Baroness Symons of Vernham Dean
My Lords, in light of what the noble Baroness, Lady Rawlings, said a few moments ago, I seek a little guidance, before we go any further, about taking these amendments with the clause stand part debate, which will be voted on separately. Will the Minister reply to all these amendments and clause stand part together? It would help those of us who are going to speak on the second group of amendments to know in advance what the Minister is proposing to do.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)
The answer is yes.
Lord Pearson of Rannoch
My Lords, to come back to Amendments 16A and 16B, I oppose them because they make it possible for the Government of the day to avoid a referendum if they think that some new EU power grab, whatever it happens to be, is sufficiently urgent or if they think that it is in the national interest. I fear that the supporters of these amendments have not yet grasped the point that the British people do not want any more powers passed to Brussels, period, as the saying goes—full stop. In fact, a growing majority of the British people want all their powers back; they want to be a democracy again with the power to elect and dismiss those who make all their laws.
I am afraid that the amendments do not work in detail, either. Who is to decide the urgency of the decision or whether it is in the national interest? The octopus in Brussels of course, not the British Government or Parliament. To be certain of this, we have only to look at the way in which Brussels has treated both our Government and Parliament over many years. I refer of course to its constant indifference to our scrutiny reserve. I remind your Lordships for the record, and for those outside your Lordships’ House who may not know, what the scrutiny reserve is. It is a promise made to Parliament—to the House of Commons and your Lordships’ House—by Governments of all persuasions over many years that they will not sign up to any new law or initiative in Brussels if the Select Committee of either House is still considering it. If the Select Committees have finished looking at it or have agreed it, or if it has been debated in Parliament, the Government of the day are free to sign up in the Council of Ministers in Brussels to whatever initiative is concerned. That is the promise or scrutiny reserve.
A Written Answer to me from the noble Lord, Lord Howell of Guildford, on 7 February this year reveals that in the past five years alone the scrutiny reserve has been overridden—in other words, the Government’s promise has been broken—no fewer than 267 times in the House of Commons and 248 times in your Lordships’ House. That means that in the past five years more than 500 proposals from Brussels, which the Select Committee of either House thought sufficiently important to examine and to advise the Government on, became law anyway. The juggernaut rolled on regardless. It is worth adding that the situation does not appear to be improving, despite regular complaints from the Select Committees to the Government. In 2010, 151 overrides were notched up between the two Houses—79 in the House of Commons and 72 in your Lordships’ House.
Lord Pearson of Rannoch
Perhaps I may also remind the noble Lord that Mr Hague did not fight that election on the issue of Europe; he fought it on the issue of the euro, the currency. He said that the election was, in effect, a referendum on the currency. That was not wise, because a referendum on the currency had already been promised by all parties. That election was not fought on the issue of Europe.
Lord Howell of Guildford
My Lords, perhaps your Lordships might find it useful if I were to intervene at this stage, because one or two noble Lords have had a bite at the cherry, as it were, and it might be helpful if I were to answer some of the many questions that have been put to this Bench and comment on all the amendments, although I should like first to address the two original amendments, Amendments 16A and 16B, which have a particular element to them which is very important and needs to be addressed. Then I will come to the broader issues raised by the broader amendments, of which the central theme is whether the significance condition should be enlarged or extended. It is interesting to note that in the other place, all the pressure was for them to be reduced, so there is a certain contrast between your Lordships’ views and those of the other place. Often that is healthy.
I say at the beginning that I strongly agree with the remark of the noble Lord, Lord Liddle, that proper leadership in Europe best comes through using the powers that the EU already has. That is a strong statement and highly relevant to what we are debating in the Bill. I ask noble Lords to reflect on it, because I think that many of the worries about what the effect of the Bill might be in checking the expansion, development, changes of treaty, new ideas and proposals for the EU stand in contrast to the wisdom of that remark. An enormous amount can be achieved in our neighbourhood, in relations with the rest of Europe and in the reform of the EU itself to make it suitable to meet the totally changed international landscape which we now all confront, by existing powers rather than further changes in the treaty or transfers of power from member states to the European institutions.
