European Union Bill

Baroness Falkner of Margravine Excerpts

Monday 16th May 2011 Lords Chamber

[Lord Triesman]

My Lords, I cannot recall an occasion yet when the noble Lord, Lord Stoddart of Swindon, and I have been in complete accord but we are this evening. I share the view that it is absolutely extraordinary that most of us should have stood by ready to start debating this Bill at 6 pm only to find that it has started, even with a few minutes’ intervention from the noble Lord, Lord Stoddart, way past 8 pm. I do not believe that that is helpful to the government Front Bench, let alone to both parties opposite or, indeed, to us. I shall not repeat what the noble Lord, Lord Stoddart, said at any length, because he made the point very forcefully. It is extremely hard to understand what is so pressing as to mean that we should discuss absolutely critical issues about constitutional arrangements between our Parliament and Europe on this type of timescale. We are shoe-horning it—that is the only way that I can describe it—into tiny pockets of time very late in the day with the prospect of holding debates extremely late at night, when we all know that proper justice is not done to the matters that we need to discuss.

I take the Bill very seriously, just as the House took the Fixed-term Parliaments Bill seriously this afternoon. They are big constitutional issues by any standard. As I said, I take this Bill very seriously, although I have a very different view from that of the noble Lord, Lord Stoddart, for example, on a number of its provisions. However, that is neither here nor there. We either take it seriously or we do not. I think that we are being asked to perform a serious job in a trivialised way and I cannot believe that the House will find that acceptable. I hope that the Front Bench opposite will have a credible answer and a credible timetable.

[Baroness Falkner of Margravine]

My Lords, perhaps I may detain the House for a minute or two to comment on the speeches that noble Lords have just made. As we understand it, it is the operations of the usual channels that have resulted in such peculiar anomalies—if I may call them that—in the conduct of the Bill. On the previous two days in Committee, we had extraordinary groupings. I know that Members on the Cross Benches were as perplexed as we were about how those groupings had been determined, and there was consensus across the House that they had not worked very well.

We were then told last Thursday that there was going to be an additional day in Committee—today. In other words, if the House had not sat on Friday, we would not even have had one working day’s notice. It was simply a coincidence that the House sat on Friday and that we therefore had one working day’s notice. We were led to believe that that was agreed among the usual channels and that in fact the opposition Benches of the noble Lord, Lord Triesman, had requested the extra day today. However, from the tone of the debate, it sounds as though that may not have been the case.

I hope that my noble friends on the government Front Bench will bear in mind that, if we are to have serious scrutiny on the Bill, as we all want, and time to prepare seriously for that serious scrutiny, we require slightly more notice than we were given on this occasion, and we require slightly more attention to be paid to the way in which the Bill has been conducted to date.

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[Lord Liddle]

We all know the noble Lord’s views on this matter. The experience of the 1975 referendum was that it did not resolve the issue of whether we stayed in the European Union. We won a yes vote, but it did not resolve the fundamental issue. However, on issues such as the euro, there is a fundamental constitutional principle at stake, and it is right to have a referendum, so there are circumstances in which referenda are the right thing to do.

In the light of the AV referendum result, which I regard as the betrayal of the Liberal Democrats in the AV referendum by their partners, when I looked at the coalition agreement I was surprised by what it said. We are now told that the Liberal Democrats are going to adopt a much more muscular, robust relationship with their coalition partners. Well, on this Bill, let us have a look at what the coalition agreement says. It says:

“We will amend the 1972 European Communities Act so that any proposed future treaty that transferred areas of power, or competences, would be subject to a referendum on that treaty”.

In other words, you would have a referendum on a big treaty, but the agreement continues:

“We will amend the 1972 European Communities Act so that the use of any passerelle would require primary legislation”.

Yet every page of this Bill fully and directly contradicts that coalition agreement where the agreement says that passerelles and other matters should be subject to referenda.

[Baroness Falkner of Margravine]

I, too, have a copy of the coalition agreement in front of me. While the noble Lord is right in what he says about bullet point three, he is very selective in his interpretation of what to pick and choose, because he does not notice that bullet point four says:

“We will examine the case for a United Kingdom Sovereignty Bill to make it clear that ultimate authority remains in Parliament”.

If the noble Lord had been watching the news, and was aware of government statements in the year since the coalition agreement was made, he would know that no sovereignty Bill is about to be introduced into either House of Parliament but that the areas where there might be changes in sovereignty—in other words, a transfer of power and competencies—might be covered for the use of referendums.

[Lord Liddle]

I have the greatest affection for the noble Baroness, but I think that her attempt to justify the fact that the terms of the coalition agreement have not been met in this case is neither muscular nor robust. I think, therefore, that our friends on those Benches have something to think about. What I am suggesting that our friends on those Benches think about is the merits of the amendments that this side is putting forward. We are offering a mechanism by which a lot of the unacceptable trivia in the Bill could be assessed in a proper way by an independent committee that would advise Parliament about whether they were fundamental or matters that would not require a referendum.

