European Union Bill
Lord Hannay of Chiswick Excerpts(12 years, 10 months ago)
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Lord Howell of Guildford
My Lords, I hesitate to enter again into the whole great debate on referendums, which really moves us away from the issues of the European Union Bill. My noble friend Lady Williams has again put forward some strong arguments. These are matters that have been debated over the years. When we come to a Bill of this nature, the issues are similar to when one comes to legislation about local elections or elections to the European Parliament. Indeed, I believe there is even a parliamentary election on record in this country where the vote has been below 40 per cent but no one has suggested it should be invalid.
I suspect this debate will continue, but it is the view of the Government that in these circumstances such a threshold would create a charter for the abstentionists. It would be extremely attractive to those who were anxious not to vote and to promote the desire not to vote. It would undermine the whole purpose lying behind the structure of the Bill, which is to check the haemorrhaging of confidence and popular support for the European Union’s development and to reinforce the case for the European Union’s development. That is why I am a little sad to hear those who have dedicated their lives and efforts to promoting an effective and fit for purpose European Union not supporting it. However, I understand the alternative views and I leave the matter there.
Lord Hannay of Chiswick
I am grateful to the noble Lord for giving way, but it is a pity that he has to caricature what the original amendment said. It did not suggest that a vote with a turnout under 40 per cent would be invalid. It suggested that it would be advisory and not mandatory—that is completely different. Frankly, some of the arguments that were adduced about the level of participation in the European Parliament elections are not transposable whatever to the area we are currently discussing, which is a national referendum.
Lord Howell of Guildford
Perhaps I should have hesitated longer before speaking because we are opening up the whole issue again. The invalidity I am applying is that the referendum would then become advisory, whereas the whole requirement and central thrust of the Bill is that the referendum is mandatory on Governments, not on Parliaments—you cannot be mandatory on Parliaments. That is what I intended to say, so I am sorry if I did not convey it accurately. We have had the debate, so I beg to press the Motion.
Lord Blackwell
My Lords, the noble Lord, Lord Liddle, called his amendment sensible. We should be clear that it is a wrecking amendment. It requires the Government to assert that a proposal is of major constitutional and economic significance. The noble Lord himself said that no Government voluntarily submit to a referendum. No proposal would come into the scope of this Bill unless the Government had supported it and had voted in favour of it in the European Union, so we can take it that the Minister and the Government would be behind whatever proposal was being put forward. We are then asking the Minister to volunteer to put a referendum through the terms of his amendment. As he said, no Government will voluntarily do that. We have the example of the Government’s record on the Lisbon treaty, which by every measure should have been put to a referendum but which the Government solemnly told the House did not require one. It is partly because of that that we have the mistrust to which the noble Lord, Lord Wallace, referred.
Because of the Lisbon treaty we now have a treaty that allows many changes to the fundamentals of our treaty relationship with Europe, including the removal of vetoes on a whole range of policies covered by Clause 6, and amendments to the scope of the institutions and the powers of the European Union itself through the passerelle clauses. All are to be done through the agreement of Governments without the need for a treaty change, and therefore without the need for a referendum on a treaty change. That is why we need Clause 6: because the Lisbon treaty enabled those changes to be made without a treaty change, and Clause 6 ensures that that is picked up. The noble Lord’s amendment would completely destroy that provision and overturn the view of the other place.
Lord Hannay of Chiswick
My Lords, as the person who tabled most of the amendments that are the subject of this debate, I should say a few words. One is meant to rejoice when a Minister eats a large quantity of humble pie. I have to say, I am not rejoicing at listening to the noble Lord, Lord Wallace, eating humble pie for having helped to lead his party to the various majorities that confirmed the Lisbon treaty. Frankly, it is a sad day when the Liberal party recants from the policy that it has pursued for so many years, saying that it is out of touch with the people and has not taken sufficient account of their views.
Leaving that to one side, I took the trouble to listen to the debate in the other place. I think I was the only Member of your Lordships’ House who did so. It was rather a sad occasion, much less well attended than this one. I am glad to see a wonderful cross-section of the views held in this House, which will no doubt be vigorously debated in the minutes or hours that follow. There was practically nobody there. When the noble Lord says that the decision was adopted by consensus, it was the consensus of around 15 or 20 people. They were mainly the people who went into the Lobby against the Government on Clause 18 and managed to muster 22 votes. They are therefore people who, by their own admission, would much rather than Britain was not in the European Union. That is a perfectly respectable position to take; it is the position that the noble Lord, Lord Pearson, takes.
On the matter that we are discussing now, I support the amendment. No one, including me, is persisting with the amendments that we tabled to the Bill and were voted on in this House. They would have reduced the number of referendums substantially, though not to only three. The amendment did not affect the provisions that would have required a referendum if any general constitutional treaty, such as Lisbon, Nice, Maastricht or the Single European Act, had come forward. That was not covered by the amendment that was rejected by the House of Commons. Only the numerous provisions that provide for 56 other referendums were covered.
I should like briefly to make three points in favour of this amendment. First, on marginalisation, given the problems with holding a referendum at particular moments in our parliamentary cycle, there is a risk that people may be minded to vote for reasons that have nothing to do with the question on the ballot paper. Therefore, a British Government would be compelled to reject a change in Europe that they believed to be in the British interest and wished to support because they did not feel able to go to the country in a referendum. This is exceedingly serious. That is why we should all listen rather carefully to someone I respect enormously, Sir John Major, who said at Ditchley in the annual lecture that he gave last Saturday that Britain was at risk of being a semi-detached member of the European Union. I know that is not the object of the Government. I have heard many government spokesmen flatly deny that and say how active we are. However, they should take this risk seriously.
Lord Lester of Herne Hill
My Lords, in respect of the amendment that the noble and learned Lord, Lord Mackay of Clashfern, successfully passed in this House, I agree with him that the clause now before your Lordships is entirely satisfactory. I just want to say a few things about it. First, I do not think that Clause 18 was ever necessary, except in a political sense. Secondly, I do not think that the law was ever unclear. Thirdly, it is one of the comical aspects of our unwritten constitution that if you ask a group of lawyers or law students the origin of the doctrine of parliamentary sovereignty, they never know the answer. The answer of course is that it comes from the common law. That answer is most unwelcome to a certain kind of thinker, who thinks, “Oh dear, if it comes from the common law, the courts might take it away again”. We do not have to go into that today.
This amendment states the position as has always been made clear in the case law and therefore does no harm. I only wish that it had not been necessary in the first place. I also wish that the original Explanatory Notes that the Government introduced had not been maintained instead of being withdrawn for political reasons for another set of Explanatory Notes, all of which shows the unfortunate aspects of a Bill which is a politically cosmetic exercise in this respect.
Lord Hannay of Chiswick
My Lords, I express gratitude to the noble and learned Lord, Lord Mackay of Clashfern, for his work on the previous amendment Will the Minister confirm the Explanatory Notes that were made when the original Clause 18 was put forward and confirm that the Government stand by these Explanatory Notes now? For the avoidance of all misunderstanding, the Printed Paper Office handed to me yesterday a copy of the Explanatory Notes. I shall make two references. My first is:
“This clause does not alter the existing relationship between EU law and UK domestic law; in particular, the principle of the primacy of EU law. The principle of the primacy of EU law was established in the jurisprudence of the European Court of Justice before the accession of the United Kingdom to the European Communities”.
The second reference is:
“Thus this clause is declaratory of the existing legal position. The rights and obligations assumed by the UK on becoming a member of the EU remain intact. Similarly, it does not alter the competences of the devolved legislatures or the functions of the Ministers in the devolved administrations as conferred by the relevant UK Act of Parliament”.
It would be very helpful if the noble and learned Lord could confirm that those Explanatory Notes, only as Explanatory Notes, remain as they were originally applied to a different Clause 18 from the one that this House is about to accept.
Lord Wallace of Tankerness
My Lords, I thank my noble and learned friend Lord Mackay of Clashfern, my noble friend Lord Lester of Herne Hill and the noble Lord, Lord Hannay, for the support that has been given to these amendments. With regard to the Explanatory Notes, I can confirm to the noble Lord and the House that, as is customary, the Government will review the Explanatory Notes in their entirety. The notes on this clause will be considered as part of the exercise and we expect that there will have to be some consequential change to reflect the new wording of the clause. But that apart we have reviewed the Explanatory Notes in the light of proposed changes and consider that the notes, as drafted, accurately reflect the purpose and effect of Clause 18. I hope that that gives the reassurance that the noble Lord is seeking. In the belt-and-braces spirit which my noble and learned friend mentioned, I hope that the House will support these amendments.
Lord Empey
I was referring to the remarks of the noble Lord, Lord Hannay, and commenting that of course very few people participated in the debate, so that point is valid. The noble and learned Lord is right to say that this particular amendment was not before the other place, but at the end of the day the purpose is the same. The noble Lord, Lord Radice, described it as a “soft sunset”. Well, whether you have a hard sunset or a soft sunset, it is still a sunset, and at the end of the day I just wonder, in view of our discussions in this House about our own future, whether it is wise for Members of this House to send anything back to the other place that contains the word “sunset”. It is probably not the best thing for us to do. There is no constitutional imperative to send this back to the other place. If we believed that there was, it would be the duty of this House to do so. I just do not see that in front of us.
On the continuous use of the word “flexibility”, we all like flexibility in government, but it is a euphemism for something else. It means that Ministers can go on to take decisions, and it is precisely that flexibility that has existed for the past 35 years that leads to the Bill being in front of your Lordships’ House tonight. It is unfortunate that we have to go through these procedures, but I see no alternative but to go ahead with the Bill, and I believe that the amendment as currently drafted, or in its original form, casts a dagger at the very heart of what the Bill stands for. I hope that noble Lords will reject this proposal.
Lord Hannay of Chiswick
My Lords, I support the Motion of the noble and learned Lord, Lord Goodhart. I preface my remarks by referring to my noble friend Lord Empey’s statement about not angering the House of Commons. It would be unwise, frankly, if we went into a pre-emptive cringe at this stage. I am not sure that that would help us very much in the difficult debates ahead.
No noble Lord in the House today has addressed Amendment 15. We accept that it was voted against by the House of Commons, and in any case it is not permissible for us to return to the identical amendment again. That is not being suggested. The amendment of the noble and learned Lord, Lord Goodhart, is meant to produce what has been called by the noble Lord, Lord Radice, a “soft sunset”.
I listened to the debate in the other place and one of the things I heard there quite surprised me, although on reflection I think it was entirely valid. The Minister for Europe was questioned by one of the not terribly friendly members of his own party who would rather see us outside the European Union. He was asked whether it would be possible for this Parliament or a future Parliament to insert a referendum requirement in the primary legislation that approved the matters in this Bill that are not subject to a referendum but are subject merely to primary legislation. He replied, “Yes, absolutely. No problem. If that is what Parliament decides, you can add another referendum—just like that—in the primary legislation”. That startled me and led me to think that the noble Lord, Lord Lamont, when he talked about it having both ways, might not have heard of that development in constitutional practice.