I turn to the first two amendments, which would insert into Clause 3 a new type of exemption from the referendum lock in respect of Article 48(6) decisions, otherwise known as the simplified revision procedure. Perhaps I can deal right at the beginning with the comments of the noble Lord, Lord Kerr of Kinlochard, whom I very much respect for his vast experience in this area. He asked me—he said that I did not answer him very well before, but I will try to do better now—why we needed Clause 3 as well as Clause 2. The answer is simple. Clause 2 deals with ordinary revision procedures for changing the treaties; Clause 3 deals with the special revision procedure for transferring powers from the nation state—the UK in this case—to the European Union. It is the desire of many, not just in this country—I shall give examples from other countries—that changes, whether of the treaty or in powers, should be dealt with in the same way, regardless of whether they are dealt with under the ordinary revision procedure for treaty change or under the special revision procedure, otherwise known as the passerelle procedure. That is why we need Clause 3. I hope that that clarifies that aspect. Of course I shall come to the detail much more extensively in a moment.
Lord Kerr of Kinlochard
I apologise to the noble Lord and am grateful to him for giving way. He does not agree, clearly, that the way we handle a treaty amendment should depend on the nature of the treaty amendment, not the process in Brussels which started it. I do not understand that. I do not know why treaty amendments should not be treated as treaty amendments whether they come under the procedure that we are now dealing with under Clause 2 or the procedure which we think appropriate to Clause 3. This is nothing to do with the passerelle. That comes later in a different clause. We are not talking about Article 48(7); we are talking about Article 48(6) here. I accept that the passerelle, on which I will disagree with the Minister on the substance, is a separate issue. I do not see why treaty amendments should not be handled by a single clause setting out a single procedure. In fact, I still think it would be better.
Lord Howell of Guildford
The reasons lie in the procedures that flow from the Lisbon treaty, which gave birth, rather unwillingly, to the ordinary revision procedure. The whole idea of it getting into that treaty was a compromise, as noble Lords who followed it all closely will remember, but that is where it comes from. Whether powers are transferred or treaties are changed by the ordinary revision procedure or by the special revision procedure is of no particular interest to those concerned with our powers and competences moving away from this country to the European Union in ways that are not fully explained or subject to the appropriate procedures and rules that this Bill lays down.
I hear exactly what the noble Lord says, but he asked me a specific question and I have given him the specific answer that whether these changes are under the simplified revision procedure or the ordinary revision procedure they should ideally be treated in the same way. That is what is happening in other countries. I have a note here that states that Ireland and Denmark examine all uses of Article 48(6), the simplified revision procedure, in the same way as the use of the ordinary revision procedure to decide whether a referendum is required. It is done by the Attorney-General in Ireland and by the Ministry of Justice in Denmark. I am told that it is now going on in Denmark in relation to the simplified revision procedure applied to the matter, already discussed in this House, of changing the treaty to accommodate the European stability mechanism. I will come back to that in more detail, but that is the answer to the noble Lord’s question.
In addition to the significance condition already provided for in Clause 3, the amendment would insert a provision that would allow for the possibility of a Minister seeking to rely on urgency as a reason to avoid holding a referendum. In a previous debate in Committee, we debated what the Government mean by a transfer of power, and I will recapitulate some of the points in detail when I come to my comments on the other amendments in this group. These two amendments would mean that if a Minister deems a particular decision to be urgent and in the national interest, he could dispense with the referendum requirement regardless of the nature of the transfer of power from the UK to the EU or the significance of that transfer of power. If there was ever a proposal under Article 48(6) to give up the member states’ veto over the areas where we will still retain the right to oppose measures taken at EU level, such as decisions on the seven-year financial perspectives or on social security, if these amendments are agreed, a Minister could claim that giving up these vetoes was considered urgent and in the national interest and therefore should not be put to the British people for them to have a say but should rather by approved solely by Parliament.
This shows a lack of understanding of how the system works and how the simplified revision procedure works. Let me give noble Lords an example. The use of the simplified revision procedure to enable member states in the euro area to set up the European stability mechanism to safeguard the financial and economic stability of the euro area is obviously a matter of vast import. It will take 21 months—one year and nine months, which is admittedly not two years—to be finalised. It was agreed in March 2011, and the target date for final approval is the end of 2012. That is hardly what most people would consider urgent. Even under the simplified revision procedure, which may or may not be associated with the passerelle—I agree with the noble Lord, Lord Kerr, that they are in a sense separate, although criss-crossing, issues—the whole process of changing treaties, whether by the simplified procedure or the ordinary revision procedure, takes a long time. The urgent issue of saving the eurozone from its tribulations will take one year and nine months. This example of an urgent and important treaty change certainly sets a precedent that shows that there would be more than enough time for the UK to hold a referendum, should one be necessary, under any future uses of the simplified revision procedure that I described. I remind noble Lords that one will not be necessary for the current use of the simplified revision procedure as the present change to do with the European stability mechanism does not apply to the UK.