I suggest that there is possibly a germ of consensus in the coalition agreement. We on this side have moved our position from when Labour was in government because we now believe that matters such as passerelle clauses and simplified revisions of the treaty should be approved by a proper Act of Parliament. That is a significant move on this side of the House towards greater parliamentary accountability. I should have thought that the Lib Dems ought to seize that as an advance in accountability. We should confine referenda to these fundamental issues that your Lordships’ Constitution Committee said needed to be defined. An independent committee would be a good way of doing this.

I am sorry to have gone on at such length—

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[Baroness Falkner of Margravine]

My Lords, I completely agree with the noble Lord, Lord Kerr of Kinlochard, on the need for proportionality and I accept that things will happen that we may not be able to foresee when we are drafting legislation and giving a legal basis to aspects of future decision-making. However, before I speak to Amendment 39B, I should like to say a few words about Amendment 39A.

I welcome the explanation of the noble Lord, Lord Liddle, of how the Labour Party has moved considerably to advance accountability. It is particularly welcome given that it failed to provide for that in the time that it was in office. I do not often find myself echoing the words of the noble Lord, Lord Waddington, very much, but this afternoon’s discussion on the budget rebate was a very useful one to remind us that even when it was in office it took accountability so lightly that when the budget provisions were changed, as it appeared from today’s discussion—and nobody on the Labour Benches rebutted it—in 2005, the Chancellor of the Exchequer did not even agree with that change. Yet it happened.

I turn specifically to Amendment 39A. The noble Lord, Lord Liddle, explained what his amendment would do. I have some sympathy with the idea that you would have a level of scrutiny here that should determine what should happen—in other words, that Parliament should take a decision, rather than having a referendum. But my question would be to the noble Lord about his proposed new subsection (4B), which calls for a resolution of each House of Parliament. It is not entirely clear to me what would happen if one House of Parliament approved of holding a referendum but the other did not. Presumably, we would have a situation whereby a Joint Committee could have recommended a referendum and, potentially, the Commons would have agreed with the Joint Committee but perhaps this House would not. I wondered whether he would be able to tell us what would happen, in that case, on Amendment 39B.

In this variation, the review committee takes into account the significance, urgency and national interest at stake in its examination of the draft decision. Both urgency and national interest are, I say to noble Lords opposite, deeply subjective. We thought, with the European financial stability mechanism before us in February, that there was huge urgency in agreeing on what to do, because of the Greece, Ireland and Portugal scenarios. In fact one could argue that there is still considerable urgency, given where Spain—and, potentially, Italy—is. But the fact that other countries may be covered by that by the time the facility comes into being in 2013 suggests that something that one sees as urgent at a particular point in time may as events unfold not be quite as urgent as we thought.

Let me come to a consideration of a national interest. We know that this is notoriously difficult to define in international relations, which is one reason why this concept of national interest, which we all cherish and hold dear, has never been given legal force. I recall when I was a student reading the realist American scholar, Hans Morgenthau, who in 1951 wrote his book In Defense of the National Interest, which was contested throughout the 1950s, during the Cold War, and all through the 1960s, and is contested still today. It has never taken off as an argument that was legally testable in a court of law, so I would be concerned—while I see what the noble Lord means; we know the national interest when we see it. We can touch it; we can feel it; we can smell it. But to define it in legislation would be extremely difficult to do. I therefore suggest some caution about agreeing with the amendment. On Amendment 39B, I ask the noble Lord what he would do if one House went in a different direction from the other.

[Lord Hannay of Chiswick]

My Lords, I would like to speak very briefly in support of this probing amendment, not because I am in total agreement with every detail of it but because I think that it addresses a very serious problem to which I alluded at the end of Second Reading, when I said that the effect of the Bill if passed unamended would be to lock the door and throw the key out of the window. I believe that that is an accurate description of what this Bill will do if not amended. These amendments are a sincere and quite well thought-out attempt to keep the key in the hands of the Government and the majority in both Houses of Parliament to some extent, subject to the reporting of a committee and so on.

I think that this issue should be taken a bit more seriously, frankly, than it is by those on the other side of the House. If the noble Baroness, Lady Falkner, will forgive me for saying so, about the piece that she quoted—I hate to have to construe somebody else’s coalition agreement, which has nothing to do with me—the sovereignty issue to which she referred and which she read out is dealt with in Clause 18, not in the clauses that we are discussing now. We will probably have the delights of spending a whole day discussing that next week but it has nothing whatsoever to do with referendums. No one has ever suggested that it should be. The suggestion was that you should inscribe in the Bill some test of what the basis for European law in this country is. Anyway, I suggest that the Government really ought to think about this enormous multiplicity of referendums which are provided for and which cannot be dealt with just by casual remarks such as, “Oh well, don't worry—they won’t ever happen”.

Bosnia and Herzegovina

Baroness Falkner of Margravine Excerpts

Monday 9th May 2011 Lords Chamber

[Lord Howell of Guildford]

The Republic of Serbia is being helpful in some respects. I cannot say that everything one would like to see being done is being done. But the general support is there because that nation, too, has a clear interest in seeing that Bosnia-Herzegovina remains intact and does not fall back into its grim past, which we all remember and which was so stained with blood.

