European Union Bill

Debate between Baroness Falkner of Margravine and Lord Liddle

Wednesday 13th July 2011 Lords Chamber

[Baroness Falkner of Margravine]

My Lords, I shall speak against Motion D1. The reasons for doing so are quite straightforward. The noble Lord, Lord Hannay, commented on flexibility and how important it is that in going forward in unpredictable circumstances we should have flexibility. While I agree with him there, I am not clear that Amendment 15B provides that flexibility because, in order to have a suspension of Section 6 or Schedule 1, it would require us to have the approval of both Houses. Does the noble Lord believe that the approval of both Houses could be arrived at in a manner which did not revisit all of the contentious issues in Section 6 or Schedule 1? If they could have been debated without extensive deliberation or scrutiny—call it what you will—we would not have spent as much time as we have on the Bill. On the other hand, flexibility nevertheless exists in the ability of a future Government to repeal either the entire Act, as it will be by then, or sections of the Act.

My noble friend Lady Williams spoke of the importance of the people of this country having their say on a sunset clause—I prefer to call it a suspension clause—in a general election. If the Act went forward unamended, the people could still have their say because there could equally easily be a debate on whether or not this Bill should be repealed by a new Government were they to win the election. I did not intervene in the debates on the earlier amendments but this debate has been about trust in the people and the constitution, and much has been made about the move to plebiscitary democracy.

The theme of the noble Lord, Lord Liddle, throughout the course of the Bill has been his anxiety for the Liberal Democrats and whether they feel awkward and embarrassed by it. The presumption underlying those comments—and the noble Lord, Lord Liddle, has been a member of my party, the Liberal Democrats —is that we are reluctantly going along with these measures and that there is no philosophical underpinning whatever. During the passage of the Bill we have had commentary about Burke and parliamentary democracy, and about an hour ago the noble Lord, Lord Lamont, referred to Tom Paine. The philosophical underpinning for why the people should be trusted comes from no less a person than John Stuart Mill. He said:

“A state which dwarfs its men, in order that they may be more docile instruments in its hands, even for beneficial purposes, will find that with small men no great thing can really be accomplished”.

That is why we have supported the Bill and why we trust the people; they are ultimately sovereign.

[Lord Liddle]

My concern throughout the Bill has been for the position of Britain in Europe and that it should remain an active partner in the European Union. I fear that the provisions of the Bill will ultimately prevent us from being so. I am sorry that some Liberal Democrats appear to think that this was not a matter of high principle: it is a matter of high principle to which I have committed my political life.

[Baroness Falkner of Margravine]

When the noble Lord’s party returns to government, we look forward to it engaging with the country in debating whether the provisions of this Bill should be repealed. We look forward to engaging with it in that debate.

European Union Bill

Debate between Baroness Falkner of Margravine and Lord Liddle

Monday 16th May 2011 Lords Chamber

[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—

European Union Bill

Debate between Baroness Falkner of Margravine and Lord Liddle

Tuesday 26th April 2011 Lords Chamber

[Baroness Falkner of Margravine]

My Lords, perhaps I may stick to the substance of the amendment. As I have not been privy to the debates in the usual channels, I ask why amendments that are similar in terms of the arguments employed have been de-grouped for sequential consideration. It has resulted in the debate being all over the place and we are spending far longer on it than might have been the case. I know that the Minister will not deal with that issue, but I hope that the usual channels will go away, contemplate whether we can make slightly speedier progress on these matters and perhaps have a debate that is more valuable to the rest of us who sit here and listen attentively.

I should say to the opposition Front Bench that I have considerable sympathy with the noble Lord, Lord Liddle, on these amendments; and I say to the noble Lord, Lord Davies, that he is right that a consensus has prevailed in this country over the single market, competition policy, and so on. I pay tribute to the Conservative Party for having taken us there, but today no party here can say that it is a champion of that consensus to a greater degree than any other party. These are valuable probing amendments.

At this late hour, in order not to detain the House longer, I want the Minister to answer the question that he did not answer on the previous amendment. I believe that any treaty changes made to enhance the ability of the Commission, the European Court of Justice and other bodies to enforce EU rules would fall under the significance condition. My understanding is that where a treaty change merely confers additional powers on an EU body or institution to impose new requirements, obligations or sanctions on member states, and when this change is deemed not be significant for the UK, a referendum would not be required. In which case, do we really need to have the amendment? If the Minister gave us an answer as to where the significance test would apply—we debated that at length several hours ago—we would know which side of this amendment to be on. It would be most helpful if we could get some clarification on that.

[Lord Liddle]

The point of these amendments is the reverse of the significance test. We are saying that securing change in these areas—very important changes on the single market or the effectiveness of the European Court of Justice or whatever—could be highly significant, not insignificant, for the UK. However, we would not want to stop British Ministers agreeing to them on the basis that they would fall foul of the referendum test. That is the point.

[Baroness Falkner of Margravine]

Perhaps I may ask for the patience of the Committee for a moment so that I may respond on that very valuable clarification. If it were in the UK’s national interest to pursue the options of the changes proposed, would we not, in the event that there had to be a referendum, expect the British Government to fully support the referendum?

European Union Bill

Debate between Baroness Falkner of Margravine and Lord Liddle

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.