable for the Opposition to ask what the Government’s view is of this eminent legal advice.
Baroness Falkner of Margravine
Does the noble Lord accept that, although competences are defined, powers are not? Paragraph 21 on page 5 of the Explanatory Notes says:
“As the majority of treaties and Article 48(6) decisions will require the exercise of judgement as to whether a transfer of power or competence is involved”.
To me, the confusion between Clauses 1 and 3 arises because of the lack of a definition of “power”, and I wonder whether the noble Lord can comment on that.
Lord Liddle
The noble Baroness makes an interesting point. I am no lawyer and I do not think that she is a lawyer either. Eminent lawyers have made these points. I think that it is up to the Government to provide us with a clear explanation.
However, I am trying to make more than a legal point; there is also a moral argument here. The British Government are reneging on a compromise that they signed up for in the negotiations on the Lisbon treaty in 2007. They are overturning promises to our partners that they solemnly made. Of course the Government are entitled to say that for future treaties they can bring in new processes of ratification; they are perfectly entitled to say that and we can debate those processes. However, in relation to Article 48(6), the Bill proposes to introduce new procedures that place new obstacles to the use of treaty provisions to which Britain has already signed up. We signed up to that with the explicit purpose of not being subject to the cumbersome processes of ratification that the Government are now, retrospectively, trying to impose. That raises questions about the Government’s integrity.
Lord Kinnock
I am following my noble friend closely, and I am sorry to interrupt him, but does he accept that his declaration that the Government are entitled to make provision for the future is a moot point in the context of this Bill? The Government, as well as presenting this Bill, have repeatedly and solemnly declared that no use will be made of it in the lifetime of this Parliament—none whatever—because there will be no concession in the direction of competences or powers, however defined. That being the case, are not the Government seeking to do what no Government or Parliament can do, and that is to bind future Parliaments?
Lord Liddle
My noble friend Lord Kinnock, for whom I have enormous respect, corrects me on this point. I was trying to make a point about whether our European partners were aware of the new constraints being imposed on the British Government’s flexibility in relation to provisions which the British Government have already signed up to. Has the Prime Minister written or otherwise communicated to his European Council colleagues to explain that the deal which Britain did in 2007 is now off the table? Can Parliament be informed of the reaction of our partners to the knowledge that the flexibility which they thought the British had signed up to is no longer available? If we have not got that from our European partners, there should be a pause—after yesterday, pauses in the legislative process are almost a formal part of our proceedings. There should be a pause while this communication with our partners takes place, because it is not right to go back on these promises.
I would like to talk briefly about what I regard as the impracticalities of the Government’s proposals, to which several noble Lords have referred. The most notable instance of the use of Article 48(6) is the way in which it is being used for the establishment of the European stability mechanism in the euro area. That is clearly not a decision that extends the EU's competence because the Maastricht treaty provided for the creation of a single currency and the establishment of an economic and monetary union, both objectives to which the previous Conservative Government subscribed. However, a gap emerged in the framework for managing the euro when the sovereign debt crisis came about. The stability mechanism was established to deal with the crisis, and the clauses of the treaty have been used for this purpose.
Lord Pearson of Rannoch
My Lords, I wonder whether I could press the noble Lord to give an answer to a question that I put to other noble Lords but which they did not answer. Why does he think that the European Union, Brussels and so on, will stay within the legal confines of the treaty? Of course, Article 48(6) says that it shall not be used to increase the competences conferred on the Union in the treaties. The two examples that I gave, to which I would like the noble Lord to reply, are the European Union’s abuse of what was Article 308, which is now Article 352. I did not weary your Lordships with all the examples of where that abuse was manifest, but I shall give the reference if anybody wants to find it. In future, students of these matters may want to consult Hansard for 18 June 2008 at col. 1074. That is a clear example of where a clause designed to allow the Council to take action,
“in the course of the operation of the Common Market”,
was used to do all sorts of other things. When it came before the Luxembourg Court for judgment in 1996, those words were simply ignored by the Court. I gave noble Lords the example of Article 308 in the past. I also give noble Lords the example of Article 122, which was used in the interregnum between one Government and another. Can the noble Lord answer those points and set your Lordships’ mind at rest that Article 48(6) will be followed, unlike the way in which those articles—and there are more flexibility clauses—have not been obeyed in the past?
Lord Liddle
With the greatest respect, I think that the noble Lord is confusing two things. I am looking in the direction of the noble Lord, Lord Kerr. I think that Article 48(6) deals with cases where there is a clear competence—for instance, in the case that I was talking about of the single market in financial services and in the previous case about the euro, the establishment of economic and monetary union and of a single currency. I think that the noble Lord is talking about the general clauses which are now subject, under the Lisbon treaty, to considerable constraints. I will look into that and perhaps we can have a discussion.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)
My Lords, it would be an implausible exaggeration to say that I have enjoyed this debate, but it is a privilege to hear the fine minds of many of your Lordships playing on these issues, which are undoubtedly complex. I do not make any apology for that, because much of the EU legislative scene is extremely complex, as are our relations with it. I strongly agree with the point made by the noble Lord, Lord Hannay, that although this seems to be an abstruse issue, which I shall address in great detail in a moment, it is also central and raises fundamental points about the whole nature and purpose of the Bill. I should also put in a good word for my Belgian friends, who came in for criticism of the kind that, frankly, I do not like. I will let that pass for the moment.
As the debate has ranged a little beyond the central point, to which the noble Lord, Lord Tomlinson, rightly urged we return, I hope that I will be allowed a few paragraphs trying to explain the context in which we come both to adherence to the central issue of the amendment and to the Bill.
We believe that there has been disaffection among the British electorate in recent years. I think that it is a mistake for the most enthusiastic supporters and builders of the European Union and our membership of it to ignore that fact, because it has led, through the successive handing over of powers to the EU—often for excellent reasons but without consultation with or the consent of the British people—to a good deal of distrust. That works totally against good Europeanism and an effective development and strengthening of the European Union, which are certainly required today.
The competences and powers have been handed over, in many cases—this is an argument that we have heard buzzing across the Floor of your Lordships’ House this afternoon—for good reasons. As my noble friend Lord Deben said, great things can be and have been gained by the handing over of competences and powers, whether or not you call it pooling of sovereignty. Others would argue, as we have heard today and often before, that the handing over of those powers has not been for the good. That wider debate has gone on and will continue in future.
Of course, the Bill does not concern what has been handed over in the past. I know that that is a matter of criticism for some of my noble friends and others in the other place, where there was considerable criticism that the Bill did not try to wind things back into the past, although it is worth reminding ourselves, as the noble Lord, Lord Stoddart, did, that the House of Commons passed the Bill and gave it to us for scrutiny, which we must perform in detail.
However, that fact of dissatisfaction cannot be dismissed or pushed aside by those who seek to understand the disquiet not just in the media and in the so-called anti-European or Eurosceptic papers but among a wide number of people and organisations, including some extremely learned people and leading lights in the legal profession. That is why the coalition’s programme for government gives the undertaking:
“The Government believes that Britain should play a leading role in an enlarged European Union, but that no further powers should be transferred”.
Lord Dykes
I am most grateful to the Minister for giving way so early in his remarks. I apologise for interrupting him. Is he asserting that the Government have in recent weeks and months been in receipt of lots of e-mails and letters from members of the public advocating withdrawal from Europe or being strongly anti-European? Does he recall what, on the last day of the Committee of the Whole House in the Commons, the Member of Parliament for Ipswich, the distinguished son of my noble friend Lord Deben, Mr Ben Gummer, said? He said:
“Over the past few days, I have had nearly 100 emails and letters about forests, but since 7 May I have not had a single letter or email about withdrawal from the European Union”.—[Official Report, Commons, 1/1/11; col. 793.]
Will my noble friend confirm that the public are not worried about this in large numbers? It is the comics that masquerade as newspapers in Britain that are stirring it all up.
Lord Howell of Guildford
I have no idea whether that is the case with the excellent son of my noble friend Lord Deben, who is a lively Member of the other place. I do not think that that has any relevance to the general concerns expressed over the years increasingly and very vigorously in this House and the other place on all the treaties that we have debated. There is a lowering of trust, commitment and enthusiasm for the European Union, which is bad for the Union and bad for the future of our co-operation and relations with the rest of the Union and which needs to be addressed. That is the Government’s view. If it is not my noble friend’s view, that is, in a sense, bad luck, because we believe that to be so.
Lord Howell of Guildford
I am not too keen on giving way now. We have had a long debate. I do not want to be rude in any way and I greatly respect the noble Lord, but if I could be allowed to get past my first paragraph, that would be quite a treat.
I was going on to say that it is because of that dissatisfaction that, in our programme for government, from which I was reading, the coalition made a commitment to introduce legislation to establish a referendum requirement for treaty changes that transferred power or competence from Britain to Brussels—I cited the words referring to powers—and, in the process, to strengthen the power of the British people to exert their influence over such decisions and thereby increase their engagement with those decisions and the work of the European Union more generally. I may say that that task was notably pushed aside in a rather cavalier way by the previous Government, with the result that there was a very noticeable decline in public enthusiasm for and commitment to the European Union.
I do not want to rehearse in depth the arguments that I went over on Second Reading related to the principles, but I repeat that, contrary to the views of those who have depicted the Bill as some kind of anti-European device, I see it firmly as a tool to strengthen our position, role and effect as a member state of the European Union, because of its impact on citizens’ involvement with the issues before them and their engagement with the EU. Of course, that means referenda. If, like my noble friends Lord Deben and Lord Garel-Jones, you do not like referenda, that is a perfectly respectable position to hold. They will recall that, again and again, referenda have been used. At the time of the Lisbon treaty and the ill fated constitution for the EU, all three parties were in favour of referenda. That was the position then. No doubt the noble Lords had their objections then, so it is not surprising that they will have their objections now. I respect that, but this is a difference that we cannot necessarily bridge. Either we are ready to see the use of referenda in this electronic age or we deplore them and think that they are in some way an attack on parliamentary sovereignty. I do not believe that to be so, because Parliament remains sovereign regardless.
Lord Clinton-Davis
Does the noble Lord gain any satisfaction from the fact that not a single member of the government party has accepted the argument that he now adduces? Everybody has spoken against the Bill that he now favours. What has he got to say about that?
Lord Howell of Guildford
It is certainly true that in your Lordships’ House there has been a notable weight of criticism against the Bill. I fully accept that. I have to remind the noble Lord that the House of Commons passed this Bill without the opposition of his party. This is a House of Commons Bill, as the noble Lord, Lord Stoddart, reminded us. It could be that those who feel strongly and are most expert in aspects of it or feel most strongly about broader issues are those who come forward to speak.
Lord Liddle
The Minister said this at Second Reading. Labour put down a reasoned amendment in the other place which expressed many reservations about the Bill. It is not true to say that Labour did not oppose it.
Lord Howell of Guildford
Labour did not oppose the Bill overall, but it certainly urged that we should scrutinise it and that, by heavens, is what we are doing. No doubt we will be doing a good deal more of that.
With this legislation, we are, in our view, plainly acting in the spirit of the Laeken declaration, which noble Lords will remember urged that we should seek to find ways, which are widely recognised throughout the whole of the European Union, not just in this country, to bring the processes of the Union and its legislative procedures closer to the people. That was 10 years ago. It urged us to act on that basis. It seems to me timely—if anything, a little tardy—and certainly appropriate for the era in which we now live that we should bring forward legislation on which, we hope, we can build an architecture of faith and commitment to the European Union for the future and a building that we hope will last although, obviously, we would not like to see—we will be debating this later—future Governments remove the foundation stones from that architecture and destroy it. That would be a pity, but it will again be a matter of opinion and debate. The Bill is put forward with that kind of faith and intention in our minds. Frankly, calling it a fraud on the public is a deeply regrettable statement—deplorable, in my view—and not at all in line with the tone of debates in this House of Lords. I think that it is a pity that people should speak in that way.
I want to come to the core issue in the debate. The simplified revision procedure allows the European Council to decide to make amendments to the part of the Treaty on the Functioning of the European Union that concerns internal policies. That is what the noble Lord, Lord Kerr, stated quite clearly. This is the Article 48(6) issue. The noble Lord said that the treaty changes under the simplified revision procedure are not allowed to transfer further competence from the UK to the EU. Here I hesitate, because I am going to challenge the viewpoint and authority of the noble Lord, Lord Kerr, and many others, but certainly the noble Lord, Lord Kerr, who is a great expert. After all, he was, I understand, rapporteur of the European constitution, which came to, I am afraid, a sticky end, but he has vast expertise. However, it is possible to transfer further powers from this country to the institutions of the EU. The potential for a substantial amendment to be made under this mechanism means that we should treat, logically, changes under the simplified revision procedure in the same way as we would treat other types of change. I was challenged again and again about what sort of things are involved. I have a long list of powers in the past, present and future that will be affected by the transfer of powers.
Lord Kerr of Kinlochard
Could the Minister give us some examples? I cannot think of examples of transfers of powers that do not involve a change to the treaties. Can he explain what these transfers are?
Lord Howell of Guildford
I was in the midst of saying that I would do that. Article 48(6) can be used to amend Part 3 of the TFEU, which covers Union policies and internal actions, such as the internal market, agriculture, freedom, security and justice, competition, employment, the environment and public health. In the past, the Lisbon treaty agreed to move 51 vetoes from unanimity to QMV. Somewhere I even have a list, which I shall secure in a moment, of the kind of vetoes, emergency brakes or moves to compel the United Kingdom to do something new or a new power or sanction on the UK involving a treaty change that might or might not qualify under paragraphs (i) and (j) of Clause 4(1) as significant, might or might not be exemptions if they did not affect this country and might or might not therefore become one of the items that might lead to a legislative treaty ratification process that might require a referendum. That is the situation.
Lord Kinnock
I hesitate to interrupt the Minister, because this is an issue to which we must perforce return. When he refers to the 51 vetoes that are alleged to have been sacrificed in the context of the Lisbon treaty, I am sure that he will acknowledge that a large number of them suited the purpose of the United Kingdom’s national interest and that there was no argument about them. Nine of them referred exclusively to transitional arrangements being made for the purposes of the unification of the Federal Republic of Germany, while many others—I will give instances one by one in the course of this Committee—had absolutely no effect whatsoever on any loss of sovereign power by the Parliament or people of this United Kingdom. I hope that the Minister, who is an honourable man, is not going to take the risk of distracting us from discussion of what is actually provided for in Article 48(6) by making references that are at best redundant.
Lord Howell of Guildford
I understand the feeling of the noble Lord on this, but I want to come in a moment to the reasons why a number of these things would not trigger a referendum. Some things will; some things will not. Most of the items that the noble Lord just mentioned sound to me—I do not know what specific items he is mentioning, but I have already mentioned a list—like items under paragraphs (i) and (j) of Clause 4(1) that would not pass the significance test, so there would be no referendum. I shall explain later that many of the pictures that have been presented of tiny items triggering a single referendum are completely unrealistic in the context of past experience, of which the noble Lords, Lord Kerr and Lord Hannay, have huge amounts. There is the idea that the pattern will be that little bits would dribble out, but let me explain why it will not work in that way.
As far as the simplified revision procedure is concerned, I have explained that Clause 3 would extend the requirements that we are proposing for treaty changes under the ordinary revision procedure, which is a vast and cumbersome thing, in Clause 2 to those transfers of power under the simplified revision procedure. We think that our consistent approach is logical and will help to garner the trust of the British public that we are not seeking all the time to expand the EU’s powers through the back door of the famous competence creep or, in this case, power creep, which has worried so many people who feel that Parliament is not being a sufficient safeguard of the interests of this country.
Lord Howell of Guildford
I will have to plead with your Lordships that if they want answers to all their questions, I cannot manage it if there are constant interruptions. I just cannot do it.
Lord Foulkes of Cumnock
I have one simple question on the point made by my noble friend Lord Tomlinson when he intervened in my speech. Perhaps the Minister could give us just one or two examples from the past where, if this legislation had been in existence, a referendum would have been triggered.