[Baroness Falkner of Margravine]

My Lords, will my noble friend agree that this dangerous situation, which may well lead to the dissolution of Bosnia-Herzegovina, has been aggravated by the failure to form a state-level Government as well? Does he agree that the EU and Washington need to move swiftly now to knock heads together and to use all legal powers at their disposal to prevent the referendum happening?

[Lord Howell of Guildford]

Yes, I think we do, and we have to address the fact that, on the Bosnian side, the formation of a Government has been very slow and stumbling, with the largest parties in effect excluded, so there is a very weak situation. That is quite aside from the Republika Srpska side, where, as we have recognised in the past few minutes, a policy is being pursued which, if pushed through to a referendum as proposed, would lead to a direct challenge to the whole Dayton structure. Do we need to move rapidly? Yes, we certainly do. Do we need to support the EU new strategy, including a new figurehead to work alongside the Office of the High Representative? Yes, we do. Will we do these things? Yes, we will.

European Union Bill

Baroness Falkner of Margravine Excerpts

Monday 9th May 2011 Lords Chamber

[Baroness Falkner of Margravine]

I thank the noble Lord for giving way, particularly after he spoke so eloquently about political dogmatism. He will of course know all about political dogmatism. He has not helped his arguments by his tone of incredulity that perfectly sensible noble Lords across this Chamber might disagree with each other on the importance of giving away power or competence to the European public prosecutor’s office. He should be able to disagree with that without descending to the level of incredulity.

I will tell the noble Lord why his argument does not work. If he thinks back, the article on the European public prosecutor’s office to which he referred, and which I have looked up, talks about the financial interests of the Union. It does not define, word by word, what those interests might be, or what acts those who go against the financial interests of the Union might have to perpetrate to do so. I remind him of the NatWest four and the extradition treaty with the United States. Many Members across this House and, I am sure, in the other place, are extremely uncomfortable about what happened there. Widely defined clauses can contain any number of provisions and can have all sorts of side effects. I just wish that the noble Lord would accept that the article is widely defined.

[Lord Davies of Stamford]

The noble Baroness has made one of the longest interventions that I have ever taken in my time in either House. I shall not reply at such length, but I will say, first, that I have never made ad hominem or ad feminam arguments in this place; I have tried to address the issues and I hope that she will try to do the same. Secondly, by drawing an analogy with the people who were extradited to the United States for commercial crimes, she has completely misunderstood not only the point I was making but particular articles in the treaty. All the crimes foreseen in Article 86 as matters for the public prosecutor are defined as those that are,

“affecting the financial interests of the Union”.

It is a narrow category of crimes, and there is no way in which that category could be expanded without unanimity.

As I said, it is extraordinary for the Government to decide specifically to provide for a referendum on a matter that can scarcely be of great public controversy. It is very difficult for me or the public to see what national damage could be done. The most respectable explanation that I can think of is that the Government are acting in an utterly narrow-minded and dogmatic fashion. They are displaying the mentality of, if you like, the Spanish Inquisition. There is no flexibility or pragmatism. That would be a very frightening way to conduct our national interests abroad.

European Union Bill

Baroness Falkner of Margravine Excerpts

Tuesday 3rd May 2011 Lords Chamber

[Lord Blackwell]

I thank the noble Lord for his intervention. Actually, I am fully aware of the nature of these amendments, all of which attempt to undermine the purpose of the Bill, which is to require a referendum if there is a major change to the treaties or a major shift in power. That is a principle that I fully support and which the noble Lord is attempting to undermine.

I hope that there will never be a referendum under the Bill because I hope that no Government will ever seek to transfer further power to the European Union in a way that would require the referendum requirement to be enacted. In hoping that we will never have such a referendum, I probably agree with the noble Lord. However, if we are going to restore the trust of the people of this country in the EU, we have to give them the cast-iron guarantees that the Bill provides and not undermine it in the way that the noble Lord, Lord Liddle, seeks to do.

[Baroness Falkner of Margravine]

I seek some clarification on the amendment of the noble Lord, Lord Liddle. It seems to wish to get rid of three emergency brakes but leave in place the one that includes the common foreign and security policy. That seems somewhat inconsistent; the noble Lord has mentioned several areas of co-operation where he believes it would be important, if the EU were to proceed in a manner that would be conducive to our interests, for us to do so. I suggest that the common foreign and security policy would be one area in which we have rather more expansive interests than in those of social security, judicial co-operation and cross-border crime.

Since the noble Lord gave a few examples, may I caution him on, for example, judicial co-operation? He thought that it may well be essential to have improved judicial co-operation if we are to tackle terrorist threats. That is an important point, but I also urge caution regarding the other direction. It is not that long ago that in this House the former independent reviewer of terrorism legislation, my noble friend Lord Carlile, warned us regarding the proposals for 60 days’ detention without charge that the previous Government wished to introduce. We must not go in the direction of the French legal system, for example, under which people have been interned for several years without charge. It cuts both ways: we may want enhanced co-operation but we may well not want it.

