(12 years, 11 months ago)
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Lord Taverne
“Duration of Part 1 and Schedule 1
Part 1 and Schedule 1 shall expire on the day on which the Parliament in which this Act is passed dissolves.”
Lord Taverne
My Lords, this is a probing amendment. At the end of the Committee stage it is time to see where we are and to review the overall effects of the Bill, which is highly relevant to my amendment for a sunset clause. The Bill is of course a compromise. In the election the Conservatives argued for the repatriation of powers from Brussels to the United Kingdom. This was always, in my view, an impossible promise, as well as a mistaken one, but it was in effect abandoned under the coalition agreement. The Liberal Democrats had to concede that any treaty amendment would require a referendum. The agreement also provided that passerelle changes would require primary legislation, which we all welcomed.
What has the compromise produced? At Second Reading and in the earlier stages of the Committee proceedings, some very powerful arguments were advanced that the detailed referendum requirements and the referendum lock would seriously damage our influence in Europe. In 56, or probably more, cases, the referendum trigger applies, and many of these triggers are minor. In many of these cases Britain would benefit from a change, yet the referendum lock will, in practice, make it impossible in negotiations for our representatives to support a proposed change, even if it benefits this country. If our partners favour a change, but our negotiators can do nothing but sit on their hands, it is likely that we will be bypassed under the enhanced co-operation procedure.
These arguments were advanced by Members of this House who, with great respect, have far more experience of proceedings and negotiations in Europe than members of the present Government. The noble Lords, Lord Kerr, Lord Hannay and Lord Williamson, on the Cross Benches, have unequalled knowledge of how negotiations in the European Union work. We have also heard contributions from four ex-commissioners; from the formidable noble and learned Lord, Lord Howe of Aberavon; the noble Lord, Lord Liddle, who has worked in the Commission; and from the noble Lords, Lord Deben and Lord Triesman, who both have experience of negotiating in Brussels—long experience in the case of the noble Lord, Lord Deben. Those who worry about the effect of the Bill on our influence in Europe present a formidable array of cross-party and non-party expertise and talent. I humbly suggest that the Government should take their worries very seriously.
In any case, it is a very odd Bill. In effect, many of the Government’s arguments have led to the conclusion that the Bill is not needed at all. First, major treaty changes under the ordinary procedure will be subject to referenda. The Government have made it clear that they will use their veto to oppose such changes, so there can be no referendum for any major treaty changes. Next, treaty changes under the simplified procedure will be subject to a referendum, unless they are announced by the Government to be insignificant—an announcement that is subject to challenge in the courts. These changes are also subject to our veto and the Government will veto them, as they have said. There can be no referendum for treaty changes under the simplified procedure.
Passerelle changes that are subject to veto are now to be subject to a referendum as well. Since the Government will veto any transfer of powers, there can be no referendum in this case. Clauses 2, 3 and 4 set out in detail how and when the referendum lock will apply. Schedule 6 provides a long list of decisions where we cannot give up our veto and change to qualified majority voting without a referendum. However, there will be no referendum since we do not intend to give up our veto. As the noble Lord, Lord Williamson, has said, this is a no-referendum Bill. In the words of Professor Vernon Bogdanor, it is also an Alice in Wonderland Bill.
We were assured by the noble Lord, Lord Howell of Guildford, in the course of his patient and eloquent defence of the Bill, that in any case no one else in Europe would want to transfer any major new powers to the European Union due to Lisbon fatigue, and because the European Union after Lisbon has all the powers that it would need in practice. If minor changes were envisaged they would be delayed and become part of a single passage that might be served up in many years’ time; although how such a package could be suitable for a yes or no answer in a referendum is not entirely clear.
Lord Pearson of Rannoch
My Lords, I suppose that these amendments, particularly Amendment 63, are the most brazen attempt yet by Europhile Lords to deny the British people a say on any aspect of our membership of the European Union. We have heard a good deal in our debates from noble and Europhile Lords about the Bill being an attempt to bind successive Parliaments or Governments. Of course, it should be no such thing. An incoming Government could simply repeal the whole thing if they dared to risk the anger of the British people. With the way in which the EU has developed and is developing, that looks rather unlikely. I do not suppose that they would even dare to put such a repeal in their manifesto, although manifestos do not seem to matter much to our new political class, as in the formation of a coalition Government for whom no one voted.
Talking of the way in which the EU is developing, is it not really quite remarkable that we have debated this Bill for so many hours without even discussing the euro? I suppose that could be because the Government, Europhile Lords and the political class in general have just about got round to understanding that the euro was designed for disaster—a disaster of unemployment and austerity measures being visited on the people of Ireland, Greece, Portugal and Spain—and soon, who knows, Italy? But, of course, the political class cannot bring itself to face up to this obvious fact: the euro itself is merely the result of the whole project of European integration, which is equally misguided, as time will tell.
This determination to avoid these inconvenient truths has perhaps been best demonstrated by the BBC “Today” programme’s recent coverage of the civil unrest in Spain. It steadfastly attributes it to the Government’s austerity measures, but firmly refuses to discuss why these measures have come about, which are thanks to Spain’s membership of the euro, with its single unsuitable interest and exchange rates, which created the boom from which the people of Spain are now suffering the bust. Where does the euro come from? Why of course, it comes from the equally misguided project of European integration for which it was supposed to be the cement. It is the same for Greece, Ireland and Portugal—all slightly different cases, but all of them in their present predicaments entirely thanks to their membership of the euro and the European Union.
Earlier in our proceedings, I asked the noble Lord, Lord Howell, to respond to these facts.
Lord Hannay of Chiswick
Does the noble Lord not recognise that there is no Motion on the Order Paper in this Committee stage contesting the fact that if this country wished to join the euro there would have to be a referendum? We are time-limited in completing this debate, so could he address the measures before us and not the ones he wishes to speak about?
Lord Pearson of Rannoch
The noble Lord may find my remarks inconvenient, perhaps because they are entirely on target. I am explaining why the British people do not want these amendments and a large part of that is because of the damage that the euro has done, and which they can see it is doing. Could I also ask the noble Lord, Lord Howell, to respond to the delicate little point that the big idea behind the whole project of European integration is also proving to be misguided? I asked him that earlier.
This is essential to the amendment, as I hope even the noble Lord, Lord Hannay, will agree. That big idea, as I never tire of reminding your Lordships, was that the nation states—the democracies of Europe—were responsible for two world wars and the long history of bloodshed. They therefore had to be emasculated and diluted into a new form of supranational government run by bureaucrats. The whole project of European integration, with its attendant euro, has at its heart the destruction of national democracy and its replacement with the anti-democratic structure that is the EU. That is why the unelected Commission still has the monopoly of proposing all EU legislation in secret, which is now the majority of our national law. That law is then negotiated by bureaucrats from the nation states in COREPER and then passed, still largely in secret in the Council of Ministers from the nation states, with your Lordships’ House and the House of Commons having virtually no influence—in fact, no influence.
When you tell them this in Washington, they simply cannot believe it. I wonder how many of the good people travelling here today with President Obama are aware of it. I imagine that he may pay some tribute today to the European Union, and I wonder whether he will know what he is talking about if he does.
Baroness Williams of Crosby
Would the noble Lord acknowledge that American Presidents repeatedly, from President Eisenhower on, have urged the United Kingdom to work more intensively with the European Union, or the European Community before it, to offer it leadership and to play a major positive part in its development?
Lord Pearson of Rannoch
My Lords, of course I am aware of that. I also remember Henry Kissinger saying that he rather liked one telephone number to ring in Europe. I have to tell the noble Baroness that Mr Kissinger changed his mind when he read Mr Christopher Booker’s book, The Great Deception, after which he said, “Oh, at last I understand the thing”. We can come and go on that one, but time is pressing.
The British people are waking up to the truth of all this, and they do not like it. Eighty per cent want a referendum on EU membership. They want their democracy back and they will want any chance to be heard in any referendum, which touches on the huge deception that has been practised on them by their political class, which is their entrapment in the European Union. These amendments would deny them that opportunity, so I trust that the Government will not accept them.
Lord Richard
It is very bad for me to sit where I do, so full of good will and bonhomie. All the world is my friend and then the noble Lord behind me gets up. I am bound to say that when I listen to him I am provoked to get up and say one or two things myself.
First, I echo the words of the noble Lord, Lord Hannay. Of course the euro is not an issue in this Bill, nor is it being discussed in this Bill. We all accept that if there is a decision by the British Government to join the euro there has to be a referendum. I would have thought that the noble Lord, Lord Pearson, would approve of that rather than criticise it. His speech was a diatribe against the European Union and its development: how it operates, what it does, and so on. It is all very predictable and well known, and we have heard it often from the noble Lord, but it does not seem to have anything to do with the amendments that we are supposed to be discussing.
The issue is whether we have a sunset clause in one form or another in this Bill. With the permission of the noble Lord, Lord Pearson, I will actually discuss the amendments. Why should we have a sunset clause in this Bill? There are basically three reasons. First, however one looks at it, this is a highly controversial Bill and we have spent a long time on it. There have been clear divisions between what the noble Lord, Lord Taverne, is pleased to describe as those who have experience of Europe and those who have not. There have been clear divisions on how far the Bill should go and what it should apply to. So my first point is that the controversy surrounding the Bill is one of the issues to justify a sunset clause and reconsideration by the next Government.
Secondly, not only has it been controversial; it is distinctly novel. However one looks at the Bill, the idea that you can import into the British constitution a requirement for a mandatory referenda in 56 different cases—in a way that is perceived not to be novel but almost revolutionary, if I may say so—is, frankly, beyond me. If it were to be introduced, the British constitution would be turned upside down. If we had referenda of this type and on this scale, in these numbers, it would transform the whole parliamentary processes of our democracy. I am not in favour of transforming the processes of our parliamentary democracy. Indeed, I am on the whole in favour of keeping them.
Lord Kerr of Kinlochard
I support the amendments in the name of the noble Lords, Lord Taverne and Lord Richard, and in the name of the noble Lords, Lord Liddle and Lord Armstrong. The noble Lord, Lord Armstrong, is stern and unbending and I support his Gladstonian position. I will also speak to the amendment that stands in my name and those in the name of the noble and learned Lord, Lord Howe, the noble Baroness, Lady Williams, and the noble Lord, Lord Hurd of Westwell.
When Committee stage started—it seems a very long time ago—I attempted a feeble Shakespearian flourish, but I now realise that it was completely wrong. I had the wrong play; we are in A Midsummer Night’s Dream, or rather nightmare. We are a long way remote from the real world, but there is still perhaps in our debate a role for the rude mechanicals of the Cross Bench, who have a little experience in what actually happens in Brussels.
