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 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.
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.