The previous Government negotiated the treaty and put in the emergency brakes. It is unclear what these moves would achieve and why that change of position has come about. Will the noble Lord reassure me on my understanding, which is that the Bill does not require a referendum before the EU can act in areas where the emergency brake exists? Co-operation is a good thing which can benefit the UK, but I thought that this was about making it clear to the British people that a referendum would be required if there is a move to abandon these important safeguards. Can the noble Lord explain what has caused this quite significant change in thinking?

[Lord Pearson of Rannoch]

There has been much support in our debates so far against referendums for all but the most important issues such as the euro, and the noble Lord, Lord Liddle, echoed that in his speech. The speech of the noble Lord, Lord Deben, comes to mind, and many others. As this is a theme running through so much of our debate, I felt that I should make just one comment.

To put it mildly, we, the political class, are not particularly popular. I fear I detect a feeling out there among the people, in many discussions and in many fora, that our system of representative parliamentary democracy has, to some extent, broken down, or at least that it is not the great instrument it was before, the one which was exported all over the world. I think that there is now greater support for more of a plebiscitary democracy. Our system of representative parliamentary democracy worked very well in the 17th, 18th, 19th and even early 20th centuries, when many, if not most, people could not read and often led lives of endless drudgery and when better educated people were elected to Parliament to take their decisions for them. But now the people can read and, on the whole, are just as good and capable as their politicians. I believe that something like the Swiss democratic system, with its referendums—not, perhaps, going quite as far as the Californian system, with its difficulties over tax and the rest of it—really is now the only way in which to restore their democracy to the people. To those of the political class who laugh at this and decry such a prospect, I merely say, “They would, wouldn’t they?”.

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Noble Lords should not take this point the wrong way. I do not believe that any noble Lord or anyone else would be negligent about wanting to resolve such a matter. I am simply expressing the difficulty that we can observe empirically in resolving such a matter. While it may be felt in the European Union that an extension of the legal arrangements that it has to deal with these very rapidly moving economic and financial models—and they move very rapidly—would be valuable, what sense would there be in a Minister of the United Kingdom being unable to take part in such a discussion, or agreeing to take part but only under conditions where it was too late to take part?

[Baroness Falkner of Margravine]

Perhaps I may interpose a thought on this important point. My noble friend Lord Lamont several times mentioned the European financial stability mechanism. Does the noble Lord accept that, when it comes to financial crises arising and bailouts being instituted, the mechanism will take some years to come into effect? While I agree that technology can drive an impetus for change, in general I do not see any decision-making processes in the EU being affected by this. The bailouts were urgent for the countries involved, yet they will take about two years to implement.

European Union Bill

Baroness Falkner of Margravine Excerpts

Tuesday 3rd May 2011 Lords Chamber

The problem with the Bill and this particular bit of it—and why these amendments seek to change it—is that we are denying the European Union the ability to evolve. We are saying that these things can be decided only by some massive change and that we must have a vote of the British people on subjects as limited as those that we are talking about. We should be doing the opposite. We ought to be encouraging this great European Union—the most important thing that has happened in peacetime to anywhere in the world for 100 years. This great European Union must develop by evolution, not by having this confrontational system whereby, once you feel it has gone too far, you must have a referendum, even if it is on a totally unsuitable subject.

[Baroness Falkner of Margravine]

I wanted to make a point about his example and did not want him to lose his train of thought. If the superhighway had to go through France’s territory—leaving aside the parody of the need for a referendum there, because it is a policy question, not necessarily a competence question—and the French did not wish to sign up to that because they felt that one of their strategic industries, nuclear power, would be at a loss, would it be right, in the spirit of European Union co-operation, to use qualified majority voting or some other passerelle or clause to force the French to allow their territorial sovereignty to be infringed by others? That would seem to be curiously anti-European and against the spirit of European co-operation.

[Lord Deben]

That would mean that we had no common trade policy. Every country could say that this decision was contrary to their national interest. The French have managed to make the sale of Orangina contrary to their national interest. What the noble Baroness suggests would destroy any possibility of the scheme. It would not touch their sovereignty. They would not have to use the electricity. All that they would have to do was not prevent someone else using the electricity. It is otherwise a curious definition of national sovereignty.

Secondly, if we do not do that, my national sovereignty is being infringed, because my climate is being changed. Unless we find ways of using non-fossil fuels, my climate will be changed. This is a question on which we have to accept that our national sovereignties are all imperilled—but I do not want to go further down that road, or someone will suggest that I am not keeping to the amendments.

There is a whole series of issues here where the Government are making it more difficult to stand up for Britain's interests within the European Union by setting this entirely unnecessary and manufactured way to enable them to say to the rest of the world, “We are not going to be pushed around”. I think that the Government are perfectly capable of not being pushed around without the Bill. I think that my noble friend is quite wrong to apply Canute to a bit of the Bill. The whole Bill is a Canute Bill. It suggests that you can in some way stop the necessity of the nations of Europe working together by setting in train a system which makes Britain uniquely unable to play its part in the European Union. It is all right saying that other people have all sorts of methods, and the rest of it, but they have been much more careful in writing their legislation, and they do not have a situation where even the simplified system is called into question, which is the way that this legislation operates.

