European Union Bill

Lord Hannay of Chiswick Excerpts

Wednesday 25th May 2011 Lords Chamber

[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.

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[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.

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[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

Monday 23rd May 2011 Lords Chamber

[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.

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[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.

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[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]

My Lords—

[Lord Clinton-Davis]

My Lords—

[Lord Blackwell]

Perhaps I may give way to the noble Lord, Lord Hannay.

[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

Monday 23rd May 2011 Lords Chamber

Moved by

[Lord Hannay of Chiswick]

57: Clause 18, page 12, line 9, at end insert—
“( ) 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.

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[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

Lord Hannay of Chiswick Excerpts

Tuesday 17th May 2011 Lords Chamber

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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 Hannay of Chiswick]

I will now await the answer.

[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 21^st 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.

Palestine

Lord Hannay of Chiswick Excerpts

Monday 16th May 2011 Lords Chamber

[Lord Howell of Guildford]

Of course this step is not yet fully consummated, but we want to see the formation of a Government who reject violence. If Hamas is to be part of that Government, it must reject violence; that is our position. If that were to go forward on the basis of the rejection of violence, we would see that as a good basis for building further hopes and moves towards serious negotiation. The Fayyad plan, as I have said, is something that we support. It takes us in the right direction towards building Palestinian statehood and getting the negotiations going again, which is central and crucial.

[Lord Hannay of Chiswick]

Would the Minister not agree that the tragic events of the weekend on the Syrian, Lebanese and Gazan border are just a taster of what we are in for as long as the vacuum in negotiations continues, and that the situation could get very much worse, given the instability in a number of Arab countries and the possibility that new Governments will be very sensitive to the views of radicals? Will he say what steps the Government are taking to urge the US President, who is to make an important speech on this matter in the next few days, to do something serious with the partners in the quartet to revive the peace process?

[Lord Howell of Guildford]

We are urging our allies and friends, including the United States, at all times. However, perhaps the noble Lord will recognise that a clear development in the region is the increasing determination of the surrounding Arab states to play for once a more forward part in these developments. Obviously we are deeply concerned by the events at the weekend, but if one can stand back from such horrors for a moment, it seems that they reinforce the urgent need for the Israeli Government and authorities to begin to move in a positive direction in a very fluid overall situation in the Middle East.

European Union Bill

Lord Hannay of Chiswick Excerpts

Monday 16th May 2011 Lords Chamber

[Baroness Falkner of Margravine]

My Lords, I completely agree with the noble Lord, Lord Kerr of Kinlochard, on the need for proportionality and I accept that things will happen that we may not be able to foresee when we are drafting legislation and giving a legal basis to aspects of future decision-making. However, before I speak to Amendment 39B, I should like to say a few words about Amendment 39A.

I welcome the explanation of the noble Lord, Lord Liddle, of how the Labour Party has moved considerably to advance accountability. It is particularly welcome given that it failed to provide for that in the time that it was in office. I do not often find myself echoing the words of the noble Lord, Lord Waddington, very much, but this afternoon’s discussion on the budget rebate was a very useful one to remind us that even when it was in office it took accountability so lightly that when the budget provisions were changed, as it appeared from today’s discussion—and nobody on the Labour Benches rebutted it—in 2005, the Chancellor of the Exchequer did not even agree with that change. Yet it happened.

I turn specifically to Amendment 39A. The noble Lord, Lord Liddle, explained what his amendment would do. I have some sympathy with the idea that you would have a level of scrutiny here that should determine what should happen—in other words, that Parliament should take a decision, rather than having a referendum. But my question would be to the noble Lord about his proposed new subsection (4B), which calls for a resolution of each House of Parliament. It is not entirely clear to me what would happen if one House of Parliament approved of holding a referendum but the other did not. Presumably, we would have a situation whereby a Joint Committee could have recommended a referendum and, potentially, the Commons would have agreed with the Joint Committee but perhaps this House would not. I wondered whether he would be able to tell us what would happen, in that case, on Amendment 39B.

In this variation, the review committee takes into account the significance, urgency and national interest at stake in its examination of the draft decision. Both urgency and national interest are, I say to noble Lords opposite, deeply subjective. We thought, with the European financial stability mechanism before us in February, that there was huge urgency in agreeing on what to do, because of the Greece, Ireland and Portugal scenarios. In fact one could argue that there is still considerable urgency, given where Spain—and, potentially, Italy—is. But the fact that other countries may be covered by that by the time the facility comes into being in 2013 suggests that something that one sees as urgent at a particular point in time may as events unfold not be quite as urgent as we thought.

Let me come to a consideration of a national interest. We know that this is notoriously difficult to define in international relations, which is one reason why this concept of national interest, which we all cherish and hold dear, has never been given legal force. I recall when I was a student reading the realist American scholar, Hans Morgenthau, who in 1951 wrote his book In Defense of the National Interest, which was contested throughout the 1950s, during the Cold War, and all through the 1960s, and is contested still today. It has never taken off as an argument that was legally testable in a court of law, so I would be concerned—while I see what the noble Lord means; we know the national interest when we see it. We can touch it; we can feel it; we can smell it. But to define it in legislation would be extremely difficult to do. I therefore suggest some caution about agreeing with the amendment. On Amendment 39B, I ask the noble Lord what he would do if one House went in a different direction from the other.

