European Union Bill

Debate between Baroness Symons of Vernham Dean and Lord Vinson

Tuesday 22nd March 2011 Lords Chamber

[Baroness Symons of Vernham Dean]

My Lords, I thank the Minister very much for the way in which he introduced the Bill, particularly for the painstaking explanations and the courtesy that he showed to the House in the way in which he gave them. However, as an Opposition we want to make our view clear from the start: this is a poor Bill; it is an unnecessary Bill; it is a political Bill; it is a Bill which is primarily about the politics of the coalition Government, not a Bill about Britain or about Europe. We believe that this is a bad Bill, and we shall do everything we can to improve it.

Britain’s relationship with Europe is important. It is an issue which this House has repeatedly considered in various ways over the years and on which the Members of this House have focused many times. The quality and number of speakers on today’s list indicates that it is an issue on which the House wants to focus again today. On these Benches, the hope is that the Minister has come with an open mind and is prepared to listen to this House, and that the Government will be open to the improvements that we hope your Lordships will make to the Bill as it moves through the House. These are our hopes, but whether they will be realised is another matter.

The Bill is primarily a political Bill trying to solve a political problem. Our concern is that, despite the best efforts of the Minister, whom this House holds personally in great respect and affection, politics and in particular the politics of the coalition will get in the way. That this is primarily a political Bill is made particularly clear by the context in which the Bill was generated. The manifestos from the three major political parties in last year’s general election set out that context clearly. The Labour policy on Europe said:

“We are proud that Britain is once again a leading player in Europe. Our belief is that Britain is stronger in the world when the European Union is strong, and that Britain succeeds when it leads in Europe and sets the agenda for change”.

At the election, the Liberal Democrats largely agreed with us and promised to,

“put Britain at the heart of Europe, to ensure we use our influence to achieve prosperity, security and opportunity for Britain”.

The Conservatives took a different, largely Eurosceptic approach: they promised a series of referendum locks based on the central governing notion that,

“the steady and unaccountable intrusion of the European Union into almost every aspect of our lives has gone too far”.

As we all know, the election result was inconclusive. On Europe, neither party with pro-European views—that is ourselves and the Liberal Democrats—won the mandate of the people. We on these Benches lost the election—that is plain and incontrovertible—but so did the Liberal Democrats and, despite the propitious circumstances favouring their party, the Conservatives also lost. The result was a coalition Government formed between the losing Conservatives and the losing Liberal Democrats. Neither party had a mandate from the electorate in terms of the people’s approval of their manifestos. The coalition document that was published on 20 May 2010, The Coalition: our programme for government, has no mandate either from the British people. In some areas—AV, for instance, or nuclear power—trying to join the two parties has proved too much but the effort in other areas, such as Europe, has been almost as impossible.

From the start of the document’s proposals on Europe and the EU, the parties were trying to bridge the unbridgeable. They said:

“The Government believes that Britain should play a leading role in an enlarged European Union, but that no further powers should be transferred to Brussels without a referendum”.

This Dr Dolittle’s pushmi-pullyu act is at the heart of today’s Bill. Not surprisingly perhaps, given its genesis, the Bill is, I am afraid, not the most distinguished that this House has had before it. Many aspects of the Bill are overly complex; many simply repeat the status quo. For example, Clauses 2, 3, 6 and 7 state that a treaty or treaty amendment is not to be ratified unless, among other things, the treaty or amendment is approved by an Act of Parliament. That is already the case. Indeed, it is a clear principle of international law, and our involvement in the European Union in particular, that a treaty or treaty change cannot be ratified or have force in this country until it is first recognised by an Act of the UK Parliament.