When we were last in Committee, the noble Lord, Lord Howell of Guildford, quoted from the then head of the Council Legal Service, Jean-Claude Piris. He did so in answer to the noble Lord, Lord Davies of Stamford, who had said that the Bill,
“will be seen by our partners on the continent of Europe and in Ireland as an example of terrible British negativity about the European Union”.
The noble Lord, Lord Howell, replied:
“We have clear indications that there are no difficulties. Jean-Claude Piris, the former head of the Council's legal service in Brussels, has commented that he sees no difficulties with … the thrust of the Bill. We have checked with people around the European Union and we are not getting the picture that the noble Lord talks about”.—[Official Report, 23/5/11; col. 1647.]
The noble Lord, Lord Taverne, quoting Vernon Bogdanor, spoke of Alice in Wonderland. This is what Jean-Claude Piris said in the letter of evidence that he sent to the House of Commons Scrutiny Committee, writing in a personal capacity as he was about to retire at the time. He said that if the other member states,
“were to consider that the national legal constraints of the UK were to lead to the practical impossibility of taking certain steps within the Union which would be perceived as necessary or desirable by many or all other Member States, it could not be ruled out that the compatibility of the referendum requirements with international and EU law might become an issue. Furthermore, if, in a specific case, the requirement to hold a referendum were to result in an impasse in the future, this might lead to the UK being sidelined on certain issues. This is because it could trigger a tendency among other Member States to circumvent this situation, either by engaging in enhanced cooperation among themselves without the participation of the UK, or by concluding intergovernmental agreements outside the framework of the European Union.”
That was the personal opinion of the then counsel to the Council—the legal adviser to the Council of the European Union—on this Bill.
I do not know whom the noble Lord, Lord Howell, talks to. He says that as he goes around Europe he meets nobody with concerns about this Bill. He should get out more. When the Bill is over, I have no doubt that he will be delighted to get out more.
I do not want to exaggerate my point but very few people across the European Union are aware of the extraordinary process that is taking place here, and the reason for that is that very few people in this country are aware. So far as I know, eight days of Committee on the Bill have not earned an inch of space anywhere in the British press, and therefore there has been nothing for the foreign journalists to pick up. As you go down the Champs-Élysées—
Lord Pearson of Rannoch
My Lords, perhaps I may refer the noble Lord to the Quentin Letts column in the Daily Mail and to copious inches in the Daily Express.
Lord Kerr of Kinlochard
I stand corrected and congratulate the noble Lord on his close reading of the Daily Mail. As you go down the Champs-Élysées, people are not saying to each other, “Do you know that the British are trying to block action under Articles 333.1 and 333.2, whereby one could have a qualified majority on the implementation of enhanced co-operation?”. No one knows what we are up to in this Parliament. No one in this country knows what we are up to. We are remote—we are in A Midsummer Night’s Dream. This is not the city of Athens; it is somewhere in the thickets of a forest outside.
Therefore, I feel that the Government’s principal argument—the noble Lord, Lord Taverne, spoke elegantly to it a moment ago—about the purpose of the Bill being to deal with mistrust and distrust is a little absurd. When these provisions are on the statute book, they will generate as little interest in the country as their passage, despite all our eloquence in this Chamber. There is no knowledge of these provisions outside and therefore no knowledge of the argument about distrust. It is possible that over time Jean-Claude Piris, counsel to the Council of the European Union, will prove to be more right in his prediction than even the noble Lord, Lord Howell of Guildford. It is possible, and it seems to me plausible, that there will be a chilling effect on UK negotiators in Brussels as a result of these provisions. We know that there are going to be no referenda in this Parliament. We know that because, as the noble Lord, Lord Taverne, reminded us, the Government have said that they are not going to agree to any of these things being covered in the Bill anyway. I do not think that that is a big deal in Brussels and I do not want to exaggerate but, over time, it could become quite a big deal.
We have created an extraordinarily rigid structure with this Bill. Flexibility will be necessary—or most people will think that. The UK negotiator will be unable to agree to propositions which are in the UK interest because they would require a referendum in this country, and the Prime Minister will say to him, “We don’t want a referendum, so you have to block it. You can’t agree. Sorry, go away”. That is likely to happen over time and the result of that might be, as predicted by Jean-Claude Piris, that the others will say, “We’re stuck. The British won’t agree so we’ll go off and do it amongst ourselves”. Some, possibly the noble Lord, Lord Pearson of Rannoch, would consider that that was a very good thing, and in some cases it is conceivable that it would be a good thing. Others might want to do things in which we might not want to take part. However, there may be a measure in which we wanted to take part but the others felt that they could not include us because we had our referendum requirement. I speak as a rude mechanical who has spent a lot of time building things in Brussels.
I add a small very rude mechanical’s point. When the noble Lord, Lord Pearson of Rannoch, elegantly argued that we had not said anything in this debate about the euro, he was not strictly accurate. I hope that there is an outstanding point in the Minister’s mind, which is the reference in Clause 6(5)(e) to the euro. That, read with Clause 5(1), seems to me to mean that we would be submitting the wrong question to an Act of Parliament and referendum. The issue would be the rate at which the UK joined the euro, not whether the UK should join the euro. It seems to me that there is a little bit of overspecification in the drafting. The noble Lord, Lord Hannay, made the big point—nobody in this Chamber, so far as I know, and no amendment on the Marshalled List argues that there should not be an Act of Parliament and a referendum on joining the euro. Mine is a rude mechanical’s point—we have overspecified the decision which would be put to our Parliament and to a referendum.
We will move into a different kind of Shakespearean play on Report. I hope that the Government will reflect on some of the points which have been registered—some of them were very mechanical points, for which I apologise, but some of them were very big political points and were eloquently put from all sides of the House. I hope that we will see some changes proposed by the Government before we come back to this. We have spent far too long in the enchanted forest of A Midsummer Night’s Dream. I wish that I were able to make the last speech in Committee, having made the first. Unfortunately, I think that I will have to cede that role to the noble Lord, Lord Liddle. I draw his attention to how Puck ends A Midsummer Night’s Dream. He states:
“If we shadows have offended,
Think but this, and all is mended,
That you have but slumber'd here …
And this weak and idle theme,
No more yielding but a dream”.
I wish that it were.
Lord Flight
My Lords, I apologise for not being present at the start of the debate as I had problems parking my bicycle on arriving at the House.
It seems to me that there is a perfectly fair debate to be had on what items should or should not be covered by referenda, but that there is no real case for treating this Bill as though it were in the same category as the counterterrorism legislation, and for arguing that it is suitable for a sunset clause. Once it becomes an Act—assuming it becomes an Act—it will not essentially be any different from other legislation in this country. It is, of course, perfectly straightforward for a Government to get elected on a manifesto that they will revoke this legislation, and so to do, but I do not believe that those supporting these amendments have made a proper case as to why the Bill should be treated any differently from other legislation. We have a perfectly established democratic process for removing legislation when a new Government are elected, if that is the will of the people. But the requirement would be for an incoming Government to have the will of the people to revoke this legislation. Secondly, if there were some automatic process of cancellation, a great legal hole would be left, unless the automatic sunset clause revoking the legislation were accompanied by fresh legislation at the same time to plug the many holes that need to be plugged that the Bill addresses.
The amendments are little more than an excuse to put the pro-EU cause and the anti-argument for this Government, who are quite rightly addressing the concerns of UK citizens. I sit down by making the comment that I feel uncomfortable that those who are opposed to the Bill seem to have the view that those British citizens—potentially the majority—who have become increasingly critical of the EU should be silenced in the interests of advocating the great EU cause. That is profoundly undemocratic in principle. Certainly, on this issue, a sunset clause would be wholly unsuitable.
Lord Williamson of Horton
My Lords, the grouping includes quite different proposals relating to a possible sunset clause. Amendments 61 and 63 propose an unqualified sunset clause by which the Act would fall on the Dissolution of Parliament. Amendment 62 is the so-called sunset-sunrise clause, because the Act would fall but could be immediately—I stress that point—revived by a simple resolution of both Houses of Parliament.
I will speak to Amendment 62 and I shall speak very moderately. I have sat through eight days of Committee so far and I occasionally get the impression that people think I am not moderate, but I have been extremely moderate in all my interventions throughout Committee. As we enter day eight on the Floor of the House, it is evident that the Bill is a heavy approach—the Government would not dispute that—that is likely, whatever the future circumstances, to block moves to a qualified majority in the European Union.
I have already indicated that I fully understand why the Government have presented the Bill. I also consider that it would be sensible to take another look at the situation at the end of this Parliament, without prejudice, and for Parliament to decide whether to continue the Bill. That is the proposition in Amendment 62. That proposal has been described by the noble Lord, Lord Richard, as right, and I would describe it as a wise proposal.
Baroness Nicholson of Winterbourne
I follow the noble Lord with further comment about the applicability of a sunset clause for this type of Bill at all. We must provide certainty for the British public, which as a former Member of the European Parliament I must say is sadly lacking for them at the moment because of the way in which European Union business has previously been dealt with by the British Parliament and Governments. The sunset clause, which would in effect kill the Bill, would take away that certainty, and I wonder whether it is an applicable mechanism for this sort of Bill.
The sunset clause was, of course, introduced by the Counter-Terrorism Bill on the basis that that Bill introduced extraordinary measures in keeping with the UK's liberal values in an emergency, but that is not the case with the European Union Bill. This is not an emergency and the Bill does not reflect a short-term measure. It is a long-term policy shared by all sides, except I think by the minority, with even the Opposition accepting that there should be a referendum for big treaty changes under the ordinary revision procedure for issues such as the euro. I am one of those who believe profoundly that in order to reconnect with the public we need more possibilities for referenda, as those outlined in Schedule 1 inform us. However, the Public Bodies Bill, which also has a sunset clause, is tasked with a specific programme for a specific time. Let me suggest that as this Bill is for the long term, this is no different from any other legislation that your Lordships’ House passes. For example, privatisation did not have a sunset clause. It was, we believe, the right thing to do to react to new circumstances.
Lord Kerr of Kinlochard
As the noble Baroness continues to distinguish this Bill from other Bills, would she like to distinguish it from the Fixed-term Parliaments Bill, in which subsection (4) of Clause 7 headed, “Final provisions” is almost precisely the same as the one proposed in the amendment in my name and supported by my noble friend Lord Williamson?
Baroness Nicholson of Winterbourne
I thank the noble Lord very much. Perhaps I may continue. The day a Government believe this Bill should be changed, they can do exactly that through the proper mechanisms; they can repeal the Acts that introduced them. However, repealing the Bill and giving discretion back to Ministers is not the answer as it is with the other Bills that I have quoted. As I recall from my time in the House of Commons, a sunset clause is traditionally used to delegate authority for a temporary period upwards to the Executive. This Bill delegates downwards, which is why I suggest that a sunset clause is not relevant for this Bill.