When the Minister replies to the debate, can he say whether the converse is also true? In the primary legislation that would have to be introduced in the House of Commons on the back of a decision by the government in Brussels to go ahead with one of these matters, could Parliament simply waive in that legislation the requirement that is in this legislation? It will be interesting to hear what he has to say about that. I do not see that the proposition that the Minister for Europe agreed to—that a referendum requirement could be added where one was not required under this legislation—could be valid if the contrary proposition, which I have also put, was not valid. Perhaps the Minister will reply to that.
Frankly, with some of the arguments that have been introduced about how flexibility is a dirty word, my heart fails me when I think of people strapping themselves to masts, waiting for the ship to go down and saying, “Thank God I am tied to the mast and I cannot swim”. It is not a very good argument. The circumstances in which flexibility could be exercised are extremely limited and will be difficult to invoke; this amendment simply suggests a way of doing it. We would be very wise if we were to once again ask the Commons to think again about this matter. This is not a wrecking amendment and, for the reasons I have given, I do not think it takes the matter much further than it is already, with the possibility of the House of Commons varying the provisions at the moment that it enacts the primary legislation. I hope that some further thought will be given to this and that we will not all turn ourselves to the belief that this is a wrecking amendment, which it is not intended to be.
East Jerusalem
Lord Hannay of Chiswick Excerpts(12 years, 11 months ago)
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Lord Howell of Guildford
I certainly agree with the last comment. As for the United Nations Office for the Coordination of Humanitarian Affairs’ report, which is a very long document—I think it is 118 pages—there are very positive ideas in it, which we are studying very closely with our colleagues in DfID. Where we can make a contribution and see these ideas carried forward, we will certainly do so.
Lord Hannay of Chiswick
What is the Government’s support for President Obama’s initiative? How do they see the issue of Jerusalem fitting into any follow-up process? How is that process being organised now, given the very negative reaction of the Israeli Prime Minister?
Lord Howell of Guildford
The answer to the question is in the noble Lord’s last comments. The reaction has been very negative indeed. The process we want to see remains the key to the future. There are elements in the jigsaw. One is whether, in joining with Fatah, Hamas can come forward with and deliver a responsible negotiating Government who renounce violence, accept the quartet principles and can go forward in good talks with Israel. Another is that the Israeli authorities recognise that there is no alternative to going forward in a positive away. Another is that they recognise that it is now when they should move, whereas the attitude in Jerusalem and Tel Aviv appears to be to wait and do nothing. We do not agree with that. We think this is a golden opportunity. All these matters must be fed into the process that President Obama tried to set in motion the other day but, so far, with not much success.
European Union Bill
Lord Hannay of Chiswick Excerpts(12 years, 11 months ago)
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Lord Hannay of Chiswick
My Lords, I will speak to the long list of the amendments in this group. Because some amendments in the group have been changed since they were debated in Committee, I hope that I will be forgiven if I say a little about them. The broad case for this group of amendments remains that which was referred to by many noble Lords at Second Reading and in our debates in Committee: it is the belief that the long list of potential referendums is excessive and disproportionate, that it does real damage to the structure of representative parliamentary democracy and that it needs to be shortened. I do not know how on earth the Government arrived at a list as long as 56. Some earnest people have discovered even more in this legislation. Indeed, why stop one short of where Mr Heinz got to? The amount is quite excessive and would have a disproportionate effect on our constitutional practice. What it amounts to is massively increasing the number of potential referendums in one area of policy while not doing so in any other area of policy. It is completely unbalanced in its approach.
The amendments that I and other noble Lords have tabled today reduce the number of areas that would be subject to a referendum mandatorily if they were pursued separately, one by one. I will come back to the point about what happens if they are pursued collectively later on. In these amendments we have tried to take account of the debate in Committee. The noble Lord, Lord Howell, who was the Minister on that occasion, spoke about the big five and attached a lot of importance to their being the subject of a referendum. I and other noble Lords listened carefully to that speech and have taken considerable account of it in the way in which these amendments are cast. When we discussed it in Committee, we only suggested that there should be an explicit referendum requirement for a decision by Britain to join the euro and that other matters referred to in Clause 6 should not be so treated. However, we listened to what the noble Lord said in the debate, in particular the great importance that he attached both to the question of any move towards military co-operation and to the question of any move on border controls—that is the Schengen treaty, which, of course, does not apply to this country at the moment. Therefore, we have recast these amendments in such a way that, if they were passed, while there would be a considerable reduction in the number of referendums that potentially would need to be held, there would still be a referendum requirement if we were to decide not only to join the euro but to move decisively in the direction of military co-operation. Here the amendment is more precise than the extremely woolly wording of the Government’s own Bill, and makes it clear that what the Government and their supporters were talking about was the circumstances in which defence co-operation moved to an area that involved the setting-up of a European Union force or structure. That is the way in which it is now cast and it suggests that this would definitely require a referendum. The addition of the Schengen provisions requires less explanation; it is fairly straightforward. Britain has had an opt-out since, I believe, the Amsterdam treaty, and it is not suggested that that could be shifted other than after a referendum.
These changes show that those of us seeking to amend the Bill are listening carefully to the debate, in Committee and indeed on Report, and are taking full account of points that have been made from the government Bench on this matter. I hope that on their side they will reciprocate that spirit of compromise.
Lord Hannay of Chiswick
I am most grateful to the noble Lord for giving way, but he has managed in about three sentences to say three incorrect things. He said that in moving the amendment, we paid no attention to what he referred to as the big five. If he had listened to my introductory statement, he would have heard that, exactly to the contrary, we have amended the text that we had on the table in Committee by including Schengen and the international military force. If I may say so, it is clearly not sensible in our debate to pay no attention whatever to the person who introduces the amendment. I covered all that quite thoroughly.
Lord Faulks
I am grateful to the noble Lord for his intervention. I listened carefully to what he said and took on board the fact that the suggestion was that some other matters might also be the subject of a referendum if they were joined with those explicitly dealt with by the amendment. I also listened to what he said about the fact that there had been a change since Lisbon because now there was to be parliamentary approval, which was not the case before. I hope that the noble Lord accepts that I had listened to what he said, but, time being as it was, I was trying to truncate my remarks to make them digestible.
I return to the European public prosecutor, which is a matter which I suggest would not be in our national interest for the reasons I gave in Committee. It would involve us adopting the corpus juris, as it has been called; it might well involve us having national prosecutors representing the European public prosecutor; and it might involve an attempt at harmonisation of legal systems, so that we would have to take on board, for example, rules in relation to evidence; hearsay—
Lord Hannay of Chiswick
On one small point of fact, the noble Lord, Lord Howell, said that we have just given up the veto on the annual budget. The annual budget has been adopted by a majority vote by a provision of the Treaty of Rome which was negotiated before we joined, which we have applied. Therefore, it has been taken by a majority vote throughout the period of our membership. It really is not wise to adduce changes which have not taken place during the period of our membership.
Lord Howell of Guildford
I totally disagree; I think that it is pertinent and a healthy reminder of what happens. We can contribute all we wish to in all these vital areas. The surrender of the veto can lead to consequences which can be extremely dangerous.
Finally, I should like to say a word on common defence, because that has come up and it is important. Amendments 15 and 16 suggest that the only controversial element of a decision to move to common defence would be a decision to develop a single integrated military force—in other words, that it is only that particular interpretation of common defence which is of real concern.
Successive Governments and successive Ministers, including noble Lords sitting here now in the Chamber, have rightly said that we do not support the introduction of a common defence. A Minister said:
“We oppose the introduction of common defence either at 25”—
there were 25 members when this was said—
“or through enhanced co-operation. We think it is divisive and a duplication of NATO”.
We do not support,
“anything such as the creation of standing inner groups or an inner core on ESDP,
which,
“would undermine the inclusive, flexible model of ESDP that the EU and NATO”—[Official Report, 11/5/04; col. 242]—
have agreed. That comes from a Minister in a previous Government. It is extremely telling and sums up the case very well. However, there would be confusion about any decision that resulted in the establishment of a single integrated military force. For example, would the establishment of an integrated command structure or integrated units or the achievement of integrated budgets count? It is just that lack of clarity that allows for the sort of competence-creep which caused so much distrust and which we are trying to overcome in the Bill.
In addition, we have concerns about a move to a common defence that goes beyond the establishment of a common force. A decision to move to a common defence could lead to the loss by the British Parliament of final decisions over whether to send our troops into harm’s way. Like the previous Government, we think it is vital that the UK is able to maintain an independent defence policy. Indeed, it was one of the red lines during negotiation of the Lisbon treaty, and I cannot understand the Labour Opposition wanting to move away from that today. I accept that a common defence is ill defined but that problem would not be solved with this amendment, which could apply only to the UK. Instead, our promise is that any decision to move to a common defence should be subject to the full scrutiny of the British public.
I have gone on for a long time but this has been a huge debate. There are many vital issues to address and it would be wrong to ignore them. I am pleased that noble Lords recognise the utility of the referendum lock in its application to any proposal to abolish our border controls or adopt the euro. However, I ask your Lordships also to consider the sheer inconsistency of seeking to remove from Clause 6 other measures that would transfer further competence and power from the UK to the EU. They are directly related to the crucial six issues on which successive Governments have insisted they want to protect Britain while being forward and active in encouraging the European Union within their full competences. This is a good European policy and the Bill reinforces it. It should be supported and the amendment should be withdrawn.
Lord Hannay of Chiswick
My Lords, I am most grateful to all noble Lords who have contributed to this lengthy and interesting debate. I hope that I may be forgiven for saying that there were moments during the afternoon when I thought we were moving back to the future—namely, heading rapidly towards a Second Reading debate. A fair number of contributions bore little relation to the amendments on the Marshalled List but a great deal to the discussions that we had during Second Reading. However, I shall not follow that road now, when we need to focus on the amendments in a much more controlled way.
I thank the noble Lord, Lord Howell of Guildford, for his very thoughtful response and for being so frank about the fact that, although those in whose names the amendments stand were introducing an element of compromise, he did not intend to do so. That was made extremely clear and I hope that all those who listened to the debate will draw the appropriate conclusions from the lack of flexibility on the part of the Government.
