European Union Bill

Lord Davies of Stamford Excerpts

Monday 9th May 2011 Lords Chamber

[Lord Hannay of Chiswick]

My Lords, I speak in support of the probing nature of this amendment and wish to ask noble Lords on the government Front Bench to give some thought to an aspect that was not precisely raised by the noble Lord, Lord Liddle. It is what I call the chicken-and-egg problem. By definition, there cannot be a decision on these matters which are taken within Lisbon unless the Council takes a unanimous decision. There will not be a decision on which the Government can hold a referendum unless they have agreed to it, so you have a chicken-and-egg problem of a massive kind. What will the Minister do in the Council? Will he say, “My lips are sealed”? In that case, it will go through because it will be considered an abstention and he will have allowed it to go through. This is a bizarre situation and I cannot believe that that is what the Government intend to bring about.

Perhaps the Minister will confirm my understanding that the Government, in giving their agreement to a unanimous decision in the Council on matters that fall within the scope of Lisbon—not changing the treaty by the intergovernmental conference route—they intend that the British Minister will say that he is agreeing to this decision and that the agreement will be formalised only when in some cases our Parliament has approved it by primary legislation, or in others there has been a referendum. However, he will agree to it in the first place, otherwise there will not be a European Union decision that can be put to a referendum and you will find yourself in a fine old tangle. I hope that the Minister will be able to clarify this as I cannot believe that the Government seriously wish to put themselves in a position where they cannot even participate in the debate about a decision in Brussels because, perish the thought, what they say might be interpreted as support. Oh, terrible and fantastic—everyone will fall down at that stage.

I do not think that makes any sense, and nor do I think necessary the requirement for a referendum that the Government are trying to impose. In a later set of amendments, I will argue that that requirement is excessively imposed. It is not necessary because all those requirements can be retained without preventing the Minister in Brussels behaving in a normal, sensible way—that is, participating in the negotiations. If the British Government think that, basically, it is in our interests for that decision to go ahead, they can say that it can go ahead but that the following national processes then have to ensue. I hope that the noble Lord will be able to clarify the situation.

[Lord Davies of Stamford]

My Lords, for the purposes of this very narrow amendment, we accept that the Minister of the Crown cannot agree anything without a draft decision being approved by an Act of Parliament and the referendum condition being met. That means that in the case provided for in Clause 4 there is a referendum if necessary and the referendum result is positive. Most of us on this side of the House think that that is a monstrous situation to put the country in. Nevertheless, for the purposes of the amendment, we accept that and that the Government will not be able to agree to any of those decisions without a referendum or an Act of Parliament, and in many cases both.

The amendment is designed to question the words “or otherwise support”. That is why I am just as shocked as my noble friend Lord Liddle that the Government cannot accept it. What is the purpose of including “or otherwise support”? Surely, throughout the Bill the Government have been arguing to prevent this country acceding to or being party to any decision on constitutional change, such as the introduction of qualified majority voting, without going over these thresholds of Acts of Parliament and a referendum. The words “or otherwise support”, as in the text, imply that it is an additional restriction. What does that mean? We would like specific answers from the noble Lord, Lord Wallace, if he is summing up the debate on the behalf of the Government. Does it mean that a Minister would not be able to say, “I personally support this but I need the agreement of my colleagues before I can go along with it.”? Is the text designed to prevent that sort of conversation taking place? Is it designed to prevent the Minister saying, “The British Government support this, amazingly, but we’ll have to have a referendum because we have imposed this Act on ourselves”? Is that what “or otherwise support” means? Does the Minister want to intervene and perhaps answer my questions?

[Lord Wallace of Saltaire]

My Lords, perhaps it will help the House if I read the wording in Section 6 of the European Union (Amendment) Act 2008. It states:

“A Minister of the Crown may not vote in favour of or otherwise support a decision under any of the following unless Parliamentary approval has been given in accordance with this section”.

In addressing that clause and in resisting the amendment of the MP for Wells, Mr Jim Murphy said:

“If the European Council sought to come to a decision based on consensus, the provision in clause 6 would mean that we would have to vote to break that consensus by not abstaining. That is the important protection contained in clause 6(1)”.—[Official Report, Commons, 4/3/08; col. 1669.]

All that we are doing is repeating what the previous Government put in the Act that ratified the Lisbon treaty.

Perhaps it will help if I go on to explain that this does not in any way mean that a Minister or their officials cannot express support for a decision in principle, pending the completion of the process of approval provided in Clause 6.