Lord Howell of Guildford
I have given some examples from the past and I have some more here. There have been 51 vetoes to unanimity, most of which would have failed a significance test, would have been exempted, would not have applied to this country or would have had no influence on our affairs. I am advised that another past example of a transfer of power is when the Court of Justice was given the new power to impose fines on member states for non-compliance in specific areas. Were that to have been proposed in an area under Part 3 of the Bill or Article 48(6), it would represent a transfer of power which would have to be assessed over the tests in this Bill.
I want now to turn to the crucial implications.
Lord Kerr of Kinlochard
I think that the proposal to which the Minister was referring for giving a fining power to the court was originally proposed by the United Kingdom but I am more worried about the definitional point. I have not yet heard an example of a transfer of competence or powers—the words used by the Minister at Second Reading and again today. I hear about voting rules, and the Government can of course refuse to change the voting rules, but I have not heard about a transfer of power.
I do not think that any example yet given by the Minister is of a transfer of power; that is, something we give up. If the Court of Justice is given a fining power, no British court has a power to levy fines withdrawn. It is not a transfer. I agree that that may be an additional power to the Court of Justice but that is nothing about its competence. It is not a transfer of power if we are not giving anything up. We want the Court to enforce EU law.
Lord Howell of Guildford
I think that we have agreed that we are concerned with powers under Article 48(6) and the noble Lord is worried about powers rather than competences. It is true that the transfer of powers is not defined in European legislation, so we have to look at these detailed points, such as the surrender of certain vetoes or the removal of the availability to hold to a veto, and look at issues where a sanction is imposed on the United Kingdom which involves the limitation of a power moving to the higher levels of the European Union and taking it away from this country. These may be small powers. I want to come to what I believe to be a canard—that all this will lead to an endless series of referenda. It will not and I shall show exactly why it will not. But they are transfers of power and they come in a variety of forms. I have mentioned two or three. I will seek to get a longer list as we discuss these things but the pattern is there. The pattern of power must be considered as well as the pattern of competences.
Let me address what lies behind the amendment and the worry about Article 48(6); namely, will this procedure as applied to the transfer of powers as well as to the transfer of competences which would trigger the referendum requirement, provided they got over the significance hurdle, the exemption hurdle and other hurdles, lead to numerous referendums on trivial issues? If it did, I think that I would agree with some of the rather cruder and blunter criticisms of the Bill that this would not be a sensible way to proceed, with constant concerns about quite small issues triggering a referendum for the whole United Kingdom. Clearly, that would be absurd.
Lord Hannay of Chiswick
I am most grateful to the noble Lord for giving way. Can he tell us whether any other member state has a referendum requirement for an Article 48(6) decision? I believe that the answer is no, but I am sure that the Government will be better informed than I am. Perhaps he would also note that the example he gave about the ability to fine by the European Court of Justice was in a treaty revision. That treaty revision would fall under a quite separate provision of this Bill, which we have not yet discussed but which we will come on to discuss, and will have nothing whatever to do with Article 48(6). Therefore, it merely reinforces the argument that the Article 48(6) reference is otiose.
Lord Howell of Guildford
I was just about to make points on the question raised. It would have been reasonable—I would not put it higher than that—for the noble Lord, whose wisdom I respect, to have allowed me to go ahead with what I was saying rather than interrupt me to say something that I was about to say and so lengthen the whole business: we have already been on this debate for two and a quarter hours. I plead with your Lordships that if we could just restrain ourselves a little we would make some progress.
I was turning to the important point about what other countries do when they are trying to get through treaty changes. That seemed to be absent from the attitude of many of the understandable critics among your Lordships about what is going on in the European Union. We heard speeches at Second Reading and in this debate implying that we were stepping out alone and marginalising Britain, that this was a completely different pattern and that we would cause the fury of other European member states. Incidentally, I am not sure that I can answer fully the noble Lord’s perfectly justifiable question on the consultations we have had and at what level with our European partners but I can assure noble Lords that all our posts in Europe have been fully briefed on this and have discussed it with their opposite numbers.
Let me just go through some of the immense hurdles, some of which are higher than anything we are proposing here, which many other member states already practise. In Austria, the President must certify that treaty changes are in conformity with the Austrian constitution. If changes are judged to be a revision of the federal constitution, a referendum is required. In Denmark, a referendum is constitutionally required if the treaty transfers competences to the EU and is not voted on by five-sixths of the majority in Parliament. In France, a referendum is required if a treaty change necessitates a constitutional amendment, and incidentally I notice that the French require a referendum on future accession treaties, which of course do not arise in this Bill. That may be to the dismay of some, and we can debate it later. In Ireland, a referendum is required if a treaty is thought to alter the scope and objectives of the European Union, as we know. In Lithuania, a referendum is mandatory according to the constitution if treaty changes involve the partial transfer of competences of government bodies to the institutions of the European Union. In Slovakia, a referendum would be held on a treaty which relinquished sovereignty to the European Union, although there is a rider that the Slovakian constitutional court can also consider the case. Similar referendums may be required in the Czech Republic, Greece and the Netherlands. I suspect that that is not the end of the list because I do not think I have mentioned the German position.
Lord Howell of Guildford
If I may just finish my sentence. The list builds up a picture of sensible attempts by member states who are enthusiastic supporters of the European Union to make sure that their people are closely involved in the processes wherever there is any transfer of competence or power.
If I must have another interruption, I will take it, but I only plead with your Lordships that we are getting to the point of completely unreasonable interruptions in what I am trying to say.
Lord Liddle
I am deeply sorry, but I think that there is a fundamental point to be made here. There is a confusion which should not be allowed to enter this discussion. What the Minister has read out are the constitutional requirements of member states for full treaty ratification, whereas in this set of amendments we are talking about what is required for the simplified revision procedure. It is there precisely to avoid this full rigmarole. Why are we putting this in the treaty?
Lord Howell of Guildford
It is simply because the simplified revision procedure involves changes in the treaty. In many cases I have described, particularly where the significant test is applied and is not satisfied under paragraphs (i) and (j) in Clause 4, there would not be referenda here or in many other countries. But in other areas, through the simplified revision procedure and part of what we called the passerelle in our impassioned debates on this issue in the House at the time of the Lisbon treaty, it is possible to generate either transfers of competence or transfers of power. These are things on which there would be a natural incentive for the better use of existing powers in order to achieve certain objectives, like better co-operation over civil nuclear power or one of the other things that has been raised. They would also be matters where a real effort would be made by all countries because of the complexity they all face in pushing through treaty changes of any kind; even some quite small changes would trigger elaborate procedures in other countries. There will be a natural and sensible tendency to avoid changes and developments that involve treaty changes.
We simply do not accept that there is an appetite in the European Union for a further round of treaty change, given the arduousness of the ratification process, let alone one that would transfer further power from the UK to the EU. We certainly do not subscribe to the view that the addition of the simplified revision procedure will launch a new culture of regular treaty changes that seek to transfer power on a single issue. That is not the way the system has worked or will work in the future, as those who have been involved in it will know. My last involvement was many decades ago, but I had my share of it back in the 1970s and 1980s. Nations will know that when they come to deal with these issues, they have political capital to spend and they will spend it carefully, not rush into treaty changes at every opportunity. It is highly improbable that all 27 member states will push to agree a treaty change unless it was considered both urgent and important, such as the European financial stability mechanism, which the noble Lord rightly mentioned. But even then, that urgent treaty is expected to take two years—I repeat, two years—to be approved by all member states. The proposition that tiny little treaty changes would somehow be pushed through and promote a referendum here when they take two years for any country to get through is an absurdity.
I know that this is complex but it is a comprehensive approach to the whole question of the transfer of competences and powers. I beg noble Lords to understand that that is the reality of the position. Otherwise, individual issues are bound to be deferred—this is going to be the natural way; it has worked in the past and it will work again—until a whole raft of issues requiring attention can be wrapped up and packaged. That would ensure one treaty change which would cover a multitude of issues and one ratification process and, where relevant, one vote, as was the case with the Lisbon treaty. We recognise the kind of creature that comes along—it is the Lisbon treaty. That is just the sort of amalgamation of small and large issues, some of which under this Bill would certainly require a referendum, that should be and should have been put to a referendum.
We disagree most strongly with the proposition—this House disagreed with it and I think we carried sensible public opinion with us in doing so—that the Lisbon treaty should be somehow brushed aside and not put to a referendum because of the arguments about whether it did or did not parallel the European constitution beforehand. The noble Lord, Lord Tomlinson, said it would not but he remembers, because he was a doughty campaigner in all those Lisbon debates, that there was a very strong sentiment the other way which remains to this day, enlivened and reinforced by the fact that if you actually read the words in the two documents, the constitution and the Lisbon treaty, they turn out over a broad stage, as the noble Lord, Lord Stoddart, knows very well, to be identical. We are not fools, and nor are the public when they are told about this matter.
I see that the noble Lord wants to intervene again.
Lord Grenfell
I thank the noble Lord for giving way. Could we please try to get this straight once and for all? The constitution prepared by the EU Constitutional Convention was meant to be a constitution. The Lisbon treaty was in fact a series of amendments to two existing treaties, and the novelty of this was that when it was ratified, the Lisbon treaty disappeared into thin air and did not exist any more. It would have been odd to have a referendum on something that did not exist. What we were left with was amended versions of the two original treaties. That is very different from having a full-blown new constitution.
Lord Howell of Guildford
I will call the noble Lord my noble friend because he is that. He will recall how we went around and around this debate. It is perfectly true that when the Lisbon treaty was brought forward, its drafters had taken care to change the basis so that it could not be packaged or described as a constitution, but there was an awful weight of evidence, supported by the similarity of wording and by many European leaders such as Valéry Giscard d’Estaing. I do not think I am misquoting his words when he said that it was, “identical down to the last comma”. We could argue about that, but let us please not do so again tonight because I seem to remember that we spent many evenings on it. That is the fact of the matter.
In short, including the simplified revision procedure in the scope of the referendum conditions would not unleash frequent trivial referendums. In the same way, we do not accept that there are likely to be regular treaty changes in the future under the ordinary provision procedure. That is one set of reasons why there will be nothing very different from these large treaties coming along on which there is a basic division of view. We say that these things should be put to the British people. Others disagree, including my noble friend sitting further along the Bench. They think that somehow Parliament can continue to be relied upon to be the safeguard to prevent the further ceding of powers and competences. We have considerable doubts about that, and of course the noble Lord, Lord Pearson, has even greater and stronger doubts than the Government.
However, we recognise that the simplified revision procedure has been set up to allow for amendments to specific parts of the treaty to be made in a more streamlined way, which is the point just made by the noble Lord, Lord Liddle. We recognise that on occasion an Article 48(6) decision might be used to agree a change that might involve a small transfer of power but on which it would not be appropriate to hold a referendum. We have therefore gone one stage further and proposed a mechanism to assess whether certain types of transfer of powers under the simplified revision procedure should be put to a referendum. This is known as the significance test, which we will no doubt debate in further groups of amendments. It applies to any decision that falls under the criteria of either Clause 4(1)(i) or (j), both of which I have mentioned.
If the decision is deemed not to have a significant impact, a referendum need not be held, although an Act of Parliament—and this is a considerable addition to what went on in the past—would still need to be passed in all cases before the UK could approve any treaty change. We have built in this mechanism, the scope of which we will return to, to provide a further safeguard to prevent referendums being held on trivial matters. For example—I am asked for examples all the time—a new power under a future use of the simplified revision procedure that compelled Governments to provide annual statistics to the European Commission would not necessarily be considered significant enough to warrant a referendum, but a new power to compel UK businesses to adhere to further regulation might well be deemed significant and might turn up in some package or treaty that we would have to deal with in a better way than we dealt with the Lisbon treaty when that went rushing through.
Baroness Anelay of St Johns
My Lords, my noble friend has sat down and there has been an agreement through the usual channels that this might be a convenient moment for the noble Lord who moved the amendment to respond and for us to move on after that. There have been a considerable number of interventions. My noble friend the Minister has been extremely generous with his responses. I invite the Committee to move on and the mover of the amendment to speak.
Lord Stoddart of Swindon
My Lords, I really cannot agree with that. The Chief Whip is suggesting that there should be a limit on Committee stages. This is Committee and it is open to any Member at any time, until there is closure or we are all fed up with speaking, to continue the debate. The noble Baroness should not introduce new rules without the consent of the House.
Baroness Anelay of St Johns
My Lords, of course I do not seek closure. I know that my noble friend has been very generous in his winding-up remarks and that noble Lords have been keen to intervene to achieve elucidation. These are indeed very important matters. I appreciate that we are now reaching two hours, 48 minutes. We do not have anything by way of a guillotine in this House, but we have self-regulation. I believe that it is the sense of the Committee that it would be right for the mover of the amendment to respond now to the position put by my noble friend Lord Howell.
Lord Kerr of Kinlochard
I am grateful to the Minister for his considered reply. I strongly agree with his point about public disquiet and concern. Particularly in this House, we underrate the extent to which public opinion has moved against the European Union in recent years. However, the Bill will do absolutely nothing to remedy that concern and disquiet. What we need to do, and this is a responsibility particularly of the Government, is to be out selling in public the truth about the European Union. However, I agree with the analysis that the Minister provided at the outset of his remarks.
He was also quite right to range widely before focusing on my amendment, because, alas, the debate had ranged very widely. I did not realise how many of the captains and the kings would come in and how much Sturm und Drang we would have as we ranged over the battlefield. Quite a lot of the debate was, as the noble Lord, Lord Richard, pointed out, technically a little bit out of order, but it was very interesting.
I have to disappoint one or two noble Lords who spoke in favour of my amendment—and I note that only two spoke against it, none of them from the government Benches. My disappointed comes from the fact that the scope of my amendment is extremely narrow. If the Government were to accept it, and I do not know why they do not, the particular procedures applying to treaty amendments that result from the simplified process would fall away and all treaty amendments would be handled in the same way. I do not know why Clause 3 is needed as well as Clause 2. I was not arguing today that nothing that is done by the simplified procedure should ever justify a referendum—that is my view, but it was not the argument that I was making today. My argument today was that there was no need for Clause 3 and no need anywhere in the Bill for any reference to Article 48(6). We need proper, substantive definitions based on the content of a treaty amendment—what it says, what it does—to decide how significant they are and whether there is a requirement for a referendum. I will probably be somewhere else on the spectrum of that debate from the Minister. You need to address the substance of the treaty amendment, not the process by which the treaty amendment was arrived at.
Clause 2 refers to: “Treaties amending or replacing TEU or TFEU”. The title of Clause 3 is: “Amendment of TFEU under simplified revision procedure”. If Clause 3 vanishes, the only procedure you would have would be that set out in Clause 2, and it would apply to all treaty amendments. I cannot see why the Government do not buy that.
The Minister spent a long time trying to persuade us that you could, under the simplified revision procedure, transfer competences to the European Union, despite the plain wording of Article 48(6) that you cannot transfer competences to the European Union by that root.
Lord Howell of Guildford
I hesitate to do to the noble Lord what has been done to me for the past two hours—constant interruption—but I did not say that. I was talking about transfers of powers. I conceded the perfectly clear point made by the noble Lord that transfers of competences under Article 48(6) are not possible because they are excluded in the treaty. We are talking about transfers of powers, which is a different matter. I described the kinds of powers and said that, in order to be comprehensive and logical and gain the public confidence, it is our belief that the procedure should cover the transfers of both competences and powers. That is what I said.
Lord Kerr of Kinlochard
My Lords, I fear I am still unconvinced. I do not understand these powers. Can we have a definition of powers? What do we mean by powers when we talk about the Bill? Most people seem to think that the powers of the European Union are the powers we have given it. Over there they are called les compétences de l’Union, which is badly translated back into English as competences. This is about powers; the two words mean the same. At least that is my understanding. If we are giving them a different meaning, fine—but let us have a definition.
My bigger point, however, is that this is a technical amendment designed to probe why we need to have a Clause 3—I cannot for the life of me see why—but the Minister did not address that point in his response. I am very grateful to him for considering the debate and responding as he did, but I am unconvinced. Although I am ready to withdraw the amendment today, I shall be back. For the moment, I beg leave to withdraw the amendment.