There are not many detailed points that need to be referred to. A certain amount of a meal was made by those who spoke against the wording of the amendment relating to an integrated military force. What we are talking about is fairly obvious. We are talking about our old friend—much beloved of the Daily Mail—the European army. We are talking about, for example, our treaty commitment in NATO under which we are part of an integrated military force. I only say to the noble Lord, Lord Waddington, that he will know very well that the NATO obligations apply in exactly the same way to the Navy and the Air Force as they do to the Army. The use of the word “military” is not exclusive to the Army. Therefore, it is obvious what the amendment tries to do: it tries to ensure that, if we were ever to have a British Government who wanted to move in that direction, they would have to submit the matter to a referendum. That is a recognition by those in whose names the amendments stand that the Government are right to have identified that issue as one of fundamental constitutional significance. However, I am afraid that issues such as whom we fought alongside in Iraq are totally irrelevant. We did not fight in Iraq on the basis of any treaty whatever; we fought on the basis of a coalition of the willing without a legal base. Therefore, we should not get muddled up with that issue. There seems to be less trouble about the euro and Schengen. Then, ultimately we come back to the question of whether we should be trying to reduce the number of potential individual referendums. The arguments for that are very strong.
I have been a little saddened by the way in which so many of the protagonists of the Bill and the opponents of the amendments have denigrated the parliamentary process. They have, in fact, thrown up their hands and said that it is completely useless. They seem to have discovered the whipping system, which I think has been in effect since the 18th century or perhaps even earlier, as being at the root of all this evil. That is pretty sad. There are quite a lot of former Whips sitting here and I do not see them covering their heads in sackcloth and ashes and saying that they made terrible mistakes by doing so. It has been part of our constitutional practice for a very long time and we have managed to achieve greater constitutional stability than a lot of countries that do not have it. It is a bit sad that we should be heading off in the direction of plebiscitary democracy-a-go-go instead of thinking about how to make our parliamentary institutions work more effectively. That is why one of the most important points made by the proponents of the amendments is the fact that you need primary legislation for every single change in the Bill. That is really important. It is the way to make parliamentary scrutiny more effective and that is what is needed—not a dash towards plebiscites, which is a very revolutionary approach. I have to say that it comes from a rather unlikely band of revolutionaries from a party whose name suggests that they are counter-revolutionaries. Nevertheless, I think that it is a move in the wrong direction and I should therefore like to test the opinion of the House.
Baroness Anelay of St Johns
My Lords, it is my understanding that these amendments are not consequential on Amendment 14, on which the Government have just suffered a defeat. I understand that the Public Bill Office did not notify these amendments as being consequential. They were not put forward as being consequential by the noble Lord, Lord Hannay, in opening, and they were certainly not accepted by the Minister in winding as being consequential. I can understand that the noble Lord, Lord Hannay, might consider it desirable to insert Amendments 15 and 16 as a policy objective, but they are not consequential on the amendment that has just been decided.
Lord Hannay of Chiswick
My Lords, if I may, I will respond to some extremely mysterious words from the Government Chief Whip that I am afraid I do not altogether understand. I was perfectly clear when I introduced this set of amendments—which were grouped together by the Government Whips in a way with which I had no trouble at all—that I was introducing the whole body of the amendments, and nobody gainsaid that at all.
Baroness Anelay of St Johns
My Lords, the procedure when seeking any agreement on consequential amendments is, first of all, that they should be clearly consequential; these are not.
Secondly, grouping of course is for the convenience of the House. It does not indicate that all the amendments in a group are consequential. Indeed, if that were the case, there could be an invidious position whereby a noble Lord might have an amendment in a group led by a government amendment, and they would not be able to vote on later amendments in that group. Grouping is not of itself an indication of consequentiality. I remind the noble Lord, Lord Hannay, that the Minister did not accept the other amendments as being consequential. I am advised that the Public Bill Office did not give prior indication that these amendments were to be considered consequential.
Indeed, there are matters that are consequential in later groups. It is for the Government to consider whether they wish to bring different policy objectives to bear in another place as a result of Amendment 14. Amendments 15 and 16 may indeed be seen by the noble Lord, Lord Hannay, as desirable in policy terms, but those two amendments are not consequential on the Government’s defeat regarding Amendment 14. The noble Lord may wish to consider whether to take the matter further. There will, of course, be the opportunity to deal with the matter in another place and it may return here on another occasion.
Lord Hannay of Chiswick
My Lords, I wish to protest, frankly, at what I can only describe as an extremely underhand manoeuvre. I cannot believe that, if it were the intention of the Government to argue as they are now doing, it was not the right, proper and fair thing to do to warn the House before this debate started, on the basis of a grouping of amendments that the Government had made themselves and that were agreed to, that whatever we decided on Amendment 14 would not apply to the rest. We would then have had a completely different sort of debate. No warning was given of that sort at the time. No indication was given. If the noble Lord, Lord Howell of Guildford, seriously intended to do that, he could have said that, but he did not. He did not say one word of that. He in fact addressed all the amendments in this grouping in the debate, and when I asked to test the opinion of the House, there was no indication by any Member of the House that we were not testing the opinion on the whole group. I hope that, on calm reflection, the Government Chief Whip will consider that this is an unwise course to go down and one that is likely to lead to bad blood and accusations of something less than fair play. I will sit down now. We can have one more round at this, and afterwards I will speak.
Baroness Anelay of St Johns
My Lords, it may be helpful if I just point out at this stage that it is for each individual Peer to make their own view about how they present amendments. When a debate is held, it is not for the Government to warn the House as to whether any amendments may be consequential if the Government lose a Division. That is not how this House has been run. It has been a matter for those in charge of an amendment to be able to determine its fate and then to give advice to the House as to whether it considers other matters consequential. I have made it clear that the Government do not consider Amendments 15 and 16 to be consequential on Amendment 14. That is exactly the procedure that the noble Lord, Lord Bassam, would have carried out when he was the Government Chief Whip, because it is the way that this House works. It is not for the Government at the beginning of each debate to say that a number of amendments are grouped together and, if the House decides on the first of the amendments, we will not consider the rest consequential. It is for the person bringing the debate to make that statement.
However, I can feel the strength of feeling on some Benches that noble Lords wish, in a sense, to change the way in which this House works on the hoof, which is what the request is today. I am going to listen to that. The House has heard the argument. It is a matter that will need to be considered by the usual channels and perhaps the Procedure Committee. If the House is to change the way that it groups amendments and then deals with consequential amendments, it should be done after calm consideration; it cannot be done here and now.
The Government will not object to the noble Lord, Lord Hannay, moving his next two amendments, although I state again that I do not accept the policy that he proposes within them. That should not be taken as proof that the Government consider them consequential or in any way acceptable. On that basis, the House can proceed knowing the Government’s view that the remainder of the amendments in this group are not acceptable. We will not resist them, because the House has already been tested in its patience almost beyond endurance by the length of this debate on Report.
Lord Bassam of Brighton
My Lords, I have great respect for the noble Baroness, Lady Anelay, in these matters. While it is clear that she disagrees with the views being expressed around the House, she has acknowledged that, on this occasion, it would perhaps be wise to draw a line under where we are so that we can move on. It would also be wise for this matter to be one of those issues to which both the usual channels and the Procedure Committee should give further consideration. I can see that there is cause for question and dispute, although I take the view which has been expressed on this side of the House. However, I thank the Minister for clarifying issues for the House in the way in which she latterly has.
Lord Hannay of Chiswick
My Lords, I thank the Chief Whip for having come to a very statesmanlike conclusion on this matter. I shall certainly not say anything to exacerbate matters—quite the contrary. I have always found the Chief Whip to be a very good person who has helped the House in its deliberations. In this last decision that she has taken, she has once again done that. Since we are talking about the European Union, perhaps it might be the moment to bring out that most time-honoured of phrases used in all European Union agreements: this agreement creates no precedent.
Amendments 15 to 21
European Union Bill
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Baroness Nicholson of Winterbourne
My point was purely that from my experience and that of others in Brussels, a number of member states wish to keep protectionism. As the noble Lord has already clearly indicated, it is in Britain’s interests to have an open system, and in the case of the defence of the European Union and beyond it is in all our interests to have an open system. I cannot see how QMV will assist an open system when Britain may need a veto.
Since the noble Lord was involved in the defence industry at an earlier stage in his political career, the European Union has widened immensely. Some of the newest member states have had a significant interest in keeping protectionism moving in the defence industry, with some of them having very large interests in it. The contracts are massive; the potential for dealings that are less than transparent is huge, as some of the biggest contracts on the globe are before individual member states; and one of the great strengths of the potential of the EU common security and defence policy is an open system of military equipment, which would stop the protectionism to which the noble Lord rightly refers. I have failed to be convinced so far by what the noble Lord has said about the loss of the veto and the introduction of QMV.
Lord Hannay of Chiswick
I think that the noble Baroness has the wrong end of the stick. I do not see how on earth Britain keeping a veto on a matter where there is no liberalisation will help us to achieve liberalisation. What are we going to veto—protectionist moves by other member states? This is absurd; it is another world. To do what the noble Lord, Lord Davies, suggests does not involve a decision to move to QMV. The noble Baroness implies that if we took the two lines out of the Bill, we would automatically and at that moment accept QMV. We are not doing that; we are simply making it possible, at a putative future moment and if we felt that it was to our advantage, to do so by means of simple legislation in Parliament without a referendum.
European Union Bill
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The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)
My Lords, I am grateful to those noble Lords who have sought, through the tabling of these amendments and in Committee, to clarify the spirit of the provisions in the relevant clauses of the Bill by tabling all but one of the amendments before us in this group. I am also grateful to the noble Lord, Lord Liddle, who has just indicated that he is moving his amendment formally in order, quite rightly, to elicit from the Government our case for the amendment that we have tabled within the group.
As my noble friend Lord Wallace made clear in Committee, it has not been and nor should it be the Government’s intention to tie the hands of Ministers and their officials who negotiate assiduously in the development of European Union legislation in order to protect and maximise the UK’s interests and priorities. The fact is that Ministers and officials have participated constructively for many years in the earlier stages of the development and negotiation of various EU measures, and nothing in this Bill will prevent that from continuing in the same way. When it comes to the point at which the final decision is taken in the European Council or the Council, what the provisions of the Bill are designed to do is to prevent a Minister from voting in favour of a treaty or other measure specified in Part 1 at this final stage, or otherwise allow the adoption of a treaty or measure to happen, unless and until he or she has the approval specified in the relevant clause of the Bill. As we know, this may be an Act of Parliament or it may be an Act and a referendum where there is a transfer of competence or power. The Bill does not prevent the Government from signing up finally to and participating in anything at the EU level, but Ministers would first have to have the support of Parliament and, where necessary, of the British people before doing so.
The amendment tabled in my name in the Marshalled List makes the position crystal clear, and I hope to the satisfaction of noble Lords. The effect of the amendment will of course govern the use of the phraseology we are concerned with throughout the whole Bill, and therefore not oblige us to table a series of consequential amendments because this change to Clause 1, which is interpretive, will govern the whole Bill.
