European Union: Negotiations (European Union Committee Report)

Debate between Lord Hamilton of Epsom and Lord Hannay of Chiswick

Monday 16th March 2020 Lords Chamber

[Lord Hamilton of Epsom (Con)]

My Lords, your Lordships’ House has always regarded itself as the guardian of our constitution. Of course, included in our unwritten constitution, although many people wish it were not, is the whole question of referenda. I know that many people think we should never hold referenda in this country, but the fact is that it was decided that we should.

I want to put a hypothetical question to your Lordships’ House: what would have happened if all the Euro-enthusiasts, described by a noble Baroness on the Liberal Democrat Benches as Euromaniacs, had succeeded and kept us in the EU when the country had voted to leave—or, indeed, kept us in Brexit in name only when the country had made it quite clear that it wanted to leave the EU? I totally accept that this is a hypothetical question because the whole situation has now changed. For that reason, I do not expect my noble friend the Minister to reply to this—he should not reply to hypothetical questions—but your Lordships’ House should give thought to this matter because, let us face it, that referendum was in the 2015 Tory manifesto and was honoured in both the 2017 manifestos of the two major parties, which said that they would honour the result. If at the end of all this we had decided that somehow we were going to stay in the EU, where would that have left democracy in this country? We must think about this very seriously. Your Lordships’ House has done itself no credit in its role of scrutinising the whole business of European legislation and conspiring to do everything it could to ensure that we would never leave the EU at all.

I turn to the report. Much comment has been made about the level playing field, but also included in that is the fact that the role of third countries has been completely redefined. I thought that a third country was a country that did not happen to be in the EU—as simple as that—and that once you signed the withdrawal agreement and left, you were no longer in the EU but were a third country, but oh no, that seems to have been redefined. Now, for some reason, our closeness to the EU puts us in a unique category, and the amount of trade that we have with the EU puts us in a special position. I was somewhat surprised because, reading the report—

[Lord Hannay of Chiswick]

Obviously the noble Lord did not listen very carefully to the quotation that I read from the joint declaration. It makes it quite clear that we recognise that geographical proximity, and the extent of our independence, require a level playing field. Perhaps he could answer that question.

[Lord Hamilton of Epsom]

That is the point I am trying to make; this should have been answered in the report. It does not matter where it comes from. Whether our closeness to the EU makes any difference to our relationship with it is questionable. The problem is that we have had the nerve to vote in favour of leaving the EU. Therefore, the EU must redefine the position of a country that leaves so that it can mete out special treatment to that country and somehow discourage others from leaving as well. This report should have addressed these issues. Does it make any difference whether or not a country is close to the EU? Does the size of trade make any difference? I agree that our trade with the EU is probably greater than that with the United States, but the United States does a massive amount of trade too. Nobody is asking for a level playing field with the United States, and they would be told where to go if they tried. We should be questioning these things, as I hoped the report would. Perhaps the noble Earl, Lord Kinnoull, can tell me why this was not included in the report.

European Union (Withdrawal Agreement) Bill

Debate between Lord Hamilton of Epsom and Lord Hannay of Chiswick

Committee: 2nd sitting (Hansard continued) & Committee stage & Committee: 2nd sitting (Hansard continued): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Lord Hamilton of Epsom]

Yes, and the noble Lord should be very pleased with himself that he has done much to make the idea of reforming our House a significant factor, now that there is a Conservative Government with a serious majority.

[Lord Hannay of Chiswick (CB)]

My Lords, as one of those who sponsored this amendment, I will make a few brief points. Its subject matter is very familiar to Members of this House, because we went over all this ground during the Trade Bill last year. We sent to the Commons an amendment that had very similar effects to this one, only this one is in the different context of negotiating the new relationship with the EU, and it has remained there untreated ever since. However, the view of the House was expressed by a very large majority, with support from all corners of the Chamber.

This negotiation with the EU, which will go far beyond purely the trade area, must do so because, if we allow the non-trading goods areas that are at stake—I will not list them, as it is a very long list—to go over a cliff at the end of this year, when we have only a trade agreement, that would be pretty disastrous. It is a very important and wide negotiation, and it is perfectly reasonable to try to set bounds to the rules of the road in legislation about how the Government will relate to both Houses of Parliament during its course. I do not think there is anything unreasonable in this.