I want to say just two more things. The first is that if ever there were a policy that needs change, it is the common fisheries policy. It is hugely important, and it is based on a European competence, but there are some things on which the European Union does not have competence. For example, it does not have competence to enter member states’ ports with European inspectors, but there is no way to have a sensible common fisheries policy without that. Who has been against that? We do not want people entering our ports. I cannot understand why, because we try to keep the law, but evidently we will not allow that. If we were to do that, we might do something about the very policy which is, for most of us, the least satisfactory of European policies. That is why, given the environment, it will be very important. Evidently, we are not going to do that unless we have a referendum asking people whether they are prepared for French inspectors to come into English ports. Of course, they will say no to that, because the question does not say what I want it to say: are we prepared for British inspectors to go into French ports? They would say yes to that. It depends what the question is. That again comes back to the danger of having referendums.

My last point is that the trouble with this bit of the Bill, unless it is amended as we suggest, is that, as the noble Lord, Lord Triesman, rightly said, it gives the opportunity for anybody who does not like the European Union, who has an obsessive belief that somehow it is the epitome of evil instead of being our most exciting and remarkable peacetime achievement, to find any change, any aspect that is altered, any suspicion or scintilla of alteration proof positive that there should have been a referendum. Therefore, instead of doing what the Government think will happen under the Bill, instead of ensuring that people feel happier about the European Union, it will give endless opportunities for the noble Lord, Lord Pearson, and others to suspect that there is something much deeper, much worse, much more wicked. Frankly, it is like the Jehovah's Witnesses. It is a perversion of the realities and the truths. Once you have caught it, you cannot see the realities and the truth except through that prism. The Bill helps that. The bit which does not allow the European Union to take proper steps to strengthen its effectiveness in mitigating the effects of climate change and pollution is particularly damaging, and it is especially damaging for the nation that leads in these matters—Britain. I want Britain to lead in these things and not to say to the rest of Europe, “Frightfully sorry, old boy, we can’t manage this because it means a referendum and we’re within two years of an election”.

Middle East and North Africa

Baroness Falkner of Margravine Excerpts

Tuesday 26th April 2011 Lords Chamber

[Lord Howell of Guildford]

On the broader issue of the Polisario and the United Nations resolutions, and the way that that affects not so much Algeria as Morocco, we have certainly said that we think that the resolutions should be upheld. As for the cross-currents, though—either the one that the noble Lord did not quite refer to of apparent Algerian support for certain aspects of Polisario activity or the Polisario involvement in Libya, encouraged by Algeria—I am afraid that I cannot give him any precise information. I would say that I would write to him, but I am not sure that such detailed information exists in the smoke and fog of battle. Certainly mercenaries have been brought in, drawn from many areas of Africa, who are fighting for Gaddafi and are receiving large wads of money for doing so. That has been proved by some of those captured or killed who have been found to have this money on them.

[Baroness Falkner of Margravine]

My Lords, does my noble friend agree that the questions that have come from other noble Lords about the Polisario actually concern the no-fly zone and its effectiveness? Will he at least explain to the House why that zone does not seem to extend to the road routes into Libya, which is apparently where these mercenaries are coming from? I understand that maritime routes are being re-examined to ensure that they are sealed, but road routes do not as yet appear to be sealed.

On the broader point, does my noble friend agree that the most intractable conflict in the Middle East is Israel-Palestine? What discussions have the Government had with the Middle East envoy or indeed through the quartet to attempt to do something to kick-start the process again and get both sides to break the impasses and move forward?

On Bahrain, will the Minister tell us at what stage he will believe that we have got to a stage with regard to human rights violations where we might do something more than just implore the Bahraini royal family to sit down and negotiate seriously?

[Lord Howell of Guildford]

My noble friend raises three questions. The no-fly zone is authorised over Libyan airspace, not over the back channels through which manpower and weapons may continue to be supplied into Tripoli and into the hands of Gaddafi’s forces. That is not a possibility consistent with strict adherence to UNSCR 1973.

On the Middle East peace process, we are arguing strongly that this is an opportunity, not a time for the Israeli authorities to draw back, hunker down, hope that things will pass over and wait and see. On the contrary, this could be a large and open window through which those who genuinely want peace and a two-state solution, and who want to see Palestine emerge as part of a two-state pattern in a sensible relationship, should now be pressing forward. That is a view that we have pressed very strongly and which is represented by our actions at the United Nations in support of certain relevant resolutions, which my noble friend will know all about.

As for the Bahraini situation, we are concerned about what has happened and we think that the pattern of handling the protests has not been successful or the right path. We have urged that the whole emphasis should be on seeking a national dialogue, which the king himself and some of his advisers always wanted from the start. We think that that is the right way forward. We believe that the concern of surrounding countries, including that expressed by Saudi Arabia in physical form through its support of security in Bahrain, if rightly handled, is part of a beneficial theme, in that we are seeing the GCC countries and the leading Arab regional authorities take seriously the internal security of their own region. The same applies in Yemen, where there may be some hope, as the Statement said, that the GCC solution is going to bring a breakthrough and a pattern of less bloody and less violent development. These are early days, though, and all that I can tell my noble friend is that we are in constant contact with the Bahraini authorities and urging the sensible course, which we believe lies along the path of national dialogue and reform.