As my noble friend Lord Wallace explained in Committee, the words we are concerned with, “or otherwise supporting”, are included to make clear that, at the point of the final and formal decision in Council or the European Council, a Minister would be unable to allow a measure to be adopted in Council or the European Council through means other than a positive vote, which under this Bill would have to be preceded by the necessary national procedures—namely, an Act and a referendum, if required. Articles 235(1) of the Treaty on the Functioning of the European Union and Article 238(4) make clear that abstentions at the point of final and formal decision in Council do not serve to block, but rather are treated as support for the adoption of a proposal requiring unanimity. Therefore, letting a measure through by abstention in the Council and then claiming by way of excuse or explanation, as it were, that although it transferred competences or powers and should have had national approval somehow it slipped through and Ministers could not help it, would not be allowed.
In addition, as many of your Lordships know, in Brussels matters often do not proceed to a formal vote. The chairman may just seek the sense of the room, and if no one dissents, take it that the proposal has been finally agreed unanimously. It is then ticked and it goes through. That could happen only after national procedures, which would require parliamentary approval, while if competences and powers are being transferred, it would of course require a referendum. So the phrase “or otherwise supporting” seeks to ensure that Parliament and the British people can be confident that there is no possibility that any inaction on the part of the Government of the day could allow a measure to be finally decided and agreed without the proper approval of Parliament or the people or, indeed, both. To allow a measure to be adopted in such a way would represent a sleight of hand that would cheat both this Parliament and the public out of their rightful say.
My noble friend also made the point that, in this way, the Government were replicating the phrase used by the 2008 Act, which was introduced by the previous Government when Parliament was approving the ratification of the Lisbon treaty. However, we accept the point—made, I think, by the noble Lord, Lord Davies of Stamford—that, although that was the position before, there is no reason why we cannot improve the drafting of provisions from the past, as indeed we can improve on much else that went on during the past Government and seek to do so.
We have reflected further on this point, as we have on all the amendments tabled in Committee, as we should. For the reasons I have given, we have tabled a government amendment to spell out, in the interpretation in Clause 1, exactly what is meant by “or otherwise supporting” and to explain when and where it applies: to wit, that it is only at the final and formal stage in the Council, or the European Council, that the bar on voting for or abstaining on—in other words, otherwise supporting—measures applies, unless or until there is parliamentary and, where necessary, public approval, in which case of course the support could go forward.
We feel that providing this amendment to the definition provides the clarity that noble Lords were seeking in their amendments. It spells out unambiguously the limitations on Ministers and in doing so makes clear—and I make clear now—that this and future Governments may negotiate proposals in future in the same way as they do now and they should seek the views of the scrutiny committees of both Houses in the same way as they do now and undertake any other existing national approval procedures that are required before finally agreeing to a proposal in the European Council or the Council.
That is the position. I hope noble Lords will accept that clarifies the concerns we all had in Committee on this matter and therefore I will beg to move the Government’s amendment. This will confirm to noble Lords that we have heard and addressed their concerns. I ask the noble Lord to withdraw his amendment, which seeks an exactly similar effect.
Lord Hannay of Chiswick
Before the noble Lord sits down, perhaps we could be just a little clearer. I thank him very much for the letter he sent me and other noble Lords about what I described as the chicken-and-egg situation, which is part of this nexus that he has been dealing with. That was a very helpful letter and I would be most grateful if he could agree that that letter should not only go to noble Lords who participated in this debate but could also go in the Library of both Houses, because I fear that sometimes the other place does not take very much cognisance of what is said by Ministers in this House. On this occasion, what is said in that letter, in particular about nothing in this Bill inhibiting Ministers from participating in negotiations other than on the final decision, is very important. I hope he can agree that the letter should go in the Library of both Houses.
On another point arising from what the noble Lord himself said, I have to confess to some slight confusion about how many of the instances of “or otherwise support” get taken out and how many get left in and whether there is not a degree of potential ambiguity from leaving any of them in at all. Perhaps he could just clarify that point. I had at first thought, and from what he initially said this afternoon, that he was actually saying that all the references to “or otherwise support” were going and that the statement would simply be that we would not allow any decision to be taken. That is, I think, the sense of what the Government have been trying to do and what those of us who have been trying to amend this provision are trying to do. However, I am still not quite clear where we are on that point.
Lord Howell of Guildford
On the first point, I will certainly endeavour to see that the words and wisdom of your Lordships’ House are spread as widely as possible and that the correctness of our view is recognised, in the way that we are changing the phraseology of the past in an improving way.
As to the question of what is amended by our proposed amendment, I think that I said that by changing the definition in the interpretative Clause 1, that change governs all references to the particular words we are concerned with throughout the Bill. It simply overrides and governs all those references, so that there is no need for your Lordships to be bothered with the task of going through each clause amending or adding the amendment at every stage of the Bill. By putting it in Clause 1, in the interpretative section, we are governing and rendering effective in the light of the amendment everything that is said throughout the entire Bill. That is the position as I would like to put it to your Lordships and I believe that that is the correct one.
Lord Taverne
My Lords, I want to make three short points. First, I refer to the argument of the noble Lord, Lord Waddington, who always argues his case with great force and effectiveness. However, on this occasion, it seemed rather strange. He said that if there is a low vote, it simply proves the lack of enthusiasm for the European Community, and the fact that people will not vote is equivalent to a no vote. The circumstances, as has just been pointed out, will be whether the Government support a change in the law. Suppose the next Government are a Conservative Government. They are not likely to make a major transfer of powers to Brussels. On some of these minor matters in Schedule 1, they might see the advantage in not having a veto and make that part of their case. If there is a very low vote, it is a toss-up as to which way it will go, but a 10 per cent vote in favour of a transfer of power and 9 per cent against is a quite a likely result. In effect, the argument put by the noble Lord, Lord Waddington, is that it makes a transfer of power more likely.
The noble Lord, Lord Lamont, says that it is not likely that there would be an individual vote on some of the minor matters set out in Schedule 1 because they would be packaged, which is also what the noble and learned Lord, Lord Howe, has told us on a number of occasions. But a package is particularly unsuitable to the referendum process. Let us suppose that some people in the country are passionately concerned about joining the European public prosecutor’s office, while others are passionately concerned not to have an extra judge in the European Court of Justice. Yet others may be very concerned about not having a new protocol for the deficit procedure. All those issues may be part of a package. Which way should people vote if they are in favour of one and against another? What should they do? It makes a nonsense of any sort of referendum.
The second point I want to make is that if this amendment is not passed, we are likely to be left with referendums on some of these minor matters. Are they really going to bind this country closer to Europe and reconnect the public with Brussels? Are they going to make Brussels more popular? Of course it is a result that I do not necessarily approve of, but would it not make referenda less and less popular with the public?
That brings me to my last point. The noble Lord, Lord Kerr, referred to Burke. I should like to comment on that since I was the first person to bring Burke into the argument. In his doctrine, Burke says that the will of the people should always prevail; it is the anti-Rousseau argument. What is interesting is that while there have been some tests of it, although only a very few, they suggest that Burke is actually quite popular. I shall give two examples. In my speech at Second Reading, I referred to a by-election in which I resigned on an issue over which I was unpopular in the sense that a local poll showed a majority of three to two against our joining the European Community. But I argued for the principle of Burke that I was entitled to exercise my judgment, and Burke prevailed by a substantial majority. I can give another example. One of my neighbours where I lived until recently was a Conservative MP I greatly respected. He was the late Norman Miscampbell, who was a Member for Blackpool. Many people will remember that a police superintendent was murdered in that town, and a campaign was launched by his widow to restore the death penalty for the murder of a policeman. It had overwhelming support in Blackpool, but Norman Miscampbell, on principle and very bravely taking the Burke view, voted against the restoration of the death penalty. His fellow Conservative MP in Blackpool, the late Peter Blaker, supported the petition and voted in favour of it. At the next election, Norman Miscampbell’s vote increased by somewhat more than that of Peter Blaker. Burke is not unpopular. When they reflect on it, people think it very reasonable that Members of Parliament should exercise their own judgment and not act as puppets.
Lord Hannay of Chiswick
My Lords, perhaps I may make a few remarks in support of this amendment. I find some of the arguments that have been used against it quite bizarre. The noble Lord, Lord Risby, said that the vast majority of people in this country want these referendums. If so, he has nothing to fear from the amendment. If the vast majority of people in this country want referendums, more than 40 per cent of them will vote when a referendum question is put, and this Bill, as amended, will then provide mandatory outcomes. It has been suggested that this is all about engaging with the British people, but if we cannot get 40 per cent of the people to vote, is that not a failure to engage with the British people? Surely that is precisely what it is, which is why having a threshold makes sense.
I argue that we should not go down the primrose path of thinking that the referendum fashion is sweeping across Europe. First, we are not talking about Europe; we are talking about Britain. I do not see why we should accept that argument as valid in our case. In any case, I have a strong feeling that most people who have supported referendums around Europe now bitterly regret it. In the most recent one, last weekend, the Slovenians voted against raising the pensionable age to something quite a long way below the pensionable age in this country; not, I would have thought, a very sensible thing to have happened—something rather like the incinerator case, I suspect. I am very much in the same group as the noble Lords, Lord Deben and Lord Forsyth. It is not a very good idea to have these referendums. The Government could quite easily have avoided most of the petty referendums by drawing up a much simpler Bill, but they chose to throw in the kitchen sink. Given that, the case for a threshold is really rather compelling and I therefore support the amendment.
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.
Baroness Nicholson of Winterbourne
This amendment is not in fact about the absolute underpinnings of this Bill, although it is a very tempting set of red herrings that have been laid in front of your Lordships’ House. This set of amendments is about whether or not there should be a 40 per cent threshold and, with your Lordships’ permission, I would like to comment purely on that point.
The 40 per cent threshold seems to me, as a former Member of Parliament and of the European Parliament, to be a rather odd thing for noble Lords to be considering today. We do not have a 40 per cent threshold in the general election or in the European election, for example. We are perfectly comfortable with assuming that 50 per cent of those who come out to vote is the threshold on which the electorate are exercising their wisdom. I find it extremely difficult to see why, just for this Bill, some noble Lords are so adamantine in their perception that a 40 per cent threshold—and no less—is the absolute minimum they will accept if a referendum is to give a valid answer from the British people.
All noble Lords who have commented on the imperative of parliamentary democracy and Parliament’s primacy are, of course, absolutely right. I think that it is Clause 18 of the Bill that, for the first time ever in many generations in Parliament, absolutely clearly defines that it is only through the primacy of Parliament that EU legislation can be accepted at all. It is our responsibility. The noble Lord, Lord Waddington, made the point in his very thoughtful intervention—and I fully support this—that we have been far too fast in ceding power from this Parliament to the European Union. However, I would perhaps remind him that that is our responsibility, certainly in the House of Commons and Government but also, to a much lesser extent, here. The noble Lord, Lord Roper, is in his place, representing the several generations of outstanding work by EU sub-committees in your Lordships’ House. That has not been the case in the House of Commons, which has let slip piece after piece of legislation pouring in from Brussels. Indeed, it is the Ministers of the day, from every single Government—from the previous Government and the ones before that—that have fed the House of Commons so little material that somehow it has unwittingly, or in some other mode, let through all of this legislation and the growing burden of all these regulations which are, I believe, oppressing the peoples of the European Union and particularly the peoples of the United Kingdom.