Moreover, as my noble friend Lord Kinnoull pointed out, drawing attention to the European Parliament’s position, which is completely different, it would be pretty anomalous if this Parliament, which is meant to be taking back power, had much less influence over this negotiation than the European Parliament. That is not a very happy situation; it was one that existed during all the negotiations of the last few years and did not turn out terribly well. I do not quite understand why the Government are fearful of subjecting themselves to this fairly reasonable amount of oversight and mandating when they have a very large majority in the other place, which will of course prevail in support of the Government’s views on how the negotiations should be conducted.

Yet they tabled the text that we now have before us when they could not be sure of that at all. That is a bit odd as well; I think I can understand perfectly well why it has happened, but it is still odd. This is not only about the European Parliament. For example, one of the major trade negotiations not covered by the Bill will be with the United States, where Congress will play a far greater role than the one that the Government envisage for this Parliament. That is also pretty unhealthy.

European Union Referendum Bill

Debate between Lord Hamilton of Epsom and Lord Hannay of Chiswick

Wednesday 18th November 2015 Lords Chamber

[Lord Hamilton of Epsom]

I hear people saying no. Let us suppose that an opinion poll came out on 16 and 17 year-olds that was 70:30 in favour of pulling out of the EU. Would we be looking at this amendment now? I can tell you we would not. Let us not fool ourselves. This is all part of trying to tilt the playing field even more in the direction of those who want to stay in the EU. It is already tilted because the Government have the option of choosing the day the referendum will be held, and this is clearly an effort to tilt it even further.

[Lord Hannay of Chiswick]

Is this not a case of the pot calling the kettle black?

[Lord Hamilton of Epsom]

The noble Lord, Lord Hannay, will have to tell me what amendment I put my name to which tries to tilt the playing field the other way. All we have ever tried to do is keep it level. My God, that is an effort in a House like this, I can tell you.

European Union Referendum Bill

Debate between Lord Hamilton of Epsom and Lord Hannay of Chiswick

Wednesday 18th November 2015 Lords Chamber

[Lord Hamilton of Epsom]

A large number of commitments have been made in manifestos that have not been brought in. That is rather like, by the same token, arguing that this is the moment to change the electoral mandate for 16 and 17 year-olds. Are we going to bring all these changes in on the back of a referendum Bill? Like my noble friend Lord Forsyth, I believe that we should have a constitutional convention to look into all these things. The whole thing is becoming more messy and piecemeal as it goes along, and I certainly do not approve of that at all.

All the time, amendments are being brought forward that are designed to make it more likely that the electoral register will be slewed in such a way that more people will vote to stay in than to leave.

[Lord Hannay of Chiswick]

I wonder whether the noble Lord would agree that voting for this amendment will make the electorate less piecemeal, not more piecemeal. It is the exclusion of people who are British citizens that is piecemeal and which his party, which he seems to treat with contempt, proposes to remedy. This is really quite an odd thing for him to do. It would be much more logical if they were included.

[Lord Hamilton of Epsom]

All the time, we seem to be trying to change the existing electoral register in favour of those who are more likely to vote to stay in than they are to leave. This is quite clearly changing the whole thing in favour of those who want to stay in the EU. I do not know why the noble Lord actually denies this. Does he really think that people living in the EU for more than 15 years will vote to come out? It is extremely unlikely. He knows that as well as anybody else. We have established that there is an electoral register and now we are starting to mess about with it. Once it includes the 16 and 17 year-olds, a whole host of other people can be put in. That moves totally away from the original register on which we were having this referendum.

If everybody wants to hold a referendum in this country which is narrowly won by those who say we should stay in the EU when there is all the gerrymandering that has been going on, do noble Lords really think that that decision will be accepted by the country when it is obvious that the whole thing has been slewed in favour of those who want to stay in the EU?

European Union Referendum Bill

Debate between Lord Hamilton of Epsom and Lord Hannay of Chiswick

Monday 2nd November 2015 Lords Chamber

[Lord Hannay of Chiswick]

I think that the noble Lord is referring to the last paragraph of the subsection, which is on law enforcement. The situation there is fairly easy to follow. The present situation is that we have opted back into, I think, 36 justice and home affairs measures—no, it was fewer than that. It is Protocol 36 but the number is somewhere in the 30s, and those measures are the ones that apply in this country now. The ones that we did not opt back into do not apply and would therefore not be affected by a decision to withdraw. The ones that we did opt back into and which do apply in this country would be affected by a decision to withdraw. They include things such as the European arrest warrant.