European Union Bill

Baroness Falkner of Margravine Excerpts

Tuesday 5th April 2011 Lords Chamber

[Lord Liddle]

My Lords, despite the remarks of my noble friend Lord Richard, I think that your Lordships’ Committee has got off to a cracking good start. There was certainly a flavour of a repeat of Second Reading but there were some memorable moments in it. Although in many respects I do not agree with the description given by the noble Lord, Lord Deben, of the Bill as the Conservative version of the Hunting Bill, I think that that is a very accurate political description of the politics that lie behind the Bill. The constitutional outrage of the noble Lord, Lord Goodhart, was well put, and I think that my noble friend Lord Foulkes is right that this is something of a threat to our sea-walled garden, although, at the risk of getting my metaphors mixed up, we need to live in a world of pooled sovereignty in order to protect our sea-walled gardens.

We started with a Shakespearean reference from the noble Lord, Lord Kerr of Kinlochard. He compared his role with that of Bernardo starting the play. If I may say so, I thought that he played the part of a minor character somewhat unconvincingly. Many noble Lords will probably be looking to him as the Committee stage proceeds for wise advice about the meaning of the various amendments before us, just as he has provided very wise advice in his various capacities in the past. Indeed, while we are on the subject of Shakespeare, I thought that my noble friend Lord Kinnock was right to depict the Bill as a move from tragedy to farce.

I turn my attention to the specifics of the amendment. They are, as I think the noble Lord, Lord Hannay, described them, rather abstruse technicalities. However, the core of this debate is whether the use of the so-called simplified revision procedure of the Lisbon treaty, under Article 48(6), should be included in this Bill at all. That is essentially what this group of amendments is about.

The purpose of the article is to give very strictly limited flexibility to member states, acting by unanimity and only by unanimity, to amend the treaty without having to go through the whole paraphernalia of treaty ratification according to their own constitutional provisions. It does not preclude proper parliamentary accountability for these matters for decisions taken under Article 48(6). Heads of Government are clearly accountable to their own national parliaments for any decisions they take in Brussels. In an extreme case, of course, a Government would fall as a result of a motion of confidence if they took a decision with which their parliament violently disagreed.

Therefore, the flexibility does not preclude accountability and under Article 48(6) it is limited. The EU treaties are clear. The Article 48(6) procedure cannot widen EU competence, and many of my noble friends—Lord Tomlinson, Lord Davies and others—have made that point with great force. However, it seems that the Government have drafted the Bill on the contrary premise that somehow or other matters under Article 48(6) can widen competence. The noble Lord, Lord Howell, shakes his head and I look forward to his explanation, but I think that, first, he needs to clear up this confusion. Why is something that under the treaty cannot extend competence regarded as being subject to the balls and chains put around our Ministers in the Bill?

That leads to two further problems with the inclusion of Article 48(6) in the Bill. One is a legal issue and the other is a good faith issue so far as concerns negotiation. On the legal issue, I turned to the Fifteenth Report of the Session of the Commons European Scrutiny Committee on the EU Bill. It took evidence from various legal experts about what this all meant. I think that the noble Lord, Lord Hannay, has already referred to what the Council’s former legal adviser, Jean-Claude Piris, said about it. Perhaps I may quote what the eminent legal expert, Professor Craig, said about the Bill. At paragraph 60, the report says that he,

“drew our attention to the conflict between clause 3 of the Bill, a clause which he described as ‘deeply problematic’, and the Lisbon Treaty. Article 48(6) TEU states expressly that a Decision made there under ‘shall not increase the competences conferred on the Union in the Treaties. Clause 3 of the Bill, by contrast, is predicated on the contrary assumption”.

So it is not just me making this up; this is an eminent legal expert. He goes on to say:

“To be sure Clause 3(3) embodies the exemption condition …This does not, however, alter the force of the point being made here: from the EU’s perspective no Article 48(6) Decision can increase EU competence; from the perspective of the … Bill some such Decisions can do so. This will inevitably lead to legal and political tension between the EU and UK”.

He also goes on to point out that further clauses of the Bill,

“in imposing constitutional requirements where none is foreseen by the Lisbon Treaty, may be in breach of EU law”,

and he sets out why he judges that to be the case. I think that in Committee it is perfectly reasonable for the Opposition to ask what the Government’s view is of this eminent legal advice.

[Baroness Falkner of Margravine]

Does the noble Lord accept that, although competences are defined, powers are not? Paragraph 21 on page 5 of the Explanatory Notes says:

“As the majority of treaties and Article 48(6) decisions will require the exercise of judgement as to whether a transfer of power or competence is involved”.

To me, the confusion between Clauses 1 and 3 arises because of the lack of a definition of “power”, and I wonder whether the noble Lord can comment on that.

--- Later in debate ---

[Lord Wallace of Saltaire]

My Lords, my understanding, and I stress that I am not a lawyer, is that it is the ministerial judgment that is subject to judicial review and not the parliamentary decision. I will clearly have to consult before I come back on Report on the exact meanings at stake, but my understanding is that parliamentary decisions are much more robustly resistant to judicial review.