This modest Bill, although it is relatively lightweight, does contain two or three very important points, the first of which I believe is the primacy of Parliament over EU legislation and therefore surely over the outcome of any referendum. It also gives the wonderful possibility of a downhill-driven knowledge base to the British people and some small modicum of authority over what will happen. I very much support the Bill because of those two points.
Coming back to Burke, to the point that was raised in the context of representative parliament, I cannot help but comment, because the flavour comes through so strongly, that some of the arguments that noble Lords are putting forward tend to resonate with those of us whose female forebears fought for the vote for women. In other words, somehow some elements of the population are not fit to bring their judgment to bear on important matters affecting the United Kingdom. It is difficult. Burke, of course, was wonderful, but before him and at his day women did not have the vote. Academics had more than their current bundle of votes per person, so did the landed gentry, so did the aristocracy; well, wonderful, but today is different.
One of the key differences is that today we have modern technology. Only the day before yesterday I had five e-mails, no less, from the great Steve Jobs himself urging me to discard my newly purchased iPhone and my iPad of the week before last in favour of iCloud, where all my data are going to be parked for ever and a day. Modern people, men, women and children of all backgrounds, all income brackets, all of us—I leave aside prisoners because I do not want to interfere with the debate between two prominent powerful members of the Conservative Party on that one—all those people have knowledge now, absolute knowledge, just as much as we do, and they have time, they have energy, they get involved.
My noble friend Lord Dykes commented that—despite the absence of cricket in his tremendous tour de force of commenting on what the British public are interested in—the British people trust their political representatives to make political judgments on their behalf. Noble Lords know full well that the British public have no trust in any politician at all at the moment, although I believe that they have greater trust in your Lordships’ House than in the other place. What they do have confidence in is the knowledge that they take, albeit false knowledge, from Wikipedia, from iCloud and from other data that are now so readily available 24 hours a day and which people take, commandeer and use. Therefore, they want to be involved; they are able to be involved; they are knowledgeable about being involved and that is why the heart of the Bill is a good idea.
The 40 per cent threshold is a very odd idea, unless we are going to carry it right forward into the European Parliament, into the general election, into local elections, presumably—we can have a dismal turnout, yet we respect the council that is elected none the less and the mayors that are elected, if they are. I expect that there will be a pretty low turnout if we have elected police, for example. So we do accept that low turnout and we take just over a 50 per cent threshold as a majority. That is the way in which our parliamentary system works, that is the way in which our electoral system works. I can see no rationale, no reasonable argument that has been laid in front of your Lordships’ House so far this afternoon, which tells me that I should support this set of amendments. These referenda will be few and far between—probably once every 10 years if the European Union actually proposes a further transfer of sovereign power, which at the moment is highly unlikely. It is busy with the euro, it is busy with the superabundance of enlargement; it is not going to propose anything very important for the moment on these grounds. Maybe once every 10 or 15 years there will be a referendum. Is this of such profound significance that it outweighs the normal way in which we vote in general elections? I think not. The logic is against it because the Bill says that the primacy of the British Parliament overrides everything coming from Brussels in any case. I oppose the amendments.
Lord Hannay of Chiswick
My Lords, I support the amendment. It seems to me that it addresses an issue which desperately needs addressing in the Bill, and that is flexibility. The structure of the Bill, particularly in its elaborate nature, with the 56 possible incidences of referenda, is, frankly, a couch of Procrustes, on which we are busy stretching ourselves and on which, no doubt, our feet or our heads will one day be lopped off. It is very rigid indeed. It leaves very little appreciation to the Government of the day, although of course the Government of the day will have had to agree in Brussels that, in principle, subject to the proceedings in this Bill, they will go along with it. However, then the rigidity comes back in. It is not surprising in a way. The Government proudly call this Bill a referendum lock, the key of which they have taken out and are now throwing out of the window.
I think this amendment is one way to deal with the issue and earlier today we discussed others. I very much welcome the fact that the Government recognise that, in the handling of this “or otherwise support” issue, they needed a bit more flexibility and they have now moved an amendment, which I was delighted to see went through unopposed, which gives a little more flexibility. It enables a Minister in Brussels to say that he would take something back to London and subject it to the procedures under the Bill, but that he would support it. It enables him to say that but, of course, it does not allow it to go through in any legal sense. That is an increase in flexibility. We have just voted for an increase in flexibility for Parliament because, if less than 40 per cent of the British people are prepared to get off their backsides and vote, then Parliament will be able to take a decision itself and the result of the referendum will be only advisory.
It would be splendid if the Government would think a little more about how to introduce more flexibility into the Bill, while not removing the essence of it. I accept that it is supported by a majority in the House of Commons and that it is in the coalition agreement, which says that, if there are major constitutional changes, there will be a referendum. As the noble Lord, Lord Liddle, said, the recommendations of our own Constitution Committee are rather clear on this point but were ignored by the Government. The noble Lord, Lord Howell, quoted the bit he liked, but did not quote the bit he did not like in the Constitution Committee’s report. That was a much longer bit, which said that referendums should be used only for major constitutional innovations. If you look at the various clauses of the Bill, you will see that there are stacks of things there which are not major constitutional innovations. This provision will give a little more flexibility there, and I hope that the Government will seriously consider that because flexibility will be needed somewhere down the line. The more care taken with the legislation, the better that legislation will be for the interests of this country.
Baroness Falkner of Margravine
I say to noble Lords opposite that we on the Liberal Democrat Benches recognise that this amendment is intended to enhance scrutiny and to improve propositions that might be put forward by the Executive. We also accept the spirit of what noble Lords opposite are trying to do. For the record, I do not find, in the copy that I have just looked up, the elements of the coalition agreement to which the noble Lord, Lord Liddle, referred as endorsing this amendment. I would not want to tempt him to read out the entire section on Europe in the coalition agreement, as the hour is late.
I shall speak to the substantive elements of the amendment. We do not believe that it would be right to take such a dramatic step to remove from the Executive, the Government of the day, the decisions about what they will support or not and to give them to a committee of both Houses. We have had a long debate about Parliament and the importance of parliamentary scrutiny and so on. In Committee, we heard a lot of argumentation across the House regarding urgent situations and what would happen because decision-making was so late and would be so stymied. I find that the methodology proposed here would certainly add to the amount of time that would be taken to deal with measures if a Joint Committee had to rule on them. There would also be the issue of reintroducing some rather subjective concepts: urgency and national interest. We have had debates on those subjects; both are highly subjective. We are also conscious of the judicial review implications contained in the Bill.
Finally, the amendment seems to miss the underlying theme of the Bill, which is that the Executive make a call on a proposal, bring it to Parliament, Parliament agrees it and then the public are to ratify that decision through a referendum. As we have repeatedly heard from the ministerial Bench, the Bill is designed to reconnect the British public with these policy issues that emanate from the European Union. The public will be empowered, through the processes proposed here. To take that away and to give it to a Joint Committee of both Houses seems to me to entirely miss the point of the Bill. On that basis I suggest that it goes contra to where we had got. Before I conclude I give way to the noble Lord,
European Union Bill
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Lord Hannay of Chiswick
My Lords, if you do not mind me saying very briefly, I find the debate that we have been having since dinner of singular unreality. It reached its apotheosis in the last speech, which told us, “Keep calm dear, nothing is going to happen for 16 years. Everything is going so slowly, as they will be translating urgency from ‘urgence’ and back again and making something of it”. I am sorry, but you have to look back only one year to see a circumstance where there was a major crisis, when the Greek economy was on the point of collapse and the European Union, including Britain, decided that something needed to be done about it because otherwise there was a very real risk for the solidarity of the whole European financial structure. It is no good saying it will not happen. It has happened. Please do not tell me that it could not happen again.
So what happens then if you lock all the doors and throw all the keys out of the window, as the Government are absolutely determined to do? Their supporters have explained with enormous eloquence this evening how jolly happy we will all be when we throw all the keys away and we cannot unlock the door—we cannot do anything in less than two or three years or something like that—and we shall all be happy. What happens? They find some other way of doing it. That is what will happen now. And the British Government will help to find another way too, because it will be in our interests to do so.
This debate is a matter of total unreality. It has no meaning whatsoever. If the Government had a bit of common sense, they would see that the amendment moved by the noble Lord, Lord Triesman, does have quite a lot of sense in it.
Lord Flight
My Lords, I suggest that what the noble Lord, Lord Hannay, has just said illustrates the very reason why this amendment is undesirable. It is not in the interests of this country to get sucked into bailing out economies that have gone off the rails as a result of the problems of sharing a currency. Had there been a requirement for a referendum, the Chancellor of the Exchequer of the previous Government would not have been in a position to have committed this country to things to which he should not have committed us.
Charming and likeable though the speech of the noble Lord, Lord Kerr, may have been, this amendment is just another excuse for watering down the basic principle of this Bill. It is of less magnitude than the last amendment. Urgency is a subjective matter—it could arise; it could not arise—but the basic principle of the Bill is that the elite of British Governments will no longer be able to commit this country to loss of sovereignty and other such matters without the consent of the people.
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Lord Pearson of Rannoch
My Lords, I suppose that these amendments, particularly Amendment 63, are the most brazen attempt yet by Europhile Lords to deny the British people a say on any aspect of our membership of the European Union. We have heard a good deal in our debates from noble and Europhile Lords about the Bill being an attempt to bind successive Parliaments or Governments. Of course, it should be no such thing. An incoming Government could simply repeal the whole thing if they dared to risk the anger of the British people. With the way in which the EU has developed and is developing, that looks rather unlikely. I do not suppose that they would even dare to put such a repeal in their manifesto, although manifestos do not seem to matter much to our new political class, as in the formation of a coalition Government for whom no one voted.
Talking of the way in which the EU is developing, is it not really quite remarkable that we have debated this Bill for so many hours without even discussing the euro? I suppose that could be because the Government, Europhile Lords and the political class in general have just about got round to understanding that the euro was designed for disaster—a disaster of unemployment and austerity measures being visited on the people of Ireland, Greece, Portugal and Spain—and soon, who knows, Italy? But, of course, the political class cannot bring itself to face up to this obvious fact: the euro itself is merely the result of the whole project of European integration, which is equally misguided, as time will tell.