[Lord Hannay of Chiswick]

My Lords, I would like to speak very briefly in support of this probing amendment, not because I am in total agreement with every detail of it but because I think that it addresses a very serious problem to which I alluded at the end of Second Reading, when I said that the effect of the Bill if passed unamended would be to lock the door and throw the key out of the window. I believe that that is an accurate description of what this Bill will do if not amended. These amendments are a sincere and quite well thought-out attempt to keep the key in the hands of the Government and the majority in both Houses of Parliament to some extent, subject to the reporting of a committee and so on.

I think that this issue should be taken a bit more seriously, frankly, than it is by those on the other side of the House. If the noble Baroness, Lady Falkner, will forgive me for saying so, about the piece that she quoted—I hate to have to construe somebody else’s coalition agreement, which has nothing to do with me—the sovereignty issue to which she referred and which she read out is dealt with in Clause 18, not in the clauses that we are discussing now. We will probably have the delights of spending a whole day discussing that next week but it has nothing whatsoever to do with referendums. No one has ever suggested that it should be. The suggestion was that you should inscribe in the Bill some test of what the basis for European law in this country is. Anyway, I suggest that the Government really ought to think about this enormous multiplicity of referendums which are provided for and which cannot be dealt with just by casual remarks such as, “Oh well, don't worry—they won’t ever happen”.

--- Later in debate ---

[Lord Howell of Guildford]

I have always found this argument very curious. To go to QMV requires a unanimous decision by those involved in taking the decision. The suggestion is that a country that is anxious to protect its national interest by blocking the move to QMV should nevertheless vote for QMV and for the power to be overridden by itself. That seems to be a turkeys-for-Christmas argument that does not add up in the real world. To imagine that by the muscle of QMV—I will not call it a sledge-hammer—one is going to get other countries to fall into line with a proposition that we might like to see pushed through is unrealistic. Why should they vote against themselves? That is not the way the pattern is ever going to work. The truth is this—my noble friend Lord Lamont touched on it—that the reason there is a long list of items in Schedule 1—

[Lord Hannay of Chiswick]

The Minister has, with enormous eloquence, destroyed the case for the Single European Act and the single market. I believe he was a member of the Government who negotiated and ratified that. I can accept that there are areas of unanimity that we will never want to allow to be subject to QMV, such as taxation. That is quite clear. We will not allow them to be, and because unanimity is required to move from that, it will not happen. There will not need to be a referendum or anything else. The root-and-branch description he has given of national interest is frankly completely contrary to the facts. The Single European Act, which provided for qualified majority voting in a number of areas of technical barriers to trade, which had been blocked for many years, has been to this country’s interest. The Germans, who voted for the Single European Act, found themselves being voted down on the banking regulation. They willed the use of QMV, and they accepted the consequences. This country has never been put in that position. I do not think we should generalise this argument. There is no dispute that there are areas where any British Government are going to refuse to move from unanimity to QMV.

[Lord Howell of Guildford]

I do not want to sound critical of the noble Lord, who has had such experience in these things, but I have to ask where he has been because this Bill is about the present and the future. It is not saying that we can unravel the Lisbon treaty or that we should revert from QMV back to unanimity on a vast number of things where there is QMV. This Bill does not take back any competences or powers, although there are people in this House and another place who would like to consider that some of the powers are somewhat out of date in the central situation and should perhaps be revisited. It is not about that at all. This Bill is about further treaty changes and further transfers of power.

Here I agree with my noble friend Lady Williams. I suspect that most people—not the noble Lord, Lord Pearson—think that we are right to be good Europeans and to be effective in the EU, that we have given the European Union enormous powers and that almost anything we want to do can be achieved within those powers and with legislation within the existing competences, but that the case for allowing a further expansion of the powers and competences without consulting people who feel that time and again they have not been consulted is a very weak case. The case for not allowing people is very weak, and the case for allowing them is extremely strong. That is what this Bill is about, so I do not understand the noble Lord’s intervention about the past. It just does not add up.

[Lord Howell of Guildford]

My noble friend puts the matter with wonderful clarity. The truth is that not only is it not in our interest to remove the locks on so many aspects that the noble Lord finds so difficult but that many member states, not all of them, like us want no such thing as a removal of the veto in so many areas. Indeed, this explains why most of the areas requiring unanimity are in the treaty in the first place, remain in the treaty and are in Clause 6 and Schedule 1.

[Lord Hannay of Chiswick]

I have a strong preference for interpreting what I say myself and for not having it interpreted by another Member of the House. The reason I spoke as I did about the past was because the Minister spoke about it himself and expressed very strong views about the total unacceptability of movements from unanimity to QMV and about why it was inconceivable that any country would ever agree to that knowing that it might then be voted down. I gave one or two examples of why that was not inconceivable and why that had actually happened and had been in the British interest.

[Lord Howell of Guildford]

I am receiving strong hints—correct hints, I think—that not too much more time should be taken up from this Dispatch Box on these matters, and I will leave that debate aside for a moment.

This Bill is about a further expansion of competencies and powers; it is not about unravelling the past, because we are not in a position to do that, although some would like to. It remains unclear to me why the Opposition want more competencies and powers for the European Union; I am very interested that that is now the official position of the Opposition. I am longing to hear how they are going to deploy that and expand on it in the coming weeks and months.

Let me finally turn to Amendment 39B, which states that the committee must have regard to the urgency of the draft decision. Again, this shows a lack of understanding—possibly through my deficiency in being unable to convey how the system actually works, although there are other people in this Chamber who know it much better than I do. As I tried to explain previously on Amendments 16A and 16B, and as my noble friend Lady Falkner rightly said, one could think of few more urgent things than stabilising the eurozone. It still needs doing, of course, yet the use of the simplified revision procedure to enable member states in the euro area to set up the ESM to safeguard the financial and economic stability of the euro area will take 21 months to finalise. It was agreed in March 2011 and approved at the end of 2012. How could anyone consider that to be urgent? I do not understand what the “urgency” word is doing in that amendment.