I recall that Parliament defines a sunset clause as a provision in a Bill that gives it an expiry date once it has passed into law. Sunset clauses are included in legislation when it is felt that Parliament should have the chance to decide on its merits again after a fixed period. This sunset clause kills the Bill at the end of this Parliament, thus destroying the whole purpose of the Bill, which is to give the British people a say at last in what is happening in their name in ever-increasing EU legislation. However, it even gives it back to Ministers and not to Parliament. This is simply out of line with Parliament’s definition of sunset clauses.
The noble Lord, Lord Kerr, has spoken quite a lot. I give way again.
Lord Kerr of Kinlochard
I am very grateful to the noble Baroness. Coming back to the Fixed-term Parliaments Bill, I hope she will explain why the provision for which this House voted, which is in that Bill now, is inappropriate to the Bill we are looking at today.
Baroness Nicholson of Winterbourne
The sunset clause is inappropriate because, as I have said, this Bill attempts to do something quite unusual with regard to EU legislation and successive British Parliaments and Governments. Traditionally, British Governments, and to a lesser extent British Parliaments, had not involved themselves in EU legislation. Your Lordships’ House is very different from the other place. I am pleased to see that the noble Lord, Lord Roper, is in his usual place. It is known in the European Union—in the European Parliament particularly—that the reports from your Lordships’ House are unique, wonderful and vastly helpful. However, the fact is that given our particular position in this House—we are not elected and primacy rests with the other place—it is the other place that has let down the British people. EU Standing Committees A and B are deficient in their grasp of what is going through under EU legislation. They have not been briefed by successive Governments, which is why I believe that these referenda potentially give the British Parliament the opportunity to grasp again the power that somehow it has let slip.
It is all too true that there is an assumption now that EU legislation has primacy over the British Parliament. That is not the case. Parliament has let slip so much EU legislation in past decades that there is now an assumption that the primacy of European Union legislation overrules the primacy of what is passed through the British Parliament. It was not until I sat in the European Parliament that I realised that other Parliaments have not behaved like this. Other Members of the European Parliament from different member states did not have that perception. In other words, I am suggesting that we have undervalued the British Parliament’s authority over all EU legislation. That is because the British Parliament, particularly in the other place, has allowed so much legislation to slip by that an assumption has arisen that somehow we no longer control it. By we, I mean British parliamentarians. Therefore, I suggest that referenda offer one window into closing this gap of communication with the British public.
Lord Pearson of Rannoch
My Lords, would the noble Baroness care to comment on the Factortame case?
Baroness Nicholson of Winterbourne
I beg to continue, because although the noble Lord’s reasoning is always crystal clear—I often disagree with him entirely but I always respect the way in which he puts forward his views—in this case, I am not quite clear what his point is. I therefore conclude by asking the Government to assure us that if and when this Bill goes through without the sunset clauses, as I hope it will, Ministers will offer other openings through which the Parliament and the British public can be given a greater opportunity to be involved in all the EU debates that are reflected in our legislation. In other words, I see these referenda mechanisms as one step towards reconnecting the British public but not the final step. I am against the sunset clauses.
Lord Hamilton of Epsom
My Lords, I, too, would like to address the question of sunset clauses, but first I will pick up on one or two comments by my noble friend Lord Taverne. He seemed to suggest that we would be put at enormous disadvantage, because there would be negotiations in the EU on certain things that were to the United Kingdom’s advantage but which the referendum lock would somehow stop us agreeing to. This suggests that it is impossible to win a referendum on an issue that is to the advantage of the United Kingdom. I do not quite understand the logic of that. It suggests either that the British people are extraordinarily stupid or that somehow there are no powers of persuasion to tell the people of this country that when things are to their advantage they should vote for them—a rather depressing attitude.
To return to the sunset clauses, and indeed to the points that were raised by the noble Lord, Lord Kerr, I voted in favour of the amendment moved by the noble Lord, Lord Pannick, that introduced a sunset clause for the five-year fixed Parliament. I did that because it struck me that it was a matter of convenience to the coalition to have a five-year fixed Parliament. If that is what was wanted, and if the Liberal Democrats wanted somehow to organise life so that they would not be tipped out of bed by Prime Minister Cameron, who would then call an early election, that was up to them and it was surely something pertinent to this coalition Government and for their duration. I did not quite see why that should tie future Parliaments to adhering to the timescale of a five-year fixed Parliament. That was entirely different.
Baroness Falkner of Margravine
I imagine that since the noble Lord sees the Liberal Democrats behind attempts to tie anyone’s hands through the use of sunset clauses, he has forgotten that it was the late Lord Kingsland who moved, for the Conservatives, a strong Motion for a sunset clause when we debated the Prevention of Terrorism Bill 2005.
Lord Hamilton of Epsom
I was coming on to counterterrorism. Those sunset clauses were designed because the Government had taken an enormous power to themselves. It therefore seemed right that there should be sunset clauses allowing those powers to lapse automatically. As my noble friend Lady Nicholson mentioned, we are now talking about giving power to the people in referenda, then saying, “No, no, we should have a sunset clause so that those powers are then taken back by government”. That is a totally different concept, which was the point raised by my erstwhile noble friend Lord Pearson of Rannoch.
There would be enormous problems in the country if we had to explain that we were passing legislation that gave referenda to the people and that those powers would then lapse and come back to their Government. The people of the country would not understand that in any way whatever. There is a very clear difference between giving the power to the people and having the Government, as in the counterterrorism legislation, taking powers to themselves that can be seen to be excessive. It is in those cases that the sunset clauses should allow those powers to lapse.
Lord Hannay of Chiswick
The noble Lord has perhaps misunderstood the effect of the sunset clause. If it operated and nothing replaced it—although in one amendment before us there is a system that would replace it—we would revert to the Bill in which we ratified Lisbon. This required a resolution of both Houses. It is a case of returning power not to the Government but to Parliament.
Lord Hamilton of Epsom
Of course—but the noble Lord will know well that the late Lord Hailsham described government as an elective dictatorship. I view what will happen as being very much more in the hands of the Government than of Parliament. I take the point that we are talking about Parliament rather than the Government. However, it is an entirely different matter when you give powers to people in the form of a referendum, because if you then take them back you are taking them from the people. That is different from all the other sunset clauses that we have in our legislation.
Lord Davies of Stamford
My Lords, I put forward five simple propositions. Many of them will be regarded by noble Lords as entirely unexceptionable. The first is something that most people would regard almost as a platitude; every human institution must be able, in order to survive, to adapt to changing circumstances, and to change from time to time its decisions, procedures and way of doing business. I think people would accept that proposition for the private and public sectors, and for any realm of life. The Government have not attempted to argue that this principle does not apply, for some extraordinary and miraculous reason, to the institution known as the European Union, and no such argument could cogently, coherently or credibly be made. I will leave the proposition there in the hope that it will not be challenged; I shall be fascinated if any noble Lord chooses to.
My second proposition is one that I have already put forward in these debates, and about which the Government have not succeeded in persuading me that I am wrong. It would not be credible, or possible in practical politics, to have a referendum on 90 per cent of the issues listed in Schedule 1, such as the appointment of judges or the prosecutor general or something of that sort. The British public would consider these matters to be of tertiary importance and interest. We all know how difficult it is to get a respectable turnout in general elections, even when they are the high point of political controversy in a five-year parliamentary period.
The Government have not attempted to argue that I am wrong about that. They have said that, in practice, referenda issues would be bunched. There would be a referendum on six or 12 issues—they have not come up with a figure—at one time. That is not practical politics, either. You cannot ask the British public to answer yes or no to a dozen different questions; you would have to ask for a dozen different considered responses, which would mean that you would have to have a campaign running in parallel on a dozen separate questions, many of which will have a complex technical background. That is not a practical proposition at all.
That is my answer to the noble Lord, Lord Hamilton. I often agree with the noble Lord in this Chamber and always appreciate his interventions. He asked why noble Lords on this side should be worried about referenda, because if we think that something is in the national interest, the public will vote for it. That was the noble Lord's argument; there will be a referendum and it will be won, and the result will be in favour of, for example, greater integration in a particular area. My response is that those referenda will not occur, because it would not be practical politics to have a referendum on at least 90 per cent—or some such very high figure—of the issues set out so conveniently in Schedule 1.
Lord Hamilton of Epsom
I thank the noble Lord for giving way. Is he suggesting to me that it is in the national interest that we should integrate more greatly with Europe?
Lord Davies of Stamford
I am suggesting that sometimes it may be and sometimes it may not be. We need to be pragmatic about these things. I believe that the noble Lord is in favour of our membership of the European Union and of the single market. I believe that he voted for the Single European Act, so he is in favour of qualified majority voting. He therefore considered that it was very much in the national interest to integrate policies in those areas. It may be that he is on record as having been in favour of other forms of integration on equally respectable pragmatic grounds. I think the noble Lord’s record would be quite inconsistent with any suggestion that it is never in the interests of this country to integrate our policies with the rest of the European Union.
I have a third proposition to put forward. Most noble Lords have had some experience of decision-making bodies in the private sector, company boards and so forth, or in the public sector. Anybody with any background in affairs of any kind will agree with this proposition as well. It is a very simple proposition. They might also think it is a platitude. In normal circumstances, it might not have been necessary to put it forward. Often in life, in order to make substantive progress in any human institution or to achieve a particular substantive decision, it is sensible and expedient to move via a procedural change. If you want to get members of your board to come to a particular agreement on a particular matter, you might suggest that you do not take the decision then but set up a committee to take it, or you have some other arrangement that will lead in the right direction.
That applies to the way the European Union works. It works as a horse-trading body. I do not think that is a disparaging comment. Human life is like that. People have different views about different questions and sometimes take some time to realise that they might have an interest in concerting and integrating their policies. It is sometimes quite difficult for Governments to change publicly the way they vote on an issue. It may be that declarations have been made in the past, in their Parliaments and so forth, saying, “We will never agree to vote this way”. We all find ourselves with that kind of commitment on our backs, in our luggage, and it is very embarrassing and trying. Sometimes when you are doing business with somebody who has this kind of problem, he would quite like to agree with you, but finds that he cannot because of some prior commitment of that kind. The way round that often is to change the procedure and say, “Let’s have qualified majority voting”. Then your counterparty may well say, “That’s fine. Nothing wrong with qualified majority voting in my Parliament. Maybe the British Parliament has neuralgia about it, but our people don’t, so we will agree to have QMV on this matter from now on”. Then you can make progress and achieve your common purposes. The single market, of which I know the noble Lord, Lord Hamilton, is a strong supporter, was achieved in precisely that way. That is why Margaret Thatcher came out with qualified majority voting in the first place. That is my third proposition. It is often sensible, if one wants to make substantive progress, to have available to one the opportunity for procedural change and for changing the method of decision-making. It therefore makes no sense to block off that possibility altogether in the way that is often suggested.