The truth of the matter is that while urgent issues arise, the business of putting them through the simplified procedure or the ordinary procedure is extremely lengthy. This is one reason, which I shall come to in a moment, why these things will only rarely occur. The picture of a series of small referenda issues coming along is a completely unrealistic. In fact, it is a fantasy. Whether they go through one way or the other, it will be a lengthy and complicated process, and nations will rightly seek to exert the leadership that the noble Lord, Lord Liddle, referred to of using existing competences rather than having to resort to the kind of treaty change that leads to major debates of the kind we saw over Lisbon. The truth of the matter is that this amendment would have no practical impact as there would not, in practice, be a situation where an Article 48(6) decision could be rushed through in a matter of weeks or months—it is more likely to be months and years—and the amendment would, in fact, be pointless.
That has dealt with those two amendments concerned with urgency, and I now want to turn to the broader issue.
Lord Radice
The Minister said that it is a fantasy that there would be a series of small referenda. If it is an absolute fantasy, why do we need 58 policy areas described in the Bill that would trigger a referendum?
Lord Howell of Guildford
If the noble Lord casts his mind back to the Lisbon treaty and the previous treaties, he will recall that some of them tend to turn up in the great package treaties that emerge from the European Union from time to time. They emerged at the time of Lisbon and caused so many of the agonies and concerns, the consequence of which we are now debating. I forget the number of issues of this kind that were in the Lisbon treaty, but the answer is almost certainly a considerable number.
Now I want—I will give way again, but I have to say that I am trying to help the Committee and guide it through. I will give way once more, but after that I think I am entitled within the custom of the House to be rather reluctant to yield to constant interventions on things I am just about to say anyway.
Lord Hannay of Chiswick
I am most grateful to the Minister, and I will certainly not intervene in his speech again. Like the noble Lord, Lord Wallace, earlier in the debate, the Minister has taken us down this road that there will not be all these minor referendums provided for in the Bill because the habit of the European Union is to group all these things together in a major grouping.
I would plead with the Government not to go down that road of reasoning. Most of us, even those of us moving these amendments, believe it is not in the interest in the European Union or this country to have any major package of institutional reform in the period ahead, yet here the Government are using an argument that is inciting people in the other member states to go in that direction—they can read Hansard too. All they will see is that the noble Lord and his colleague are saying, “Do not worry, none of these mini-referendums will take place; it will all come together in a big package”. I ask that the Government not pursue that line because there is no difference between the two sides of this argument. Nobody wishes to argue—I certainly do not—for pushing towards a new major institutional package, but the Minister is making it impossible to avoid one.
Lord Howell of Guildford
My Lords, I fear that that is a good example of taking part of an argument, which I wish to develop much more fully, and giving it a particular boost. That is just one of a whole series of reasons why there will not be referenda over trivia and over small issues, which will come out separately, and why these matters simply will not arise. I could straight away give a long list of other reasons why it will never happen. Where there is no transfer of power or competence anyway, there will not be a referendum. There are plenty of powers already, as the noble Lord, Lord Liddle, has said. Where it does not apply to the UK, there will be not be a referendum; as with the current treaty change going through. Where there are accession treaties, there will be no referendum—not in this country anyway. Where there is codification under existing competencies there will be no referendum. Where there are significant tests—we have yet to debate that in full—there will be no referendum. So there are five other reasons, as well as the question of the package, why we will look at these things in a mature and rounded way.
It is really quite pointless citing one issue and trying to project it to be the explanation of the whole situation. When you look at the whole situation it is perfectly clear that there will not be a whole series of tiny referenda on complicated issues that people will not want to vote for. That applies to almost everything that has been mentioned in this debate, including—I would love to dilate on it but it is probably out of order—the whole question of the European public prosecutor’s office, on which the noble Lord, Lord Goodhart, is a great expert. We are going to debate that in Clause 6. Certainly it is one of many issues that may well come up, but the chances of it coming up as a separate issue as part of a treaty change, to which the Government would then agree and that other nations would all agree to, are very remote indeed—in fact, I would say, non-existent.