There are a couple of other weaknesses in this probing amendment, which I suspect the noble Lord, Lord Liddle, who is extremely experienced in these matters, is well aware of. These amendments do not seem to take account of the work of our excellent scrutiny committees. I know that the noble Lord, Lord Pearson, thinks they are not paid enough attention. There is always the point that our scrutiny should be more effective, but it does go on and it is conducted with great vigour and assiduity under the leadership of people like the noble Lord, Lord Roper, in the European Union Committee of this House. It is within their gift to make recommendations similar to those prepared by the referendum committee at the time when Parliament came to debate the primary legislation required under Clause 6. It could be done there.

Finally, the amendments do not seem to take into account the need for primary legislation—the point that the noble Lord, Lord Hannay, is reminding us of—in all these situations, which would provide for full parliamentary consideration of the decision in question through the rigour of the legislative process. It is therefore not clear how the provisions for resolutions of Parliament would fit with the requirements earlier in the clause for an Act of Parliament. Nor is it clear what would happen if one House approved the recommendations of the committee and the other House did not. Therefore, there is no need for the additional complications and opportunities for prevarication, because that is what we would get with these amendments, along with delay and opaqueness.

It is surely right that if a future Government really believe that a further transfer of power or competence from the UK to the EU is in the interests of this country, they should not be afraid to make the case to the British people and let them decide. Those who might be in favour of more powers to the EU and those who might be against should have the courage of their convictions—possibly more so than in the past—and be prepared to seek a mandate from the public, not from a small group of Parliament or some external committee. That is why I ask noble Lords to withdraw these amendments.

European Union Bill

Lord Hannay of Chiswick Excerpts

Monday 9th May 2011 Lords Chamber

I find it extraordinary, as do my colleagues, that the kind of thinking behind the Bill is that Britain should somehow be content with this creation of a core Europe of which we are not part, because as any time an institutional issue arises all that our Ministers can say is, “No”, and cannot otherwise indicate support for the proposal. Under the text of this clause we will end up with no ability on the part of Ministers to offer leadership in Europe and no ability to offer leadership at home when institutional issues are under discussion. I hope that my suspicions will be proved wrong and that in fact Ministers will be free to indicate support for measures subject to the requirements of the Bill. Otherwise, it is a denial of the leadership that we all want to see from this country. I beg to move.

[Lord Hannay of Chiswick]

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

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

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

[Lord Davies of Stamford]

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

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

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[Lord Wallace of Saltaire]

As a hypothetical situation, at that point it would because it would be a change in power and competence. The enhanced co-operation itself would not. That is the distinction. Let me reiterate: a Minister can make very clear that the Government support a decision but that they must also seek the necessary approval of Parliament and the public first. Britain is not alone in this respect. This is the way in which national Governments very often have to proceed.

[Lord Hannay of Chiswick]

Now that Minister has dealt with enhanced co-operation, can he go back to the chicken and the egg? It would be quite nice to know how he thinks the Council will conduct itself in taking decisions in this matter. This is nothing whatever to do with absence from the Council, which is a complete red herring. This is about what you do in a matter that requires unanimity. Without unanimity, there is no decision in any of the matters that we are talking about. I think that that is common to the understanding of everyone in the House. How is that unanimity achieved so that the British Government can submit the matter to their Parliament or to the public through a referendum if they have not expressed a view, because then there is no unanimity? There is a serious chicken and egg problem here.

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[Lord Hamilton of Epsom]

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

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

[Lord Hannay of Chiswick]

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

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

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

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

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

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

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

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

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

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

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

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[Lord Hannay of Chiswick]

I am a bit puzzled by the noble Baroness’s line of questioning over whether those of us who tabled amendments, including myself, understood that point. Of course we understand that it would require, as she read out, a unanimous decision, including the British Government’s decision, to do that. Nobody doubts that; it means to say that there are no circumstances in which we could be forced to take that decision against our will, and nobody is suggesting that we should. I do not really see what the issue at stake is in that matter. It requires unanimity, like everything else in this part of the Bill. The assumption appears to be—and perhaps it is shared by the noble Baroness—that we are legislating for some weak-kneed, limp-wristed British Government of the future, who will simply give everything away and collapse in a heap. I can see noble Lords’ heads nodding—and there you are. You have proved beyond peradventure that you are trying to break one of the rules of the British constitution that one Parliament does not legislate for another.

[Baroness Nicholson of Winterbourne]

The point of my remarks is very simple. I believe most profoundly, along with a number of others who support the Bill, that that is exactly the sort of transfer of sovereignty—absolutely au fond the transfer of real sovereignty of the kind that matters most of all to us, which is our defence—which should surely be put in front of the British people. I refer to the making of a common defence and security policy. Let us take Amendment 28A; let us recall that the Council of Ministers and the European Council and the institutions of the European Union in their wisdom can make unanimous decisions without many people being present—not only without ourselves being present but without others who would agree with us and are also members of NATO, for example. So we can have a unanimous decision without core members of NATO being present. Those are common defence and security policy issues. I believe most powerfully that that is the fundamental transfer of real sovereignty, which puts many other things in the pale. It really matters.