[Lord Davies of Stamford]

I am grateful for that intervention, but I must say to the noble Lord—I think that he will agree in principle—that it is a very bad excuse for a Government, when bringing forward legislation, to say, “This may be bad legislation with bad wording, but we copied it from a previous Government”. That is not the way that legislation should be brought forward in this or any other House. All proposed legislation should be justified on its own merits and on its own text; the Government of the day should be prepared to defend the texts that they bring forward and should not say simply that they are reproducing what may well be the errors of the past.

I move to the text before us. It would be useful to have on the record a clear statement from the Government of what this is intended to mean to Ministers. If the Act is passed, Ministers will need to know what scope they have for taking part in discussions. If the noble Lord says that they will be allowed to say, in the example that I quoted, “I personally am in favour of this, but I do not have support yet from my colleagues so I will take it back to them”, that would be useful to know. If they will be allowed to say, “The British Government are in favour of this in principle, but we need an Act of Parliament and a referendum”, that would be a very reasonable thing to say if this Act was passed. However, it is extremely important that we get this clear.

I will explain to the noble Lord why it is so important. There is an issue of good faith. We are parties to the treaty of Lisbon. The noble Lord probably voted for the treaty, and his noble friend Lord Howell probably did not. Nevertheless, we as a country are committed to the treaty of Lisbon, and we are therefore committed to the clauses of the treaty—including Article 31(3) of the TEU, which we will debate in a moment—which provide in certain circumstances for a decision by the Council to go to qualified majority voting to reach a decision. The treaty of Lisbon provides for these possibilities, but we are coming along with a proposed Act of Parliament—a Bill—that is designed to prevent Great Britain from ever being a party to mechanisms that we signed up to when we agreed to the treaty of Lisbon. If it appears that we are going to be censoring Ministers and saying, “You cannot take part in good faith in debates and discussion, you cannot have a normal exchange of views, you cannot make statements that you are in support of things and so forth”, this would constitute a determination to make sure that our contribution in the Council will be extremely negative and unproductive.

This is a matter of good faith and is about whether the Government—we had this discussion in another context during the debate on the Bill—want to bring about deliberately a degradation in the good relations between this country and our EU partners. I trust that they do not. The noble Lord, Lord Wallace, said on a number of occasions that they do not and that it was quite wrong for me to harbour that black suspicion. I hope that it is quite wrong of me, but it is therefore very important to see what kind of constraint will be imposed on Ministers. I am grateful for the noble Lord's intervention, which has gone some way to explaining the practical effect on a Minister of the Crown who takes part in the Council of Ministers. Anything further that he can add would be of great practical importance when Ministers find themselves in difficult situations in future discussions where they have to have regard to the Act, if it is an Act by that point.

[Lord Lamont of Lerwick]

My Lords, when the noble Lord, Lord Liddle, moved his amendment, he was careful and modest enough to say that it was a probing amendment, following which it was possibly unwise for the noble Lord, Lord Davies, to go in feet first when it was explained to him that the legislation was repeating what had been in previous legislation—apart from the referendum—and say, “That does not excuse it because it is bad legislation”. However, all the arguments that he applied about lack of flexibility surely would have applied before if his arguments were right.

[Lord Davies of Stamford]

I hope that the noble Lord, Lord Lamont, understood what I said. I stand by it, will repeat it and will ask him whether seriously he disagrees with it. This House and any serious legislature or democratic assembly anywhere in the world should look at the text of Bills proposed to it on their merits. It is no excuse simply to say, “We are just repeating mindlessly some formula that already exists”, without being prepared to justify it.

[Lord Lamont of Lerwick]

Yes, but the noble Lord's criticism might have been a little modified in the light of the explanation that the Minister gave, rather than being put forward in quite such an aggressive manner.

In an equally probing spirit—because I, too, would like to understand this—perhaps I might ask the Minister two questions. Is he saying, first, that there is a distinction between a draft decision and a full decision, and that a Minister could indicate an agreement in principle to a draft decision? That was what I understood happened when we debated the European financial stability mechanism—the first of the three bailout funds, if I may call them that, that were arranged—when my noble friend Lord Howell clarified a certain amount of confusion in the House. Some noble Lords thought that we were making a final decision; he made it clear that we were not, that Parliament would have to decide on the principle of the matter, and that there would be another debate later. If that is the correct example of how this operates, we can see that there would be plenty of time for flexibility and consideration.

Secondly, are the words “or otherwise support” meant to cover also a position where abstention on a decision occurs? Where there is a requirement for unanimity, abstention cannot stop a proposal going through. It may be that that, too, is covered by the words. I have seen the words of Mr Murphy that the Minister quoted, and I think that that was one of the points that he was making.

--- Later in debate ---

[Lord Wallace of Saltaire]

My Lords, I am very willing to reflect on this point and see whether we can return to the House with any words of comfort, but I fear that we are chasing headless chickens around the yard a little. I will leave it to others to decide whether the eggs are headless as well.