There are two issues in the Bill on which we as an Opposition wish to concentrate: namely, sovereignty and the referendum mechanism proposed by the Government. For the Eurosceptic right in the Conservative Party and beyond, sovereignty in relation to Europe is indeed a talismanic issue. Accordingly, the coalition document tries to look specific on the issue of sovereignty by stating:

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

Clearly, the proposed UK sovereignty Bill did not pass that examination because the measures in front of your Lordships today are a long way from a stand-alone UK sovereignty Bill. The Government apparently believe that many people in Britain feel disconnected from how the EU has developed and from decisions being taken in their name. We know this, of course, from the helpful fact-sheet on the Bill that the Government have produced. The fact-sheet claims that, by rolling out control on these decisions to the people of Britain by means of a referendum, the Government will be reconnecting the people to the European Union.

The reality is that this Bill is not about disconnection from Europe but about politics—the internal politics of the coalition and the internal politics of the Conservative Party. Moreover, the reality is that the Liberal Democrats have an unblemished and impressive track record on Europe, which they have been required to undermine through their participation in the coalition. In contrast, the Conservative Party, when dealing with Europe, is and remains a party which has a fault-line between the pro-Europeans and the prominent Eurosceptics. That fault-line helped to bring down John Major’s Government and the party has tried again and again to paper over it. The resulting reality in the Bill before us is what the coalition leadership judges to be a necessary move to appease the right-wing Eurosceptics in the Conservative Party through the transparently unnecessary Clause 18 on sovereignty, which the Minister has been attempting to explain, while also attempting to keep the Europhiles in the Liberal Democrat Party at least moderately happy—who, I am bound to say, are very, very moderately happy.

The Government claim that there is confusion in this area, but such claims are not borne out by the facts. Let us take the celebrated court case of Thoburn v Sunderland City Council, from which the Minister quoted a few moments ago. That case made it clear that there was no threat to the doctrine of parliamentary sovereignty. Moreover, the European Scrutiny Committee concluded that the legislative supremacy of Parliament was not under threat from EU law. The Constitution Committee of your Lordships’ House has said:

“Clause 18 is self-evident: it restates, but does not change, the law”.

So the major reason we can see for restating these principles is to appease the few Eurosceptics on the Tory Benches who genuinely fear that the influence of the Liberal Democrats on the coalition will be decisive.

[Lord Vinson]

Does the noble Baroness accept that there are more than a few Eurosceptics? Does she realise that all the polls in this country now show that over 50 per cent of the population of the British Isles are highly Eurosceptic and want to see changes?

[Baroness Symons of Vernham Dean]

My Lords, what I am trying to do here is talk about what is going on in the House and in Parliament at the moment. There is widespread Euroscepticism. Different polls produce different results, but I fully acknowledge that there is Euroscepticism, and I thought that the Minister made those points clearly in his remarks. But I am addressing what is happening in Parliament.

Surely reciting the law on parliamentary sovereignty is a more appropriate activity for first-year law students than for Parliament itself. It is basic civics. It is already the law. It is just about the most basic constitutional point in British law. Parliament and the British legislative process should not be used as a piece of Conservative Party sticking plaster which the party opposite judges necessary to keep its own Eurosceptics at bay.

I turn now to the referendum issues. Part 1 proposes restrictions on amendments to the Treaty on European Union and to the Treaty on the Functioning of the European Union. It is envisaged that there will be a referendum restriction in the long list of cases in Clauses 4 and 6. These lengthy lists do not include the controversial issue of enlargement. For example, where a country wishes to join the EU, Clause 4(4) explicitly removes that subject from deliberation by the UK public unless the decision otherwise fulfils one of the listed criteria. Surely a decision which will bind our fate with the people of another sovereign country—where we will share borders, enforcement and, potentially, as the Irish experience demonstrated, even the financial fate of that country—needs greater consideration.

At the heart of this issue is what the Government call the “referendum lock”. This would ensure that when new competencies or powers pass from the UK to the EU there would be a requirement for a UK-wide referendum and primary legislation before a Minister can agree to the new powers going to the EU. It is a very powerful mechanism. Put succinctly, the Government have to hold a referendum only if they support the change. If they do not, they can block the change during negotiations with EU partners because, of course, all treaty changes of this nature can be agreed only by unanimity in the European Union. So by withholding UK agreement, the treaty changes are blocked—and blocked for everyone. This applies to treaty revisions, as we have discussed, to some bridging or passerelle clauses and other specific decisions under EU treaties.