I would be aghast if that happened through the mechanism that the Government have put forward in this Bill, which is a good Bill and not a great constitutional Bill as the noble Lord, Lord Hannay, suggested. I do not think it is that at all; it is a very good, solid, small and middle-of-the-road Bill, which opens the door for us to speak directly to the British public. I cannot help but feel that if we close the door again, as the noble Lord, Lord Hannay, and his colleagues would recommend, and put down a referendum merely on the euro, which it is extremely unlikely that we will ever join—look at Greece, for a start—and we do not have referenda, it will all be done by Twitter anyway. It will all be done on the web. This mass of knowledge base that the public have will be expressed in another way, and our Parliament will become ever more excluded from what in effect will be the national debate.

My only point is a simple one. The integrity of the Bill is demonstrated by the linkage with the people. The only way in which we as parliamentarians can offer the people a true linkage is by referendum power. I was interested and pleased to see—result or no result—that 42 per cent of the electorate turned out on the referendum last Thursday. People want to express their views. They want to be asked; if they are given the knowledge, they will respond. They are very used to it these days—are not we all, with iPhones and so on? It is most foolish and self-defeating to say, as the noble Lord, Lord Hannay, did, that these amendments, which are in many ways contradictory, as I have already pointed out—some going too far and some not going far enough; in that sense they are really wide of the mark in some respects—do not remove the context in which the Bill is based and would not be foolish in terms of Britain’s future.

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[Lord Flight]

My Lords, I rise to address the amendments tabled in my name. As I understand it, Clause 6 addresses areas that are suitable for the requirement of a referendum in two of the ways in which a veto could be given up which are not covered by Clauses 2 to 4. They are, through the other part of the simplified revision procedure using Article 48(7) of TEU, effectively a third type of treaty change, and the six specific cases are dealt with by the passerelle.

The amendments are grouped somewhat strangely in that my Amendments 35A, 35B, 48A and 48B are on one side of the argument and all the others, with the exception of Amendment 40A, are in one way or other seeking to reduce situations where a referendum and Act of Parliament are required. Self-evidently, I do not agree with those amendments.

[Lord Hannay of Chiswick]

It is astonishing how little listening and how much assertion there is in this debate. I spent quite a lot of time trying to say that the amendments in this group that I and others have tabled do not seek to remove the requirement for primary legislation by Parliament when any of these changes are made. I speak very slowly because it is a point that the noble Lord has just contradicted. Indeed, they are designed to remove the referendum requirement, but not the requirement for primary legislation, which is an addition to the existing requirement under the Lisbon ratification.

[Lord Flight]

I thank the noble Lord for his interruption. He enlightens Members of this House as he has done previously. I am well aware that he accepts the Act of Parliament and that it is the referendum to which he is opposed. He obviously lacks faith in the trust of ordinary people and for some reason does not seem to realise that the tool of the referendum is essentially there as a deterrent in order to discourage the EU gathering more power unto itself and the sort of behaviour that we had from the Government who were in power in this country until the most recent general election.

I will, if I may, continue. The amendments in my name cover examples of areas that come to light, on looking at the various territories to which Clause 6 might relate, in which there is indeed scope for power to transfer from the EU without the check of a referendum, and sometimes even without the check of an Act of Parliament. I am quite sure that there are many other areas in which there remains scope for powers to transfer. The point of my two amendments is, above all, that within the range of areas that it might be deemed appropriate to require a referendum, there is balance in the Bill—a whole range of territories that transfer powers but in which referenda are not required.

My amendments relate to two cases. First, as your Lordships will be aware, Article 25 of the Treaty on the Functioning of the European Union allows the Council to adopt any provisions to strengthen or to add to the rights listed in Article 20(2) of the TFEU. Article 25, which deals with the basic rights of EU citizens, appears to allow a fundamental extension of the scope of EU law. This in effect would alter the list of rights in Article 20(2). Article 25 provisions could well amount to treaty change. Extended rights for EU citizens would transfer power from the UK over whether it accorded such rights to nationals of other EU member states. There is clearly a debate here. Is it appropriate that measures that considerably extend the political rights of non-nationals, because they are members of other EU states, could occur without the agreement of the people living in those states?

The second territory is slightly more complex. Currently the EU is not a party to the European Convention on Human Rights. Lisbon introduced Article 6(2) of the TEU, which provides that the EU will accede to the ECHR, and as your Lordships will be aware this is currently being negotiated. The issue here is that any EU law that is modified in response to a finding of non-compatibility with ECHR rights would subsequently be binding on member states, so if the EU accedes to all ECHR rights—and, yes, I am well aware that there has to be unanimity for it so to do and that it has to go through the appropriate procedures in each country—EU legislation could be altered as a result. Therefore, EU accession to the ECHR could result in a transfer of power from the UK to the EU over whether the UK is bound by the jurisdiction of the European Court of Human Rights in areas that fall within the wide scope of EU law. So here, again, we have the question as to whether such a transfer is appropriate for a referendum.

[Lord Hannay of Chiswick]

I am sorry to interrupt the noble Lord again, but I think it would be helpful if he recognised that the provision in Lisbon that enables the EU to accede to the European Convention on Human Rights is in fact a transfer of powers away from the European Union, not towards it from this country, and it is a transfer to an organisation and a set of judicial procedures to which we are already a party. I therefore find it extraordinarily hard to see how the noble Lord manages to weave this into the tapestry of the Government’s excessive—in my view, in any case—desire to subject matters to referendums.