You would think that my fourth proposition would be a platitude as well, and I hope it will not be challenged. It is that it is sometimes in our interest to change things. It is sometimes in our interest to get a new decision. It would be very odd if there was a systematic and entirely symmetrical position in which the British national interest always coincided with no, if whatever the question was, it was always in the British national interest to say no. We could save a lot of money if that was the case. We would not need highly paid, highly talented people such as the noble Lords, Lord Hannay and Lord Kerr, living in Brussels. It would be very simple because the answer would always be no. That could be delivered electronically with no expense at all whenever it was required.
Lord Davies of Stamford
Noble Lords may laugh, but it is an absurd idea that the answer regarding the British interest is always going to be no. But if the British answer is not always going to be no and we need to think about it intelligently, and sometimes it might be yes, then does it make any sense to paralyse ourselves, to tie ourselves up, to put handcuffs on ourselves? I do not think it can. That is my fourth proposition: that the way that the Government are going forward with the Bill is profoundly not in the national interest.
At the end of the Committee stage, a lot of us on both sides of the House evidently feel very strongly that serious damage could be done to the national interest. It can make no sense whatever to say that, for the rest of time, the British answer to everything must be no; or that the British answer to everything must be a referendum, because there will not be referenda so that comes back to saying no. The Government say, “No, in fact, if we have this lock on ourselves, the compensation will be that the British public will have greater confidence in the European idea”. The implication of that argument, which we have heard several times from the noble Lords, Lord Howell and Lord Wallace, is that at some point in the future we will not want these handcuffs on us. We will want to revert to normality and be able to take a pragmatic view as issues come up of where our interests lie and whether we should go ahead with colleagues in a greater degree of integration, have the normal arguments, use our veto when we want to, change the procedures and set up QMV where we think that that is in our interests, and so on. The implication of the Government’s argument is that we do not want to tie ourselves in for ever; we do not need to; it is a temporary problem, which they think will be resolved by the passage of the Bill. That is a matter of judgment; I will not go back over that; it is obvious to the Government that most of us are not persuaded by that argument, but they could be right.
As, sadly, I do not think that we will be able to defeat the Bill—I would like to; I do not disguise that fact; I have never disguised that fact from anyone—is not the sensible solution simply to say, “Let the Government have the Bill for this Parliament. Let them have it for four or five years. Let us see whether they are right and that there is some improvement in national sentiment towards the EU as a result of the Bill being enacted and being part of the law of the land”? Let us hope that over just a few years no cataclysmic damage is done to the national interest by preventing us from taking rational decisions in the way that I just described. Is that not a sensible compromise? I think it is. At this stage of the proceedings, it is probably one that we could all bring ourselves to live with, coming from different points on the spectrum and different parts of the argument.
I commend noble Lords—the noble Lord, Lord Taverne, in particular—on the amendments and I hope that they end up enshrining the solution which this House brings to this complicated problem.
Lord Wallace of Saltaire
Does the noble Lord accept that there is a clear distinction between changes in the rules of the EU and decisions in the EU? The Government's case is that extensive competences are provided within the Lisbon treaty. There is already extensive QMV within the treaties. The Government’s case is that there is plenty of opportunity for us to say yes, as we have done on a number of opt-ins and day-to-day decisions. We do not always have to say no in Brussels, nor do we always say no in Brussels. The question is one of competences. There is plenty of room for competences. At some point, there may be a need for further treaty change. That will have to be negotiated. But the time for further treaty change is not now or in the foreseeable future.
Lord Davies of Stamford
I was invited to comment before I sat down, so I shall. I am grateful for the Minister’s intervention and, in particular, for his comment, which is now on the record and which many of us will be pleased to hear, that he does not exclude treaty change in future. As he knows, the drift of my argument this morning has been that it is wrong to make the distinction between changes in decisions and changes in voting procedures. Often the best way to get the right decision will be via a change in the voting method. That is exactly the argument that I was making. I do not need to repeat myself, because I know that the noble Lord always listens to my comments with the greatest attention.
Lord Davies of Stamford
I am most grateful for that flattering comment from my noble friend Lord Radice.
That is exactly the burden of my remarks this morning. In adapting, as any institution needs to do, to the challenges of the future, we should not exclude doing so by decisions within the existing structures and rules, or the need, where necessary, to evolve those rules. That is a false and damaging distinction to enshrine in our law.
Lord Howe of Aberavon
My Lords, I notice that my name is attached to one of the amendments on the Marshalled List. I rise with rather a heavy heart to say anything at all. The kind of discussion that is now taking place—I rebuke nobody for it—and which has been launched by the Bill and beforehand, casts a shadow over an enterprise which deserves to have been given more wholehearted support from a much earlier stage.
I am on record in my own disreputable memoirs as having written a letter in 1948 commending the prospect of Britain taking part in the original negotiations on the formation of the European Community. I reproached the Attlee Government for not having then undertaken the initiative commended by Winston Churchill. It is sad that we did not join at the beginning. We were proud at the time, and entitled to be, of our survival and success in the war. However, at some points we have allowed that pride to be transformed into conceit and have staggered and stumbled in quite a less attractive way in joining this enterprise.
It was entirely right, when we had considered it carefully, to conclude as we did after the 1972 Act that the British people should be entitled to express their view on the major, fundamental change involved in the transfer and sharing of sovereignty, an enterprise that was already under way and working quite well. In that spirit, we were able in successive Governments to play a reasonable part in carrying forward an important and worthwhile policy. I was content and proud, for example, when, under the leadership of my noble friend Lady Thatcher, we circulated a document around the Community entitled Europe—the Future, which visualised steady progress in enhancing the influence of Britain and Europe on the world stage as it was developing.
I have become less and less happy with the to-ing and fro-ing, which has been illustrated as a reductio ad absurdum in this debate. I find my name attached to a thing called a “sunset clause”, which is also a “sunrise and re-set clause”, and does not do justice to the enterprise on which we were embarked and to which we are still committed. The Bill is a response to anxiety among the British people and a tendency to think that we can resolve that lack of understanding if we have an immense clutch of referenda ad infinitum. It would be far better if we were to recommit ourselves to the original enterprise rather than find ourselves engaged in this kind of discussion on this kind of issue.
There is a great course still to be put under way. I grieve at the fact that the Bill purports to give the British people an opportunity that they ought not really to have because it becomes so complex that it is absurd. They were entitled to have that question put to them, as was done in 1975; it was the major step. It is on that foundation that I would prefer us to be going forward now rather than allowing it to get into this morass of multiple referenda.
I do not support my own amendment. I apologise for the fact that it is there because I have joined the rattling to and fro in a context which does not deserve it. I hope that the amendment is not put and that the Bill does not pass, but I am not going to challenge it single-handed at this stage. However, I think that I am entitled to express my dismay in the light of what could have been achieved and sustained, and what can be achieved and sustained if we commit ourselves more wholeheartedly to the European Union, about which Winston Churchill spoke with favour and where successive Prime Ministers have led us forward—even my noble friend Lady Thatcher. We worked together for 15 years, trying to enhance the power of the United Kingdom in the European Union. Our political marriage, which lasted for 15 years, concluded in a divorce, about which the less said the better. However, I reaffirm the legitimacy of that which we did together in those years, and the legitimacy of the objective to which we should be directing ourselves.
The sooner we allow this Bill to spread itself into the morass of discontinuity and die a death, rather than have a sunset clause fluctuating one way or the other, the better. We should let it die of senility because we have had enough of it. That is what I should like to see happen.
Baroness Falkner of Margravine
My Lords, it was on this day last year, and with some trepidation, that I stood as the first Liberal on government Benches in 96 years to support the Queen’s Speech. This party knew, as did the Conservatives, that Europe could create a huge rift between us. It is in the true spirit of what a coalition is meant to be, in European terms, that we have managed in this Bill to come together in pursuit of its fundamental objective of rebuilding trust between the British people and those who govern them.
Amendments 61 and 63 aim to do more or less the same thing: to suggest that the Bill is a complete waste of time and should therefore expire as soon as this coalition Government cease to exist. I have enormous respect for the noble Lords whose names are listed as supporting these amendments. They undoubtedly believe that this Bill is unnecessary and will do little to address the disconnect between the EU’s institutions and Britain’s. They are entitled to their view, but I regret that there has been no attempt on their part during the passage of the Bill in Committee to propose an alternative method of restoring trust.
Noble Lords on the opposition Benches have just been the custodians of power for 13 years. During their time in office, there were broken promises in consulting the people and precious little support for engaging the public in the European debate. Now, when confronted with the central aim of the Bill—to promise the British people that they will have a say in some matters to do with giving over more power to the EU, or at least to assure them that Ministers will have to justify their decisions—the response is to suggest that the Bill is an artificial construct intended simply to appease anti-Europeanism; and that it should therefore be dispensed with at the first opportunity, namely the Dissolution of this Parliament. This goes against the spirit of the Bill and we will resist that from these Benches.
I turn now to the principle of sunset clauses, somewhat anticipating what the Minister might say in response to the other two amendments.
Lord Hannay of Chiswick
I am sorry to interrupt the noble Baroness and am most grateful to her for giving way. However, it is unwise to caricature other people’s arguments, particularly when one does so inaccurately. I wish she would recognise—I ask her to do so—that many of the amendments that have been moved, by me and others, provide for the strengthening of parliamentary control over any changes in the European arrangements. It is a strengthening over what was provided by the ratification of the Lisbon treaty, for which the noble Baroness voted. We would get on a bit better, frankly, if we did not suggest that there had been no suggestions from those who are moving amendments to strengthen controls. There have been.
Baroness Falkner of Margravine
The noble Lord, Lord Hannay, does not particularly care for other people putting words into his mouth. I suggest that he apply the same principle to others. I was not at all proposing that those controls are not being suggested. What I was talking about was a disconnect between the British people and their institutions, whether it is in their relationship to the United Kingdom Parliament or the European institutions. The tone of the debate makes it rather difficult to take what the noble Lord says with the seriousness with which it is intended.
This is the only amendment to the Bill that I have tabled, and I should therefore be most grateful if I could continue to address the principles behind my amendment. Somewhat in anticipation of what the Minister might say in response to the other two amendments, let me speak to the amendment in my own name and in that of my noble friend Lady Brinton, Amendment 64.