This determination to avoid these inconvenient truths has perhaps been best demonstrated by the BBC “Today” programme’s recent coverage of the civil unrest in Spain. It steadfastly attributes it to the Government’s austerity measures, but firmly refuses to discuss why these measures have come about, which are thanks to Spain’s membership of the euro, with its single unsuitable interest and exchange rates, which created the boom from which the people of Spain are now suffering the bust. Where does the euro come from? Why of course, it comes from the equally misguided project of European integration for which it was supposed to be the cement. It is the same for Greece, Ireland and Portugal—all slightly different cases, but all of them in their present predicaments entirely thanks to their membership of the euro and the European Union.
Earlier in our proceedings, I asked the noble Lord, Lord Howell, to respond to these facts.
Lord Hannay of Chiswick
Does the noble Lord not recognise that there is no Motion on the Order Paper in this Committee stage contesting the fact that if this country wished to join the euro there would have to be a referendum? We are time-limited in completing this debate, so could he address the measures before us and not the ones he wishes to speak about?
Lord Pearson of Rannoch
The noble Lord may find my remarks inconvenient, perhaps because they are entirely on target. I am explaining why the British people do not want these amendments and a large part of that is because of the damage that the euro has done, and which they can see it is doing. Could I also ask the noble Lord, Lord Howell, to respond to the delicate little point that the big idea behind the whole project of European integration is also proving to be misguided? I asked him that earlier.
This is essential to the amendment, as I hope even the noble Lord, Lord Hannay, will agree. That big idea, as I never tire of reminding your Lordships, was that the nation states—the democracies of Europe—were responsible for two world wars and the long history of bloodshed. They therefore had to be emasculated and diluted into a new form of supranational government run by bureaucrats. The whole project of European integration, with its attendant euro, has at its heart the destruction of national democracy and its replacement with the anti-democratic structure that is the EU. That is why the unelected Commission still has the monopoly of proposing all EU legislation in secret, which is now the majority of our national law. That law is then negotiated by bureaucrats from the nation states in COREPER and then passed, still largely in secret in the Council of Ministers from the nation states, with your Lordships’ House and the House of Commons having virtually no influence—in fact, no influence.
When you tell them this in Washington, they simply cannot believe it. I wonder how many of the good people travelling here today with President Obama are aware of it. I imagine that he may pay some tribute today to the European Union, and I wonder whether he will know what he is talking about if he does.
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.
Baroness Falkner of Margravine
My Lords, it was on this day last year, and with some trepidation, that I stood as the first Liberal on government Benches in 96 years to support the Queen’s Speech. This party knew, as did the Conservatives, that Europe could create a huge rift between us. It is in the true spirit of what a coalition is meant to be, in European terms, that we have managed in this Bill to come together in pursuit of its fundamental objective of rebuilding trust between the British people and those who govern them.
Amendments 61 and 63 aim to do more or less the same thing: to suggest that the Bill is a complete waste of time and should therefore expire as soon as this coalition Government cease to exist. I have enormous respect for the noble Lords whose names are listed as supporting these amendments. They undoubtedly believe that this Bill is unnecessary and will do little to address the disconnect between the EU’s institutions and Britain’s. They are entitled to their view, but I regret that there has been no attempt on their part during the passage of the Bill in Committee to propose an alternative method of restoring trust.
Noble Lords on the opposition Benches have just been the custodians of power for 13 years. During their time in office, there were broken promises in consulting the people and precious little support for engaging the public in the European debate. Now, when confronted with the central aim of the Bill—to promise the British people that they will have a say in some matters to do with giving over more power to the EU, or at least to assure them that Ministers will have to justify their decisions—the response is to suggest that the Bill is an artificial construct intended simply to appease anti-Europeanism; and that it should therefore be dispensed with at the first opportunity, namely the Dissolution of this Parliament. This goes against the spirit of the Bill and we will resist that from these Benches.
I turn now to the principle of sunset clauses, somewhat anticipating what the Minister might say in response to the other two amendments.
Lord Hannay of Chiswick
I am sorry to interrupt the noble Baroness and am most grateful to her for giving way. However, it is unwise to caricature other people’s arguments, particularly when one does so inaccurately. I wish she would recognise—I ask her to do so—that many of the amendments that have been moved, by me and others, provide for the strengthening of parliamentary control over any changes in the European arrangements. It is a strengthening over what was provided by the ratification of the Lisbon treaty, for which the noble Baroness voted. We would get on a bit better, frankly, if we did not suggest that there had been no suggestions from those who are moving amendments to strengthen controls. There have been.
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.
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.
Lord Hannay of Chiswick
My Lords, I shall speak briefly in support of these amendments and I want to make two points that have arisen in other contributions. The first is the question of one Parliament binding another. Some perfectly valid points have been made by those who say that much of the legislation that we pass binds a succession of Parliaments until they repeal it. However, what is not noticed is that the Government stepped into the quagmire by stating categorically that this Bill, if it becomes law, has no application during this Parliament, because they are not going to agree to any of the things that would trigger its application.
That, I think, puts it in a completely different category and explains why a sunset clause has become particularly apt. I argue that it is a constitutional aberration to sit around trying to pass legislation which has no application in the timetable of this Parliament and which is designed purely to be applied in subsequent Parliaments. That is an oddity which I think justifies the sunset clause.
The other question is the one put very eloquently by the noble Baroness, Lady Quin. We need to clear our minds a bit on whether we want to go in a major way into a plebiscitary democracy. I know that the noble Lord, Lord Pearson of Rannoch, who is not in his place, thinks that turning this country into a simulacrum of Switzerland would be a jolly good thing. I do not happen to share his view on that. However, I think that noble Lords who say that the voice of the people must be heard should think a bit about this. Incidentally, most of them are sitting on the Benches of a party that has resisted referendums consistently over the past 40 years.
What is being suggested here is a major lurch into plebiscitary democracy in just one section of our institutional life while leaving the rest of it more or less as is. That is a peculiarly unbalanced way to approach this matter. By all means, let us have a debate about whether we should move away from representative parliamentary democracy to a plebiscitary democracy, although I have no doubt whatever what the outcome of that would be. There would be a massive majority against doing so. However, do not let us lurch in one section of our national life into potentially 50 or 60 referendums.
That is why I support a sunset clause, and I could support any of the variants in Amendments 61, 62 and 63. I hope that the Government will think really carefully about this because it is a serious matter.
European Union Bill
Lord Hannay of Chiswick Excerpts(12 years, 11 months ago)
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Lord Hannay of Chiswick
My Lords, the noble Lord, Lord Kerr, and the noble Baroness, Lady Williams, have clearly explained the problems associated with the term “or otherwise support”. I wish to give an instance of where a problem may arise. The Council in Brussels may be discussing a measure which requires unanimity—our agreement—in terms of some outcomes that would be unacceptable to us, and others that would be acceptable to us once Parliament had endorsed them. How is the Minister to express that preference? There is a real risk that “or otherwise support” could be interpreted in a way which prevents the Minister expressing that preference. That, surely, would be completely counterproductive because in such circumstances we want to be able to say—do we not?—that one or more courses of action would be unacceptable to us and we would not agree to them there and then, but that another course of action could be acceptable to us once we had the authority of Parliament to make a legal decision possible. Taking all these points together, I hope that the Ministers will break their duck and agree to a change. After all, we have been sitting here for I do not know how many hours and so far they have not managed it. I would like to encourage them to try a little harder.
Baroness Falkner of Margravine
My Lords, I would like to speak briefly to a point made by the noble Lord, Lord Kerr of Kinlochard, specifically on Clause 7(3). He mentioned the coalition agreement. I think that on day five in Committee we discussed the coalition agreement and what it said about passerelles. Does he agree that the coalition agreement is clear on this particular use of passerelles, as it says:
“We will amend the 1972 European Communities Act so that … the use of any passerelle would require primary legislation”?
As regards his other more general points, the report of the Constitution Committee, which discusses Clause 7, concludes at paragraph 41:
“We agree with the re-balancing of domestic constitutional arrangements in favour of Parliament”.
Both those statements point in a different direction from that proposed by the noble Lord, Lord Kerr.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)
My Lords, I am grateful to the noble Lord, Lord Triesman, for indicating his general support for at least subsection (1) of Clause 7. It reflects the general view that we have heard in the debate so far that primary legislation is the right instrument in a number of fields, which we have discussed at considerable length.
This clause also brings the UK more into line with the commendable practice of a number of other partners, in particular, Germany, of ensuring that national parliaments have a greater say in the developments of the European Union. It is also consistent with the principles of Laaken, to which I have referred frequently at this Dispatch Box in the past, and it is consistent with the trend in the Lisbon treaty to give more control to national parliaments across Europe.
I want to come to the specific issues that have been raised with considerable knowledge and expertise and try to offer what I hope will be a constructive response. First, I refer to the theme on which a good deal has been made in the debate on the words, “or otherwise support”, raised by the noble Lord, Lord Kerr, my noble friend Lady Williams, the noble Lord, Lord Hannay, and others. The noble Lord, Lord Davies of Stamford, would immediately call me to order if I were to say that this is inherited phraseology. When I sat where the noble Lord, Lord Triesman, now sits, through the long nights that we were dealing with the Bill on the Lisbon treaty, I am trying to remember whether we had amendments on these words. I cannot remember and do not have the electronic memory to retrieve it, but the words were in the Bill which became an Act and which was drawn up by the previous Government, ratifying the then Lisbon treaty. Those with long memories will remember that people like me were not terribly enthusiastic about the treaty or how it should be treated.
However, that is the past and out of the past has come this phrase, “or otherwise support”, which also raises some difficult questions, to which the noble Lord, Lord Kerr, rightly referred. Of course, we want to see in this Parliament a pattern of legislation in this enormously complex area of EU measures which minimises the obscurity and maximises the clarity. I should like to take away the points that have been put very clearly and reflect on the noble Lord’s arguments. I do not know whether that constitutes, in the words of the noble Lord, Lord Hannay, “breaking ducks”, merely passing balls gently to the boundary, or whatever, but the matter clearly needs some reflection because there is clearly obscurity. I suspect that that has been pointed out again and again in debates on European legislation in the past few years; it is nothing new but it does not mean to say that we cannot get it better now, so I will reflect on the points that have been made.
Lord Hannay of Chiswick
Will the noble Lord confirm that he will take away and look at all the references in the legislation to the words “or otherwise support”? Here we are discussing only one of them. I am sure that his intention is to look at all of them: if he will confirm that, I will happily agree that he has scored a boundary.
Lord Howell of Guildford
Reflections on the words as they appear here will be bound to have cross-reading repercussions. I will put it like that: that is what I am saying that I will seek to do.