[Lord Flight]

While there is obviously a differentiation between the European Court of Human Rights and the EU, the point I was making was that if there is accession the result could be an important overriding of UK law by the ECHR and decisions taken by the ECHR in due course becoming binding in the law of this land. This is effectively a change and a giving away of power by the UK to the ECHR rather than the EU in terms of its law making.

To conclude, these two amendments are essentially illustrative. As I commented earlier, looking across the total territory, there are many areas where the arrangements surrounding the EU and bodies such as the ECHR continue to cater for powers being taken without the requirement of an Act of Parliament and certainly without the requirement of citizens having a say in it. The argument that this Bill is right over the top in terms of the areas where it requires a referendum is nonsense. Let me assure your Lordships that there are scores of other areas where a transfer of power could occur where no referendum is being provided for.

Contrary to the arguments put by noble Lords from the other side of the House, a reasonable balance has been adopted by this Bill. Those of us who are perhaps on the other side of the argument would make the point that there are many areas which this Bill does not address where we can still see scope for power being transferred.

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[Lord Hannay of Chiswick]

I know that it is late but will the noble Lord please not say that these amendments are designed to remove the requirement for an Act of Parliament? Not a single amendment being moved tonight requires the removal of the need for an Act of Parliament. The people who are moving these amendments, including myself, accept that the Lisbon treaty procedures of merely requiring resolutions from the two Houses are inadequate and that there needs to be an Act of Parliament when these powers are shifted—if they ever were, and they could be so only with the agreement of the British Government of the day. Therefore, can we please not have the misunderstanding that this is about more than removing a referendum requirement? That is all that these amendments set out to do.

European Union Bill

Lord Hannay of Chiswick Excerpts

Tuesday 3rd May 2011 Lords Chamber

[The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)]

My Lords, I begin by welcoming the noble Lord, Lord Triesman, to the forefront of the Opposition's concerns about this Bill. I think that he and I exchanged views from the Dispatch Box during the passage of the Lisbon treaty. We covered a great deal of ground then, and I think that we learnt a great deal from that process. Indeed, the British people learnt a great deal from the Lisbon treaty process, as did the whole of Europe. I look forward to lively debates with him in the future.

I have to say in parenthesis that should this Bill become law, the future will not be at all as the noble Lord describes it. The picture of a dribble of referenda on small issues completely misunderstands the way in which the European process works now or will work in the future, whether this Bill is on our statute book or not. I have obviously explained that insufficiently because the message has not got over, but as we continue our debates I hope to be able to make clear that the pattern will not be dissimilar to the pattern of the big treaty packages in the past, the difference being that if they contain matters that might look small but could be highly significant for this nation because they involve a transfer of competence or powers beyond the level of insignificance, that certainly requires consulting the British people. That is a very widespread view which this Government believe is important to satisfy in order to build a better consensus for the European Union than we have today from the British public.

However, that is for other debates: debates that we have already had and debates in the future. On this issue, we have had a very elegant exchange on the two sides of the argument. It is a debate in which the Government’s position is quite clear, as I shall make plain in a few moments. I find that when your Lordships tackle this sort of issue we put up a superb performance and all sorts of aspects are developed that do not necessarily emerge in the pattern of debates in the other place.

The amendments would alter Clause 4 to create an automatic requirement for a referendum in the UK to approve the accession of a new member state to the European Union. As your Lordships know, the UK has never required a referendum on accession treaties in the past, and this Government have been clear that there should be no referendum requirement merely for the accession of any new member state. That was the position also taken by the previous Government, of which the noble Lord, Lord Triesman, was a member. Why is that so? The simple point is this: the accession of a new member state alone does not constitute a transfer of competence or power from the UK to the EU. The transfer of powers or competence to the EU would be from the member state joining the European Union, not from the UK. Of course, there are some effects, possibly including a change in bilateral relations if a country becomes a member of the European Union. No one disputes that, but we are not really talking about effects or impact; we are talking about the transfer of powers and competences.

I apologise if that sounds narrow, but that is the limitation of the provisions of the Bill. Of course, we are aware of the need to avoid providing a loophole in our referendum provisions in case there is a proposal to use an accession treaty to transfer power or competence from member states other than the acceding state. That could occur, so this Bill provides for a clear requirement for a Ministerial Statement to be laid before Parliament about whether an accession treaty constituted a transfer of competence or power from the UK to the EU in accordance with Clause 4. If the Minister decided that such a transfer was proposed, a referendum would then be required, but if there was no such transfer no referendum would be required. I hope that reinforces the point that I was making earlier.

[Lord Hannay of Chiswick]

My Lords, as the Minister has touched on this point so clearly, will he make it quite categorical that if a Croatian treaty of accession in the next year or two is brought before Parliament and it contains the provisions on Ireland and the Czech Republic that were agreed as part of the ratification process of Lisbon, in which it was stated, by us as well, that they will be included in a future accession treaty, that will not give rise to a referendum requirement?

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[Lord Blackwell]

I am grateful to the noble Lord for his clarification. However, he talks about trust, and I have to say to him that the reason why the British people have lost trust in politicians to represent them in Europe is that over many years they have seen politicians stand up and say, “Minor changes. These won’t affect you”, but cumulatively those changes have added up to a huge shift in powers.

These brakes were put in the treaty, which was agreed by Parliament. The noble Lord may not want to remove them this year, but when does he want to do it? If he wants to do it at some time, that would be a substantial weakening of the current treaties. In the spirit of the Bill, which I wholly support, I regard anything that removes a veto or anything akin to one as a major change to the treaty that should not be carried through by Government without the provisions of the Bill requiring that as a major change it should be put to the people in a referendum.