[Baroness Falkner of Margravine]

I wonder whether I might help my noble friend a little, because the point brought up by the noble Lord, Lord Kerr of Kinlochard, is interesting. Our understanding of this issue is that the Minister would provide a statement setting out his reasons behind why the item under discussion either was or was not of significance, so the possibility of judicial review would therefore apply to the reasoning behind the Minister’s statement. In that case, it would seem that it would not be Parliament’s judgment under question but the Minister’s reasoning, presumably guided by legal advice.

Libya

Baroness Falkner of Margravine Excerpts

Friday 1st April 2011 Lords Chamber

[Baroness Falkner of Margravine]

My Lords, I thank my noble friend for this opportunity to debate events in the Middle East today. I am particularly grateful for his update on Yemen, Syria, Egypt and Tunisia, as well the very useful information provided on the status of world oil stocks.

In light of the dramatically changed situation in the Middle East and north Africa, what is needed now in the Foreign Office, the EU and Washington is a dramatic and game-changing shift of emphasis, possibly of a kind that this generation of policy-makers has never previously experienced. There are three broad imperatives that we need to contemplate in this new chapter of our international relations with the Middle East.

The first is brought about by the changing nature of international society, of which the Middle East is a good example right now. Demographics, communication and education have converged to make the populations of these countries less compliant to authoritarian rule than they were and less nationalistic in their loyalty to institutional structures that are of dubious legitimacy. Nasser’s dream of pan-Arabism can be seen in the social solidarity of Facebook on a given day and, in a less benign form, when Saudi Arabian tanks crossed into Bahrain to protect its rulers.

In Bahrain, where the US has its Fifth Fleet—and is therefore reluctant to say much about matters there—the situation is deteriorating. The Bahraini Government have halted flights to Lebanon, Iraq and Iran. They accuse these so-called unfriendly Governments of training demonstrators in Bahrain to become militant. No evidence whatever is provided for this, and every western analyst who knows the situation doubts it greatly. The US itself has said that it has no evidence of Iranian or Hezbollah involvement in the recent protests in Bahrain. The ruling family also cites Iranian involvement because Iranian television coverage of the protests was sympathetic to the protestors. On that count, so was the BBC; both showed similar pictures.

There are more sinister developments as well. Human Rights Watch has brought to my attention the fact that media and web messages put out across Bahrain now comprise Sunni clerics and others referring to Shia citizens as “vermin” and using language that is reminiscent of Hutu propaganda against Tutsis before the Rwandan genocide. Despite what my noble friend has said today, even a cursory glance at this morning’s newspapers shows that there is little evidence of a dialogue. Therefore, I think the time is now past where our Government might urge the two sides to sit at the table, and I would argue that a high-profile international mediator needs to be appointed by the United Nations Secretary-General to hold twin-track talks to bring the two sides together, at first separately and then in the hope of finding a modicum of common ground before the situation results in even more loss of life and an all-out civil war.

As regards Libya, we in the international community have learnt the lessons of Rwanda in our recognition of the UN norm of the responsibility to protect. Now, in Libya, we have put into practice the principle that every individual state has the responsibility to protect its citizens from genocide, war crimes, ethnic cleansing and crimes against humanity. Where a state falls down on this responsibility, the rest of us will move to afford that protection within the framework of the United Nations, and it is right that we should do so.

However, the practical precedent established through responsibility to protect will have implications for us in Libya and beyond. In the short term, we have to confront the question of what success looks like in Libya. While our actions have been bold, our aspirations undoubtedly need to be more limited. We should accept that when we intervene to prevent the loss of civilian life, and inevitably change the face of the Government who failed to protect their people, this might not result in more congenial rulers from our perspective. What should matter to us is that the rulers are acceptable to the majority of their own people. Democracy as we know it may not be the result, but procedural legitimacy in the consent of the ruled to their rulers is surely an objective we should always strive for.

But let me also be clear that to enshrine R2P as precedent in international law requires us to tread very carefully indeed. In my reading of the UN Secretary-General’s outcome document, agreed at the UN’s 2005 world summit, we can invoke this responsibility only in very limited circumstances. Paragraph 139 clearly states:

“we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate”.

While we have been able to invoke R2P in the case of Libya, it is undoubtedly made possible due to the co-operation of the Arab League, the Organisation of Islamic States and, indeed, the African Union. In these early days of developing this norm, this must be right, and I do not think anyone in this House would suggest that we should do so despite the resistance of those regional organisations, if they had indeed resisted.

What does this mean for our strategic foreign policy responses to the other countries of the Middle East which are oppressing their citizens, but not as egregiously, as yet, as Gaddafi has done? Should we employ warm words and hope that things will blow over and that we can return to business as usual? I hope not. I hope that we will work with renewed vigour to use other instruments of foreign policy to bring about the changes that we all want to see.