Sunset clauses in legislation are increasingly becoming part of the framework of our constitutional arrangements. We have seen them in a spate of Bills over the past decade or so. It was only earlier today that a sunset clause was reprieved and put on a permanent footing in the Debt Relief (Developing Countries) Act 2010. That also happened to the Anti-terrorism, Crime and Security Act 2001. This House voted again and again to insert such a provision into the Prevention of Terrorism Act 2005. A host of other Acts attracted such clauses, including the Finance Act 2001, the Income Tax Act 2007 and the Climate Change and Sustainable Energy Act 2006. The list goes on and on. Why are sunset clauses there? Among the reasons is concern about the unintended consequences of the relevant legislation. There was concern that new structures and processes were being installed without clarity on how exactly they might work in certain circumstances that could not be foreseen when the legislation was passed. In other words, they cannot be foreseen here and now. On that basis, there is no Bill, once enacted, more suitable for post-hoc review and the possibility of repeal than this one. Its aims are clear and I have reiterated our support for them. What is unclear is the effect of the measures on decision-making in the future.
Several noble Lords have mentioned the need that might arise when decisions are taken in urgent situations. Others have spoken of the need for flexibility. Yet others have spoken of the level of complexity in EU legislation. All sides of the House share a central concern—that UK interests should not be put at risk due to its adoption of the complicated procedures in place in the Bill. Therefore, a sunset clause, if accompanied by a straightforward sunrise clause, would seem to be ideally suited here.
I turn briefly to Amendment 62 in the name of the noble Lord, Lord Kerr of Kinlochard. There is little that one would fault with it, other than the proposal that the Bill should sunset at the end of this Parliament. Several noble Lords have suggested that there is no point in the Bill because the coalition has already declared—not today but at other times during the passage of the Bill—that there will be no further transfers of powers or competences. In other words, we do not need this legislation because there has been a declaratory statement of what the purpose of the Bill will be for the rest of this Parliament. That misses the point that we are intending to legislate for the future.
I turn to the issue of whether a Parliament can bind a future Parliament in this manner. I agree with the European Scrutiny Committee in the other place which said that Parliaments by necessity bind the other, as all legislation is directed at the future, rather than the past. I quote from the report:
“Laws passed by one Parliament do not contain a sunset clause at the Dissolution”.
All can be repealed by a future Parliament, if it so chooses and if that Executive can muster support. However, I recognise the political difficulties that repeal can attract, hence the simplicity of Amendment 64. First, the fact that the sunset would not take place until three years into the next Parliament would mean that a new Government would have sufficient time to see how the provisions played out in reality. Their Ministers would be able to see for themselves that their negotiating positions were not as inflexible as the Bill might appear to suggest, and that that they did not go to Brussels with one hand tied behind their back. In other words the provisions should actually work in practice. We would have sufficient time to assess whether we needed regular referendums, as the four remaining years of this Parliament plus three in the next would allow for a reasonable time span over which to make a judgment.
Finally, my amendment would also allow for an evaluation of how the judicial review provisions work. The process of judicial review can be, as we know, fairly drawn out, and we will have been able to make an assessment of whether the dire predictions of the frequency of judicial review will really bear out.
My Amendment 64 would put in place the possibility of evaluating how things will play out. This evaluation period would be sufficiently long to test the workings of the Act. The process would be straightforward: the Act will lapse if the Government think that it is not in the national interest to retain it, but if the Government of the day wish to retain it, again, all that will be needed will be an order resurrecting it—a sunrise. It will not absorb political capital or indeed take up precious legislative time. This clause is intended to be a pragmatic, evidence-based solution to ameliorate uncertainty. While I may be probing today as to the Minister’s objections, I suggest that in future years he may look back at this amendment, if accepted at Report, with some relief if he is caught in an unwelcome bind that was not evident on a glorious, sunny day in May.
Lord Grenfell: I support Amendments 61 to 63. I am sorry that the noble and learned Lord, Lord Howe, feels that he must now dissociate himself from Amendment 62, because the olive branch on which the amendment perches is very appropriate and could lead us out of a difficult situation.
I think that Schedule 1 is an abomination, and I always have done, and wish that it was not in the Bill. To pretend that this could possibly bring the people of this country closer to the EU and vice versa is a total myth, and I am surprised that there are those who still believe that this is the way to go in order to cement the relationship between the people and the European Union. The noble Lord, Lord Kerr, is right to say that the Bill is not exactly a subject of discussion in the bars on the Champs-Élysées or even in the Quartier Latin—far from it. But it is beginning to have a little bit of resonance in the two Houses of the French Parliament, particularly in their European Union committees, where they have taken note of it. A member of one of those committees asked me the other day whether this was actually true and whether it could happen. When I said it could, he said, if I may slip for a moment into the language of Simon de Montfort in this Parliament,
“Dans ce cas-là, nous entamerions notre proper chemin”—
which means,
“In that case, we’ll go our own way”.
And indeed they will.
I honestly believe that to think that the rest of Europe will go along with this is simply not true. It will test their patience to the limit and will do us no good at all. This Bill is not a good Bill. It is full of things that should not be there. To requote something I said late one night in Committee, Antoine de Saint-Exupéry said that perfection is achieved not when everything has been said that should be said but when there is nothing left to take away. This Bill suffers from the fact that the Government do not see that there is a great advantage in taking quite a lot of this away, but I am afraid that we may have to live with a different situation.
This is not a good Bill. I support the three amendments and hope that at least we can make it better by passing them.
Lord Ahmad of Wimbledon
Before I comment specifically on the sunset clauses—and notwithstanding the masterful innings of my noble and learned friend Lord Howe—it is important to reflect on the ultimate purpose of the Bill. We have heard the noble Lord, Lord Kerr, and other noble Lords talk about connection with the British people. The fact that people on the streets are not talking about Parliament debating the EU Bill is in fact a recognition of the disconnect that the Bill is trying to address. It is about defining Britain’s relationship with the European Union. Perhaps more importantly, however, it is about defining the relationship of Parliament, and indeed the European Union, with the British people, which is a very noble intention. The Bill looks to challenge, test, promote and perhaps redefine our relationship with Europe in the best interests of the British people. It is not sceptical. It is not against the European Union. It is about recognising the strengths of the single market. However, it is also about improving that relationship.
I have sat through many sittings on this Bill and heard many noble Lords talk about their experience of the 1975 referendum on joining the European Economic Community. I must confess that—through no fault of my own, I should add—I did not have much interest in the issue at that time. However, like many British people today, I am interested in defining our future relationship with the European Union. Why deny a referendum? Why deny the people of our great country a voice in defining that future relationship—not against Europe, but working with Europe at the heart of Europe?
Should sunset clauses be applied? Yes, where there are specific timelines in the Bill, as noble Lords have said in respect of other Bills. However, this Bill does not have that. They do not apply to this Bill. The EU Bill seeks to define our relationship. A sunset clause limited to this Parliament alone, or extended as the noble Baroness, Lady Falkner, suggested, is limiting. It does not recognise what this Bill seeks to do: to reconnect with the British people. Nor does the lack of a sunset clause bind future Parliaments. If there is a need at the time and in the correct place, which is here in Parliament, another Act of Parliament can be proposed that looks at the Europe of the future. That is, indeed, for the future. For the here and now, I believe that a sunset clause would kill the Bill. It will leave it with Ministers and not with Parliament. Most importantly, the basis of the EU Bill, as my right honourable friend the Foreign Secretary said, is for an enduring constitutional framework. Ultimately, it is providing the British people with a voice in defining our future relationship with Europe
Baroness Quin
I will speak very briefly in support of the idea of a sunset clause, which is probably the best way of ensuring that, assuming that the Bill becomes law—although I share the view of the noble and learned Lord, Lord Howe, on that—there is at least an opportunity for a fundamental rethink about it. My noble friend Lord Davies, whose fine speech I will not repeat, made the very important practical point about the operation of the Bill, particularly under the almost nightmare scenario of having a complicated referendum with several questions on entirely different aspects of treaty change. His practical objections to the working of the Bill really do need to be examined and thought through in much greater detail than seems to have happened so far.
I also have a more fundamental objection. I get very concerned about the idea of holding more and more referendums without thinking through what their role is to be in our parliamentary democracy. On the whole, I prefer a representative democracy to a plebiscitary democracy. This Bill, unfortunately, takes quite a few big steps towards a plebiscitary democracy and we need to think about that. It is very seductive to talk about giving power to the people. However—and I know I am in a minority in this place in espousing this view, as someone who believes in an elected second Chamber—there are ways of giving power and a vote to the people other than by referendum. I do not want us to be seduced into thinking that the only way in which you can give power and influence to the electorate in this country is via the continual use of referendums. I do not think that that is true for a moment, and, again, it is something that we should think about.
The Bill represents fundamental constitutional change. Along with a number of other measures that the coalition Government are introducing, we are making considerable changes to our constitution—in some ways, almost more so than the previous Government, of whom I was a supporter and who were often criticised, particularly by the Conservative Party, for the extent of their constitutional changes. However, we are doing so in a way that I think is fundamentally unsatisfactory in a Bill such as this. For that reason, anything that causes us to rethink this legislation is, in my view, to be greatly welcomed.
Lord Hannay of Chiswick
My Lords, I shall speak briefly in support of these amendments and I want to make two points that have arisen in other contributions. The first is the question of one Parliament binding another. Some perfectly valid points have been made by those who say that much of the legislation that we pass binds a succession of Parliaments until they repeal it. However, what is not noticed is that the Government stepped into the quagmire by stating categorically that this Bill, if it becomes law, has no application during this Parliament, because they are not going to agree to any of the things that would trigger its application.
That, I think, puts it in a completely different category and explains why a sunset clause has become particularly apt. I argue that it is a constitutional aberration to sit around trying to pass legislation which has no application in the timetable of this Parliament and which is designed purely to be applied in subsequent Parliaments. That is an oddity which I think justifies the sunset clause.
The other question is the one put very eloquently by the noble Baroness, Lady Quin. We need to clear our minds a bit on whether we want to go in a major way into a plebiscitary democracy. I know that the noble Lord, Lord Pearson of Rannoch, who is not in his place, thinks that turning this country into a simulacrum of Switzerland would be a jolly good thing. I do not happen to share his view on that. However, I think that noble Lords who say that the voice of the people must be heard should think a bit about this. Incidentally, most of them are sitting on the Benches of a party that has resisted referendums consistently over the past 40 years.
What is being suggested here is a major lurch into plebiscitary democracy in just one section of our institutional life while leaving the rest of it more or less as is. That is a peculiarly unbalanced way to approach this matter. By all means, let us have a debate about whether we should move away from representative parliamentary democracy to a plebiscitary democracy, although I have no doubt whatever what the outcome of that would be. There would be a massive majority against doing so. However, do not let us lurch in one section of our national life into potentially 50 or 60 referendums.
