European Union Bill

Lord Ahmad of Wimbledon Excerpts

Wednesday 25th May 2011 Lords Chamber

[Baroness Falkner of Margravine]

The noble Lord, Lord Hannay, does not particularly care for other people putting words into his mouth. I suggest that he apply the same principle to others. I was not at all proposing that those controls are not being suggested. What I was talking about was a disconnect between the British people and their institutions, whether it is in their relationship to the United Kingdom Parliament or the European institutions. The tone of the debate makes it rather difficult to take what the noble Lord says with the seriousness with which it is intended.

This is the only amendment to the Bill that I have tabled, and I should therefore be most grateful if I could continue to address the principles behind my amendment. Somewhat in anticipation of what the Minister might say in response to the other two amendments, let me speak to the amendment in my own name and in that of my noble friend Lady Brinton, Amendment 64.

Sunset clauses in legislation are increasingly becoming part of the framework of our constitutional arrangements. We have seen them in a spate of Bills over the past decade or so. It was only earlier today that a sunset clause was reprieved and put on a permanent footing in the Debt Relief (Developing Countries) Act 2010. That also happened to the Anti-terrorism, Crime and Security Act 2001. This House voted again and again to insert such a provision into the Prevention of Terrorism Act 2005. A host of other Acts attracted such clauses, including the Finance Act 2001, the Income Tax Act 2007 and the Climate Change and Sustainable Energy Act 2006. The list goes on and on. Why are sunset clauses there? Among the reasons is concern about the unintended consequences of the relevant legislation. There was concern that new structures and processes were being installed without clarity on how exactly they might work in certain circumstances that could not be foreseen when the legislation was passed. In other words, they cannot be foreseen here and now. On that basis, there is no Bill, once enacted, more suitable for post-hoc review and the possibility of repeal than this one. Its aims are clear and I have reiterated our support for them. What is unclear is the effect of the measures on decision-making in the future.

Several noble Lords have mentioned the need that might arise when decisions are taken in urgent situations. Others have spoken of the need for flexibility. Yet others have spoken of the level of complexity in EU legislation. All sides of the House share a central concern—that UK interests should not be put at risk due to its adoption of the complicated procedures in place in the Bill. Therefore, a sunset clause, if accompanied by a straightforward sunrise clause, would seem to be ideally suited here.

I turn briefly to Amendment 62 in the name of the noble Lord, Lord Kerr of Kinlochard. There is little that one would fault with it, other than the proposal that the Bill should sunset at the end of this Parliament. Several noble Lords have suggested that there is no point in the Bill because the coalition has already declared—not today but at other times during the passage of the Bill—that there will be no further transfers of powers or competences. In other words, we do not need this legislation because there has been a declaratory statement of what the purpose of the Bill will be for the rest of this Parliament. That misses the point that we are intending to legislate for the future.

I turn to the issue of whether a Parliament can bind a future Parliament in this manner. I agree with the European Scrutiny Committee in the other place which said that Parliaments by necessity bind the other, as all legislation is directed at the future, rather than the past. I quote from the report:

“Laws passed by one Parliament do not contain a sunset clause at the Dissolution”.

All can be repealed by a future Parliament, if it so chooses and if that Executive can muster support. However, I recognise the political difficulties that repeal can attract, hence the simplicity of Amendment 64. First, the fact that the sunset would not take place until three years into the next Parliament would mean that a new Government would have sufficient time to see how the provisions played out in reality. Their Ministers would be able to see for themselves that their negotiating positions were not as inflexible as the Bill might appear to suggest, and that that they did not go to Brussels with one hand tied behind their back. In other words the provisions should actually work in practice. We would have sufficient time to assess whether we needed regular referendums, as the four remaining years of this Parliament plus three in the next would allow for a reasonable time span over which to make a judgment.

Finally, my amendment would also allow for an evaluation of how the judicial review provisions work. The process of judicial review can be, as we know, fairly drawn out, and we will have been able to make an assessment of whether the dire predictions of the frequency of judicial review will really bear out.

My Amendment 64 would put in place the possibility of evaluating how things will play out. This evaluation period would be sufficiently long to test the workings of the Act. The process would be straightforward: the Act will lapse if the Government think that it is not in the national interest to retain it, but if the Government of the day wish to retain it, again, all that will be needed will be an order resurrecting it—a sunrise. It will not absorb political capital or indeed take up precious legislative time. This clause is intended to be a pragmatic, evidence-based solution to ameliorate uncertainty. While I may be probing today as to the Minister’s objections, I suggest that in future years he may look back at this amendment, if accepted at Report, with some relief if he is caught in an unwelcome bind that was not evident on a glorious, sunny day in May.

Lord Grenfell: I support Amendments 61 to 63. I am sorry that the noble and learned Lord, Lord Howe, feels that he must now dissociate himself from Amendment 62, because the olive branch on which the amendment perches is very appropriate and could lead us out of a difficult situation.