I turn now to Article 333(1) of the TFEU, on enhanced co-operation. The pat answer that the Bill gives if you stare it in the face is that if a sensitive veto listed in Schedule 1 is removed, there will be primary legislation for the removal of other vetoes. That is something that the noble Lord, Lord Kerr, questioned. He cited the German example to which the noble Lord, Lord Empey, also referred. That is stretching it a bit. I cannot see that the pattern in Germany—for which there may well be good reasons, such as anxiety not to offend the Länder—arises here. I trust that it does not sound too austere to say that it would not be our way to go through that kind of action in the hope that people would understand that we really wanted to do the reverse. Nevertheless, it is a complex point and I have more to say about it.
This is to do with whether we maintain or surrender a veto in these areas. We are not talking about action in those areas: I am sure that that is perfectly obvious to noble Lords. Enhanced co-operation decisions will not be agreed overnight: they will be agreed as a matter of last resort in areas of sensitivity for some member states. A move to set up enhanced co-operation has happened only once, and is being proposed now in the context of the European patent.
Lord Blackwell
I think that that just illustrates the point that different Members of this Committee will have different views on this matter. My view is that if there has been a bias in the past, it has been for Ministers, in their desire to get the agreement of the House and the country to treaty changes, to downplay some of the consequences of those treaty changes that they did not wish the country to realise until it was too late. That has been part of the reason for the successive loss of trust in the Government and the European Union—the balanced arguments have not been put forward.
I have no argument with the fact that we should require Ministers to set out the arguments on both sides but to try to bind Ministers always to put out an unfailingly positive view of the European Union would be no service to this House or to the country and would simply compound the mistrust that has already been created.
Lord Hannay of Chiswick
It seems to me that the noble Lord is propounding a pretty odd doctrine. Britain has been a member of the United Nations since 1945. I do not imagine that anyone believes that the UN is without fault but I have not yet seen a ministerial speech about the UN from any party which did other than support it. Britain has been a member of NATO for a very long time. It is an organisation which also has its faults. I have never seen a British Minister make a speech about NATO which did not support it. Why can they not do it about the European Union too?
European Union Bill
Lord Hannay of Chiswick Excerpts(12 years, 11 months ago)
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“( ) This section does not alter the existing relationship between EU law and United Kingdom domestic law; in particular, the principle of the primacy of EU law.
( ) This section does not alter the rights and obligations assumed by the United Kingdom on becoming a member of the EU.”
Lord Hannay of Chiswick
My Lords, perhaps I may go slightly off-piste and thank the noble Lord, Lord Howell of Guildford, for the extremely eloquent way in which he replied to the previous debate. He gave by far the best description of what Governments should be doing to advocate our membership of the European Union. I was grateful for that. I am afraid that he slightly spoilt the record by selectively reading from the opinion of Monsieur Jean-Claude Piris, the former legal adviser to the Council, who stated, in that wonderfully oblique way that fine legal minds have when expressing themselves, that if the British Government consistently blocked decisions that required unanimity simply because they were trying to avoid a referendum at home, they could well find themselves both marginalised and accused of bad faith, because they have ratified those provisions in the treaty of Lisbon. However, that is a small point to make in comparison with my welcome for what the noble Lord, Lord Howell, said in his reply to the amendment of the noble Lord, Lord Radice.
Clause 18 is important. We have left our rather odd scenes from earlier in the day when we discussed the issues raised by the noble Lords, Lord Willoughby de Broke and Lord Pearson of Rannoch, which made me think that I had walked into a meeting of the Flat Earth Society on the day it was told that it had been discovered that the earth was round. The problem with Clause 18 is that it is, first, purely declaratory. It apparently has no legislative purpose, which is considered to be not a good way to legislate. Secondly, the clause is a bit obscure, and that is highly undesirable. Thirdly, because it is obscure, it contains certain risks whereby it may be misrepresented, become the object of judicial review, or risk other issues of that kind. To my mind, and for those who have put their names to the amendment, that is an unsatisfactory basis for legislation.
I should say straightaway that I would strongly support those who may wish to oppose the Question that Clause 18 stand part. It is a completely unnecessary part of the legislation. It does not have much to do with what the rest of the Bill is saying. I should also say that if I had to make a personal choice among the amendments that have been tabled on this clause, I would unhesitatingly choose the admirable amendment of the noble and learned Lord, Lord Mackay of Clashfern, and my noble friend Lord Kerr. I shall certainly support it at every stage of the Bill.
However, my amendment is designed to make the best of a bad job. If the Government are absolutely insistent on the text they have tabled, it is necessary to make the Bill at least a bit less obscure and open to challenge, distortion or misrepresentation—and my amendment attempts to do that. I claim no pride of ownership for it, because every word was drafted by my former colleagues in the Foreign and Commonwealth Office. Why do I say that? It is because the amendment is drawn explicitly and precisely from the Explanatory Notes that were circulated by the FCO when the Bill was first published many months ago. There is no innovation in it. Not a word is removed from the Government's text. There are merely two statements about the primacy of European law clarifying the situation, which, I suggest, ought to be in the Bill if the Government were to insist on their text—which I hope that they will not, in the face of the amendment moved by the noble and learned Lord, Lord Mackay, and those who are opposed to the clause standing part. I hope that they will agree that the clause would be greatly improved by adding the Explanatory Notes provided by the Foreign and Commonwealth Office, which are extremely limpid and clear, to the Bill. On that basis, I beg to move.
Lord Hannay of Chiswick
The debate that we have had over the past hour and a half has been valuable. I imagine that it has not escaped the Minister that not one person has spoken in support of the Government’s draft—not one. There have been different points of view about what is wrong with it and how to remedy it but there has been no support apart from that from the Members of UKIP, whose embrace I suspect would be mildly toxic to the Government since their sole objective is to operate the provision that would withdraw us from the European Union.
The noble Lord, Lord Willoughby de Broke, produced a lot of totally irrelevant analogies with the action taken by the French last year on the Roma, with the Danes and so on. They were all taken by executive action, not by legislation. He was proposing that Parliament should actually disallow a ruling by the European Court. If we did that, it would not be infraction proceedings that we would be getting; we would be on to the road out, which is exactly what he would like to achieve.
Lord Willoughby de Broke
I was not the one proposing those Acts of Parliament. I was simply quoting directly what the European Scrutiny Committee in the Commons stated at paragraph 76. If the noble Lord, Lord Hannay, would care to read that paragraph, he would be better informed.
Lord Hannay of Chiswick
I have read that report, though it gave me a pain between the ears to do so. The noble Lord will understand that if he quotes in an approving manner from a report from another place, it is assumed that he shares that view. I am merely pointing out that the parallels that he made with the Danes and the French are very inexact and that the sort of action proposed in the quotation he gave would in fact lead to us leaving the EU, which is a perfectly possible eventuality, one that I know he and his colleague in UKIP strongly desire. I am merely suggesting that that is not the desire of the government Front Bench—they have made that clear—and that, apart from those two interventions, the Government’s draft of Clause 18 has had no support at all.
What remains is a rich banquet of alternatives to which I hope the Government will give serious consideration between now and Report and will choose the one most likely to gain a majority in this House and in another place. As far as the first is concerned, that looks unlikely to be the one that is on the table in the name of the Government at the moment. Since the noble Lord has clarified the Government’s intentions very helpfully, the Government could easily accept any of the following three options: losing Clause 18; accepting the clause that has been drafted by the noble and learned Lord, Lord Mackay of Clashfern; or making the addition that I have proposed but which leaves their own draft intact. I hope that the Government will give serious consideration to this.
European Union Bill
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Lord Pearson of Rannoch
As a matter of fact, it is real. We have £10 billion that are only loans at the moment; we have £10 billion for the cash we hand over, going up; we have £26 billion for food; we have £18 billion for climate change; and we have £60 billion for overregulation. These are the figures.
Lord Hannay of Chiswick
I hesitate to intrude into the noble Lord’s game of tiddlywinks with statistics, which he has been playing for the past hour or so. Can he settle on one set of measurements, rather than playing around between net contributions, gross contributions—both to the budget—trade effects, and loans to the investment bank? He plays around with these all the time. Would it not be a bit simpler if he stuck to the net contribution per capita in each country? We would then come to quite startling results, one of which is that Britain is by no means the highest net contributor per capita to the EU budget any longer, and that other countries are more so. It would be simpler if he stuck to one lot of statistics and stopped playing tiddlywinks at this late hour of the evening.
Lord Pearson of Rannoch
I do not know whether the British people would agree with the noble Lord, Lord Hannay, that the figures I have mentioned are tiddlywinks. I am aware that Holland pays a greater per capita ransom to the European Union than we do, but that is not the point. I am trying to look at this from the point of view of the United Kingdom. I am not looking at it from the point of view of the corrupt octopus in Brussels.
I was about to conclude by commenting on the remarks of the noble Lord, Lord Wallace, when he mentioned the figures paid into the budget by these other countries which are in the European economic area. I should just mention that the countries in the European economic area are not afflicted with the common fisheries and agricultural policies. They are not part of the customs union; they are not afflicted by the common trade policy; they are not in the common foreign and security policy. They are not worried about justice and home affairs being overtaken by Brussels, and of course they are not in EMU, so they are in a very different position from us. They can negotiate all their own foreign trade arrangements. There is a recent report from the Swiss Government comparing their present bilateral arrangements from outside the European Union with what the costs would have been had they been in the European Union. It is not a wild Eurosceptic making these suggestions; it is the Swiss Government who said that membership of the European Union would have cost eight times what their bilateral arrangements cost.
As to the IMF, I did not bring it in. Of course, I agree that we are also supporting problems in the European Union—the eurozone—through the IMF. I think that the tally, if we take it through the financial facility, the loans to Ireland and others, comes to around £4 billion a year. I was good enough not to mention that because I was not suggesting that we leave the International Monetary Fund. I was merely trying to concentrate on our costs as members of the European Union. This was a probing amendment, as I wanted to discuss the prospect of the British people getting a say on the cost of European Union membership. I am very grateful to all noble Lords who have spoken, and I beg leave to withdraw the amendment.
Lord Hannay of Chiswick
The Minister explained very patiently that the Bill was a compromise. He admits that it was not provided for in the coalition agreement, which provides only for referendums on treaty change. I shall not gainsay that. It was a compromise between the Government and a noisy minority of one of the two parties in the Government who made all the running in the House of Commons. We are just waiting for the compromise with the rather large majority of those who have spoken in this House—I think it was 35 at Second Reading—of which there has been from the government Bench no sign whatever.
Lord Tomlinson
I shall not oppose the clause standing part, but have one slight comment to the Minister. He referred to compromise, but I remind him that he said earlier that the Bill was a compromise between incompatible policies. We shall come back to this later, because there is incompatibility. At the moment, I can see it being removed only by the withdrawal of Clause 6. However, I am content to accept his advice.