That is why I support a sunset clause, and I could support any of the variants in Amendments 61, 62 and 63. I hope that the Government will think really carefully about this because it is a serious matter.
Viscount Trenchard
My Lords, I hesitate to intervene at this late stage in the debate, especially as I was unable to participate in the Second Reading and earlier Committee debates. However, I feel that I want very much to intervene in the debate now, and I especially felt that on Monday. The noble Lord, Lord Hannay, pointed out that no support on these Benches had been given to the Bill during the debate. I wanted to say that that was because the people who were moving amendments were those who wanted to change the Bill as it stood, whereas those of us who were silent could well have been silent because we supported the Bill as put before your Lordships’ House.
The Bill is intended to enhance transparency and accountability through greater public and parliamentary control over government decision-making and to increase the trust and engagement of the British people in the EU, which is very necessary.
The noble Lord, Lord Kerr, remarked earlier in his eloquent speech that we are fortunate to have on the Cross Benches of your Lordships’ House people who still live in the real world. I should like to ask the noble Lord where he thinks the real world is, because it seems to me that the real world for any of us is where we happen to be at any particular time. I do not have the same experience as the noble Lord of life in Brussels, but I spent one very enjoyable year there in 2006. I suspect that if I had spent a great many more years there, it is quite possible that my feelings towards the European Union’s institutions would have changed.
I have spent considerably more years in Japan, which is very different. Therefore I have seen the evolution of the European Union, and the United Kingdom’s place within it, from very different circumstances and a different country. That has led me to hold different views on our country’s bilateral relationships with other countries. I do not disagree for one moment that there are matters on which it is right to pool our powers with our European partners in order to exercise more influence. Equally, there is a great need also to draw a line in the sand. When I am in the real world outside this House, in the country or in other countries, I find that people want to know who is making their laws. I think that they feel cheated that there was no referendum on the Lisbon treaty. I am not sure that we should be proud as a Parliament to have provided a referendum only on AV and not on the Lisbon treaty, for it seems to me that the one, the Lisbon treaty, is much more important than the other.
Several noble Lords have suggested that we are changing into a plebiscitary democracy. There is a danger that we could have too many referendums; I am not in favour of having a great number of them. However, in matters which fundamentally change the way in which laws are made in this country, and where this Parliament decides to hand over, to all intents and purposes permanently, powers to the European Union, I think that most people think that they should have a say. So they definitely feel cheated.
I have enormous respect for my noble and learned friend Lord Howe. I listened with great respect to his eloquent speech in which he said that it would be better if we all concentrated on making the European project work rather than argued about this type of legislation. I remember voting in the referendum in 1975 to endorse the decision to join the European Community, as it then was. During many years in Japan, I extolled the virtues of the single market and tried to persuade Japanese companies to list their shares on the London Stock Exchange because of its access to it. I tried to persuade companies to come and invest in this country because it would give them access to a single market of 300 million people or whatever it was. However, at that time it was not envisaged that the European Union would extend itself into so many areas of legislation affecting our national life. A great deal was said about subsidiarity: in other words, where it is necessary to combine at European Union level, we should freely do so, but where it is possible and appropriate that national Parliaments should continue to decide things in the interests of their citizens who have elected representatives to those Parliaments, subsidiarity should apply. We hear very little about subsidiarity today.
The noble Lord, Lord Taverne, made a very eloquent speech in moving his amendment. He said that yesterday he heard that the City was very concerned about European financial regulations, and that therefore we should be very careful because a Bill such as this would reduce our ability to participate properly in formulating appropriate financial regulations. I feel that the noble Lord is seeing this from the wrong angle. It is increasingly difficult for our own regulators, who have far greater experience of financial markets, to make any regulations at all. The chief executive of the FSA told me fully a year ago that he can make no regulation now that is not agreed by the other 27 members, many of whom have very little experience in financial markets. Perhaps many of the other 27 feel that London has too large a share and would like to see some of that share go to other financial markets in the European Union. It is very important that we continue to defend the City and argue for the maximum say in these matters for our national regulators.
Lord Kerr of Kinlochard
Has the noble Viscount noticed, as I have with approval, Mr Lidington’s plan to make a speech today at the Mansion House saying that he will be relentless in dispelling the myth of Anglo-Saxon isolationism? This seems to me to be an excellent thing to do. Does he feel that this Bill in any way helps to remove from the continent the myth of Anglo-Saxon isolationism, and will he address the question of sunset clauses?
Viscount Trenchard
I thank the noble Lord for his intervention. Like him, I welcome the speech to be made by Mr Lidington. I do not wish the United Kingdom to be isolated in Europe—not for one minute. I believe that the Bill should help the United Kingdom to participate in decision-making in the European Union in matters where it is appropriate that we should do things together. It is necessary that we should make it clear where this country and this Parliament stand. We need this in order to define again the relationship of this country with the European Union. The people do not want to see more powers transferred to Brussels without their agreement.
Lord Taverne
Does the noble Viscount not see that if, as a result of the Bill and the difficulties placed on our negotiators, a procedure of enhanced co-operation was introduced for these regulations, it would not be to the City’s advantage?
Viscount Trenchard: My Lords, I have spent some time in Brussels, Paris and the Netherlands, talking to regulators. It is very important that we continue to engage, and that our national regulators continue to engage, with those regulators. However, it is not at all to the City’s advantage to duplicate regulation. It is not to this country’s advantage to duplicate diplomatic representation. We cannot afford to have two sets of regulators—one at the European level and one at the national level—doing the same thing.
We cannot afford two Foreign Offices. When I was in Tokyo for the first time, in the 1980s, I used to visit the office of the European Commission in Japan. It was the precursor to what is now to be called the EU embassy. What was there at that time already seemed fit for purpose; a large number of officials were doing their jobs. The other representatives of various countries used to gather in the office of the EC delegation, as it then was. Now I hear that the European Union, in pursuing the development of the European External Action Service, wishes to have ever larger embassies in major countries. This costs a huge amount of money. In Tokyo it will be very difficult because the British embassy already occupies number one, Ichiban-cho—that is, number one in the number one district. It faces the imperial palace across the moat. I am not sure where the European Union can establish its own embassy, if the only way it could be more grandly located would be to replace the Emperor himself.
On the sunset clause, I agree with my noble friend Lord Hamilton and others that, in the case of the Fixed-Term Parliaments Bill, there is a very good reason to have a sunset clause. Like him, I do not wish to see fixed-term Parliaments become a regular feature of our constitution. I do see that in these circumstances, where we have a coalition Government who have inherited a terrible fiscal situation, there are perfectly good reasons why this Parliament should be given a fair wind to continue for its full five years. However, I should be happy to see a sunset clause because that should not necessarily be the way for all time in the future.
In the case of this Bill, we cannot argue that the circumstances will be different from what they are now in three or five years’ time. What message does it send to the people if we enact a Bill, but say that it will cease to apply in three years, when we or a Minister of the Crown will decide whether to extend it? I see no logic whatever in attaching a sunset clause. Like my noble and learned friend Lord Howe, I believe that either it is a good Bill, in which case Parliament should pass it, or it is a bad Bill, in which case Parliament should not pass it. I would certainly vote against the amendments.
Baroness Garden of Frognal: There seems to be a general will in your Lordships’ House that we should complete this debate by 1.30 pm, rather than come back at 5 pm. Therefore, I suggest that noble Lords try to keep their comments brief and relevant to the sunset clauses.
When I intervened at an earlier stage in our deliberations on this Bill, I talked about the lack of vision behind this legislation. Having listened to this debate, I am frankly more concerned about that than ever. I really believe that we are losing sight of the wood for the trees. Of course I respect the legal arguments and niceties but the noble and learned Lord, Lord Howe, is absolutely right to say that if only our energy, thought and deliberations were going into how we strengthen international institutions rather than how we preserve a traditional view of our national interests, it would be a great thing for British politics.
I believe we have to look at the significance of this Bill in the real world in which we are living. We know that part of the political drive behind the Bill is to reassure the British people that they have a Government who are not going to allow this international institution to start running their affairs in any greater dimension that it does already. This is such a wrong concept of the interests of the British people. The whole challenge is how we strengthen this institution in protecting their interests, together with those of our fellow citizens in Europe and more widely.
I feel strongly that we must also recognise how the media will play these deliberations. We know that a great deal of the popular media will say to the British people, “This is a fight against British interests and the European Union”. We have talked in this debate about Brussels and the European Union as though it were separate from us, just as over the years we talked about the United Nations as though it were separate from us. They are us; they have no being other than us, together with our colleagues in Europe. Our challenge is how we should work and co-operate with others in Europe to make them strong and effective. There is a problem of the leadership within the European Union—the drive within its practicalities—having got ahead of and lost contact with the British people. There is a huge job to be done there in re-establishing political leadership and in understanding what is at stake and why certain measures are necessary or not. Most disturbing of all is the reality that if we pursue this Bill to its conclusion, the message that will go to our European partners is that our membership of the European Union is not a full-blooded commitment but conditional.
All of us who have participated in government and been through such issues in the past know that if there was something of such significance that the view of the British people should be tested, any responsible British Government would be prepared on an ad hoc, specific basis to consider a referendum. However, to build into legislation the concept of conditionality is not the way to enhance and strengthen our role within the European Union. From that standpoint, I believe very much that the amendment put forward by my noble friend on the Front Bench and the other amendment, which in all practical respects reflects it, are the right amendments. We shall otherwise be making an historic choice in our deliberations: to go down the road of Little Englandism, as distinct from a role of real leadership and real participation in the international community, where the interests of our people can best be protected.
Baroness Brinton
My Lords, although I oppose both Amendments 61 and 63 for attempting to kill the Bill before its effect can be seen in practice, I have some sympathy with Amendment 62. Over the eight days that this Committee has sat, many noble Lords have expressed concern from both the pro and the anti-European perspectives about detail that is often not in the Bill itself, as the Bill is not about policy but very much about a legislative route and framework. As a new member of this House, I have found it somewhat bemusing that we have ended up debating policy issues—particularly dead-fish catches—when the Bill seems really to focus on the framework. That is not surprising given the strength of feeling on all sides about Europe, and I recognise that it is unlikely that we will ever reach unanimity; obviously, much of the concern is about that. Indeed, that was expressed in the coalition agreement—that we would be working from different policy perspectives but trying to find a route where we could work together, better to engage with the British public.
I have some sympathy with Amendment 62, on the grounds that it proposes a range of actions available for a future Parliament, and a future Secretary of State and his or her Government. However, there is one fundamental flaw with Amendment 62, in that it proposes that Part 1 and Schedule 1 expire at the end of this Parliament. The Government have said that they do not expect any referendums during this Parliament, because it is not expected that there will be any transfers of powers or competences during this Parliament. As an aside, I wonder whether the noble Lord, Lord Hannay of Chiswick, is conflating the “policy versus law” argument that I made earlier, because the Government have announced that they are taking the logic of this and turning it into law for the framework, not tackling policy issues.