Lord Tomlinson
My Lords, I hoped not to have to move my opposition to Clause 1 standing part of the Bill. After the persuasive arguments of the noble Lord, Lord Kerr, I was hoping for a sufficiently clear explanation from the Government to have satisfied me on the point about Article 48(6). However, as we do not seem to have made a great deal of progress on that—I shall not tire the House by going over all the arguments—it is my intention to move that Clause 1 does not stand part of the Bill unless we reach a satisfactory arrangement in relation to the amendment of the noble Lord, Lord Kerr.
“( ) Where the treaty is the subject of a challenge in a court of the United Kingdom, it is not to be ratified until the proceedings in court are completed.”
Baroness Symons of Vernham Dean
My Lords, in moving Amendment 3 I hope that I shall not stir up quite as many areas of difficulty as we dealt with in the previous marathon debate.
I stress to the Minister who will answer the debate that this is essentially a probing amendment to ask about the role of a Minister of the Crown in dealing with treaty changes in the future, and about the role of Parliament and the way in which judicial review of ministerial decisions will work in practice. Under the Bill, a referendum would be required only if the Government of the day wanted to support a treaty change. That is clear. If the Government are not so minded, they can block the change at the negotiation stage in the European Union. The Government see this as a straightforward mechanism, but I would like to examine it a little further.
The Government contend that if they were not in favour of any treaty change, such a block would be absolute because all types of treaty change that are subject to the referendum provisions would have to be agreed unanimously at EU level. The withholding of agreement on behalf of the United Kingdom would therefore mean that a proposal could not be part of any new treaty or form part of any treaty change. There would therefore be no referendum because there would be no such treaty change. This would apply both to treaty changes and to new treaties.
Lord Davies of Stamford
My noble friend’s amendment addresses a situation that I regard as a nightmare, in which not merely ministerial decisions in an executive capacity are open to judicial review—something that we have been used to in our constitutional practice for the last generation or so—but also a decision by Parliament. As I understand the present situation and as I read the Bill, were it to become an Act a ministerial decision to approve a treaty change under the significance rule without going to a referendum would nevertheless be a decision by Parliament, because Parliament would have to approve and ratify that treaty change. Parliament would decide that it was able to do that without a referendum. It would not be a ministerial decision. Quite clearly, if there was a ministerial decision to go the referendum route and not use the significance rule, that would be a ministerial decision, but it would immediately be ratified by Parliament, as I read Clause 2 of the Bill.
Clause 2(2) says:
“The referendum condition is that … the Act providing for the approval of the treaty provides that the provision approving the treaty is not to come into force until a referendum about whether the treaty should be ratified has been held”.
It is quite clear that the first decision of a Minister would be not to use the significance clause but to go to Parliament. Parliament would pass a Bill, which would come into force as an Act only when a referendum had been held. It would again be Parliament’s decision to have the referendum. As I understand it, it would be Parliament’s decision either to have or not to have a referendum. As is the present position, in all cases Parliament would have to endorse or ratify an agreement that we in some way change the treaty or add to the competencies of the Union. That is the position under the Bill at present and the position if it were amended as we tried to amend it earlier this afternoon.
That means that my noble friend’s Amendment 3 would apply in a situation in which Parliament had taken a decision. What was justiciable—the subject of a judicial review—would be a parliamentary decision. Surely that would be quite contrary to the Bill of Rights. To me, it would be a nightmare prospect and I imagine that that would be the case for many noble Lords on both sides of the House. It would be an almost inconceivable extension of judicial authority, way beyond anything that has ever been foreseen by the judiciary at present. Does the Minister agree with my interpretation and think that there is a prospect of a judicial review of what would be a parliamentary decision? Does he agree with me that we should do everything possible to exclude a priori any such possibility?
Lord Wallace of Saltaire
We have had a technical debate—thank goodness, in a sense. I shall dash back home and get my European Union juriste linguiste dictionary and look at one or two translations of terms, particularly “power” and “competence”. I recall some years ago, in the early discussions on Schengen and British border controls, explaining to a French audience the difference between border checks and border controls, the former being selective and the latter systematic. It was explained to me that the translation into French of “check” is “contrôle” and the translation of “control” is “contrôle”. The subtlety of the English language did not easily play in French. This may be part of what we are getting at here.
The amendment raises some interesting questions about parliamentary sovereignty, as the noble Lord, Lord Davies of Stamford, recognised, and about the evolution of judicial review. I take it as given that ministerial decisions will be made in the first place to Parliament. Noble Lords will be well aware that the Government are taking through, as part of a package that includes this Bill, a number of measures to improve parliamentary scrutiny of new legislation. Ministerial decisions would, therefore, go in the first instance to the scrutiny committees of both Houses and would be examined fully by both Houses.
In the evolution of judicial review, which, as we all recognise, has become a good deal more active in recent years, whereas ministerial judgments are frequently subject to judicial review, judicial review of parliamentary decisions is a great deal more hesitant. The Solicitor-General said in the other place:
“Judicial review has increasingly become part of the legal armoury since the second world war. Ministers, whether of the present Government or the last, are not above the law, and it is for our independent judiciary to arbitrate, through judicial review cases, in disputes between the citizen and the state. The courts apply the laws enacted by Parliament, and Parliament can make, amend and repeal legislation as it thinks fit”.—[Official Report, Commons, 18/1/11; col. 691.]
The evolution of judicial review, it seems to me as a non-lawyer, is therefore likely to take a rather different approach to ministerial judgments on executive issues and ministerial Statements, which have been thoroughly scrutinised and accepted by Parliament. I hope that that begins to explain why, in the Government’s opinion, this amendment is not necessary. I have absolutely no doubt that there will be those who will wish to apply for judicial review of all ministerial decisions related to the sharing of powers within the EU. We have seen that already. That is precisely why one of the measures that we are taking to try to rebuild public trust in our engagement with the EU is to propose a strengthening of parliamentary engagement and scrutiny to ensure that the Government are not trying to slip things past people but are being increasingly transparent.
In the case of the judicial review brought by Mr Stuart Wheeler in connection with the treaty of Lisbon, the European Union (Amendment) Bill had received Royal Assent before the judgment of the court had been handed down. The issue was whether the Government should ratify before the process of judicial review had been completed. It is quite clear that a Government would not proceed to ratify a treaty amendment until a process of judicial review had been completed, although I think it unlikely in the extreme in the delicate relationship between our common-law judiciary and a sovereign Parliament—
Lord Hannay of Chiswick
The Minister has gone into an interesting point, which I wanted to ask about. The Stuart Wheeler case is relevant because there were attempts by a number of people to suggest that Parliament should suspend the completion of the ratification process until the judgment on the case was reached. The Government of the day declined that, correctly in my view, but the noble Lord is quite right that the deposit of the instrument of ratification took place after the court had ruled. It is not quite that the ratification was not complete; the deposit of the instrument of ratification, which is the last stage, had not happened. Am I taking it from him that the Government’s view will be in future that, if this sort of situation arises, they will not interrupt the parliamentary process of taking a decision on the European Union matter that is before them, so that the only impediment will be to the final deposit of an instrument of ratification and not to the completion of the parliamentary ratification?
Lord Wallace of Saltaire
My Lords, the noble Lord is raising a point whose subtlety is close to that with which juristes linguistes deal. My notes say that the Government would not complete ratification until a judicial review challenge had been taken. I have also been suggesting to noble Lords that a stronger parliamentary engagement and oversight in examining a ministerial judgment would make judicial practice in accepting claims for judicial review less likely in the future.
Lord Hannay of Chiswick
I do not think that we need pursue this matter this evening, but can the Minister be more precise when we come to that point at a later stage in the Bill? It is quite important. If the Government’s attitude is going to be that they will stop the process in Parliament while the legal process is going on, that is a completely different thing from saying that they will not complete the process by depositing an instrument of ratification until that is over. Will he clarify that point at a later stage or in writing?
Lord Wallace of Saltaire
I am happy to do so. I recognise that there are a number of complex judicial as well as parliamentary sovereignty issues at stake, some of which we will return to later, but I offer that assurance to the noble Lord and I hope that I have answered some of the questions raised by the noble Baroness.
Lord Davies of Stamford
I would have preferred the previous Government to have taken an even more robust line on the Stuart Wheeler case and to have in no way taken account of the judicial review in proceeding with the ratification process or depositing the instruments of ratification. It seems intolerable that there should be any judicial oversight of the proceedings in Parliament. That seems to be explicitly excluded by the Bill of Rights. I would be particularly worried if the present Government went in for a process of slippage, going even beyond the insufficiently robust approach of the last Government and allowing the timetable for the parliamentary consideration of a particular Bill to be affected by proceedings in a court of law.
Lord Wallace of Saltaire
I foresee that when we get to the debate on Clause 18 we shall have a great many discussions on the exact relationship between the judiciary and Parliament and parliamentary sovereignty. The time for that debate is not now but then.
Lord Kerr of Kinlochard
Does the Minister agree that the likelihood of judicial review is greatly enhanced by the creation of the significance test? In almost any case where Parliament does not wish to have a referendum because it has accepted the Government’s statement that the issue is not sufficiently significant to justify a referendum, that will be challenged in the courts. The issue will not be whether to go ahead and complete the process of ratification but whether or not to have a referendum. It will be a bold Government who decide to go ahead and complete the process before the court has ruled on the significance point. What is extraordinary is that we should create a system where we are going to invite the court into the middle of our legislative procedures. If we have not finished here in Parliament, we will have to suspend if the significance test is being challenged.
Lord Wallace of Saltaire
My Lords, my understanding, and I stress that I am not a lawyer, is that it is the ministerial judgment that is subject to judicial review and not the parliamentary decision. I will clearly have to consult before I come back on Report on the exact meanings at stake, but my understanding is that parliamentary decisions are much more robustly resistant to judicial review.
Baroness Falkner of Margravine
I wonder whether I might help my noble friend a little, because the point brought up by the noble Lord, Lord Kerr of Kinlochard, is interesting. Our understanding of this issue is that the Minister would provide a statement setting out his reasons behind why the item under discussion either was or was not of significance, so the possibility of judicial review would therefore apply to the reasoning behind the Minister’s statement. In that case, it would seem that it would not be Parliament’s judgment under question but the Minister’s reasoning, presumably guided by legal advice.
Lord Wallace of Saltaire
I have no doubt that we will return to this on Report and I will write to noble Lords when I have had exact and subtle legal advice. The ministerial statement will be the beginning of a parliamentary process, which is intended to be a robust part of the consideration of what is and is not significant. On that basis, I hope that the noble Baroness will be willing, for the time being, to withdraw this amendment. I promise that I will write having taken abstruse legal advice.
Baroness Symons of Vernham Dean
My Lords, let me put the Minister out of his misery: yes, I will withdraw the amendment but perhaps I might make a couple of points in doing so. It seems to me that the noble Lord, Lord Kerr of Kinlochard, was right in his point that the significance test is likely to trigger the sort of legal review we are talking about. That is far more likely to arise in cases where the Minister has decided not to have a referendum. The point here, at least as I see it, is not whether the Minister’s decision is being questioned by judicial review but that it is the Minister in Parliament. It is not like a Minister taking a decision about exercising his judgment outside Parliament. The point is that it is the Minister in Parliament, supported by Parliament. It is therefore a parliamentary decision which is being challenged by judicial review.
I am bound to say that we are talking about quite big stuff here. This is not just a reinforcing of the current position where ministerial decisions are challenged but the Minister, with the support of Parliament, being challenged through judicial review. If that review goes against Parliament, the outcome is that a referendum would be triggered. Would we really in those cases go as far as asking for Royal Assent to a Bill or a decision which is then to be looked at all over again through a referendum? That is quite a big constitutional point and I am interested in the way that the Minister has put it.
This provision will trigger a multiplicity of challenges. We will be very lucky if we have just one, as we did in the Wheeler case. This is laying something open to judicial review and I would be grateful if the Minister, when he has consulted all those great legal books and superb academic treatises that he has on the subject, would write rather more explicitly. The Minister made some points to the noble Lord, Lord Hannay, and it would be very helpful if we could see them in writing. If we need to go over this ground again on Report, we must obviously do so but it may be that the Minister will be able, when he has had the opportunity to consider it, to meet some of the points that we have discussed. I beg leave to withdraw the amendment.
“(i) throughout the United Kingdom if the treaty affects the United Kingdom;(ii) throughout Gibraltar, where the treaty affects Gibraltar; (iii) where the treaty affects one or more British overseas territory, throughout the affected territories;(iv) where the treaty affects the Crown dependencies, throughout those Crown dependencies; or(v) where the treaty relates to financial regulation, those jurisdictions in sub-paragraphs (i) to (iv) which will be bound by the rules in the treaty or decisions made under the treaty;”
Baroness Symons of Vernham Dean
My Lords, the Minister may or may not be relieved to hear that this is another probing amendment—or, rather, two, in Amendments 4 and 12. Obviously, the same point is made in both and although the amendments may appear long it is really a simple point. I am sure that we all understand our close relationships and our responsibilities to and for our overseas territories. We also understand that Gibraltar alone, of all our territories, is part of Europe and is affected by European treaties or changes to them. Yet the Bill states that where a treaty change affects Gibraltar, it would have to be the subject of a referendum not only in Gibraltar but in the United Kingdom. Can the Minister please be a tad more specific about this?
In almost every case, a treaty change which affects Gibraltar might well affect the United Kingdom too, so holding a referendum in this country and in Gibraltar would be understandable if you buy the basic premise of the Bill. But if, as in some circumstances, a treaty change were to affect Gibraltar alone and not the rest of the United Kingdom, would a referendum in the whole of the United Kingdom really be necessary? There were two ways of reading that, so I am raising a genuine question with the Minister. I fully accept that the eventuality is remote but it needs some clarification.
Similarly, what if a treaty change at some point in the future laid specific responsibilities on members of the European Union to change the law in their overseas territories? While I accept that we do not all have the same relationship with our overseas territories—the complexities of l’outre-mer in the French relationships were fully explained to me when I was a Minister, but they may not be as clear to me now as they were at the time—let us say that there was a change in a treaty or a treaty provision in relation to, let us say, money laundering or gay rights, both of which have been the subject of considerable controversy in some of our own overseas territories. Does not the logic of the Government's position mean that, in all fairness, it would be proper to hold referendums in those territories so that they would have the same rights as the citizens of Gibraltar automatically have on treaty changes which affect them? I stress that this is a genuinely probing amendment and I would be grateful for any clarification that the Minister can give us.
Lord Wallace of Saltaire
My Lords, I am extremely glad that the noble Lord, Lord McNally, has just joined me on the Bench as he is the Minister responsible for relationships with the Crown Dependencies. I would simply query the noble Baroness’s opening statement: that I am sure we all understand the nature of the relationship with the Crown Dependencies and the overseas territories. I have dug out the last definitive statement on our relationship with the Crown Dependencies. It was the Kilbrandon commission, on which I suspect one or two noble Lords—
Lord Wallace of Saltaire
It was years ago, as the noble Lord says, but every time that I questioned it in opposition I was referred back to that statement. It says that on a number of occasions, there are a number of blurred edges to the constitutional relationship between the United Kingdom and these islands. I have scars on my back about this. On a visit to Jersey two years ago, I questioned whether the current constitutional relationship was sustainable in the light of globalisation in financial and other arrangements. I was subjected to attacks for a week in the local press, the best of which suggested that both my wife and I were French spies, so attempting to clarify the relationship can get one into deep trouble. I do not recommend that we go too far down that road.
If a treaty were to affect Gibraltar alone, we would certainly have some interesting questions but it is difficult to imagine a situation in which such a treaty change might happen. As the noble Baroness rightly suggests, there is a range of issues where the different, semi-independent entities around the European Union are affected. Monaco, Andorra and the départements and territoires d'outre-mer, or DOM-TOM, have a rather different relationship with the European Union from ours. As the noble Baroness will recall, we chose to encourage our overseas territories to fund themselves through becoming offshore financial centres rather than getting them to a closer association with the EU so that others could fund them. That might possibly have been a mistake but it is where we are.