Clause 4 specifies 13 different kinds of decisions which would trigger a referendum; otherwise, exemption from the referendum lock requires primary legislation to approve the decision that the issue under consideration is not covered by Clause 4—at least that is how I understand it. However, where a Minister decides the referendum lock is not appropriate under Clause 4, the fact-sheet states that,

“Parliament would have the opportunity to scrutinise the Minister’s assessment during the progress of the Act”,

and could add a referendum requirement at that stage. This is a very complicated procedure. There are many specifications and many treaty provisions and, as our own Constitution Committee has rightly said, the highly technical nature of the lock mechanism,

“hinders rather than helps transparency and accessibility in the law”.

This is indeed fertile ground for legal wrangling and judicial review and gives scope for many lengthy parliamentary battles between Europhiles and Eurosceptics about what amounts to competence. Is this really the way to rebuild the trust of the British people and to reconnect them with EU decisions? Will the British public really thank us for asking them to consider the extended application of a passerelle clause in a referendum, rather than doing our job in Parliament through scrutiny and decision?

The implications of the use of referendums in this Bill are unprecedented in terms of UK constitutional practices and the implications for Parliament. By means of the Bill, which is meant to enhance the relationship of the British public with the EU, the Government are in reality changing the terms of engagement between Parliament and the electorate. As the Constitution Committee made clear in its 2010 report on referendums, there are of course issues on which it must be right to hold a referendum—for example, leaving the EU, adopting a written constitution and abolishing the Monarchy or either House of Parliament—but there must be serious doubts about what the Government are proposing in the Bill. These are not fundamental constitutional issues which are appropriate for a nationwide referendum. Moreover, these provisions are contradictory to the Government’s own stated belief that referendums are most appropriate to issues of fundamental constitutional importance.

Many commentators—and, I suspect, some in this House—do not believe that there will be referendums and that a far more likely outcome is that the Government will recognise the problem early on and simply block more and more EU proposals at the negotiation stage. Some of your Lordships may welcome that, but others will see that there are real dangers involved in this country becoming increasingly isolated and pushed to the margins of the EU debate, pretty much as we were before the 1997 election. I have heard Ministers argue that the referendum lock will strengthen our negotiating position in Europe. It is possible that it may, initially, but after the negotiation point ploy has been used some three, four, five or six times, I doubt that it will be anything like as effective. Our partners will move on, leaving us shouting ineffectively from the touch-line. There is a real risk in all this of voter fatigue and low turnout which will detract from the important decisions such as the ones that this country is being asked to make on 5 May. For our part, we on these Benches will certainly seek improvements to the Bill, including a sunset provision and a limitation on the types of matter that would trigger a referendum. We shall also consider the nature of any referendums.

[Lord Vinson]

My Lords, could I remind the noble Baroness that her party promised a referendum on the Lisbon treaty and then failed to give it. Is that not a perfect example of how people lose confidence in the governance of their country?

[Baroness Symons of Vernham Dean]

We did not promise that. We promised that we would have a referendum if there were a written constitution. The noble Lord may not have sat through those debates, but I am afraid that the House agreed with me and not with him on that point.

Finding compromises and striking balances is at the heart of what this House does both as part of the British legislative process and in its role as one of the key checks and balances in the British constitution. The House knows a compromise and a balance when it sees them but this Bill is a confusion not a compromise, a botch not a balance. Britain deserves better than this Bill. Europe deserves better. Liberal Democrat Members of this House who have a proud record on Europe—including those who, 30 years ago this week, left the party on the Benches behind me largely on this issue—certainly deserve better. We shall try to give that to them.