If I may skip on to this part of the amendment, the implications for law enforcement, security and justice and, above all, for the European arrest warrant are extraordinarily serious. We discovered at the time of the Protocol 36 discussions, which were pretty intensive in this House, in the other place and in the public press, that the consequences for law and order on the island of Ireland could be extremely serious if the European arrest warrant did not exist. It has in fact managed, for practically the first time in recorded history, to depoliticise the issue of extradition between the two parts of the island of Ireland. It is now possible to get back criminals, including terrorists, who are wanted for trial in Northern Ireland from the south without a highly politicised process, and very expeditiously. That would be lost if the European arrest warrant ceased to apply in this country and, I suggest, that would have pretty serious implications for the rule of law in Northern Ireland.

[Lord Hamilton of Epsom]

Does the noble Lord not accept that there are extradition treaties with other countries that are not in the EU, so there is absolutely no reason why they should not go on within the EU after we had left?

[Lord Hannay of Chiswick]

I really do not think that we should delay the Committee with a replay of the Protocol 36 debates. The noble Baroness, Lady Anelay, is looking quizzically around. She was the Chief Whip at the time and was very familiar with the arguments. The fact of the matter is that every legal body in this country—the Bar Council, the Law Society and anyone else noble Lords might like to think of—came forward at that time and said that to renegotiate extradition agreements with each of the other member states of the EU would be defective and slow, and that it would not work as well as the present arrangements.

In any case, this is not a request to go around that course again. Parliament has decided that we are in the European arrest warrant and in the other wings that we opted back into. This is a request for the Government to provide factual information about what would be at stake if the electorate were to vote to withdraw from the European Union. It is surely reasonable for that information to be provided and along with it, naturally, the implications for law and order, law enforcement and so on—and for Northern Ireland.

On the need to introduce new legislation, I mentioned the agriculture and fisheries policy. We would have to construct a new tariff. We would have to decide the tariff we were going to apply, rather than the common external tariff of the European Union. That is no small matter. It affects every single business in this country. The level at which we would apply the tariff would have to be decided. It could be lower than the common external tariff, which would be helpful to freer trade; or higher, in which case we would have to pay compensation to every other country in the world; or the same, in which case, what the hell were we doing? These are important points and I hope that the Minister in her reply—

European Union Referendum Bill

Debate between Lord Hamilton of Epsom and Lord Hannay of Chiswick

Wednesday 28th October 2015 Lords Chamber

[Lord Hamilton of Epsom]

My Lords, we have been discussing virtually all day how we are going to try to make this referendum fair. We want to keep the playing field as level as we possibly can. Enfranchising 1.9 million people of European nationality is a blatant opportunity to try to swing the vote in favour of staying in the EU. Of course, so much is going wrong for all these people who want us to stay in the EU. Let us face it: the EU is imploding as we watch and one crisis follows another. It is going to be quite tricky for anybody who wants us to stay in the EU to win this referendum. Therefore, I agree that those people who do want to stay in have got to try every trick in the book to try to swing it in their direction. However, let us see this for what it is: this is a referendum for the British people to decide whether or not they want to stay in the EU. This is not a decision for foreigners who happen to be living in this country.

[Lord Hannay of Chiswick]

The noble Lord, Lord Hamilton, and the noble Viscount, Lord Ridley, before him, used the argument of whether we would all be supporting this if these people were all going to vote no. I am afraid that his question reveals his own motive—to stop these people getting the vote just because they might vote yes.

[Lord Hamilton of Epsom]

I cannot believe that the noble Lord, Lord Hannay, is actually putting this amendment forward because he has no intention to increase the franchise of people who will vote for his position, which is to stay in the EU. Come on—let us see this for what it is: this is trying to slant things rapidly in the direction of those who want us to stay in the EU. It is absolutely blatantly obvious that that is what it is all about. For anybody to pretend anything different is absolutely ridiculous.

European Union Bill

Debate between Lord Hamilton of Epsom and Lord Hannay of Chiswick

Wednesday 8th June 2011 Lords Chamber

[Lord Hamilton of Epsom]

Before the noble Lord sits down, does he accept that the power of the Executive has got much stronger in the House of Commons? We all talk here about parliamentary democracy in terms of the other place, but how many times have the Government actually been defeated over the past 20 years?