Lord Davies of Stamford
I think that I heard the Minister say that if an issue affected Gibraltar alone, some very interesting questions would arise. That implies that the Minister wants to leave the legislation as it is currently drafted without those interesting questions, as he describes them, being addressed. Surely he would agree that it would be completely barmy for the people of the United Kingdom to have to vote on a referendum on a matter that affected Gibraltar alone. So why can we not simply change the text of the Bill in a common-sensical way so as to exclude that possibility completely? It would be very easy to do.
Lord Wallace of Saltaire
My Lords, I think that this is the point where I should refer to Protocol 3 to the 1972 treaty of accession to the European Union under which Gibraltar chose to become a member of the EU and the other Crown Dependencies chose to become non-members of the EU but with a number of associated areas. That is another complex area. I find it impossible to envisage a situation in which there would be a treaty change that applied to Gibraltar alone. Ultimately, this is a hypothetical question, but I see that the noble Lord wishes to pursue it further.
Lord Davies of Stamford
I ought not to be satisfied by that; when we are drafting legislation in this place, we should try to make it as complete as possible, just as one should with any legal document. We are after all talking about the laws of the land. The Minister may be brave enough to say that he himself cannot anticipate this possibility, but we know that possibilities can arise that were never anticipated even by the most brilliant minds. Surely we should just have legislation that makes it clear that there would never be the absurdity of the people of the United Kingdom having to vote in a referendum on a matter that affected Gibraltar alone.
Lord Wallace of Saltaire
My Lords, I have scars on my back from the extent clause. I have tried on previous occasions to raise the question of the extent clause and the conditions under which UK legislation applies to the Crown dependencies. This is a very arcane area.
Baroness Anelay of St Johns
My Lords, it is the custom of the House that two noble Lords should not be standing at the same time. We are in Committee; I wonder if the noble Lord, Lord Hannay, might take his seat.
Baroness Anelay of St Johns
I would be grateful if the noble Lord took his seat. I appreciate that he is the most courteous of Members of the House and simply did not hear me at that point. When making interventions in Committee, it is a matter of course that one does not need to interrupt a Minister in his or her flow. One is permitted in Committee to allow the Minister to complete an explanation before the next person gets up.
I appreciate that both the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Hannay, wish to ask questions. The noble Lord was on his feet first; perhaps the noble and learned Baroness might allow him to ask his further question first.
Lord Hannay of Chiswick
My Lords, I am grateful to the noble Baroness. I am sorry if I transgressed in some way. Strangely enough, I was actually trying to be helpful to the Minister—unusually, so far, in this Committee stage. The answer that he gave is correct. The circumstance that the noble Lord, Lord Davies, refers to is virtually unthinkable since EU law applies to Gibraltar because it is part of the EU, as in our treaty. The idea that you can then legislate for some tiny part of the EU is pretty alien to the way that Europe does its legislation. The Channel Islands and the others are in a completely different situation, as the Minister says, and European law does not apply to them.
I suggest that the Minister does not put Monaco into the same bracket as the French overseas territories. He will not be well received in the casino next time he goes—if he does.
Baroness Butler-Sloss
My Lords, I do not want to strike a note of discord with the Minister or indeed with the noble Lord, Lord Hannay, but the noble Lord, Lord Davies, has a point. If you read Clause 2(2)(a) as perhaps a court might read it, there is the possibility—however remote, as the noble Lord, Lord Hannay, says—that in future something might happen that affected Gibraltar but did not affect the United Kingdom. As it reads at the moment, the UK would have to have a referendum. That is my interpretation of the paragraph.
Lord Wallace of Saltaire
My Lords, I offer to get the sharpest minds in the Government to look at this again and see if there is a real problem. This is a worthwhile probing amendment. I might perhaps mention that the coalition Government are committed to looking at the issues of tax avoidance, in which these various Crown dependencies and associated entities like Monaco and Andorra—particularly Monaco, the constitutional relationship of which with France is at least as cloudy as that between the Crown dependencies and the United Kingdom—will come into play. It may well be that others in this House would like to pursue some of those questions further, perhaps through a committee inquiry, but, I suggest, not as part of this Bill. With regard to this Bill, Protocol 3 to the European Communities Act 1972 sorts out who is in and who is out.
Baroness Symons of Vernham Dean
My Lords, I thank the Minister. The thought of him as a French spy is vastly entertaining; I had never thought of him in quite that sense. It has cast a whole new light on his part-time activities. I was not entirely clear from what he said—I will have to read his remarks in Hansard—about the differences that he was drawing between Crown dependencies on the one hand and overseas territories on the other, but we can look at that.
There is a specific point about Gibraltar. I fully concede the point made by the noble Lord, Lord Hannay, that it is a very remote possibility, but an issue that comes up again and again is self-determination for dependencies and overseas territories. The issue regarding Gibraltar is that it would not be able to exercise self-determination in the way that other overseas territories do because of the treaty of Utrecht. In my day, if you moved away from that treaty for a single moment you were in deep trouble. I make the point because it means that Gibraltar is in a rather special position; it is not just that it is part of the European Union. Of course, one might say that the Spanish would be bound by the same issues.
The point is not for us to think of every possibility, racking my brains as I am so to do. The point is to have legislation that is as clear as possible. We should make this clause clear so that we are not left with someone trying to think up some clever eventuality where we might have a real difficulty on our hands; rather, we should forestall such difficulties by having greater clarity. It is an absurdity to think that an issue that affected only Gibraltar could be the subject of a referendum in Darlington, Dagenham and Dorking. That really would be a silly position for us to be in. I hope that the Minister will kindly give this a little more thought so that when we return to this issue at a later stage we might be able to have a greater meeting of minds.
Lord Wallace of Saltaire
My Lords, I apologise that I had not cited the treaty of Utrecht. The noble Baroness will of course be familiar with the grant of 1204 by the King of England as the Duke of Normandy, which is the basis for the Channel Islands’ relationship with the United Kingdom—a document that appears to have been lost some time in the later 13th century and no one knows exactly what it said. That is part of the oddity of the situation. Having had an interesting excursion into some of the byways of the outer shores of the British constitution, though, I hope that the noble Baroness will be willing to withdraw her amendment.
Baroness Symons of Vernham Dean
My Lords, I will do so and I hope for further clarification on these points. I beg leave to withdraw the amendment.
Legal Services Act 2007 (Approved Regulators) Order 2011
(13 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
That the draft order laid before the House on 14 March be approved. Relevant Document: 18th Report from the Joint Committee on Statutory Instruments.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I presume that later in the consideration of the European Union Bill we will get on to the Schleswig-Holstein question. In the mean time, it is my responsibility to speak to the Motion to approve the Legal Services Act 2007 (Approved Regulators) Order 2011.
The power to make this order is in paragraph 17(1) of Schedule 4 to the Legal Services Act 2007. The order seeks to designate the Institute of Legal Executives—ILEX—so that it can allow its members to conduct litigation and regulate them in doing so. In practice, the extent to which ILEX will be able to deploy this right will be limited by its own regulatory framework, which will mean that the only ILEX members who can conduct litigation if this order is made will be associate prosecutors employed by the Crown Prosecution Service. The Legal Services Act classifies the conduct of litigation as a reserved legal activity that can be carried out only by a person who is either “authorised” or “exempted” by the Act. At present, associate prosecutors are exempted to carry out specific litigation.
ILEX has drafted specific rules that will set out the processes by which the work of associate prosecutors will be integrated into ILEX’s regulatory regime. Under these rules, associate prosecutors will be required to abide by ILEX’s code of conduct and undertake a specified amount of continuing professional development. In addition, ILEX will review and assess associate prosecutor training programmes. A memorandum of understanding has been agreed with the CPS that sets out the working arrangements for the regulation of associate prosecutors, including the handling of complaints, ILEX’s information requirements and a facility for ILEX to carry out its own inspections and reviews.
Both ILEX and the Legal Services Board have consulted on ILEX’s application for designation. The responses were broadly supportive, including those from other legal services regulators. In making its recommendation to the Lord Chancellor about this order, the Legal Services Board has satisfied itself that any issues arising from the consultation have been addressed.
In anticipation of this order, ILEX has applied to extend the scope of its regulatory framework so that it can grant a wider range of litigation rights to a wider range of its membership. It falls to the Legal Services Board to determine this application. Clearly, any extension to the range of ILEX practitioners who can conduct litigation independently could have a significant impact on the legal services market. The Legal Services Board has a statutory duty to promote competition within that market, so I would expect it to evaluate the potential impact carefully in considering ILEX’s wider application.
I commend this order to the House.
Baroness Gale
My Lords, I thank the Minister for bringing this order before us tonight. We are pleased to support the order, which naturally emerges from the Legal Services Act 2007. ILEX is already an approved regulator, but its powers as a regulator will now extend to regulating those who conduct litigation.
ILEX was recognised as an approved regulator as a result of the Legal Services Act 2007, the aim of which was to liberalise and modernise the regulation of the legal profession as well as to increase access to legal services. The Act moved away from self-regulation to independent regulation, which was a major step in improving consumer confidence in legal services. It was a very good piece of Labour legislation. At a time when we see daily restrictions on access to justice and the availability of legal services, there is a need to encourage the intention and practice of the Legal Services Act in broadening access where possible.
ILEX does an excellent job in regulating its part of the profession, and legal executives also do an excellent job in the services that they provide. Furthermore, this part of the profession draws from a wider social background than other parts of the profession—something that the strategy for social mobility, which was published today, could learn a lot from. This is a sensible proposal that will enable ILEX to regulate certain members who conduct litigation. I am sure that it will further improve the regulatory system.
It is right and proper that this measure is agreed to promptly and in time for implementation on 1 May. Once again, I am pleased to say that we fully support this measure tonight.
Baroness Hayter of Kentish Town
My Lords, I declare an interest as chair of the Legal Services Consumer Panel, which is an independent part of the Legal Services Board that recommended the order to the Lord Chancellor.
I warmly welcome the order, which will enable ILEX, as the body that regulates legal executives, to allow certain members to conduct litigation. The order is a notable first and is important for two reasons. First, it will permit associate prosecutors to be regulated by a professional body—the Institute of Legal Executives —in regard to the litigation work that they do. I believe that this arrangement will ensure that the consumer interest is reflected through these regulatory arrangements. Secondly, the order makes ILEX an approved regulator for litigation rights generally, which is a step on the way to ILEX empowering legal executives to provide litigation services to the public.
I would like to say a word about ILEX and its members, whom I hold in high regard. ILEX grew out of the old Solicitors Managing Clerks Association and has taken a real lead in diversity—in which I know the Minister takes a particular interest—in the profession. Three-quarters of ILEX members are women and 13 per cent are from black or ethnic minority backgrounds, compared with under 8 per cent in the population. Perhaps particularly important today, as my noble friend Lady Gale referred to, ILEX has provided a route to qualification as a lawyer for those who have neither started as a graduate nor had contacts in the profession. Indeed, just 2 per cent of ILEX members have a lawyer for a parent. ILEX has been a real beacon in providing “second chance” professional entry that is open to people from a wider range of backgrounds than many of our learned societies. Four out of five members do not have a parent who went to university. Very few ILEX members come from traditional legal or professional backgrounds.
Yet ILEX has created opportunities while firmly maintaining the standards of qualification. There are some 7,500 fellows of ILEX, who are subject to the code of conduct and all the same expectations of professional and personal standards and commitment to their clients as any other lawyer.
This order will help ILEX to continue to act as a gateway to the solicitors branch of the profession for a wide range of entrants. From a consumer perspective, it is a step towards clients having access to those from a wider social understanding and background, mixed with common sense and empathy. Your Lordships will understand why I am so supportive of this order—I recognise that not every lawyer is—but I am confident that, overseen as it is by the Legal Services Board, ILEX and its members will show themselves worthy of the new responsibility that they are about to get with this order.
Lord Thomas of Gresford
It is a pleasure to follow the noble Baroness, Lady Hayter, in her recommendation of ILEX. We were talking earlier about social mobility. It is exactly as she says, ILEX has provided a route to professional qualifications for many people who did not have the background, and sometimes not the university background, which would enable them to qualify any other way.
In my youth, managing clerks were a very important part of the solicitors’ branch of the profession. They were highly experienced people but in those days they could not appear in court. It was always very useful to follow the advice and the instructions that they gave and to enjoy the personal connection that they had with clients. We have moved on since those days and we now give members of ILEX the opportunity to acquire audience rights, which they have exercised very competently. Associate prosecutors under the CPS have done a great deal of work that would otherwise occupy a great deal of time and money and involve qualified lawyers, which is unnecessary. I very much support this measure.
Advocacy is a skill that cannot really be taught: either you can do it or you cannot. Much of the ability to be an advocate is acquired through experience. I am sure that ILEX, in performing its training and regulatory function, will ensure that those who go into court are fully conversant not just with the law that they have to apply, and that they have the ability to stand on their feet and speak, but that they will have a knowledge of ethics because, so far as prosecution is concerned, legal ethics is a very important part of the responsibilities of the advocate. I think, for example, of the necessity to disclose fully any evidence that may be in the hands of the prosecutor which could assist the defence. These matters do not necessarily come to the mind of an untrained person. I look to ILEX to continue its excellent training function and to ensure that these associate prosecutors have the full competencies to enable them to fulfil their role. I very much support the order.
Baroness Butler-Sloss
My Lords, I also support this statutory instrument. ILEX has well demonstrated that associate prosecutors can play a part in the criminal justice system. I endorse the important points that the noble Lord, Lord Thomas of Gresford, has made about advocacy and, very importantly, about ethics.
The noble Baroness, Lady Hayter, talked about this measure being a step and a progression. I mention a word of caution in this regard. ILEX has had enormous experience with managing clerks. Like the noble Lord, Lord Thomas of Gresford, when I was a young barrister I benefited enormously from the advice of the managing clerks, who often kept me straight in court. However, if they choose to move into another field outside crime such as the civil or family field, that ought to be viewed with appropriate caution. I note that the Explanatory Memorandum to the statutory instrument states:
“The Lord Chief Justice raised a concern that any potential future extension of APs’ rights must be subject to full consultation with the judiciary and other interested parties”.
Associate prosecutors have undoubtedly gained expertise in the field of prosecution but they have not gained it in either civil or family work, with which I am much more familiar. It is important that that matter should be considered by the Legal Services Board and, indeed, by the Lord Chancellor to ensure that associate prosecutors have the necessary expertise to take that next step, which should be taken with caution. However, in saying all that, I endorse entirely the suitability of the statutory instrument.
Lord McNally
My Lords, I am very grateful to the noble Baroness, Lady Gale, for her welcome from the opposition Front Bench. I am not having a particularly good day at the Dispatch Box as I am told that I left out a very important part of my opening speech, which I will now give to the House.
At present, associate prosecutors are exempted to carry out specific litigation work under statutory designation by the Director of Public Prosecutions. However, this designation ends on 1 May this year. If replacement provisions are not made under this order, associate prosecutors will not be able to carry out unsupervised litigation work after that date. This represents a large proportion of the CPS workload in the magistrates’ courts, and direct supervision by Crown prosecutors would have a significant knock-on effect for the CPS’s higher court work. The consequences of this for the CPS, and the wider criminal justice system, would be considerable.
The forthcoming termination of the DPP’s designation of associate prosecutors was brought about by concerns expressed during the passage of the Criminal Justice and Immigration Act 2008 that associate prosecutors are not independently regulated or subject to a professional code of conduct. It was intended that arrangements should be made to bring them within ILEX’s regulatory and professional framework since ILEX is already an approved regulator for other reserved legal services. Therefore, a voluntary arrangement was made between the CPS and ILEX in 2008 which requires associate prosecutors to become members of ILEX in order to be designated by the DPP. In practice, therefore, all associate prosecutors have been subject to regulation by ILEX since that time. In essence, this order simply places that arrangement on a statutory footing.