Lord Flight
My Lords, I congratulate the noble Lord, Lord Williamson, on his summing up of Schedule 1 from where he stands. As noble Lords will be aware, there are very much opposing amendments within the amendments that have been grouped together for Schedule 1. I have tabled Amendment 47A, which is really at the other side of the table from Amendments 45, 46 and 47, which I do not support.
Amendments 45 and 47 seek to remove JHA vetoes, including on police co-operation and the EPP and the veto on the appointment of judges, which I would argue are precisely the type of treaty changes that would extend competence from the UK to the EU in sensitive areas and which actually warrant a referendum. Amendment 46 removes all vetoes in TFEU from the referendum lock covering sensitive areas such as social security, social policy, employment policy, justice, home affairs and some tax and defence issues.
Amendment 47A, to which I am speaking, raises a further area of potential transfer of powers from the UK to the EU and proposes the requirement for a referendum which has not been included in the Bill. This is really an illustration that the Bill has not, as some have argued, covered every conceivable territory of transfer of powers but aims to pitch the requirement for a referendum on what the Government perceive as major red line areas.
As noble Lords will be aware, few aspects of trade agreements are now subject to unanimity post-Lisbon. The norm is now a majority. Amendment 47A would subject to a referendum an amending treaty or Article 48(7) TEU ratchet decision, which abolished the veto over negotiation and conclusion of EU trade agreements with non-EU countries and international organisations in the three main areas that were exemptions in Lisbon and covered sensitive issues and thus remained subject to unanimity. First there are the agreements which cover trade in services, the commercial aspects of intellectual property or foreign direct investment, where the agreements include provisions for which unanimity would be required for the adoption of equivalent internal EU rules. That is the most important of the three. Secondly, there are the agreements covering trade in cultural or audiovisual services that,
“risk prejudicing the Union’s cultural and linguistic diversity”.
Thirdly, there are agreements covering trade and social, education or health services that risk seriously disrupting the national organisation of such services and prejudicing the responsibility of member states to deliver them.
EU international trade agreements are binding on member states. The removal of the national veto in some or all of these areas would represent a transfer of power from the UK to the EU in politically sensitive and economically important territories.
Lord Hannay of Chiswick
My Lords, I thank the noble Lord for giving way. I wonder whether he is conscious of two matters. First, the placing of these articles in the TFEU was done expressly at the sole insistence of the Government of France and that successive British Governments, both the Government of Mrs Thatcher and Mr Major and the Government of Mr Blair, in successive treaty negotiations, tried to remove these obstacles to making change through negotiations on a reciprocal basis. They concluded—and I concur—that it was in Britain’s interest that these matters should be negotiable without a French veto. I wonder whether the noble Lord is aware of that. Secondly, is he also aware that the provision for majority voting on trade matters was in the treaty that was signed in the 1960s, which was in force when we joined the European Community? At the moment, he is speaking as though he might have landed from Mars.
Lord Flight
I thank the noble Lord for his, as ever, instructive intervention. The noble Lord, Lord Kerr, who is sadly not here today, was very involved in the convention on the constitutional treaty and therefore, I believe, is the best informed Member of this House about how these issues were left as exemptions qualifying for unanimity in the Lisbon negotiations.
Secondly, with regard to the position of past UK Governments, those were the positions at that time. The point that I am seeking to make is that we have three areas that, whatever the position of past Governments, could result in transfers of power from the UK to the EU. The point of my amendment is, as I said at the beginning, to illustrate that the Bill does not cover every potential transfer of power; it has been limited to that which the Government consider to be the major issues. However, I believe that the noble Lord, having educated us in the history of this, would not deny that the situation is such that, in these three areas, there could be transfers of power without any treaty so requiring them. As I have already said, this amendment is illustrative and I am sure that there are many other areas where this Bill does not put forward requirements for a referendum on matters that potentially transfer powers because those matters are not deemed to be of prime importance.
Lord Howell of Guildford
It becomes a matter of hypothesis and judgment. This is an area where, somehow, one has to have solidarity and consensus. Given that it requires unanimity to go to QMV, it would be a pretty odd action by the country that did not want to go to QMV to act totally against its interest. It is an inconceivable situation. However, if a country did so, it would be a very bad basis for supporting the independence and overall quality of the EU judiciary and of the key figures like the advocates-general and judges. It remains the view of this Government that to move away from a consensus and concord of agreement and support for these kinds of appointments would be very unfortunate. I think this would be the view of future Governments, too. I do not regard this as binding; I simply regard it as common sense.
Neither under this amendment nor under Amendment 47—which I also want to speak to because the noble Lord, Lord Goodhart, put his point so keenly and strongly—is there any question of not being able to operate or contribute to the election and appointment of advocates-general or anything else under any of these articles. The issue is simply whether it is right that we surrender the veto, so that in a future situation it might be possible that we would not be able to resist measures and proposals that were directly against our own national interest and judgment.
Let me turn to Amendment 47, which would remove key justice and home affairs provisions from Schedule 1 and therefore from the referendum lock. I know that the noble Lord is a keen expert in this area. As I said before, Schedule 1 does not prevent the use of these articles. This is a narrow exposition of a much broader point which I would urge many noble Lords who have spoken to comprehend. The noble Lord, Lord Liddle, talked about a meeting of minds, and I would love to see one, but it is difficult if it is not understood that the central point is about whether we abandon vetoes, not whether we use the articles and competences that are already there.
Lord Hannay of Chiswick
Perhaps the Minister would not mind going back about one minute to what he was saying about advocates-general and members of the European Court of Justice. I think that sometimes the Government seem not to be very aware of the chemistry of decision-making in the European Union. The fact of the matter is that so long as you need unanimity to appoint these judges, we will never block one because we will be terrified that somebody will block ours. The chemistry is that so long as there is unanimity, nobody blocks anything and everyone goes through on the nod. That has been true ever since the European Union was set up. If you have QMV for this, and I am not saying that we should move to it immediately, there would be no such “see no evil, hear no evil” approach because you would be terrified that if you tried to block someone on abusive grounds, you would be overridden.
I think that some of the arguments that the Minister used about—
Baroness Anelay of St Johns
My Lords, the Minister is winding. Obviously it is for noble Lords to intervene to ask a question, but not to make a speech. If the noble Lord, Lord Hannay, wishes to make a further speech in Committee—of course I am not inviting him to do so as I am not going to test the patience of the Chamber—I would indicate that he is able to make a further speech, but at the moment, if he has a question to put, he may put it.
Lord Howell of Guildford
I am longing to get on. I have taken too much time already and not met in sufficient detail some of the very profound arguments that have been made. We may perhaps have opportunities later.
On Amendment 47, by including the relevant item in Schedule 1, we are ensuring that the British people would have a say before the UK gave up the current practice of voting by unanimity on these particular areas. We, as well as the previous Government, and several partners in the member states—I would suspect the majority—would view that with very great sensitivity indeed. That is all I have time to say on these vital issues, but that indicates that these are not chance items that were just bunged into Schedule 1, but very serious issues on which there would be a very serious situation, should it come to giving up the veto, that would certainly demand the referendum lock.
I will say a word on Amendment 46 and then I will try to close because there is a great deal more to say, particularly on Amendment 47A, tabled by my noble friend Lord Flight. Amendment 46 refers to the Treaty on the Functioning of the European Union, which is the engine room of the EU. As we know, the Treaty on European Union sets out provisions of principle in a number of sensitive areas, such as common foreign and security policy, and the TFEU sets out the bulk of policy areas and the extent of the competence in which the EU can act. It has considerable read-across to areas on which we in Parliament would otherwise legislate and which are of vital importance, such as social policy, criminal policy, tax policy, police matters and other things that the British people rightly regard as very intimate domestic issues. Some of the articles in the TFEU have been moved over to QMV. We have previously made clear that this Government have no intention of giving up any veto in the EU treaties, and nor have several other member states.
I reiterate that, for many member states and perhaps for ourselves, Lisbon was passed and is a fact, but it took a great slice of the issues into QMV and a great slice of them was also preserved. They were preserved because member states did not wish to give them up. Some vetoes are plainly not within the bracket that will be a vital issue at all—for example, Article 219(1) of TFEU on the setting of the Euro exchange rates with third countries. A number of vetoes fall within the sensitive policy areas defined by the last Government and successive administrations as so-called “red lines”. Those vetoes should be subject to a referendum lock, if ever there was a proposal to give these up in the future.
Finally, I must say a word on Amendment 47A, which my noble friend moved. The provisions here, in respect of Article 207(4), are narrowly defined types of EU trade agreements, requiring unanimity. I considered this amendment very carefully, as did my right honourable friend the Minister for Europe. The conclusion was that it did not make sense—and this, I hope it will be recognised, is evidence of some flexibility—to include this in Schedule 1. That does not mean that we intend to agree to give up this veto in the future, but the treaty base is not of as great a level of sensitivity for the United Kingdom, as it is for some other Member States, for whom it certainly is sensitive. An Act of Parliament would therefore be sufficient here, rather than the referendum lock.
I hope that I have given some evidence that we are looking at these matters very carefully, and that we are acting in a proportionate way. There is a scale here. The vital issues are in Schedule 1, and the less vital issues are not in Schedule 1 or would not attract the referendum lock. We have sought to increase ministerial accountability. We have not sought—contrary to the views of some noble Lords—to squander money and time by seeking to legislate for a string of referendums on matters of relative insignificance. Those matters are not in the schedule. Instead, we ask for the British people's agreement when transferring further powers from the UK to the EU in areas which define who we are as a nation and as a people.
These transfers are unlikely ever to be proposed on an individual basis—whatever noble Lords may argue—and only in the context of a package, given the opposition from several member states to moves to qualified majority voting in these areas. Indeed, articles in Schedule 1, where unanimity needs to be safeguarded, are there precisely because member states—including ourselves—have resisted going to QMV to protect our national interest. That is why they are there.
In conclusion, Schedule 1 provides clarity in the Bill, not confusion. It is a definitive and unambiguous list of treaty articles that we believe should concern the British people, if ever there is a proposal to give up a veto in those areas. Under the provisions of the Bill, the Government are obliged to seek the approval of both Parliament and the people before they can agree to the removal of the vetoes present in each of these articles in Schedule 1.
It is Schedule 1 that gives Parliament and the people assurance and therefore is a key element in rebuilding trust. That underlines why the contents of Schedule 1 are the right ones and why we argue strongly against moving from these areas towards what the Opposition call flexibility. To do so would allow a number of areas to generate the kind of doubt and distrust that we have seen in the past, which is now widespread quite a lot in this country and throughout Europe.
The declining popularity for the great European Union, which many of us have worked for and in for decades, is a bad development. Sensible Europeans need to recognise that and take moves to shore up and reassure the public support for the European Union project in the 21st century. That is what this Bill is about. That is what we are trying to do. To begin picking little exemptions and holes in the Bill is the way to undermine its central purpose. I therefore ask the noble Lords to withdraw their amendments.