In his speech, the noble Lord attempted to confuse the House by suggesting that the referendum would make it difficult for the UK to use these powers. I should make it clear—the Minister can correct me if I am wrong—that nothing in the Bill requires a referendum for the UK to use, or not to use, the emergency brake. The Bill is entirely silent about the use of Articles 48, 82 and 83. It simply says that if the EU seeks to amend the terms of the treaties under which we can use those emergency brakes, that will require a referendum. Whether or not the use of the emergency brakes itself required a referendum would depend on the substance of the matter that was contemplated being brought forward under those provisions, which would fall under other aspects of the Bill.

Removing the subsection, as the noble Lord is attempting to do, would mean that at some point in time a future Government could give away these vetoes without requiring that to be brought back to the people. That is exactly the kind of action that has led to the loss of trust of people in politicians and, unfortunately, in this Parliament, to protect them in this matter.

[Lord Hannay of Chiswick]

I am sorry that the noble Lord’s absence from earlier debates has not enabled him to catch up with where this debate has got to. Some of us were attempting to reduce sharply the number of provisions that require a referendum, for a number of reasons that are not the ones that the noble Lord, Lord Stoddart, gave but are related, as the noble Lord, Lord Liddle, said, to whether or not you believe in representative parliamentary democracy and the powers of Parliament. A number of us who have done so have put forward amendments that would effectively leave in the Bill the strengthening from the ratification of Lisbon powers, which means simply that if these changes were to be made there would need to be a resolution in both Houses, but would leave intact in the Bill a requirement for primary legislation before Britain could agree to that. That would be a strengthening of parliamentary authority in areas such as this, which in any case require unanimity. The idea that there is not a lock there is completely aberrant. What there is not, if you follow the amendments, is a lock plus a referendum, and that is for principled reasons that I have briefly attempted to explain. I am sorry to interrupt the noble Lord, but really and truly the situation is not quite as he suggests. Those of us who are trying to reduce the number of referendums are not trying to weaken the power of Parliament but to strengthen it.

[Lord Blackwell]

I thank the noble Lord for his intervention. Actually, I am fully aware of the nature of these amendments, all of which attempt to undermine the purpose of the Bill, which is to require a referendum if there is a major change to the treaties or a major shift in power. That is a principle that I fully support and which the noble Lord is attempting to undermine.

I hope that there will never be a referendum under the Bill because I hope that no Government will ever seek to transfer further power to the European Union in a way that would require the referendum requirement to be enacted. In hoping that we will never have such a referendum, I probably agree with the noble Lord. However, if we are going to restore the trust of the people of this country in the EU, we have to give them the cast-iron guarantees that the Bill provides and not undermine it in the way that the noble Lord, Lord Liddle, seeks to do.

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[Lord Waddington]

That is the example that comes to mind. There are three or four of them in the Lisbon treaty, but I do not have that information and, unfortunately, I cannot give it to my noble friend, but I will write to him, if he wants it. There were two or three other occasions; I am not saying that they were earth shattering, but it is alarming that the Select Committee did not spot that new law was being made here. That is the point I am making. It is alarming that new law could be made without holding a referendum, and it is doubly alarming that one of our expert Select Committees in this House did not spot what was happening on that occasion. It should not happen in future.

[Lord Hannay of Chiswick]

As a member of the EU Sub-Committee that was the author of that example, I should enlighten the noble Lord on the process. First, what he has said in the past few minutes is based on an interpretation that is a complete fantasy, whereby if this Government and country are party to an intergovernmental agreement, they can walk out of it when they like. They cannot do that. It is a matter of good faith and the law on treaties, and you cannot do that.

The noble Lord is quite right to say—and the text he read out demonstrates this—that we were perfectly well aware that the CFSP and the ESDP were being shifted from an intergovernmental basis on to a treaty basis. That is what we said in our report, but the key point was that the provisions for taking decisions within the Lisbon treaty in this area require unanimity, and there would be no surrender of powers or competences whatever. I am sorry—I will speak to the amendment in a moment, but I wished to correct that point.

[Lord Waddington]

With the greatest respect to my noble friend, he is in error. There was an intergovernmental agreement. You can say that that gave a competence to the EU, but it could have been withdrawn in a moment by just a communiqué between the member states. The noble Lord is surely not saying that it was a matter of insignificance to transfer an intergovernmental agreement into cast-iron treaty law. He is surely not saying that the report from which I read out made clear to its readers that, in fact, new law was being made on that occasion. The report does not say anything like that. It was certainly not a clear statement that an intergovernmental agreement was being transferred and converted into community treaty law.

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[Lord Blackwell]

I said that I had some sympathy with the amendment, and I very much hope that the Minister will be able to reassure me. To my mind, that was an example of a practice coming into effect which could then be claimed was an existing practice that simply needed to be codified. I am not a lawyer, but if something can be done under an existing competence, why does it need to be codified? The EU already has the power to do what it needs. If something is then codified, the danger is that it creates a new base, or ratchets up the base, from which we can then have further ingenious development in practices. I am therefore very nervous about allowing codification of this sort to take place when, if the EU is already doing it, codification does not seem to be needed. I would very much welcome the Minister explaining and perhaps thinking again about whether that exemption is required in the Bill.

[Lord Hannay of Chiswick]

My Lords, I will now argue against the amendment on substance, having dealt with the ancient history to which we were all subjected previously; I do not want to go back on that.