I am grateful for a number of the comments that were made, particularly from the noble Baroness, Lady Hayter, in her capacity as chair of the Legal Services Consumer Panel. I have had brief contact with ILEX recently in connection with diversity. I am very pleased that the noble Baroness put on record the diversity which ILEX already represents, and to which other parts of the profession still aspire. It is important that we recognise that in its work and in these new responsibilities.
The noble Lord, Lord Thomas of Gresford, echoed that support for ILEX as a route to gaining professional qualifications and pointed to its success in promoting social mobility. That again echoes our earlier discussion. However, he gave a warning about the importance of training within ILEX. I am told that the training of prosecutors is to be conducted in accordance with ILEX’s rights of audience and litigation certification rules. AP qualification courses will be provided by the CPS. ILEX has satisfied itself that the CPS training programmes are fit for purpose. Under the memorandum of understanding, ILEX or persons appointed by it will periodically review the AP training programmes and assessment materials to make sure that they meet the criteria in the rights of audience and litigation certification rules. The CPS will notify ILEX of any proposed changes to its training programmes or the development of any new training modules. ILEX will review such materials to determine whether changes are consistent with the criteria in the rules.
The noble and learned Baroness, Lady Butler-Sloss, also made an interesting intervention. I am fascinated by the tributes that she and the noble Lord, Lord Thomas of Gresford, paid to managing clerks. My experience of this area is as an avid watcher of the recent television series “Silk”, in which the clerks seem to be the key movers in dramas that put politics into the shade. Perhaps that was done to attract an audience. However, the noble and learned Baroness put on record a matter that I will take back to my right honourable friend the Lord Chancellor. She said that the ambitions of ILEX to move into civil or family areas should be “viewed with caution”. I am sure that that will be the case as regards my right honourable friend the Lord Chancellor and other parts of the profession, although from what the noble Baroness, Lady Hayter, said, ILEX is progressing in building its professional capabilities.
In anticipation of this order, ILEX has already submitted an application to the Legal Services Board to enable it to allow suitably qualified members to conduct litigation in civil and matrimonial matters. However, the Parliamentary Under-Secretary of State for Justice has undertaken to draw to the Legal Services Board’s attention all the points made when this order was debated in the other place, so that the board can reflect on them in its consideration of ILEX’s application. I am happy to do the same in respect of this evening’s debate, in which a number of colleagues have made useful comments that will be of advantage to the Legal Services Board when it looks at this matter.
I hope that the debate has served to demonstrate that the specific arrangements made by ILEX, as an existing approved regulator, are appropriate for the purpose of authorising associate prosecutors in the conduct of litigation. Certainly I am satisfied that this is the case, based on the recommendations made by the Legal Services Board. I commend the order to the House.
Motion agreed.
Baroness Anelay of St Johns
My Lords, noble Lords will know that Whips are multitasked. However, I feel that I would be trespassing on the indulgence of the House if I sought to take such an important amendment. Perhaps I might suggest that the House do adjourn during pleasure for—in fact, not even for a few seconds, because my noble friend Lord Wallace has timed his arrival to perfection.
European Union Bill
Lord Williamson of Horton
“(c) following the holding of the referendum, in each House of Parliament a Minister of the Crown has moved a motion that the House approves Her Majesty’s Government’s intention to ratify the treaty, and each House has agreed to the motion without amendment.”
Lord Williamson of Horton
My Lords, I declared an interest at Second Reading and I now rise for the first time in Committee to speak also to Amendments 6, 13 and 14, which are in my name, and to similar amendments in the name of the noble Baroness, Lady Symons of Vernham Dean. So far today, I have been in the minority: that is to say, the minority that did not interrupt the Minister, the noble Lord, Lord Pearson of Rannoch, or the noble Lord, Lord Stoddart of Swindon. However, by the time we have dealt with this amendment, I hope that I will be in the majority. That is my plan, and I hope that we will begin to get a good deal of agreement on the amendments in this group.
I see the amendments as a normal part of scrutiny. We had a few discussions earlier today about whether some amendments were very broad and went beyond scrutiny. I consider that these amendments are a proper part of the scrutiny of a Bill that has been through the other House.
A prime purpose of the Bill before us is to establish a referendum lock in relation to the potential transfer of power or competence, as discussed, from the United Kingdom to the European Union. I think that this will not give rise to any referendums—or at least to very few—because the UK Government will simply not take the action that would trigger a referendum. However, we cannot be sure what the situation will be in future Parliaments or future Governments, and, although I do not expect it personally, it seems that we could face a blizzard of referendums. For that reason, I consider it important that we should decide the conditions for the application of these referendums so as to ensure the confidence of the British public in their results.
All the referendums that might arise under the Bill would be mandatory. To this extent, they would be a form of referendum government, as opposed to the parliamentary government to which we are accustomed. Amendments 5 and 13 would reintroduce Parliament from the cul-de-sac where it is at the moment under the Bill. The amendments would ensure that, following a referendum, it was necessary for a Minister to move a Motion in Parliament approving the intention to ratify the treaty and for Parliament to agree it. That is a change from the Bill and it goes further than Amendment 6, about which I shall now say a word.
With Amendment 6 go Amendment 14 and the amendments tabled by the noble Baroness, Lady Symons. It is possible that some of the referendums would be on important issues that would be likely to attract the attention and votes of a significant number of citizens. However—we have been over this ground to some degree—other issues set out in the Bill are certainly less important, and the British public might be relatively indifferent and not vote in significant numbers. Looking at the list of items, I must say that I would find it very difficult to enthuse the British public to vote in a referendum on them, and that is why I put forward Amendment 6. It would establish that, if the number of votes in a referendum fell below 40 per cent of the electorate, the referendum would still be valid but it would be advisory to Parliament, which would take the final decision.
Noble Lords will be familiar with the proposal in this amendment because this House discussed at length and passed a similar proposal on the Parliamentary Voting System and Constituencies Bill, which was moved on that occasion by the noble Lord, Lord Rooker. He has established himself in the pantheon of those dealing with the constitutional effects of referendums and, with this amendment, I have the modest hope of following his example. Of course, I have the confidence and hope that this House, having voted for this very approach only a few weeks ago, will not hesitate to do so again in relation to Amendment 6. There is nothing like having consistency in the House and I hope that we will be able to see it in force again when we deal with this matter in the EU Bill.
That is a very simple presentation of these amendments and, in my view, they are quite simple in their purpose and are not entirely a European Union matter. They also concern how we handle referendums, which I consider quite important and on which I have quite strong views. I voted the way most people did in this House on the previous occasion and I hope that these amendments will commend themselves to the Committee. I beg to move.
The Deputy Chairman (The Countess of Mar)
I have to tell noble Lords that if Amendment 5 or Amendment 6 is agreed to, I cannot call Amendment 7 because of pre-emption.
Lord Davies of Stamford
I support the noble Lord’s amendment. I am not someone who likes referenda at all, in any circumstance, and I have always made that quite clear, so I hope someone does not quote me from the past as being inconsistent in supporting this amendment. When one is scrutinising any Bill in Committee, I think we are in the business of trying to remove some of the worst disadvantages or most unattractive features of a Bill so that we end up with something a little better than what is originally presented to us.
I totally agree with the analysis of the noble Lord, Lord Williamson, that the way in which, and the purpose for which, the Bill has been set up would not lead to a large number of referenda. It is completely impractical and inconceivable to have endless referenda often on very petty subjects. I made that argument at Second Reading and I note that the noble Lord, Lord Williamson, agrees with that. The result is that we will not have many referenda. I will not read from Schedule 1 again, as I did that earlier in today’s proceedings. I read out a different list of examples at Second Reading to prove the same point and to show how very inconsequential for the great majority of the public a lot of these issues—on which the Bill provides that we should have referenda—would be if any decision were taken about them or about the decision-making process to be used in relation to decisions made under them. Those sorts of issues—this must be the greatest understatement of the evening—would not enthuse the public.
I know perfectly well that the good people of Lincolnshire are second to none in their civic sense and their support for the democratic process. All of us in this country are very proud of our parliamentary traditions and are worried that in recent elections, there has been a circular decline in the participation rate of the electorate. However, if we present to the electorate the sort of issues in Schedule 1 and ask them to try to master the subject—or to form any view on it at all—and then to take time out from their leisure-time or working-time activities to turn out at the polls to cast a considered vote on these subjects, we are being not only completely unrealistic but deeply insulting to them. They would say, “That is what we elect you to Parliament to decide.”.
The result would be that only the very small number of people—one might refer to them as anoraks, but perhaps that would be disobliging—who are enormously enthusiastic about some arcane or technical aspect of the European Union or some other subject thrown up by one of these referenda would vote. We could have incredibly low participation rates. We could easily have participation rates of less than 20 per cent. If noble Lords read Schedule 1 and ask themselves what proportion of the country would be prepared to spend their private time on those issues, we could easily come to the conclusion that we will be lucky to get 10 per cent of the electorate turning out.
It would be monstrous if we took a decision that would have important practical consequences in relation to the matter under review on that basis. It might have even more important knock-on consequences if we were unable to take part in a major initiative which our partners in the European Union thought was essential because of the way the world was moving in whatever field—the economy and the single market, the environment or law, justice and home affairs. It might have considerable consequences on our influence and position in the European Union or our ability to defend our interests in the world generally if we could not go along with what was obviously a sensible initiative.
To leave the matter in the hands of that tiny minority of the electorate would be to treat those issues frivolously and irresponsibly. If we have to have those referenda—I repeat that, personally, I think that the whole idea is fundamentally misconceived—the mitigation of the situation proposed by the noble Lord, Lord Williamson, is about as good as could be devised in the circumstances. I therefore hope that the amendment is given the most sympathetic treatment and support in this House.
Lord Hurd of Westwell
My Lords, I may not be alone in your Lordships’ House in feeling a little weary that, after all this time, two things which could be kept separate have been inextricably mingled together: the question of holding a referendum and the question of the British position in and policy towards Europe. This has been dragging on in one form or another for a long time now.
It is almost 17 years to the day since I had a message from the then Prime Minister, John Major: would I undertake a delicate mission for him, which was to sound out his Cabinet one by one on the proposition of committing the party to holding a referendum, should we decide to enter the euro? I knocked on various doors: I knocked on the doors of enthusiasts; I knocked on the doors of sceptics. I had to report to the Prime Minister that there was no support for the proposal. He and I were the only people who supported it, and I was getting a bit wobbly. Two years later, in 1996, he managed to rally a sufficiency of the party and colleagues to put that in our manifesto. That started the whole process. Tony Blair followed suit, and so it went on. That whole connection between the two things took shape and has been with us ever since. There is something to be said for trying to separate them, but we cannot.
I am as realistic a politician as anyone here. I understand the political urge; I understand the coalition document; I understand why my noble friend Lord Howell utters the words “coalition document” almost with the tone of one approaching an altar. I understand the realities of the situation, and they require a measure of this kind, but if we could find some way of mitigating it—to use a phrase which has already been used—then we should try to do that. Some way of reasserting at any rate the concept of a parliamentary democracy, in which it is Parliament that takes decisions on ratifying treaties, would be a step in the right direction.
Lord Stoddart of Swindon
As I understand it, Amendment 5 would restore parliamentary democracy. I think that that is about right. I understand all those who are completely in favour of parliamentary democracy untrammelled, and it is difficult to argue against it. However, if you have agreed to a referendum and the people say one thing and then Parliament says another, you are back where you started. Quite frankly, I think that that would cause outrage and undermine the authority of Parliament. If Parliament has agreed that there should be a referendum of the people, the people should decide. After all, in the last analysis, one way or another, the people are the ultimate sovereign. So I cannot support Amendment 5.
Amendment 6 is different. As I understand it, it says, “This is a great issue and you should expect people, citizens, to take an interest in it and come out and vote”. The figure of 40 per cent is pretty low. Of course there are precedents, and as the noble Lord, Lord Williamson, mentioned, only a week or two ago this House voted for such an amendment. On AV, it would be very difficult for the House to go back on something on which it decided a few weeks ago. It could apply in this Bill. I well remember the 1977 referendum in Scotland when—
Lord Stoddart of Swindon
Yes, it was in 1979. There, the 40 per cent threshold was introduced by a few people who were not very much in favour of Scottish devolution, and the proposal did not pass because of the 40 per cent. That was accepted by people. Of course, eventually, the campaign for Scottish devolution won on a reasonable and substantial majority. I am afraid that I would be against Amendment 5, but I would be very happy to support Amendment 6.
Lord Hannay of Chiswick
My Lords, I find myself in the unusual position of agreeing with half of what the noble Lord, Lord Stoddart, said and the very usual position of agreeing with absolutely everything that the noble Lord, Lord Hurd, said, which is not surprising because I have been doing that for a long time. I should like to make two or three points. First, the Government owe us a clearer reaction to the views of the Constitution Committee of this House on referendums in relation to this Bill. At Second Reading, we heard nothing about it whatever. We have not heard a single response from the Government to the report of 17 March. I really think that we must now ask that the Government state their position clearly. Of course, they stated their position on the Constitution Committee’s report of last October when we had a debate. It was rather a long time ago, so perhaps they could refresh our views on that.
This matter is important because the 17 March report stated that referendums should be used only for major constitutional issues. In the view of the Constitution Committee, a large number of the issues put into this Bill as having the potential for a referendum did not fulfil that criterion. I really think that the Government need to state why they are rejecting the advice of the Constitution Committee in that respect. I would be grateful if the noble Lord would say something about that.
Secondly, I am not sure how well it has sunk into everyone’s minds that this Bill in its approach to referendums is totally different from any legislation that has provided for a referendum in this country before now. Up to now, we have had referendums on the European Community in 1975, on Scotland, on Wales, on Northern Ireland and now on AV. Every one of those was a separate piece of primary legislation that laid down the precise conditions and circumstances in which the referendum was to be taken. However, this is a blank cheque for referendums—referendums a-go-go. Some of them are no doubt on matters of considerable importance and some of them on matters of lesser importance. The point is that if we pass this Bill in the form that the Government have proposed, we are taking a major step towards plebiscitary democracy and away from representative parliamentary democracy. We should have absolutely no illusions about that. It is completely different from the situation with the other referendums, and they cannot be quoted in any way to defend the Bill because this situation is quite different.
I would like to make a further point to the Minister and to his colleague, who is now unwell. I feel very bad about that because we gave him a rather hard time before the dinner break. Now that I know he was not well, I wish that we had not. However, he used this argument again and again, as did the noble Lord at Second Reading. I do not doubt the sincerity with which they say that the purpose of the legislation is to reconcile the British people with the European Union better than they are currently. Their analysis of the problem in this country is absolutely correct, but their prescription for a solution is completely incredible. It is just not believable that holding a series of referendums on the European Union is going to make the people feel more favourable about the European Union than they do now.
In fact, the exact contrary is likely to be the consequence. I know that it is not the consequence that the Government wish to see or which they are aiming for, but having lived through the saga of Britain’s relationship with the European Union for about the past 40 years, that is what is going to happen. We saw it in 1975 when the protagonists of the referendum, Tony Benn and others, assured us that once the referendum was over it would all be finished and we would be happy kittens in a basket. Two days after the referendum, they were campaigning for another one to reject any further integration into the European Union, or whatever it was. Frankly, this is not credible. The Government’s story does not hold water.
I accept that the solution put forward by my noble friend Lord Williamson is only a palliative, but it is an important one. It would meet the point that we were not slipping down the hill towards a plebiscitary democracy because we would leave Parliament in charge from the beginning of the process to the end. I am sure that, if there was a large majority from a large vote against something, there is no way in which the Government of the day would then ram the thing through. That is just not credible. But if the vote was small, it would be quite right for Parliament to take the final decision, and that is what the amendments tabled by my noble friend would achieve. I think that some combination of the thrust of his two amendments, to make the referendums advisory and to set a 40 per cent threshold, would be the best way of limiting what otherwise could be a serious attack on the way in which this country has been governed for several hundred years.