At this stage, it might be worth going over some of the essential points from the lengthy debate we had at the start of the Committee stage on the role of Article 48(6) of the Treaty on European Union and the rationale for Clause 3, which I mentioned in an exchange with the noble Lord, Lord Kerr, a little while back. There are two types of treaty change. This does not seem to be totally understood. I will try my best to remind your Lordships what they are. There is the ordinary pattern which requires an intergovernmental conference and the simplified type of treaty change which does not require an IGC. Both of them result in an amendment to the treaty and so both should be treated in the same way.
It is not right as the noble Lord, Lord Liddle, said in the earlier debates that the whole point of the passerelle is to dispense with the paraphernalia of treaty change. It is not true. It has the same elaborate systems of treaty change through the simplified revision procedure as does the ordinary revision procedure. People simply will not understand that because one method of treaty change is being used a referendum would be required yet if the same treaty changes—in this case dealing with powers rather than competencies—were being proposed and agreed under the other type of treaty change, then it would not be required. It is just that kind of incoherent approach which will go against the Bill’s aims—they may be disputed by noble Lords opposite but they are our aims—of regaining some of the trust of the British electorate and seeking to reconnect them. It would leave people completely baffled—it would certainly leave many of the experts baffled—and not enlightened at all.
Baroness Williams of Crosby
I thank my noble friend for giving way for a moment. How would he escape from the horns of a very difficult dilemma? If, on the one hand, Ministers, in order to avoid a referendum, had to tell themselves that something was not in the national interests of Britain, would one not find oneself subsequently an extremely weak force in the European Union? If, on the other hand, they decided to press on with something that they regarded as being in the national interest and that would attract a referendum, would they not find themselves subject to the kind of fragmented referenda that we discussed earlier and which the Minister described earlier in his own speech?
Lord Howell of Guildford
I do not think that that would be the case, for the very good reason that the great issues that concern our national interest can be delivered very largely by the co-operation and development of close working within the existing competences of the existing treaty. My noble friend has in her mind some thought that new treaty requirements would indeed come along that would somehow be in the national interest but which Ministers would be reluctant to push for fear that they would have to expose them to the British people. There might well be issues in the future, although I cannot see any countries at the moment being terribly willing to go through the complex treaty procedure for them, which Ministers believe are in the national interest and of value and which can be pursued only by treaty change. In that case, they would rightly be required first to come before both Houses of our Parliament so that it could be explained whether they were significant or not. If they were significant, they would then be required to be put to the test of a referendum, with the Government arguing that these changes, or this package of changes, were necessary to improve the national interest and the strength of this country. That is the kind of debate we should have had over the Lisbon treaty, but of course we did not.
Lord Howell of Guildford
No, I am not going to give way again, I am afraid. We have had enough interventions.
I was concluding by saying that all the long-standing accusations of decision-making behind closed doors without public consent would therefore still hold true if these amendments were accepted and the wider and wider number of decisions were left to the judgment of Ministers as to whether they were significant. There are concerns, as I have said, that creeping power and creeping competence are not being properly debated and explained and not justified as being in the national interest, and have weakened the European cause.
People talk about the need for “reconnection”—that phrase came up. We have to be realistic and accept that reconnection has failed. It is failing here in this country, although we are not the only country in which it is failing. Some noble Lords seem to want to continue as before and seem to be happy to see a continued advance of European treaty changing, competence transferring and power transferring, which are precisely the trends that have so undermined public trust, weakened the European cause and made the European Union today in need of reform and less well positioned to meet the colossal challenges of the future than it should be.
I must say that I hope that some noble Lords who are my noble friends, and noble Lords who I greatly admire, will not be offended if I see them as the last knights or the lost lords of the old Europe, of the Euro elite. They are the ones who want to go back while the world goes forward, and indeed I myself sometimes have the same wish that things could go back, but they cannot. We are now in the information age. In the age of the internet and the website, the age of public empowerment, those ideas are as out of date as the Teutonic knights with their armour and their glories. So I urge the noble Lords who have moved and spoken to these amendments to withdraw them and to understand that we are living in a changed age in which the requirements of a strong and democratic European Union will change in themselves and will require new and agile legislation, understanding, and a new connection with the people of Europe.