[Lord Hannay of Chiswick]

It is not the time of night to go into a lengthy disquisition on British constitutional history, but we still live in a representative parliamentary democracy and we still accept that a Government who have a majority in the House of Commons can make laws. However, we are seeking to contradict that with this provision. The amendment that is being moved is a small, modest palliation of that.

European Union Bill

Debate between Lord Hamilton of Epsom and Lord Hannay of Chiswick

Wednesday 25th May 2011 Lords Chamber

[Lord Hannay of Chiswick]

The noble Lord has perhaps misunderstood the effect of the sunset clause. If it operated and nothing replaced it—although in one amendment before us there is a system that would replace it—we would revert to the Bill in which we ratified Lisbon. This required a resolution of both Houses. It is a case of returning power not to the Government but to Parliament.

[Lord Hamilton of Epsom]

Of course—but the noble Lord will know well that the late Lord Hailsham described government as an elective dictatorship. I view what will happen as being very much more in the hands of the Government than of Parliament. I take the point that we are talking about Parliament rather than the Government. However, it is an entirely different matter when you give powers to people in the form of a referendum, because if you then take them back you are taking them from the people. That is different from all the other sunset clauses that we have in our legislation.

European Union Bill

Debate between Lord Hamilton of Epsom and Lord Hannay of Chiswick

Monday 9th May 2011 Lords Chamber

[Lord Hamilton of Epsom]

My Lords, it is quite difficult in this debate not to get drawn into some sort of Second Reading speech when we have amendments, such as those of the noble Lord, Lord Kerr, which basically fillet the whole Bill and seem designed to ensure that it does not have the effect that was originally intended.

I am always amazed when I listen to people supporting these sorts of amendments that they do not seem to realise how totally disillusioned the British people are with our progress as we creep, by grandmother’s footsteps, further and further into an integrated Europe which nobody really wants. I rather liked the analogy of Odysseus being strapped to the mast with wax in his ears, because we should remember that the reason why that happened was so that he would not hear the sirens’ songs and be dashed on the rocks. I hope that our Ministers will be strapped to the mast with wax in their ears because we will otherwise be merely drawn further and further into Europe and into an integration that people in this country do not want. I sincerely hope that we will oppose these amendments, which seem to be designed precisely to remove what the Bill is trying to do, which is to reassure the British people that we will not be drawn any further into Europe by this rather surreptitious process that has been going on under successive Governments for many years now and has led to a great sense of disillusion among the British people.

[Lord Hannay of Chiswick]

I shall speak to a number of the amendments in the group which are in my name and support the amendment moved by the noble Lord, Lord Kerr. I am glad that the noble Lord, Lord Hamilton, got in ahead of me, because he has enabled me to realise that he has neither understood what the amendments are trying to do nor understood what they are not trying to do. So I shall try, since that is the spirit of Committee stage, to say a little bit about them.

I hope that I shall not be totally out of order if I express some regret that so many of these amendments have been bundled together when they are completely contradictory. There are amendments in the group which add more to the list of 56 referendums with which we are threatened and there are amendments, such as those which I support, which subtract. They are not two branches of the same subject; they are two completely contrary views of how to pursue Britain’s national interest in Brussels. However, having said that, I am happy to address all the amendments, particularly those in my name.

The reasons that we have to take seriously the need to reduce the number of subjects on which there might be referendums are numerous. The proponents of the legislation have simply ignored the views of the Constitution Committee of this House. I have not heard a single word from the government Benches answering the committee’s report in which it said that referendums should be used in the EU context only when matters of major constitutional importance are at stake. I shall not go through the whole list in Clause 6 to show which matters are and are not—most are not—covered by that; the euro clearly is, which is why there is no question of trying to suggest there should not be a referendum on that matter. However, that is one reason for shortening the list.

