European Union Bill

Baroness Nicholson of Winterbourne Excerpts

Wednesday 25th May 2011 Lords Chamber

[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.