A first and foremost consideration here must be to extend and reinforce the precautionary principle in arms exports. While we all look forward to agreement on the arms control treaty at the UN next year, I urge our Government to lead by example and to announce a unilateral review of the criteria by which we issue licences. Stability founded through instilling fear, and supported through the use of force, is ephemeral. I recognise that there are legitimate concerns on the part of the defence industry in terms of business and employment, but I think that we can address those concerns in the slightly longer term. There is no reason why spin-offs from defence research cannot be put to civilian use—that has been done very successfully for years—and we need to reward greater innovation in that regard through the tax system and through reskilling and training.

A further set of levers is those we employ through international fora. The dexterity at the United Nations Security Council in adopting Resolutions 1970 and 1973 reflects a dramatic change on the part of the international community. This must be sustained through the use of capacity building and generous support for those countries which embrace transitions to reform and a cooling of support for those which continue in their bad old ways. The use of smart sanctions, travel bans and asset freezing all have their place in signalling that we are on the side of the people, but most important will be our ability to use the EU more imaginatively to advance a European position, which till recently has been lacking in these unfolding events.

However, we also need to build a longer-term perspective into our domestic audience here at home. People are increasingly weary of foreign interventions and wonder why we are called upon to do the right thing so frequently. We have to be clear that democracies do not establish themselves overnight, particularly in traditional Muslim societies. Civil society does not just arise when the repression of the ancien régime is removed. These processes take time, often follow a tortuous path, and we need to be patient and resilient in our support for them. We may soon be celebrating the holding of elections but perhaps not their outcome. We may encourage the toppling of dictators but may not welcome the system of rule that will replace them. Our foreign policy in the Middle East must be reprimed for the longer term on the right side of history for the Arab world to look to us as friends and partners in the future.

Afghanistan: Women’s Shelters

Baroness Falkner of Margravine Excerpts

Wednesday 30th March 2011 Lords Chamber

[Lord Howell of Guildford]

Resources are available. Our officials in Kabul are involved in regular meetings and there is one going on now to see whether the women’s shelter idea can be taken forward. That is a valuable input and we will continue to do more than monitor the situation by pressing for the right solution for women’s shelters and for protection of women generally. As for the publication of detailed pressures and exchanges, I will look at that, but sometimes the full publication of these exchanges undermines the degree of trust and confidence one needs to make progress. It may not work, but I will certainly look at it.

[Baroness Falkner of Margravine]

My Lords, given the gravity of the situation and the fact that Afghan women’s rights are likely to be eroded with further conversations about the Taliban coming back into government, does my noble friend agree with the suggestion of the noble Baroness, Lady Symons of Vernham Dean, some months ago that the UK Government should appoint an individual, or at least get the EU to appoint an individual, to go and look at the status of women’s rights in Afghanistan and to come back and continue to keep a watching brief on that until the transition is complete?

[Lord Howell of Guildford]

Again, that may be an idea, but a lot is going on already, as I think my noble friend is well aware. A number of countries and non- governmental organisations and a number of extremely brave and prominent women in the cause of women—Women for Women in Afghanistan, the Afghan Women’s Movement and many others—are all conducting what my noble friend calls a watching brief. If, on top of that, the appointment of an individual would help, I would consider it, but I suspect that the problem is not so much personnel watching and monitoring as getting pressure on the Government, on officials and on the culture of the country to overcome the horrors left behind by the Taliban attitudes to women, which were appalling.

Saudi Arabia: Human Rights

Baroness Falkner of Margravine Excerpts

Wednesday 30th March 2011 Lords Chamber

[Lord Howell of Guildford]

All questions on arms exports are under review, as the noble Lord may know, and we have grave concerns about the use of crowd-control equipment. Because of those concerns, a review of the whole policy and practice of Her Majesty's Government on the export of equipment that could be used for internal repression—in particular, crowd-control goods—has been commissioned and is under way. As to the noble Lord’s question on Bahrain, the Saudi forces are there to protect installations—or so it is reported to me. That may not be 100 per cent accurate, but that is the intention. The Saudis share the same goals as the Government of Bahrain, which are, of course, to have a dialogue on reform and to address the concerns of the Bahraini people. That is very different from some other countries in the region. However, it is a tricky situation that we are watching very closely.

[Baroness Falkner of Margravine]

My Lords, my noble friend will no doubt be aware that the Saudi rulers have requested their clergy to issue a fatwa, stating that all democratic peaceful protests are un-Islamic. Does he agree that turning democracy into a religious issue sends a message to 1.5 billion Muslims that democracy is not an option open to them if they wish to adhere to their religion? Does he think that Saudi Arabia, given that attitude towards freedom, can any longer be trusted to pursue peace and stability in the Middle East?

[Lord Howell of Guildford]

Of course, as the noble Baroness recognises, there are attitudes that we do not like and seem to go against our values and views of how democracy should work. We do not miss any opportunity—in fact we take all opportunities—to put these matters frankly to the Saudi authorities and to other countries. One has to think in positive terms; the aim is to make progress by establishing trust, rather than by dismissing the efforts of certain countries and saying that they no longer qualify to operate or to make a sensible and responsible contribution to world affairs. The positive approach is the one that pays off in the end. While I recognise many of the worries that my noble friend articulates, I believe that the approach I am describing is the best one.