The other is that if you have 56 items—or, as some speakers on later amendments in this group will no doubt urge, more than 56 items—which could trigger referendums, you are chopping at the base of representative parliamentary democracy and the sovereignty of Parliament, because you are handing over huge chunks of it to a different process which does not involve Parliament. That is another reason for cutting down. A further reason for taking this matter seriously, as I hope the Government will, is that given by the noble Lord, Lord Kerr. So far, the Government’s response to these criticisms of this great cascade of potential referendums has been totally inadequate. Their response has been what is now described in the argot as “Calm down, dear”. They say, “Don’t worry, it won’t happen. None of these things will happen”. The noble Lord, Lord Howell, said the other day that there will not be all these decisions in Brussels that require referendums; they will all be bundled together into a big package. As the noble Lord, Lord Kerr, pointed out, that is fundamentally against Britain’s interests. I do not wish to accelerate construction of a large institutional package of measures of the sort that was passed in the form of the Single European Act or Maastricht or Lisbon. It is not in our interests to do that, but that is precisely what we will end up doing. Alternatively, and it is really quite serious, we will end up having serial blocking in Brussels, which is what I think some noble Lords opposite would like; that is, when each decision comes forward, the British Minister will block it because they will not want to have a referendum on it, either for opportunistic reasons or for perfectly substantial principled reasons. Together, they will all add up to a situation in which Britain’s good faith will be queried. Our partners will then be propelled either into the large package, which is not in our interest, or into enhanced co-operation. By definition, since we are talking about matters that require unanimity, they will have been brought around the Council table to a point at which 27 of them—or more if there are more members of the Union than now—have said that they are prepared to go ahead and one, Britain, has blocked it. That is the absolute perfect building block for enhanced co-operation—for marginalising ourselves and being completely ineffective. Therefore, I am arguing that we truncate the list of matters on which there should be a referendum.

I now turn to the point raised by the noble Lord, Lord Hamilton. This is certainly not removing the whole meaning of this legislation. No one from these Benches is contesting the completely new innovation; namely, that the Government will submit to a referendum any measure that is negotiated in an intergovernmental conference and results in a new treaty or a treaty amendment reached through intergovernmental conference. That is the meaning of Clause 2. No one is contesting that. No one is contesting the referendum on the euro. Those of us who are moving amendments in this block need to be clear about what we are not doing as well as what we are doing.

Thirdly, we are not challenging the coalition agreement in any way, which merely stated that there would be a referendum on treaty change. No one here is contesting that. It is probably not formally covered by the Salisbury convention, but the Government have a majority in the other place and have the right to have their legislation. However, the Government have added a huge amount to that coalition agreement in this case and these amendments address that. That is why we should take them seriously.

Finally, these amendments do not take us back to the position that this Parliament agreed when it ratified Lisbon. At that time, it subjected these matters—the Article 48(6) matters and the passerelles and so forth—to resolutions in the two Houses but not to primary legislation. In the Bill, the Government are introducing a requirement for primary legislation in all these matters and some others too which are not required for referendum. None of these amendments contests that shift, which is a shift to increased power for the Westminster Parliament in ratifying things agreed in Brussels. That is not being contested.

Those three things that are not being contested are important to understand as well as those things that are being contested, which I argue are also important. I hope that these amendments can be treated seriously and not considered to be wrecking amendments. They are not wrecking amendments. If the Bill is passed with these amendments it would still be a major constitutional innovation in this country. It would still institutionalise the holding of a referendum whenever an intergovernmental treaty were agreed in Brussels.

No one should try to tell those of us who tabled these amendments that we are not accepting the spirit in which the coalition was founded and the spirit in which Parliament conducts its business. The amendments are perfectly legitimate. They would put Britain in a much stronger position in Brussels because Ministers will still have to say, “I can give only political agreement to this unanimity requirement. I cannot give legal agreement to it. Before I can give legal agreement to it I must go back to London and seek an Act of Parliament to enable me to give legal agreement to it”. That is how these amendments will leave the situation.

That is a strong position for a British Minister. But it does not involve a whole cascade of referendums. I believe, along with others, that it is frankly a sick joke to suggest that this will improve Britain's relations with its partners in the European Union. Alas would it were so, but it will not. It will organise a whole series of difficult moments which may well lead to our marginalisation. We all know from last week that that is what referendums are in this country. They are confrontations between two schools of thought. They are bitter and lead to hard feelings.

Anyone who tells me that organising a series of referendums in this country will improve the way that people think of the European Union cannot be stating that with any seriousness of purpose. It cannot be so. We have all known in the history of Britain's membership of the European Union that when we get into a confrontation over European issues, support for Europe drops sharply. When we have a period of relative calm and tranquillity and of reaching agreement in Brussels in a sensible way, sometimes striking compromises, support rises. Please do not tell us that this Bill will improve support for the European Union in this country. It will have the exact opposite effect.