That is why I hope that the arguments made in Amendment 64, to which I have added my name, will find favour with the Committee. It is a probing amendment that tries to find a pragmatic route through the current impasse in the House. In the amendment, we propose a sunset clause for half way through the next Parliament, which will give time to see how the referendum lock would work in practice. Importantly, it also provides for the opportunity to revive the order, should a future Secretary of State so will it; of course the correct instruments would go through both Houses. This gives a future Parliament the means to let the Act expire or to revive it by order, without having to schedule large amounts of time in both Houses at the beginning of a new Parliament. Amendment 64 therefore offers a neat solution for those on all sides of the argument, and I commend it to the House.
Lord Dobbs
My Lords, I had intended to intervene for the very first time on the Bill to make a passionate denunciation of the idea of a sunset clause—on its inappropriateness—and I understand that if I do not intervene today I might have trouble intervening at a later stage. Given the pressures of time, I hope that the House will give me leave to not make that intervention today, but perhaps to intervene at a later stage.
Lord Liddle
I think we should thank the noble Lord for that, so that we can get on to our quick lunch and then to President Obama.
This debate on sunset clauses has been important. Amendment 63 is in my name. Frankly, I would happily support any of the amendments, because in this long Committee stage the Government have failed to make the case for the detail of the Bill as it stands. Because they have not done so, we are legitimate in proposing a sunset arrangement. Of course, on this side of the House we accept that there is a genuine issue about the popular legitimacy of the European Union. That is a matter for regret from our perspective, but it has to be addressed. The best way in which it could be addressed in this country is by establishing a cross-party consensus in favour of our membership of the European Union and for all parties to speak in that way. I do not think that the Bill is going to do much to establish that cross-party consensus, but it is an opportunity to address anti-Europeanism in our country. The rise of populist parties in other parts of Europe is also a matter of great concern. Britain is not alone in facing this legitimacy question.
We need to do something to strengthen the EU’s legitimacy, but do we need this Bill? There are features of the Bill that the Government have put forward that we are prepared to accept. They represent a strengthening of parliamentary accountability and of the circumstances in which referenda might be held. We now accept, which was not the case when the Lisbon treaty was ratified, that most of the things that come under passerelles and other consequentials of the Lisbon treaty should require a full Act of Parliament. I say to the noble Viscount, Lord Trenchard, that this side supports strengthening parliamentary accountability over what decisions the Government take in Europe. On that, we are agreed. We also accept the codification in statute of the political consensus that we would have to have a referendum to join the euro and that referenda should be considered on issues of major constitutional significance. As I said earlier in Committee, a major constitutional treaty that, for instance, led to the direct election of the president of Europe would be that kind of constitutional change that would require a referendum. There is also a strong case to be considered for referenda should we wish at some stage in our national interest to surrender our border controls or to establish a common defence force. These are very big issues which could be suitable for referenda.
This Bill does not do that. It does not focus on the simple, straightforward case that in most issues you should strengthen parliamentary accountability and then on really big issues you should accommodate the possibility of referenda. Instead, it puts in place multiple referendum locks. We count 56, although I am not quite sure whether that number is right. This is a wholly new constitutional innovation on which many Members on all sides of the Committee have expressed severe reservations. In the course of the Committee, we have tried to reduce the number of referendum locks. We have argued, again with the support of a broad range of opinion in this Committee, that Ministers should be able to exercise judgment about which matters are significant on many of the minor changes and minor treaty revisions on which this Bill imposes a referendum lock. We have argued for a parliamentary process—a Joint Committee of both Houses—to consider where referenda might be necessary. We have supported amendments that would simplify Clause 6 and boil down the number of referendum locks to the really big issues.
We have had no give from the Government on any of those issues through this long Committee. That is why we come back to say that the Government have not been prepared in any way to consider the wide range of opinion in this House that the Bill needs substantial amendment, so it is right to suggest that if it is to stay as it is, the whole thing should be sunsetted. I do not blame the Minister for that; I think he has very little freedom to make concessions in this House. The only time we will get concessions from the Government is if, in voting on Report, we can make changes to the Bill. We have no intention of pressing the issues to a vote today. The whole Bill rests on the misjudgment that the leadership of the coalition has made that Europe is somehow a dead issue in our national politics; that the Lisbon treaty was, as it were, Europe's last gasp in terms of changes in its constitutional architecture; and that the Bill is therefore a cheap bone that can be thrown to the many Eurosceptics on the Benches supporting the coalition in the House of Commons.
That is a great shame for a couple of reasons. First, as the noble Lord, Lord Kerr, said, no one can precisely foretell now how the European Union might have to adapt in future. Therefore, the warning of the Council’s former legal adviser, Jean-Claude Piris, that Britain might find that others go ahead and Britain is marginalised, is likely to prove correct were the Bill to last for the longer term. It could have that very damaging long-term effect on Britain's position in Europe. That is a shame, because the coalition Government, in their day-to-day policy on Europe, are trying to be positive. They present the Janus-faced stance of appealing to the anti-Europeans with this disgraceful piece of legislation on the one hand; and yet, when they go to Brussels, they try to present a positive picture of Britain's role in Europe. They signed up for the defence treaty with France. They have argued for deepening the single market. I would not disagree with a word of the speech to be made today by David Lidington, the Europe Minister, which was trailed in the Financial Times this morning. The Government are being positive, but the truth is that, were the coalition to stay in power—of course I would not wish for that—or the Conservatives to be in power for the longer term, if they wish to pursue a positive European policy, because there will need to be adjustments to the rules over time as well as to decisions, they will find their Bill increasingly an albatross. I think that it was my noble friend Lord Davies who described it as the handcuffs of the multiple referenda.
That is a great pity, because far from Europe being a dead issue, we are at a turning point in our national affairs where, in economics, we have in this country to search for a new economic model. We have to rebalance our economy, which can be done only through rebuilding our export strength. Nothing is more important for that than our full engagement in the European single market, and therefore we have to be as co-operative and positive as we can. In terms of our role in the world, we should heed what the noble and learned Lord, Lord Howe, said in his speeches both today and a couple of days ago. As Asia emerges ever stronger, Britain is more dependent on the influence it can multiply through the European Union to have a role in the world. These are big reasons for showing our full commitment to Europe and why we have to be prepared to be flexible in our dealings with our partners rather than lock ourselves out, which is what the impact of this Bill will be.
In conclusion, like the noble Lord, Lord Kerr, who quoted from A Midsummer Night’s Dream, on this side of the Chamber we believe that the European Union is a lasting dream, but this Bill is a nightmare and should be sunsetted at the Report stage.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)
My Lords, I thank all noble Lords who have participated in this debate, sometimes colourfully. There have been a lot of references to William Shakespeare, which I was rather glad about, having spent many years as a director of the Globe Theatre. I have sat through some Shakespeare which, frankly, I could not understand, but in other plays I have heard some wonderful, inner-illuminating phrases, so I am glad they have come into our debate. The noble Lord, Lord Kerr, has led the way in that. As to whether he is Prospero doing such things as cannot be described, whether he is King Lear, or whether he remains in his midsummer night’s dream, I do not know. Perhaps I should leave Shakespeare there.
I thank the noble Lord, Lord Liddle, for his presentation of his party’s position. I listened carefully to him, and if I may put this in a non-derogatory way, I would say that his speech was constructive in parts. He is right that we are at a turning point in the European Union. Indeed, one of my criticisms of some of the comments made during this long Committee stage is that we seem to be discussing the EU of yesteryear, a sort of pre-Lisbon world. Not only are we in a post-Lisbon world, we are moving into an entirely new international landscape where power is distributed in different ways. We have all said this to each other, and I know that your Lordships are acutely aware of it, possibly more than other bodies are.
There is a new international scene that requires new policies and approaches by both the member states and the European Union itself. The noble Lord was therefore right to say that we need to build a new consensus in support of the European Union and our role in it, but I must say that he has failed utterly to convince me in his various interventions, including this one, that the flexibility which Her Majesty’s Opposition seem so keen on and so anxious to see, would not turn out to fill the Bill with holes and undermine all our efforts to create consensus and restore the confidence and trust of the people so that they do not feel that the political class—Governments and Parliament—was not undermining their position in a stealthy way. This seems to me to be a contradiction that is not yet clear.
We will come to Report after the Recess. A great many wise and useful things have been said by Members on all sides in our Committee debates, and of course the Government will consider everything that has been said. My colleagues and I shall certainly do so before we reach the next stage. That almost goes without saying. For the moment, however, I must address the amendments before us, all four of them, about the idea of a sunset clause. It will not be much of a surprise to your Lordships when I say that the coalition Government, for which I am the mouthpiece today, oppose the proposal for a sunset clause. Although I know I shall not get full agreement, I shall try to set out as precisely and as clearly as I can why we do so.
Let us start with the general proposition of including a sunset clause, and why it would be absolutely unprecedented and extraordinary to include one in this kind of legislation, which is constitutional legislation—there is no disguising that—and intended to build a consensus to improve and enlarge our democracy in the modern world, in the midst of this informational revolution that has transformed the whole nature of public domain and decision-making, and to give the British people a greater say, which they clearly want, over important decisions on the future direction of the EU.
I do not at all share the view that these are obscure and arcane issues that no one discusses. On the contrary, particularly the much-maligned Schedule 1 issues, and indeed many others in Clause 6, are highly contentious so-called red-line issues which both Parliament and the public have stormed over—and the media have often joined in in ways that some of us find unattractive and not suitably calibrated. However, these are red-hot issues. The idea that they are not absolutely central to the concerns of the British people—to how we govern ourselves, position ourselves in the European Union and conduct our domestic affairs—seems to me not to be of the real world.
These are very serious and central issues. The truth is that a sunset clause of the kind proposed—we are dealing with a number of different aspects, which of course I want to come to—would seriously undermine our attempts to reconnect the British people with the European Union in its changing form and the decisions taken in their name. Here I would say that I do not think that the noble Lord, Lord Pearson, will accept—but I ask him to accept—that I am very tempted to have a lovely debate on the eurozone in all its aspects, but I do not think that this is quite the opportunity or even the time to do so.