A common-sense application to the amendment would lead one to regard it as bizarre. The object appears to be to ensure that if the European Union, with the agreement of the British Government—which is required under unanimity—conducted an act of genuine codification, we would have a jolly referendum about it. All I can say is that if noble Lords really want to go around this country stirring up apathy about the codification of some obscure piece of European law, common sense has flown out of the window.

The amendment is being moved, and support for it being given, on the basis of fear that a British Government will not know enough about the process to distinguish between a real codification and—in the parlance of noble Lords who support the amendment—competence creep. It is not sensible to add to the 56 other matters, to increase the number of referendums on a subject on which it is frankly just not credible that you could have a sensible political campaign involving the whole electorate of this country. I am not in favour of that.

[Lord Waddington]

I hope that the noble Lord will appreciate from the very fact that I am not pursuing the amendment that I use it as an opportunity to point out the severe error committed by members of his Select Committee when it carried out its study into the impact of Lisbon. I hope that he will always bear that in mind in future and that the error will not be repeated.

[Lord Hannay of Chiswick]

I am afraid that the noble Lord is going to be disappointed.

[Lord Howell of Guildford]

My Lords, if there are no further comments from your Lordships on this issue, it remains for me to seek to allay the fears of my noble friend Lord Waddington on a matter which is undoubtedly complex. Indeed, as the noble Lord, Lord Liddle, remarked earlier, the entire area is complex because the interface between the powers and competences of the European Union and the powers, rights and obligations of the nation state members is vastly complex and, in some senses, is in a somewhat fluid state. Indeed, it is that very fluidity that gives rise to the unease for which I believe there is substantial evidence, and I speak as someone who has been involved for just short of 50 years—even before the UK joined the then European Community—in trying to see that the European Union works in a balanced, effective and beneficial way. Over the past few years, not only in this country but in many countries we have seen an appalling record of declining confidence in, support for and public consensus over the whole construct of the European Union. In my view, the EU has conferred considerable benefits on its members and on the peace and stability of the whole world in the past, and, provided it proceeds in a sensible way with good public support, it will do so in the future in a number of, although not unlimited, areas. This is a perfectly sensible aspiration and one which I think the Bill and its aims reinforce, although I realise that that is not understood or accepted by noble Lords opposite.

The amendment would remove the provision setting out that future treaty changes which serve to codify practice under the treaties, in relation to the previous exercise of an existing competence, should not in principle require a referendum. My noble friend is concerned, as he says Members in the other place were during debates on the Bill, that codification could be used as a vehicle for transferring power or competence from the UK to the EU and that this provision might provide a loophole to allow such a transfer under a future treaty change without a referendum. If a treaty change is merely a codification of the previous practice of existing competence and nothing else in that treaty would fall within Clause 4(1) of the Bill, the Government do not think that a referendum should be required and the matter would proceed on that basis. Genuine codification—I emphasise “genuine”—is not a transfer of power or competence. The EU competence in question already exists and the EU has already acted to that effect. Even if the UK did not agree to codify existing practice by means of a treaty amendment, the EU would be able to continue to act within the relevant existing competence. Therefore, in effect there would be no point in attempting to go down another path because the EU would already be doing what it was doing within the existing competence.

An example of a treaty change which we would consider to be codification would be the introduction of a separate legal base for action previously taken to provide macro-financial assistance to some third countries. Article 352 of the TFEU, which we all know well, was used in April 2004 to provide macro-financial assistance to Albania. It was then used a further seven times to provide macro-financial assistance in a similar way to other countries. When the Lisbon treaty came along, it codified this use by providing a separate legislative base under Articles 212 and 213 of the Treaty on the Functioning of the European Union, which cover economic, financial and technical co-operation with third countries.

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[Lord Pearson of Rannoch]

My Lords, I speak against these amendments. Amendment 23B assumes that the EU single market is a good thing for this country. That is a common misconception among the political class upon which I should like to cast a little doubt. This is a big and detailed subject and I recommend that any serious student should consult the briefing notes on the globalbritain.org website, which demolish the whole myth of the EU's economic usefulness and that of its single market.

The background point, which is not generally understood, is that the single market is more than a free trade area, it is a customs union. This means that a single customs barrier surrounds all the countries in the Union, whose international tariffs and trading arrangements are negotiated and decided centrally by the European Commission. In a free trade area, on the other hand, the countries concerned enjoy free trade among each other, but they remain able to make their own tariff arrangements with countries outside that area. They have their own seats on the World Trade Organisation and they are also able to make their own domestic law in areas such as working time, health and safety at work, part-time workers and so on.

So a country does not need to belong to the EU to enjoy free trade with it. According to a recent government Answer to me, the EU and its single market already have free trade agreements with some 63 countries outside the EU and are on their way to having similar agreements with another 75 countries, or roughly 80 per cent of the other countries in the world. It is perhaps worth noting that both Switzerland and Norway, not in the EU or its single market, both export more per capita to the single market than we do; Switzerland three times as much and Norway five times.

[Lord Hannay of Chiswick]

I am grateful to the noble Lord for giving way, but I fear that he is in danger of misleading the House fairly elaborately in this matter. He is talking about three things, not two: the first is a free trade area, the second is a customs union and the third is the single market. Norway, he has just stated categorically, is not part of the single market. I am afraid that he is in error. It is part of the single market, and it applies single market legislation by receiving fax messages from Brussels telling it what it has to do. The members of the European economic area are in the single market but are not in a customs union. However, I am not totally sure that this line of argument is going to get us very far—but it would be useful.