Baroness Williams of Crosby
My Lords, I add briefly to what the noble Lord, Lord Hannay, has said by making a couple of additional points. The first is that in many ways this Bill expresses a lack of confidence in representative democracy, which troubles me quite profoundly. Of course we know that we already have issues surrounding the faith and trust of the electorate in us. For Parliament itself to say that it cannot be fully trusted with issues of such importance when it has made a thoughtful and deliberate decision, when that decision has been subjected to discussion both in this House and in another place, and when constituents have been duly consulted so that all that can be set aside by a referendum that might have had a very small number of participants, is not only risible but is extremely dangerous politics. That is one of the reasons why the argument for 40 per cent is so strong.
The second reason is quite straightforward. The threshold of 40 per cent will simply discourage those who want to hold a referendum to suit their own special interests, and nothing wider than that. Rather than spend money on a referendum for which they cannot get a substantial turnout, they will decide not to press the issue.
Lord Kerr of Kinlochard
My Lords, in my heart of hearts, I take a harder position than the noble Lords, Lord Williamson and Lord Hurd. I will support their amendment because no amendment on the Order Paper delivers exactly what I want. Referendums should only and always be advisory. The idea of a mandatory referendum is fundamentally destructive to the principles of parliamentary democracy. The noble Lord, Lord Hannay, said that what we have here is a palliative; I would rather have a cure.
First, I would cite the noble Baroness, Lady Thatcher, in support of what I have just said. It was a great pleasure to hear the noble Lord, Lord Hurd, tonight. He and I both experienced how rash it was to disagree with the noble Baroness, Lady Thatcher, so I wish to agree with the view that she expressed in the debate in 1975 on the Referendum Bill that the referendum should only be advisory and that if it were mandatory it would be destructive of parliamentary sovereignty.
An additional argument concerns timing. An advisory referendum, and possibly even a mandatory referendum, would not be quite so objectionable if it preceded the negotiation of the change in the EU texts to which the Government had agreed.
I was very much against the idea of a referendum on the euro in 1994—I do not remember that my opinion was sounded; quite rightly, it was not—but that was not quite as bad as what is foreseen in the Bill. If we were now to decide that we wished to join the euro, that would be followed by a negotiation with our partners that are now in the euro and might or might not result in our joining the euro. The Bill states that at the end of the process in Brussels—when the Government have extracted concessions from others around the table and a consensus has been found, the decision has been brought back and is acceptable to the Government and to Parliament—a referendum should decide whether we renege on what we have done.
The concept of interlocuteurs valables is quite important. When an ambassador is received by the state to which he is accredited, he presents his credentials. When the Foreign Secretary or his side-kick start a negotiation in Brussels, it is accepted that they speak for their Government. It then follows that if they do a deal, their Government will not renege on it. So when in the end a deal a struck—if one is struck—all participants are pledged to deliver it.
I was shocked when the French referendum on the constitutional treaty did not lead to resignations in the French Government. The people who negotiated the text which the French decided to reject should immediately have resigned. However, there may be a difference between a presidential and a parliamentary system of government; a president can stand away from an issue and blame the Government. You cannot do that here. If in a referendum on some arcane issue—which, on the basis of the Bill, might be decided on a very low turnout and a very low majority—we decided that we were going to renege on the deal that had been done and the text that had been initialled in Brussels, I would hope that the Ministers who had initialled the text and those who had negotiated for them would resign. They would have to.
Whether a referendum is mandatory or advisory depends in part on when it is. Here we have the worst case; under this Bill, all referendums will be after the negotiations. They are all linked to treaty changes and to a process that has taken place in Brussels; the outcome is brought back and the decision is taken on whether it should go to a referendum. If the referendum finds against the Government, it should lead to the resignation of the responsible Ministers. In honour, they would have to do that.
The noble Lord, Lord Hannay, earlier quoted tellingly from Jean-Claude Piris’s memorandum to the Commons European Scrutiny Committee about good faith. He spoke about the implications of adding new hurdles to the simplified treaty revision procedure. There is a bigger issue of good faith here. We are going to send our negotiators to negotiate and, when they have completed the job, they will carry on and there will be no change unless the country votes for it. I would much prefer an amendment that makes it purely advisory—a Thatcher amendment. There is no Thatcher amendment on the Order Paper now. I therefore support the amendment proposed by the noble Lords, Lord Hurd and Lord Williamson.
It is a huge delight to find myself in agreement with what the noble Lord, Lord Stoddart, said about Amendment 6; he is completely correct. As to what he said about Amendment 5, the two go together. It is a technical point and I do not think that there is a difference. Amendment 5 is a necessary consequence of Amendment 6, but the noble Lord, Lord Williamson, will correct me if I am wrong.
Lord Williamson of Horton
Amendment 5 would establish an advisory referendum in all cases and not only in the case where there was the 40 per cent threshold. The distinction made by the noble Lord, Lord Stoddart, was quite intelligible and clear. Amendment 6 would establish the advisory nature of the referendum when the turnout was below 40 per cent. The noble Lord, Lord Kerr, will be glad to hear, because he supported Amendment 5 without quite understanding it, that it would establish an advisory referendum in all cases.
Lord Kerr of Kinlochard
I have no more to say except to share the hope of the noble Lord, Lord Hurd, that the Minister, if he grumbles at all, will do so in the most mild and polite form.
Lord Foulkes of Cumnock
I am sure that, if the noble Lord, Lord Kerr, put down what he described as a “Thatcher amendment” on Report, he would find a lot of support for it. We will have another opportunity for looking at that. Returning to the intriguing speech of the noble Lord, Lord Hurd, and the almost exciting start when he described what John Major had asked him to do, I thought that we were going to get revelations about when John Major questioned the parental legitimacy of some of his Cabinet over Maastricht. I am sure that that would have been equally interesting.
We should go back to the eloquent speech made by the noble Lord, Lord Deben, in the debate on Amendment 1. He questioned, as have a number of noble Lords in this debate, the whole purpose and legitimacy of referenda in our parliamentary democracy. I thought that he put that well and I share a lot of his concerns, particularly in the context of the two Scottish referenda, which the noble Lord, Lord Stoddart, mentioned. He said that, in 1979, we did not get the required 40 per cent. We had to get 40 per cent of the electorate in favour as well as a majority of those who voted, on the basis of an amendment by George Cunningham that had been agreed by the House of Commons. Then, in the referendum in 1997, we got a substantial vote in favour of Scottish devolution.
We may have had a better campaign in 1997 and people in Scotland had perhaps moved on in their thinking, but one of the main reasons for that change is that people do not always vote in referenda on the question on the paper before them. They vote for a whole range of extraneous reasons. As I am sure everyone remembers, in 1979 the Labour Government were not at their most popular whereas, when we put the question forward in 1997, that immediately followed the great revolutionary result that saw Mr Blair become Prime Minister. It was a very popular Labour Government. People were perhaps influenced by all these other extraneous things. That is the case in referenda in general, which is one of the reasons why I share the suspicions about them. They should be use rarely and sparingly in our constitution, if at all. I have gone along with that.
I was much in favour of our membership of the European Union in the 1975 referendum. That was the first referendum and it was on a major issue. The noble Baroness, Lady Williams, and I campaigned strongly on the same side and, back then, for the same party. We had a huge campaign and it was a major issue—the crucial issue of our continued membership of the European Union—not just some trivial little matter included in this Bill.
Lord Wallace of Saltaire
My Lords, perhaps I might interject that I was discussing with one of my Conservative colleagues the other week the question of Britain’s position in the world. He said that we should stop talking about decline and talk about adjustment, to which I replied that, having just had my 70th birthday, I am entering a period of adjustment.
Lord Phillips of Sudbury
My Lords, I start from a position of being strongly in favour of this country of ours remaining part of Europe. I think that it would be a disaster were we to come out. However, from what I have heard on this amendment, I believe that the Committee may underestimate the widespread scepticism in the country. Secondly, although I do not like saying it, there is a widespread scepticism about the ability and willingness of Parliament to protect what it views as its interests vis-à-vis the European Union. I have heard several Peers refer to trust in us and the need therefore not to have referenda or, if we have them, for them not to be binding or for us to insist on at least 40 per cent of the electorate turning out.
I speak as one who founded a charity, of which I am still president, called the Citizenship Foundation. We work with over half the state schools in the country and have done for over 20 years. We have worked assiduously to try to staunch the lack of adhesion to the European ideal among young people. For example, we put out the only guide to Maastricht that was readable and accessible to ordinary folk. For my own part, I have to say that there is a severe lack of trust in Parliament in this country among a great number of our fellow citizens. They look at the House of Commons and see, night after night, week after week and month after month, votes determined not by the honest opinions of the MPs who sit there but by the party Whips, who drive the MPs through like sheep. You may say that in this House the party Whips have too much power, but at least there is a Cross-Bench element that is totally independent, while all of us sitting here tonight would say that we will not be driven beyond a certain point.
If we have referenda and then we—not Parliament as a whole but each House of Parliament—say to the people of this country, “It doesn't matter what you decide, old folks. We will have the right after you have voted to say whether the vote should stand”, what can the people of this country possibly think about that arrangement? How can that salve the mistrust? How can it shore up public support for the European Union, which I suspect most of us in this House want to see? It cannot, in my view. I concede that I have unease about the scale and number of referenda that there might be, although the good and noble Lord, Lord Howell, said that they would be very few and that they would be clustered. However, if we are to entrust the people of this country with referenda, the worst of all worlds seems to me to be that they should be held on a basis where we can dispense with the outcome in either House.
Despite the fact that any of the parties in this country can get behind a referendum on either side of the debate as they choose, we will in effect be having a second bite at the cherry. Should we then say to the people of this country, “If 40 per cent of you do not go to the polls, we again have the right to dispense with the whole business”? We vote constantly in this House without having a 40 per cent threshold. It counts. Countless numbers of local elections do not reach a 40 per cent turnout. They count. Yet we have the temerity to try to impose these two conditions. For my money, that would be the worst of all worlds.
Lord Richard
My Lords, I have listened to the noble Lord, Lord Phillips, with great interest. He is about the only speaker on the other side of the House who has had a good word to say about the Bill in any shape or form, and even he was fairly grudging when he did so. It reminds me a little of the story of the man who was going through the courts in a civil action and lost at first instance. He went to the Court of Appeal and lost there; he went to the then House of Lords and lost there too. When he came out he turned to his counsel and said, “Where do we go next?”. His counsel looked at him and said, “You know, we should breed from you”. The noble Lord’s is about the only support for the Bill that we have heard either at Second Reading or today.
I start by making it clear that I do not like referendums. I believe basically in parliamentary democracy—that is what this country has lived with now for many generations and I hope that it will go on doing so for a large number of generations to come—so I do not approve of a situation in which it is felt for one reason or another that it is necessary to consult the electorate in the way that, for example, the Swiss do. I have some knowledge and experience of Switzerland, and I am bound to say that I find the extent to which they hold referendums there extraordinary. The polls are not very high; people do not take a great deal of interest in them. Occasionally there is an issue that excites people, in which case there is a proper contest. As the noble Baroness, Lady Williams, said, it is the same in the United States: if you see all the issues that are put on the ballot papers, you realise that it is consultation gone mad, to the point where it is distorting public opinion. So I do not like referendums; I am in favour of parliamentary democracy.
Let us look at the Bill. If we pass it and it becomes law, what are we going to be faced with in terms of referendums? It is all very well for the noble Lord, Lord Howell, and I am sorry that he is unwell, to stand here and say, “It doesn’t matter; there aren’t going to be any referendums anyway because this deals only with trivial issues and no one is going to have referendums on that sort of thing”. I do not believe it. I know exactly who would want referendums on that sort of Bill; one usually sits on the Benches behind me and the other one sits down at the other end of the Bench below the Gangway. Of course they want referendums. The scope for judicial review proceedings is considerable. If I were a practising barrister, which I no longer am, I would say in terms of the future of my profession that on the whole this would be a Bill to be welcomed as there will be a lot of work in it for members of the Bar, but that is not a good thing.
If this is going to be only about trivia, why on earth are we legislating? Either it amounts to something or it does not. If it amounts to something, I am against it; if it does not amount to anything, we should not be doing it. What is the point? This is an edifice that has been erected for political purposes that will do serious damage to our constitution.
Baroness Falkner of Margravine
My Lords, it is tempting in Committee to refer to the several speeches that have been made before your own. I will try to refrain from that and speak to the amendment. Before I do, though, I say to the noble Lord, Lord Richard, and several of the other speakers who said that they had not heard anything from these Benches on Amendment 1 that it was only courtesy that made me hold back. There were several names to that amendment on the Marshalled List, one of them from within Liberal Democrat ranks, and I was holding back to hear from noble Lords whose names were on the Marshalled List. As I was about to get up to impart my pearls of wisdom to the Committee, the noble Lord, Lord Richard, got up and said that he had had enough and he wanted to hear from the Front Benches. It was only out of respect for the noble Lord’s diktat that I sat quietly and said nothing on Amendment 1. It was not that we had nothing to say; the unpredictability of that invigorating debate was what held me back. I will speak for myself.
Lord Richard
The noble Baroness has used the word “deference” perhaps three times. Who on earth has talked about deference? I did not mention the word and I have not heard it mentioned in this Chamber this evening. What on earth is she talking about?
Baroness Falkner of Margravine
I think that the noble Lord, Lord Richard, knows exactly what I am talking about, and what I am talking about is trust. I am talking about an attitude. He can read Hansard as well as I will tomorrow, and he will see that I said that there was a tone—I did not suggest that the word “deference” had been used—in proceedings earlier this evening, and the tone is, “We know best”.
Lord Hannay of Chiswick
I am most grateful to the noble Baroness for giving way. I really think that she ought not to use this term “deference”. If I understand it rightly, this House is part of the legislature of this country and has a voice to express views on matters and to take decisions. We are not asking for the people of this country to express deference; we are expressing a view about the constitution of this country. That cannot be dismissed by accusing people who say that they are against referendums of camping on deference. I would like, frankly, to abandon that thought, which I do not think fits in our constitutional practice.
Baroness Falkner of Margravine
My Lords, again, I have to say that I think that when we say that we are giving up representative democracy in favour of plebiscitary democracy, we are on ground which is difficult to explain out there in the media. In the debate on Amendment 1, the noble Lord, Lord Kerr of Kinlochard, said that it was undoubtedly true that the public did not trust Parliament on EU matters to the extent that they had done in the past, and that there was a disconnect—
Lord Kerr of Kinlochard
I did not say that. I said that I shared the view expressed by the noble Lord, Lord Howell, that the public at large have become less convinced of the merits of the European Union. I said nothing about Parliament and its role in relation to the process.
Baroness Falkner of Margravine
I thank the noble Lord for reminding us of his exact words. It will be useful to read Hansard when it comes out. I completely accept that his version is probably the appropriate version of what was said. However, I will pursue the point I am making for another second or two. I say this particularly in response to the noble Lord, Lord Hannay. It is pretty difficult to justify the idea that an unelected House of Lords, which is absolutely part of the constitutional framework, should deliberate at length about whether the public are capable of making a judgment on matters of considerable significance—that is how they see them according to opinion polls—but that we should then disregard that, as this amendment would do, by saying, “We will have a referendum, we will come back and we will disregard it”. That is my opinion, which I am sharing with the Committee as other noble Lords have done.
I come back to the other element in this group of amendments, which is the 40 per cent threshold. I think that noble Lords will agree that you could get a very low turnout—perhaps it was the noble Lord, Lord Clinton-Davis, who mentioned something like 20 per cent. However, given that the public are being asked to express a view on the matter, it would be odd subsequently to overturn the Act of Parliament which had determined that the change should go ahead simply because the turnout was low. The need to gain a particular threshold would set another hurdle for the Minister to jump over. I am not completely opposed to the figure, but it is rather curious that it is 40 per cent.
I also think it rather curious that we would be saying, “If it is 39 per cent we will not accept it, but if it is 41 per cent we will”. It is an arbitrary figure. We could select any arbitrary figure, and I do not understand where the 40 per cent figure comes from. If a Minister had signed up to a change and we had an Act of Parliament, it would be incumbent on the Government to sell their viewpoint. That would be set out in the statement and in the reasoning given in the statement. As for the suggestion that the failure to convince 40 per cent of the public to vote in favour might result in the resignation of Ministers, I think that, in that case, that would be the honourable thing for Ministers to do. As the Bill stands, however, there is no threshold. It simply states that if,
“the majority of those voting in the referendum are in favour of the ratification of the treaty”,
that is the way to go.