I think that Schedule 1 is an abomination, and I always have done, and wish that it was not in the Bill. To pretend that this could possibly bring the people of this country closer to the EU and vice versa is a total myth, and I am surprised that there are those who still believe that this is the way to go in order to cement the relationship between the people and the European Union. The noble Lord, Lord Kerr, is right to say that the Bill is not exactly a subject of discussion in the bars on the Champs-Élysées or even in the Quartier Latin—far from it. But it is beginning to have a little bit of resonance in the two Houses of the French Parliament, particularly in their European Union committees, where they have taken note of it. A member of one of those committees asked me the other day whether this was actually true and whether it could happen. When I said it could, he said, if I may slip for a moment into the language of Simon de Montfort in this Parliament,

“Dans ce cas-là, nous entamerions notre proper chemin”—

which means,

“In that case, we’ll go our own way”.

And indeed they will.

I honestly believe that to think that the rest of Europe will go along with this is simply not true. It will test their patience to the limit and will do us no good at all. This Bill is not a good Bill. It is full of things that should not be there. To requote something I said late one night in Committee, Antoine de Saint-Exupéry said that perfection is achieved not when everything has been said that should be said but when there is nothing left to take away. This Bill suffers from the fact that the Government do not see that there is a great advantage in taking quite a lot of this away, but I am afraid that we may have to live with a different situation.

This is not a good Bill. I support the three amendments and hope that at least we can make it better by passing them.

[Lord Ahmad of Wimbledon]

Before I comment specifically on the sunset clauses—and notwithstanding the masterful innings of my noble and learned friend Lord Howe—it is important to reflect on the ultimate purpose of the Bill. We have heard the noble Lord, Lord Kerr, and other noble Lords talk about connection with the British people. The fact that people on the streets are not talking about Parliament debating the EU Bill is in fact a recognition of the disconnect that the Bill is trying to address. It is about defining Britain’s relationship with the European Union. Perhaps more importantly, however, it is about defining the relationship of Parliament, and indeed the European Union, with the British people, which is a very noble intention. The Bill looks to challenge, test, promote and perhaps redefine our relationship with Europe in the best interests of the British people. It is not sceptical. It is not against the European Union. It is about recognising the strengths of the single market. However, it is also about improving that relationship.

I have sat through many sittings on this Bill and heard many noble Lords talk about their experience of the 1975 referendum on joining the European Economic Community. I must confess that—through no fault of my own, I should add—I did not have much interest in the issue at that time. However, like many British people today, I am interested in defining our future relationship with the European Union. Why deny a referendum? Why deny the people of our great country a voice in defining that future relationship—not against Europe, but working with Europe at the heart of Europe?

Should sunset clauses be applied? Yes, where there are specific timelines in the Bill, as noble Lords have said in respect of other Bills. However, this Bill does not have that. They do not apply to this Bill. The EU Bill seeks to define our relationship. A sunset clause limited to this Parliament alone, or extended as the noble Baroness, Lady Falkner, suggested, is limiting. It does not recognise what this Bill seeks to do: to reconnect with the British people. Nor does the lack of a sunset clause bind future Parliaments. If there is a need at the time and in the correct place, which is here in Parliament, another Act of Parliament can be proposed that looks at the Europe of the future. That is, indeed, for the future. For the here and now, I believe that a sunset clause would kill the Bill. It will leave it with Ministers and not with Parliament. Most importantly, the basis of the EU Bill, as my right honourable friend the Foreign Secretary said, is for an enduring constitutional framework. Ultimately, it is providing the British people with a voice in defining our future relationship with Europe

[Baroness Quin]

I will speak very briefly in support of the idea of a sunset clause, which is probably the best way of ensuring that, assuming that the Bill becomes law—although I share the view of the noble and learned Lord, Lord Howe, on that—there is at least an opportunity for a fundamental rethink about it. My noble friend Lord Davies, whose fine speech I will not repeat, made the very important practical point about the operation of the Bill, particularly under the almost nightmare scenario of having a complicated referendum with several questions on entirely different aspects of treaty change. His practical objections to the working of the Bill really do need to be examined and thought through in much greater detail than seems to have happened so far.

I also have a more fundamental objection. I get very concerned about the idea of holding more and more referendums without thinking through what their role is to be in our parliamentary democracy. On the whole, I prefer a representative democracy to a plebiscitary democracy. This Bill, unfortunately, takes quite a few big steps towards a plebiscitary democracy and we need to think about that. It is very seductive to talk about giving power to the people. However—and I know I am in a minority in this place in espousing this view, as someone who believes in an elected second Chamber—there are ways of giving power and a vote to the people other than by referendum. I do not want us to be seduced into thinking that the only way in which you can give power and influence to the electorate in this country is via the continual use of referendums. I do not think that that is true for a moment, and, again, it is something that we should think about.

The Bill represents fundamental constitutional change. Along with a number of other measures that the coalition Government are introducing, we are making considerable changes to our constitution—in some ways, almost more so than the previous Government, of whom I was a supporter and who were often criticised, particularly by the Conservative Party, for the extent of their constitutional changes. However, we are doing so in a way that I think is fundamentally unsatisfactory in a Bill such as this. For that reason, anything that causes us to rethink this legislation is, in my view, to be greatly welcomed.