Let me return to this general idea that there should be a sunset clause in a Bill such as this. There were no sunset clauses, of course, in the Constitutional Reform and Governance Act 2010 or, indeed, the European Communities Act 1972, and there is a very good reason for that. Such clauses would be a recipe for uncertainty where certainty is most needed, namely in the framework by which our democracy works. This Bill belongs to the family of certainty-building and not to the family of those who wish to experiment and say, “Let’s just try this measure once and then close it down again”. It would hamper our efforts to rebuild the trust of the people that has been lost in recent years. Why? It would hamper them because we as a Parliament, and the Government as well, would be saying to the British people, “You can have a say on future transfers of competence or power from Britain to the EU, but sorry, it’s only for a limited period unless the Government decide in their wisdom that the right should continue”. That seems to me to be completely the wrong way to go about the purposes, which even the noble Lord, Lord Liddle, seemed to share to some extent, behind the Bill. It would of course also absolutely guarantee the further alienation of Government and Parliament from the people whom we are supposed to serve and whose support and understanding of the values of our effective membership of the European Union we want to increase. It would be a retrograde step in the whole battle—
Baroness Falkner of Margravine
Given the time, I am sure that the noble Lord is keen to get under way, and I will not intervene again. Perhaps I may just put to him the simple proposition that if he is concerned about uncertainty at the same time as being concerned that the Bill’s fundamental purpose is to reconnect with the voters, the ideal solution would be to have a sunset clause sometime in the future with a general election in the middle, allowing the voters to express in that general election their view one way or another on how the Bill has panned out.
Lord Howell of Guildford
What parties put in their manifestos is certainly not within my control or that of anyone else in Parliament. The parties can make their own decisions. I respect very much what my noble friend and her colleagues are saying and the nature of their amendment, and I want to consider it in considerable detail in the time left. I consider that a very important thing to do.
I was just saying that if the pattern I have described is the right one, the measure would be a retrograde step in an age when the British people have come to expect more of a say than ever before in a wider range of issues. We might not like it, but that is the reality. That applies not just to the British people, of course, but to electorates throughout the entire planet, of which one-third are now on the worldwide web with their linkages and networks expressing their views. Therefore, this measure would do nothing whatever in our view to help to demonstrate to the British people why our continued membership of the European Union is in the interests of everyone in this country and in our national interest. That is something in which this Government believe, although it is not a view that is shared by all noble Lords.
We would be taking power away not only from the British people but from Parliament, because what this Bill does in part, as the noble Lord, Lord Hannay, and others have reminded us, is to enhance the power both of Parliament and the people. We would be promising Parliament more control over decisions taken by the Government at the EU level only to take it away again. Weakening parliamentary control in this way would run contrary to the key principle of the Bill. That principle, incidentally, has been welcomed by the Constitution Committee of this House and by a number of noble Lords in debate.
The noble Lord, Lord Taverne, spoke with great fluency and feeling on whether the Bill binds future Parliaments. Given his remarkable career, he has been at the centre of how the EU should develop and how Britain should work within it, so I totally respect his comments. However, this Bill does not attempt to bind future Parliaments. That is not its intention and it is not the way in which it works. It is open to this and to future Parliaments to repeal, disapply or amend this legislation, once it has been enacted, as Parliament can do with all legislation. The Bill does not alter this fundamental tenet of parliamentary sovereignty, and nor should it. I pray in aid here an interesting remark of Edward Short, a man for whom I had great admiration although he was not on my side politically. When he was Leader of the House of Commons, he said during consideration of the Referendum Act 1975, which my noble and learned friend Lord Howe remembers so well:
“Although one would not expect hon. Members to go against the wishes of the people, they will remain free to do so”.—[Official Report, Commons, 11/3/1975; col. 293.]
Rather than binding future Parliaments, this Bill is an attempt to engage and guide this and future Governments—not Parliaments—and to bind them to seek the views of Parliament, and where necessary the British people, before signing up to any further transfers of power over and above the powers and competences that the European Union has. I have argued throughout Committee that those powers and competences are ample—some would say they are more than ample—to perform all the tasks that we want to see performed in the upgrading, development and strengthening of the European Union as it adjusts to 21st century conditions. It is our wish and our intention that this Bill should become a settled part of this country’s constitutional furniture. If people say, “You should not say that”, my answer is that any Government wish to see their architecture—their longer-term aims and hopes—last into the future and be adopted by the next Government.
One makes no secret of the fact that where we are talking about architecture rather than a one-off task, it is natural that we should want the following Government to pursue it. I recall being a member of a Government some decades ago who promoted the dreaded phrase “privatisation”. In fact, the noble and learned Lord, Lord Howe, did me the honour of suggesting that I had invented that word, adding that it was a particularly ugly one and everyone wanted to get rid of it. However, privatisation came in with a range of laws. We hoped and prayed then that successor Governments would not repeal those laws and renationalise everything. Our hopes were fulfilled. The successor Governments to the Conservative Governments of those days kept the balance of the private and public sectors; indeed, they enlarged the private sector. We did not say that we would bind the next Government; we merely hoped that that architecture would stay in place. It did, and exactly the same issues apply now.
I made the point a moment ago that the Bill seeks to bind future Governments. All Governments, when they put long-term measures in place, do not want to see future Governments just chuck them out. This Government said in the coalition agreement that they would not agree to any further transfer of competence or power from the UK to the EU in this Parliament, nor do they intend to do so. We think that the European Union has enough competences and powers and we see no great need or pressure for expansion or for the flexibility about which the noble Lord spoke from the opposition Front Bench. Of course, the Bill, from the very moment it becomes an Act—if it does—applies to this Government as much as to future Governments; I cannot see anyone suggesting otherwise.
Any treaty change would still need a statement from the Government and an Act of Parliament; any passerelle would still require parliamentary approval. It may be—for nothing is certain in the future—that for whatever reason, however unlikely it is and however much it goes against our firm coalition commitment, a need emerges to agree some great treaty change that would transfer competence or power during this Parliament. As the noble Lord, Lord Taverne, said, we cannot be sure. That is all the more reason for having this Bill in place.
If such things appear, and if they fulfil the conditions described in the Bill and relate to very serious issues—I think noble Lords underestimate how serious many of these issues are, particularly those listed in Schedule 1—there would be a referendum. That makes it all the more important that the Bill be in place, to govern, reinforce and consolidate the political commitment of this Government with a legal undertaking, and we hope to guide future Governments along exactly the same path.
Your Lordships are of course aware that this Government have a policy to ensure that, where new regulations on businesses can have a time limit put on them, then they should. That is quite different; that is for a specific operational reason—to ensure that businesses are not overburdened by bureaucracy. There are other areas where the sunset idea is valid. The Prevention of Terrorism Act 2005 allowed for an annual review of extended detention periods for terrorist suspects. There was good reason for that, since severe forms of control order require a derogation from Article 5 of European Convention on Human Rights legislation before they can be implemented.
More recently, the Public Bodies Bill contains a sunset clause—which has been described as a “use it or lose it” clause and makes perfectly good sense—to allow a fixed time for the Government to introduce desired reforms through provisions that would then expire. The noble Lord, Lord Kerr, raised the question of the sunset amendment to the Fixed-term Parliaments Bill—that was not a government amendment but was inserted by your Lordships in their wisdom. As was explained in the debate, one can see perfectly well why. The coalition exists, and I hope that it continues to exist in strong fine form during this fixed-term Parliament, but after that we have a new landscape. Who knows who will govern? Who knows what the pattern will be? It made perfectly good sense for that legislation to have a limited life before coming to be re-examined.
These examples and others have been in cases where power has been given to the Executive on a given issue for a given period of time. The contrast with this Bill is total. This Bill seeks to devolve power from the Executive to Parliament and the British people. I am afraid that the amendments would take away that devolving effect and, in effect, give it back to the Executive. As my noble friend Lady Nicholson said, matters would again be left purely in the hands of Ministers.
Furthermore, and I say this particularly to my noble friends who suggested that in Amendment 64 one might have a middle way—a little bit of sunsetting, but not too much—a system of post-legislative scrutiny is in place for all legislation, not just the legislation before us today. If people are surprised to learn that, I tell them that in March 2008—this is an inheritance from the previous Government—Ministers put in place a systematic process whereby, between three and five years following Royal Assent to an Act, the Government must submit a memorandum to the relevant departmental Select Committee comprising an assessment of the operation of the Act relative to the objectives of the legislation. The relevant committee can then decide whether it wishes to conduct a more extensive scrutiny of the operation of that Act. That is what will happen anyway. I think that noble Lords will agree that it is a bit of a contrast to the idea in Amendment 64 that if the Bill expired at a certain time, new legislation would be needed to restore the role of Parliament, and would take it back even to the 2008 position, let alone the position that I think all parties want today. Such matters will still be decided by Ministers. Although I can see that the amendment is meant to be a pragmatic solution, it would not actually solve—in fact it would dissolve—the requirement for more trust.
Our sincere hope in government is that future Governments will not cut the cord of returning trust, which the Bill provides for, and that they will not take this step back in time to the age of suspicion over the European Union and its direction that we knew in the past. There is nothing in this legislation that binds Parliament, because one cannot do that.
I have outlined powerful reasons for the Bill—not least the need to meet effectively the legitimate expectations of the British people for a say in whether or not to transfer further powers to the European Union, which is not necessary at all at the moment; and not least the need to align our country with the movement throughout Europe for a greater democratic say by the people. That is an attitude that my honourable friend the Minister for Europe has encountered as he has visited every Government and talked to a vast range of Ministers and public opinion formers throughout all member states. He has never found the ideas and proposals of the coalition in the Bill any problem at all. I say that to the noble Lord, Lord Kerr, who suggested that I should do a bit more travelling. I should quite like to do a bit of travelling, but my duties nowadays frequently seem to be here. Perhaps I will be released over the next few days for a little travelling. Indeed, I intend to head off to the Middle East almost as soon as these debates are over.
Those are the reasons why, with the best will in the world, the idea of sunsetting or expiring legislation that can be renewed in some way by a future Secretary of State does not belong to this kind of legislation. This legislation is intended to be the architecture for a better and more settled relationship between this country and the European Union, by our exertions, and one hopes in the European Union generally, by our example. That is the possibility of the future. It does not to any degree tie Ministers’ hands in the way that has been dramatically asserted, just as the negotiating positions of other Ministers in other countries with similar restrictions—sometimes by referenda or complicated mandates agreed with other parties in their Parliaments—are not tied but strengthened.
All of that is a fear of hobgoblins that I suggest my noble friends should dismiss. There is nothing in this that weakens our position, but there is a great deal that strengthens it. There is a great deal of hope for the future in better and settled relationships with the European Union, with popular support. That is why, for the time being and as an enduring fact, I have to say that sunset clauses do not, alas, fit the purpose of the Bill. I ask the noble Lords who have suggested them to withdraw them.
Lord Taverne
My Lords, a number of very important points have been made on both sides in this Bill. I would like to discuss many of them further, but we will return to this on Report. I beg leave to withdraw the amendment.