Lord Grenfell
I apologise for not hearing all the introduction of the noble Lord, Lord Williamson. I was searching for Sir Patrick Nairne’s commission’s report on referendums issued 15 years ago. I found what I wanted; it is on the subject of thresholds. He said:
“The main difficulty in specifying a threshold lies in determining what figure is sufficient to confer legitimacy e.g. 60%, 65% or 75%”.
Forty per cent is modest to the point of indulgence. I cannot understand why anyone who is considering Amendment 6 would think that a threshold of 40 per cent of those entitled to vote was more than they could bear. It seems a big concession. Sir Patrick said in a footnote:
“A turnout threshold may make extraneous factors, such as the weather on polling day, more important”.
I have always been very suspicious of people who start talking about the weather in relation to polling, because it can work both ways. If it is pouring with rain, people tend to stay at home; if it is a beautiful, sunny and warm day, they can find external activities more interesting than going to a polling station. That theory does not work well.
My second point is that the Government cannot have it both ways. If you want to resort to a simple plurality in a referendum, you should bear in mind that the general sentiment in Parliament, and perhaps outside, is that major constitutional change should be the result of something more than a simple plurality. The obverse of that is that matters subject to a simple plurality cannot be quite so important. The Government cannot have it both ways. If they resort to a simple plurality, it suggests that they would consider the subject of a mandatory referendum as being of high constitutional importance. If it is not deemed to be of high constitutional importance, why is there the need for a mandatory referendum?
I am against referendums in general, but the idea of having a simple plurality for something that the Government do not consider to be of high constitutional importance is, quite honestly, unacceptable.
Baroness Nicholson of Winterbourne
My Lords, I am one of those who the noble Lord, Lord Foulkes of Cumnock, has not recognised this evening. I support the Bill, and I made that plain in an earlier debate. I wish to stress that again, because it appears that somehow I am Miss Invisible to the noble Lord, despite our long friendship.
Lord Foulkes of Cumnock
The noble Baroness is absolutely the last person who would be Miss Invisible to me. I have the greatest respect and admiration for her. If I went further, I would embarrass both of us. I can only apologise for not recognising her. Unfortunately, on this occasion, I must disagree with her profoundly on her judgment. Otherwise, she is wonderful.
Baroness Nicholson of Winterbourne
The noble Lord is of course a gallant Scot and turns a beautiful compliment. However, I have to disagree with many noble Lords on this batch of amendments, despite the eminence of those who have spoken for them, including the noble Lord, Lord Hurd of Westwell, whose work and leadership in politics I have followed all my life. Indeed, I have to disagree with even the noble Lord, Lord Hannay, because I believe I am correct in saying that the Government have answered the Constitution Committee, but the committee has not yet made the Government’s response open to the rest of us.
I am standing because I oppose the amendments, which seem to display a lamentable lack of confidence in the British public and their capability to make up their own minds and display their views clearly if they so wish. It is absolutely true that there has been a progressive alienation of the British public from the European Union’s activities. Sadly, that is not unique to the United Kingdom. That is perhaps the tragedy of the European Union. I personally perceive it as a great success. It has brought all nations together in a most wonderful way, involving peace and reconciliation, and it grows ever larger in its mission. None the less, in every member state that I know, the turnout in European elections is dismal. Unless people are forced to, they do not come out to vote for Members of the European Parliament, which is the directly elected portion of the European Union over which the general public can have some control, and they can at least have their own choice on who they wish to elect.
However, there is a fundamental reason for that that will not go away, and it is partly why I strongly support the Bill and oppose these amendments. The fundamental reason is that the European Union is by its nature an intergovernmental body and electorates naturally do not relate well to those bodies. It is to the great credit of the European Parliament that consistently it has raised its game. It has gained more authority and more power. However, with an intergovernmental structure, the intergovernmental side also moves ahead as the Parliament goes on, and it can never quite catch up. None the less, the directly elected European Parliament has far greater powers now than it has ever had. Therefore, this is the right moment to try to reconnect the British public with the European Union mission.
Lord Tomlinson
My Lords, we have heard two speeches from the Liberal Democrat Benches— from the noble Lord, Lord Phillips, and the noble Baroness, Lady Nicholson—both seeming to blame the malaise in European politics on the absence of referenda. However, I suggest that if we want to know what created and exacerbated the disconnect between the electorate of this country and the European elections, which the noble Baroness, Lady Nicholson, talked about, the answer is that it was the rather misguided action of my own party, when in government, in changing the electoral system to the European Parliament.
Creating multi-Member regional constituencies, which guaranteed the first three or four people on the party list a place irrespective of their contact with the electorate, was a totally misguided act. It has taken European politics further and further away from the people. Under the old system, constituencies had European information systems available in their party offices. However, they have all disappeared and have become the prerogative of regional parties. You can see in the consistent decline in participation in regional elections that people have no interest in Members who gain their places almost automatically under this system. There is scepticism and cynicism in relation to European elections but it is not that people regard them as unimportant. In my former constituency of Birmingham West, the turnout at the last direct elections that we had with single Member constituencies was just short of 40 per cent. In the first election conducted on regional lists, where there was an attempt to link places such as Walsall and Ludlow, the poll dropped to 13 per cent in my former constituency. That was a sign of the scepticism and cynicism.
I was provoked into getting to my feet by the noble Baroness, Lady Williams, who took me on a walk down memory lane regarding the 1979 referendum. I remember that referendum well for two reasons. One was that I was so confident of getting a successful yes vote in that election that I went to the then parliamentary bookmaker in the House of Commons, Mr Ian Mikardo, and asked him what odds he would give me on a yes vote in every constituency in the United Kingdom. I gave him £10 of my hard-earned money in return for odds of 200:1. So uniform was the result of that referendum that it was only the outer fringes of the United Kingdom—Orkney and Shetland and the Western Isles—that led to Mr Mikardo keeping my £10 rather than me getting £2,000 back from him. There was an enormous spread.
The other thing that I remember most about the 1979 referendum which is pertinent to this issue was the number of people who told me that that referendum would produce the settled will of the United Kingdom for a generation. However, it did not produce it for a week after the election. As soon as one referendum was lost, there were all sorts of demands for other issues to be looked at. The referendum mechanism failed to settle anything, other than the position of the Government, which is what it was intended to settle in the first place.
The noble Lord, Lord Williamson, was at his persuasive best in moving his amendment. He was reflecting what, I hope, is the settled will of your Lordships' House concerning the 40 per cent threshold. The House of Lords Select Committee on the Constitution got it absolutely right in its report at paragraphs 37 and 38. As so many people have spoken since the noble Lord, Lord Hannay, mentioned those paragraphs, they bear repeating into the record. They state that,
“the European Union Bill is a radical step-change in the adoption of referendum provisions … In our judgement, the resort to referendums contemplated in the European Union Bill is not confined to the category of fundamental constitutional issues on which a UK-wide referendum may be judged to be appropriate. Furthermore, many of the Bill's provisions are inconsistent with the Government's statement that referendums are most appropriately used in relation to fundamental constitutional issues”.
The noble Baroness, Lady Nicholson, says that the Government have replied to that. They would, wouldn’t they? More important is the advice and guidance that we got from our highly respected Select Committee on the Constitution and I believe that we discard that at our peril. I hope that the House will support the amendment of the noble Lord, Lord Williamson.
Baroness Brinton
My Lords, I wish to speak against the amendments. I am grateful to other colleagues for having mentioned the 1975 and 1979 referendums. The EU referendum in 1975 was my first active campaign as a Liberal. I joined the party the year before, and I lived and worked in Scotland in the run-up to and immediately after 1979. I want to talk about the impact of that threshold in Scotland. I am very grateful to the noble Lord, Lord Foulkes of Cumnock, for the comments that he made earlier. He is right to some extent about there being an influence on where the Labour Government was in the run-up to 1979 and again in 1997, but that was not the only thing.
In 1979, my day job was as a very junior studio manager with BBC Scotland. On a couple of mornings after the election, I was the poor soul who was sent out to find vox populi on the streets of Edinburgh to talk about the election results and about the impact of the referendum. It was apparent that the people completely distrusted their politicians as a result of having spoken but not being listened to. There was certainly some shock among those people—I will not describe them as active politicians—who regularly voted. The fallout in Scottish politics in subsequent years was very evident. I have no doubt that that was why there was such a strength of feeling in 1997 when we saw real distaste in Scotland about what was happening in Westminster. The people felt disfranchised.
When a threshold is ignored there is a disconnection with the ballot box, a disenchantment with the political process and, more worryingly, a distrust of politicians. I respect the view of my noble friend Lord Hurd of Westwell, but we either have to let the people speak—however they may speak—or we can choose to have Parliament speak. There I pick up on the point made by my colleagues, that sometimes we may not have a referendum and then Parliament speaks, but once we choose—
Lord Foulkes of Cumnock
I shall not argue about the vox populi after the referendum—I might have been one of the voxes and I might have been quite populi. We keep hearing about the distrust of politicians and I wonder whether that distrust is greater when a referendum does not achieve 40 per cent compared with when Members of Parliament pledge not to put up student fees and then do the opposite.
Baroness Brinton
It is very interesting how many people think they voted Liberal Democrat in May 2010. Had they done so, we might have been the major partners in the coalition Government and not the junior partners. The key thing is not just about those who may have voted in a certain way, but the impact of the voice of the people being ignored. That is my concern and I am concerned about having a referendum overturned by Parliament. That is why I oppose the amendment.
Baroness Symons of Vernham Dean
My Lords, as your Lordships will be aware, I tabled Amendments 7, 8, 15 and 16, which are in this group. I quite understand that the issues are different in the various amendments under consideration, but I believe that it was right to put them together and that their general thrust is in the same direction. I thank the noble Lord, Lord Williamson, for the way in which he introduced the amendments, and the noble Lord, Lord Hurd of Westwell, who made his points so clearly and fully. The Labour Front Bench—and, I believe, almost all those on the Labour Benches, although I have not interviewed them all personally—supports the principles behind the amendments.
I make one thing abundantly clear. We are not, in principle, against referendums. Some of your Lordships have expressed that view; that is not the view held as a matter of policy by the Labour Party. We believe that referendums have a place in most democratic countries—not necessarily in all. That was made clear from Second Reading, when we said that we would expect to have a referendum, for example, on adopting a new currency, on leaving the European Union, or abolishing the monarchy or either House of Parliament. We believe that referendums are appropriate for issues of real constitutional importance. I do not want anyone subsequently to misinterpret my remarks on that point.
In that respect, we are at one—at least, I thought we were—with the Government, who said that they, too, believed in issues of constitutional importance being the subject of referendums. The Constitution Committee stated something very similar. That is what makes the Government’s position so implausible.
The Constitution Committee said in paragraph 38 of its report published on 18 March:
“In our judgement, the resort to referendums contemplated in the European Union Bill is not confined to the category of fundamental constitutional issues on which a UK-wide referendum may be judged to be appropriate. Furthermore, many of the Bill’s provisions are inconsistent”—
inconsistent—
“with the Government’s statement that referendums are most appropriately used in relation to fundamental constitutional issues”.
That is a difficult charge, and I hope that the Minister will address it when he answers this debate. The Constitution Committee, on which, I remind him, his party, the Conservative Party, the Cross-Benchers and my party sit, came to the collective view that the Bill's provisions are inconsistent with the Government’s stated policy on the issue.
For our part, we think that the reason for it is to hold the coalition together. It is to keep the Eurosceptics happy, while keeping the Liberal Democrats more or less so. The noble Baroness, Lady Williams, said that far more elegantly a moment ago, but I hope that her party will look very closely at what she said, because it showed an admirable clarity of approach on her part.
The question therefore arises: why should the British public be called on to support a political aim by voting, for example, on the number and system of appointing EU Commissioners, or the appointment of judges and advocates-general to the European Court of Justice, or even some decisions about the EU's competence on foreign policy, as set out in Schedule 1? The truth is that the British public will not turn out for such referendums. We all know that. We shall have a hard enough time getting a respectable turnout on 5 May on changing the voting system in this country—something which is of real constitutional importance.
Much of what is covered in this Bill as subject to referendums is Parliament’s responsibility to deal with, and that is why we are here. A threshold turnout for a decision that is mandatory is just plain common sense. If the turnout threshold is not attained, it seems to me to be also just plain common sense that a referendum should be advisory only in its impact.
The Deputy Prime Minister, the leader of the Liberal Democrats, when speaking on the Barnsley by-election brushed off the result—in which his party gained 4 per cent of the vote—by saying that a turnout of 36.5 per cent was “abysmally low”, implying that it was a fundamentally flawed turnout because of the level that it attained. Does the Minister agree with the leader of his party that a 36.5 per cent turnout is abysmally low? If he does, at what point over 36.5 per cent does a turnout in a referendum become a true reflection of the electorate’s feelings?
Lord Phillips of Sudbury
I hesitate to interrupt the noble Baroness, but I cannot help observing that the point about the Barnsley by-election was that the abysmal turnout of 36 per cent did not nullify the election, which is what the proposal here would do.
Baroness Symons of Vernham Dean
In the election of an individual Member of Parliament, however low the turnout is, it does not nullify the election, but that is not what we are talking about. We are talking about constitutional change. It is a very different point. I would have thought that the noble Lord, Lord Phillips of Sudbury, given how connected he is on these issues, would be among the first to recognise that a long-term constitutional change is very different from electing an individual Member of Parliament.
We on this side would be prepared to consider a figure that the Minister puts forward but, more important perhaps, a figure that his colleagues in another place would find acceptable—something perhaps better than an abysmally low figure. However, in order to have future treaties or treaty changes decided on a turnout, however we define what is abysmally low, the turnout must be such that it does not undermine our parliamentary system of government. Low turnouts will simply not be credible. They will not be credible to most sensible people and the British public are sensible people.
Parliament has a duty to deal with these matters. We have to shoulder our responsibilities. We cannot just run for cover when something difficult is put to us. How can the Government suggest that asking the British public to decide on the appointment of Advocates-General will somehow reconnect the British public with Europe? Plainly, it will not. It is far more likely to turn off the British public and I suspect that the Minister knows that as well as the rest of us do. Either that or we will simply revert to the point where we do not have referendums at all.
This move towards dealing with any tricky issue by means of a referendum is simply not consistent with our parliamentary democracy. As my noble friend Lord Davies of Stamford said, the turnouts would not even be of the abysmally low level described by the Deputy Prime Minister. The turnout would more likely be not abysmal but quite catastrophic—perhaps 10 or 15 per cent. That is not democratic. That is undermining democracy, at least in its parliamentary form.
Let me turn to the points raised by the noble Lord, Lord Phillips of Sudbury, who has in the past spoken passionately about reconnecting the British public and has good credentials on this issue. He spoke of the widespread scepticism in the country about protecting the UK’s interest against the EU. I agree with him that there is that view. How widespread and how deep is the scepticism may be a matter of debate between us, but he has always aspired to the dissemination of information about Europe and he spoke about those points with great eloquence at Second Reading.
Four speakers spoke in support of the Government’s position on this—the noble Lord, Lord Phillips, and the noble Baronesses, Lady Nicholson, Lady Falkner of Margravine and Lady Brinton. It was perhaps noticeable that those were the only four and they may give some comfort to the Minister. However, he will also note, as we do, that the position of the Liberal Democrats is at odds with how they voted on the possibility of a referendum on the Lisbon treaty.
The noble Lord, Lord Hurd of Westwell, said that this was a wearisome business. At this time of night, I think that we all sympathise with his sentiments. He told us that there had been a time when only two members of the Major Cabinet had supported the use of a referendum and that he, as one of them, was “a bit wobbly”. I do not believe that dealing with the coalition document should be anything like “approaching an altar”, as he described it. The point about the coalition document is that it was never put to the British public. The noble Lord said that the significance clause was perhaps a way out of the problem but, as we discussed earlier today—although many of us may feel that it was quite a long time ago now—the significance clause will in itself probably be the subject of huge controversy and no doubt of judicial review, too.