To conclude, we are not the only Government who—I will give way once more to the noble Lord, Lord Davies of Stamford.

[Lord Davies of Stamford]

I am very grateful to the noble Lord, Lord Wallace, but I hope that if he wants to criticise me in future, which he is very welcome to do, he will do so on the basis of what I actually said and not on what I have not said. I did not rubbish the Government of whom I was proud to be a member; I said that this was a general principle that applies to the Minister today and that applied to me when I was a Minister. If you bring forward a Bill in this House or the other House, you must be expected to defend the text on its own merits. It is no excuse to say simply that you are replicating text from the past. That was the point that I made. I made no normative statement about the text at all in that context; I simply made that general principle clear.

[Lord Wallace of Saltaire]

I thank the noble Lord for making that so wonderfully clear.

I hope I have managed to persuade your Lordships that there is no sinister intent behind these words. They are not part of a dreadful right-wing Conservative plot, so there is no need to add the qualification that Amendment 32A would require. May I also say, since the Daily Express has been running a range of quite absurd stories—the latest being that government buildings are being forced to fly the EU flag—that we must recognise that we are operating in a world in which, for many years, previous Governments have failed to stand up to some of the complete nonsense that has spread through the British press. Unfortunately, we now find more and more nonsense spreading, and part of what this coalition Government intend to do is to spell out the advantages to Britain of being in the European Union in order to get back at some of the nonsense put out by the Daily Express, which unfortunately, as noble Lords will know, is no longer part of the Press Complaints Commission process and so the commission has very few controls over what it puts out, but that is another matter.

We will take this matter away and look at it again. However, as I say, the words used in the Lisbon treaty amendment Act were there for a good reason, and the words used here are also here for a good reason. On that basis, I hope that the noble Lord will be willing to withdraw his amendment.

--- Later in debate ---

[Lord Lamont of Lerwick]

I am very sorry that the noble and learned Lord, Lord Goldsmith, is not here; he was here earlier. I read what he said the other day. If I have in any way misrepresented his views, I am sure he will correct me. I read that he was very firmly one of those in the previous Government who took the view that the best way of dealing with international crime was not by the creation of new international authorities but through co-operation between national authorities. That was his very firm view. I thank the noble Lord, Lord Goodhart, for what he said about the European arrest warrant. I know he felt it should have been combined with a system of European bail, which would have made it very different.

[Lord Davies of Stamford]

I want first to address some of the general points that have been made in this debate and then focus on Amendment 42, with which I thoroughly agree. I very much support the arguments of the noble Lord, Lord Goodhart, on that. Several general points have been made. Some of this debate has been a bit of a Second Reading debate, which is a very good thing. These issues are extremely important and I accept that many of these amendments cut across the thrust of the Bill itself. They force the Government to explain exactly what their purposes are. That is a most important aspect of this evening’s proceedings. We are making some progress. I am grateful to the noble Lord, Lord Lamont, for recognising that we on this side of the House are very much in favour of enhanced parliamentary scrutiny of European Union decisions. If the argument was about that, there would not be an argument. We would be pretty much in agreement and would have put the Bill to bed long ago. The issue is entirely about referenda, and whether it is sensible, practical and ever seriously intended to have referenda. It is important that, as a result of the proceedings of this Committee, we elucidate that point.

The noble Lord, Lord Hannay, said that he thought it was a sick joke—strong words, but justified—to suppose that the Bill would in any way enhance our relationship with our partners in the EU or enhance the British public’s support for our membership of the EU. I do not cast aspersions on the sincerity of any Member of this House. I am sure the people who say that they believe that the Bill will somehow enhance the British public’s understanding of and support for the European Union have genuinely persuaded themselves that that is the case. However, it is quite difficult to follow that argument, which is so obviously contrary to the historical facts. We all know what those are: Mr Cameron offered this Bill to his Eurosceptics as a sop. It was put to them as being a victory for the Conservative Party in the negotiations that led to the coalition agreement. Indeed, Mr Cameron and his Whips have been going around the Back Benches of the Tory party, as I know, saying, “You must be pleased with us now. We have at least brought forward this Bill, which stops any further growth in powers for the European Union and preserves parliamentary sovereignty”. That is an aspect we will come to later in the Bill. That is historical fact. That is how it has been presented and the way it happened. There is no question at all of anybody saying, “Let’s see what we can do to enhance the British public’s understanding of and support for membership of the Union”, and then coming up with this Bill. That is not how it occurred.

[Lord Ahmad of Wimbledon]

My noble friend Lord Hamilton referred earlier to the importance of connecting again with the British people. Is the noble Lord, Lord Davies, suggesting that military independence, the loss of our decision-making around defence and judicial independence are less important than financial independence?