Therefore, I hope that the Minister will agree with his experienced and wise friend, the noble Baroness, Lady Williams, that on any issue a turnout of a very low proportion of the population really cannot trump the views of Parliament. Let us suppose that the turnout is only 10 per cent or 15 per cent. Why should that view trump the views of a Parliament that was elected by perhaps 60 per cent or 65 per cent of the electorate? How is that by any measure conceivably democratic? How is it right? How is it rational?
The noble Lord, Lord Stoddart, says that people must be listened to. Of course they must be, but they must be listened to if a turnout is of significant numbers of the public to express a view. It has to be a number that can be interpreted as a national view on the issue that is under consideration. However, if the turnout is very low—abysmally low, for example—those views should be only of an advisory nature. The noble Baroness, Lady Williams, was right when she said that the Bill expresses no confidence in parliamentary democracy. If the Minister will listen to no one else, surely he will listen to the noble Baroness with all her experience. Surely he, who rightly voted against a referendum on Lisbon, can see the force of this argument.
The noble Baroness, Lady Falkner, says that the tone of the debate was one of “We know best” and of expecting deference. I have to say to the noble Baroness that I really did not recognise that in the debate today. I was sorry that she said what she did. I thought that she put words into the mouths of others in a way that was simply not sustainable by reference to what noble Lords had actually said.
I agree with the noble Lord, Lord Kerr, that referendums for the most part should be of an advisory nature. He said that they should be on every occasion. I think that on occasions there are points where they may be accepted on a mandatory basis, but only in exceptional circumstances.
Lord Wallace of Saltaire
My Lords, I think the time has come for me to grumble quietly. We have had a range of interesting speeches in what has been a high quality debate, although there was a point, when the noble Lord, Lord Davies, was talking about anoraks, when I thought that a good definition to look for in a political anorak was that of someone who wishes to return after dinner to a two-hour discussion of arcane issues of constitutional procedures and international engagement. We recognise that we are all part of the political anorak class.
We have ranged over parliamentary sovereignty, parliamentary democracy, political trust, the problem of trust in Parliament, and whether we are putting representative democracy at risk, as at least one noble Lord said—I think it was the noble Lord, Lord Hurd. We have to recognise that the concept of parliamentary democracy, about which the noble Lord, Lord Hurd, spoke so passionately, is to some extent at risk. In Britain, as in other European countries—a point made by another noble Lord in the debate—we have more educated but at the same time much less trustful electorates. How the political elite responds to and works with our mistrustful electorates is part of the problem that we all face. I have to say that it was my own experience in the 1975 referendum that referendum campaigns provide an opportunity to focus the attention of a public who, for much of the time, are only really prepared to listen to politicians who can offer soundbites.
Lord Davies of Stamford
I am grateful to the Minister for giving way. He is a very intelligent man and he has had enormous experience of politics from the academic world and now from the Front Bench in the House of Lords. Is he seriously saying that the way to increase public respect for the political process or public involvement in the European issue is to ask the public to turn up to vote on a referendum on the appointment of judges in the European Union?
Lord Wallace of Saltaire
My Lords, I am merely pointing out that we all face some rather large structural problems in our democracy. I also note that we face some extremely complex issues in attempting to define what we mean by parliamentary sovereignty, to which we will return later.
We have seen a number of other interesting elements in this debate. I liked the emergence of the Stoddart/Hannay/Kerr consensus. I enjoyed hearing the noble Lord, Lord Foulkes, as I think I understood him, emerge as a staunch campaigner for electoral reform. I noted the noble Baroness, Lady Symons, resurrecting the doctrine of the mandate that has reappeared in Labour Party policy as a means, I think, of attempting to argue that the coalition agreement is illegitimate. I would just remind her that, many years ago, when I was giving evidence to a committee on which she sat—I think it was on the Salisbury convention—she asked me about clear mandates in manifestos. I had to point out that the clearest pledge in the 1997 Labour manifesto was to hold a referendum on the alternative vote.
Lord Wallace of Saltaire
In either sense, if it was a mandate, the Labour Government did not fulfil it.
The noble Lord, Lord Hannay, asked me why the Government had not yet replied to the Constitution Committee. I have seen the Government’s response, which was submitted to the committee last week—last Wednesday, I believe. I do not understand why it has not yet been published, and I very much hope that it will be published within the next few days.
Lord Hannay of Chiswick
I would be grateful if the Minister would not play hide and seek with this matter. Presumably, if it has been transmitted, he knows what is in it. Could he just say what it says?
Lord Wallace of Saltaire
That would take me a long time. I assure the noble Lord that I will make sure he gets a copy as soon as possible and that it is published as soon as possible.
Lord Wallace of Saltaire
All of it, indeed. I will investigate why it has not yet been published. I assume there is a delay, for which I apologise.
The noble Lord, Lord Kerr, asked to what extent publics are bound by what their plenipotentiaries have agreed. It is a delicate question in all democratic states. In the United States, congressional ratification is required; in other states, it is parliamentary or popular ratification. That is another large issue of sovereignty, democracy, consent and international negotiation. It applies not just to the European Union but to all international treaties, and it is a problem for all democratic states.
Part of the campaign that we need to undertake to rebuild confidence in the European Union is clearly to have a Government who are going to argue the case for more constructive European engagement. I was glad to hear a number of noble Lords say that the practical approach of this coalition Government to the European Union has been positive. We need now to argue the case for constructive engagement in the European Union, both in other countries and within the European Union. I am confident that the coalition Government will do that over the next few months. Had it not been for the Libyan engagement, we would already have started. I promise noble Lords that we shall move in that direction. However, part of regaining trust is also giving the public confidence that competence creep and all those things which they currently mistrust about the European Union will be stemmed for the foreseeable future at the very least.
There are two major issues: one is whether or not referendums should be advisory or mandatory; and the other is the question of a minimum turnout level. We argued the question of minimum turnouts to the point of exhaustion on the Parliamentary Voting System and Constituencies Bill, in the course of which I became much better educated than I had ever wished to be about the integrity of the electoral register. I remember exchanging views with the noble Lord, Lord Rooker, as to how many times he and I were registered in our respective different residences. The Government—and, I think, most of us—have severe doubts about having a minimum turnout level.
Taking my cue from the noble Lord, Lord Kerr, perhaps I may cite a leading constitutional authority on the question of referendums—Margaret Thatcher— and her contribution to the debate on the then European Community referendum. She said:
“I believe that if there is a high poll and a clear majority, the result will in fact be binding on Parliament whatever one may say in law about parliamentary sovereignty. I cannot envisage that a Parliament, whatever individual Members might have thought, if there were a clear vote against … It is not advisory or consultative in the event of a clear result. It would be binding on everyone … It would bind and fetter parliamentary sovereignty in practice. But if there were a low poll, and an indecisive result, the question would arise whether the British people had genuinely given their verdict by their vote. The Government might regard themselves as bound, but the result could not fetter the decision of Parliament”.—[Official Report, Commons, 11/3/1975; col. 315.]
The Government’s position on these referendums is that the result would be binding on the Government, but we also accept that no such decision could bind Parliament as it would not be consistent with parliamentary sovereignty. There would of course be major political costs to Members of Parliament who wished to disregard a clear popular vote, but one might envisage circumstances in which, in an emergency, Parliament wished to bear that cost.
Lord Foulkes of Cumnock
The Minister has made an interesting and important statement. He has obviously thought carefully about this so could he explain to the House the mechanism by which Parliament might disagree with the decision in a low turnout referendum? What would be the mechanism for Parliament to overturn it?
Lord Wallace of Saltaire
I am sure the noble Lord is as expert on parliamentary sovereignty as I am. No Parliament can bind its successors; any Parliament can overturn a decision of a previous Parliament or even a previous decision of that Parliament. That is part of what we understand by the doctrine of parliamentary sovereignty. There is nothing we can do to prevent a future Parliament from undoing what we are doing. That is my limited understanding of all of this.
Perhaps I may quote a greater constitutional expert than myself.
Lord Davies of Stamford
Before the Minister moves from this point, perhaps I may follow up on the question posed by my noble friend Lord Foulkes following his momentous statement about parliamentary sovereignty. It is important for the House to understand how in practice it would be possible for Parliament to exercise that sovereignty and to disagree with a referendum.
I refer the Minister to Clause 3(2)(a) of the Bill, which states:
“The referendum condition is that … the Act providing for the approval of the decision provides that the provision approving the decision is not to come into force until a referendum about whether the decision should be approved has been held”.
In other words, Parliament would have passed a Bill, turned it into an Act and the electorate would then have voted. For Parliament to be able to exercise its sovereignty in opposition to the decision of the electorate—which the Minister said is a possibility—it would presumably have to repeal the Bill which it passed before the referendum took place. Is that the procedure the Minister has in mind?
Lord Wallace of Saltaire
The noble Lord is extremely good at interrupting Ministers and others in full flow. I repeat: Parliament can reverse decisions that have already been taken, either by resolution or by parliamentary Act. That is part of our current, unwritten constitution.
I was in the middle of quoting Professor Bogdanor who, together with two noble Lords, is regarded as one of the major constitutional authorities in the country. On referendums, he said in written evidence to the Constitution Committee:
“Voters entrust their power to representatives, but they give them no authority to transfer those powers … Such authority can be obtained only through a specific mandate, that is a referendum”.
The logic of all those referendums is the same: they are decisions on whether to change who holds power and how that power may be used. No decision can be more eminently qualified than one that could move an area of policy from the responsibility of this House to the responsibility of the European Union. That is part of the area in which we now find ourselves—decisions about the transfer of power.
Lord Foulkes of Cumnock
I have an important point and apologise for taking up time, particularly at this hour. The Minister said that this applied to AV in exactly the same way as it would apply to these European referenda. Is he saying that, if the referendum has a pitifully low turnout and only a marginal vote in favour, it is then open to us in this Session of Parliament, so that we are free to repeal the legislation which provided the power to the people in that referendum? If that is the case, it is a very interesting and welcome announcement.
Lord Wallace of Saltaire
I wish to resist getting too far into hypothetical issues about what might happen in a great emergency in a future Parliament. I simply wish to state that Parliament is sovereign. There is nothing in the Bill that would bind this or any future Parliament from legislating, notwithstanding the provisions of the Bill, or from disapplying the provisions of this legislation, or indeed acting contrary to the will of the electorate expressed by them in a referendum. In this sense of fundamental parliamentary sovereignty, any referendum is advisory. All that the Bill says is that a referendum will be mandatory on the Government who receive the result of that referendum. I am conscious, from the unusual quiet, that the heating has just been switched off and that we should not delay the House too much longer.
Lord Kerr of Kinlochard
Would the Minister accept that he made a slightly selective quotation from Professor Bogdanor’s memorandum? The bits of the memorandum that he read out were those governed by phrases such as “it could be argued”, and “it may be suggested”. It is clear that those were not the views of Professor Bogdanor. Towards the end, having listed various contrary arguments, his memorandum concluded:
“The solution to these difficulties is to provide that the referendums be explicitly advisory”.
The last lines of his memorandum were,
“The European Union bill declares that Parliament is sovereign. It then proposes to bind future parliaments through a referendum lock. Was it not the Queen, in Lewis Carroll's Through the Looking Glass, who declared that she had been able to believe in six impossible things before breakfast?”.
The Minister should beware of selective quotations.
Lord Wallace of Saltaire
It is hard enough that one of the first experts on the European Union whom I ever met when I was a junior academic was the noble Lord, Lord Williamson. I am doing my utmost to resist bowing to the great wisdom of some of the experts from whom I have learnt in the past.
We have covered the issues in this large number of amendments very thoroughly and it is time for us all to reflect on them. I will ensure that the Government’s response to the Constitution Committee is published within the next two or three days. I am told that it is already on the website and I trust that there will be a hard copy very soon. In view of all the comments and responses that I have made, I hope that noble Lords will feel able not to press their amendments.
Baroness Symons of Vernham Dean
My Lords, I am not sure whether the noble Lord is aware of the impact of what he said a few moments ago, because I think that he changed the terms of engagement. I hope that he will look at what he articulated in relation to turnout and results. He referred to the fact that Mrs Thatcher said that a low turnout and marginal results would not bind Parliament but that a high turnout with a clear result would, through common sense, bind Parliament. He spoke as though we had not already passed legislation on AV. The AV Bill has passed. Even if there is only a 15 per cent turnout and only 51 per cent of that 15 per cent vote in favour of AV, it is binding. That is what Parliament has decided.
I cannot understand how we place that position, which none of us wanted, alongside what the noble Lord has just said about Mrs Thatcher articulating a common-sense principle in the event of low turnout and a very marginal result. He needs to look at what he said just now. We think that it was great, but I am not sure that his colleagues will. I hope that he will look at that carefully and give us a clear view that will be supported by everyone on the government Benches—his own Benches and the Conservative Benches—before we get to Report, because I think that he has changed the terms of engagement. He could tell by the reaction from my noble colleagues on this side of the House that we all thought that. It is an important point, but let us leave it. The hour is late. The noble Lord has done very well over amendments that he did not expect to take. I thank him for his courtesy to the House in dealing with this in the way that he has.
Lord Williamson of Horton
My Lords, I want to make one or two brief comments on this long debate. When you have been here for two hours and seven minutes, it is quite difficult to remember what you proposed, but I think that I can still do it. There were two separate proposals. First, I put forward the general proposal in Amendment 5 that we should move to an advisory referendum. I think that the House should consider that and decide whether it is going for advisory or obligatory referendums. That is a general issue, which needs to be decided.
Secondly, I am grateful for all the support that I have had from around the House for my second proposal, which is in Amendment 6. Apart from the Liberal Democrats, everyone else has supported it, which is not surprising, as this was the position taken by the House of Lords as a whole a few weeks ago. I thank all those who have spoken on this, in particular the opposition Front Bench. The proposal is that, where there is a very low turnout, instead of being mandatory, the referendum would be advisory and Parliament would decide. I am an extremely friendly and happy person most of the time but I was rather depressed by the arguments advanced from the Liberal Democrat Benches, because everyone assumed that, if Parliament took the final decision, Parliament’s idea would always be to go against the public. I quote from one of them: “The public would not be listened to”. Another Member from the Liberal Democrat Benches said that the public would be “ignored”; or, again, that it would not be like the Barnsley by-election because this would “nullify” the referendum. That is not what I have proposed at all.
I have proposed that the final decision—because by definition there would be a miserable turnout of the British people—would be with Parliament and the Government, who would be able to decide on the basis of the result before them. In my view, the normal situation would be that they would endorse the view of the British public. Let us say that 36 per cent vote, which is quite possible. Normally they would endorse that and the press headlines would simply state, “Good: Parliament and people together”. That would be the reaction and it would be extremely positive, not negative. The Liberal Democrat Benches are quite wrong in their assessment of what the public reaction would be in those circumstances, and I find that rather depressing.
In cases where there was a poor turnout, either it would be endorsed by the Government or the public themselves would say, “This is such a miserable result, let’s not bother with it any more. We don't care about how the Advocates-General are appointed, so forget it”. That would be the British public's reaction.
With those comments, which I felt bound to make after two hours and seven minutes, and seeing that it is now two hours and 11 minutes and that we are rather late, I will withdraw Amendment 5. Yet these issues will absolutely inevitably come back at a later stage because, as I said in speaking to Amendment 6, the House’s view on this is so recently established that we can be fairly confident that it will be endorsed again. Let us wait until Report to endorse it. So, for the moment, I beg leave to withdraw the amendment.
Lord Tomlinson
My Lords, in view of the extensive exchanges that we have had on Amendments 3 and 4 and the group starting with Amendment 5, and the number of issues on which the noble Lord, Lord Wallace, clearly has to reflect before coming back to the Committee, I shall not press my opposition to Clause 2 standing part. However, I shall return to it if the Minister’s reflections do not prove satisfactory.