[Lord Davies of Stamford]

I have not raised the issue of defence at all in my remarks, so I do not know where that question comes from. From the Whips, I am told. I do not dispute that interpretation.

[Lord Ahmad of Wimbledon]

My right honourable friend the Prime Minister put forward the Bill, which is all about connecting with the British people, not with the Whips. The important thing is what the British people care about. They care about our defence, our military independence and our financial independence. That is what this Bill is all about.

[Lord Davies of Stamford]

The British people clearly care very much about the defence of the country; that is another, wider subject. I have no doubt at all that they are very unhappy with what the Government are doing in that regard. As the noble Lord may know, I have always supported a greater degree of cohesion in European defence matters. However, the amendments that we are discussing are not concerned with that issue. I want to get back to the Bill and the amendments that we are discussing.

Amendment 42, which deals with the European public prosecutor’s office, exposes the Bill’s lack of sincerity. Of course it is possible to make an argument for having a referendum about our joining the euro, or possibly about our joining Schengen, but is it really credible in this regard? Does anybody really think for a second that any Government would seriously have a referendum about the public prosecutor’s office? I do not think that anybody could possibly believe that is a realistic possibility.

Article 86 provides for a public prosecutor’s office. It says:

“In order to combat crimes affecting the financial interests of the Union, the Council, by means of regulations adopted in accordance with a special legislative procedure, may establish a European Public Prosecutor's Office from Eurojust”.

The words which state,

“In order to combat crimes affecting the financial interests of the Union”,

provide the answer to the point made by the noble Lord, Lord Lamont, about having national jurisdiction. This country clearly does not have jurisdiction in financial crimes committed in Brussels or elsewhere in the Union against the financial interests of the Union. We are a member of the Union and suffer as a result of those crimes, but our courts may very well not have jurisdiction in such circumstances. Indeed, they are most unlikely to have it.

Who is going to oppose that? If you are going to have a referendum, have one on something that is controversial. If you go to the British public and ask, “Are you in favour of crimes against the European Union? Are you in favour of prosecuting them? Are you in favour of having a public prosecutor who would have jurisdiction in such cases?”, who is going to say no, they are not? It does not really make sense. Article 86(2) continues:

“The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union's financial interests, as determined by the regulation provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences”.

What is controversial about that? Where is the substance there for a genuine referendum campaign? Can anybody consider suggesting to the British public that we spend £1 million of their money on having a referendum on such a subject, let alone tens of millions of pounds? The noble Lord, Lord Goodhart, pointed out that almost certainly a referendum on that subject could not be linked to some local or national election, and so the costs would be disproportionately high. It just does not ring true. I said that on Second Reading and I say it again now. The Government will have to do very much better to try to persuade the British public of their sincerity in that matter than they are doing.

The noble Lord, Lord Lamont, says that the treaty may extend the remit of the European public prosecutor’s office to enable it to deal with cross-border crimes within the European Union. That is perfectly true. He quoted paragraph 4, but it is clear that that decision would have to be taken by unanimity, so we have an effective complete lock on that for the rest of time. There is no threat of that happening without our having to take a decision on it if we wanted to. Of course we should take a decision only with parliamentary support. In fact, we should take a decision to join the European prosecutor’s office in the first place only with parliamentary support—whether through a resolution or a Bill, I do not particularly care; I am all in favour of that.

If the British public do not think that we in Parliament are capable of taking a decision on a matter which is a no-brainer—is it not?—to pursue financial fraud more effectively, then what is the purpose of having a Parliament? It does not even begin to make any sense.

I am very grateful to the noble Lord, Lord Goodhart, for bringing forward this amendment, as it shows up the complete hollowness of the Bill. It is insincere and simply does not make any sense. It is not for real. It is like dealing with a dishonest salesman: you know perfectly well that what he is saying is not the truth; you try to get at the truth and his real intentions, but it is clear that the real intentions are not the ones being overtly expressed. That is my problem with the Bill. It is a very serious problem. I am very grateful to the noble Lord, Lord Goodhart, and to his fellow signatories to the amendment for bringing it forward. I hope that we get an answer from the Government. What is the reason for this obsession with the public prosecutor’s office? A respectable answer may be this: “We are stopping everything. Of course, it would be absurd to have a referendum on the public prosecutor’s office but we want to stop everything. A cat should not be allowed to cross a street so far as competences in the European Union are concerned without having a referendum. We want to be absolutely certain that we are totally pedantic about that”. That may be a respectable answer. It is an intellectually coherent answer but it means that the Government have adopted a policy of complete, rigid, ideological dogmatism in this matter. That is a very revealing point. If that is the explanation, it is very important that the public should know about it.

[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.

[Lord Risby]

My Lords—