[Lord Pearson of Rannoch]

I do not want to delay the House, but that is why I made the distinction between a customs union and a free trade area.

The worst aspect of our membership of the EU single market is its sheer cost. Like their predecessors, this Government are determined to avoid an official cost-benefit analysis, and so we are left with the eight analyses that have been produced since the turn of the century, four of which are pretty much official, and which put the cost of our single market membership at anything between 4 per cent and 10 per cent of GDP. Indeed, the highest cost estimate came in 2005 from the Treasury itself in a paper entitled Global Europe: Full-Employment Europe under the signature of Mr Gordon Brown when he was Chancellor of the Exchequer. It put the cost of EU regulation at 6 per cent of GDP and of EU protectionism at 7 per cent. In March 2006, the French Conseil d'Analyse Economique, which is attached to their Prime Minister’s office, found that France had gained nothing from the single market or, indeed, the euro. In June 2006, the Swiss Government published their finding that joining the EU and its single market would be nine times more expensive than staying with their current sectoral free trade agreements with Brussels. Later in 2006, the EU Commissioner for Enterprise and Industry, Mr Günter Verheugen, said that EU regulation was costing its members some €600 billion a year, or around 6 per cent of GDP at the time.

One of the troubles with being in the single market is that this EU overregulation, whatever it costs, applies to the whole of our economy, not just to the 9 per cent that trades with clients in the rest of the EU. So the 11 per cent of our GDP that goes in trade with the rest of the world and the 80 per cent that stays in our domestic economy—91 per cent of our GDP—has to carry the burdens of Brussels’s overregulation. There are, of course, those who fear that were we to leave the EU and its single market our trade would somehow suffer and that, to quote the propaganda, 3 million jobs would be lost. The truth appears to be the opposite: trade would expand and jobs would be created. It is, of course, true that we have 3 million jobs exporting goods and services to clients in the EU, but they have 4.5 million jobs exporting goods and services to us. We are, in fact, the EU’s largest client. Would the French stop selling us their wine or the Germans their cars just because we had left the single market and were no longer bossed around by Brussels? Of course not. There are also the points that the World Trade Organisation would prevent any form of retaliation were we to leave and that the EU’s average external tariff is now below 1 per cent. Our trade is going up faster with the rest of the world than with the EU, both inwards and outwards. Our exports to the EU single market are declining. The single market is sclerotic and overregulated and its demographic trend is against it. It is the “Titanic”.

It is also hard to think of any other customs unions along the lines of the EU. There was the Soviet Union, and there may be something similar in the Caribbean, but nowhere else. Mercosur in South America does not count because its members are free to agree their trading relationships with non-members. Can the Government advise us of any other customs unions like the EU? If not, does that not suggest that it may not be such a great idea?

As to Amendment 23F, I do not think we need the EU getting more involved in financial regulation. Commissioner Barnier has openly said that he does not favour what he calls the Anglo-Saxon model, and we have yet to feel the damage done to the City of London and its ability to pay tax by the new EU supervisory bodies. When the movers of the amendment say that they do not want it to interfere with the UK’s general approach to financial regulation, I ask whether they have Monsieur Barnier’s agreement? The deed is done. Overall financial supervision has passed to Brussels. No provisions in this Bill will prevent that.

As to Amendment 23H, I fear that those of us who come from the Eurorealistic perspective would rather that the unelected Commission did not continue to negotiate on our behalf in a new global trade round. As the world’s fifth-largest economy, we would rather do it for ourselves.

Finally, is it not really grotesque that an organisation that has so dismally failed to look after the vast sums entrusted to it by the taxpayers of Europe should have its powers strengthened, or made more effective, as the amendments have it? More will certainly mean even worse, and I oppose the amendments.

European Union Bill

Lord Hannay of Chiswick Excerpts

Tuesday 3rd May 2011 Lords Chamber

[Lord Taverne]

My Lords, the previous two speakers eloquently demonstrated the importance of these amendments. They made a passionate plea for a much more sensible and enlightened policy towards Europe. I will deal with one particular aspect: Amendment 23F and the banking crisis.

There are two aspects to the current financial crisis in Europe: sovereign debt and bank liquidity. Many continental banks are undercapitalised. They need more rigorous stress tests as a basis for recapitalisation. National regulation and supervision have failed. We need a special EU-wide resolution regime. We need new, more effective European regulation. If we have that, it will of course give new powers to Brussels and that, as I understand it, would trigger a referendum. The question arises: what sort of question would be posed in a referendum dealing with bank regulation?

Leaving that aside, it will mean that in the course of negotiations taking place in Europe, when negotiators are being very careful and thinking that they can achieve something without triggering a referendum in Denmark or Ireland, or an adverse ruling of the German constitutional court, our negotiators will have to have regard to the fact that there will have to be a referendum. They will be inhibited and looking over their shoulders: they will be negotiating with their hands behind their back. Since this will be an obstacle to reaching a very important area of agreement, the likelihood is that we will be bypassed.

Already we are being bypassed in many important respects. While John Major wanted to be outside the eurozone in a multipolar Europe, it seems that Mr Cameron has more or less accepted that there will be a small but very powerful unit in Europe. We will find that being in the outside lane of a much less congenial Europe is not a particularly effective experience for very important aspects of our economy. I have heard Treasury officials saying that we are now in the same position as Latvia, asking what agreements are being reached in rooms where the important people are meeting.

A story was told at a conference I went to about an occasion when Gordon Brown insisted on being present with eurozone Ministers. They said that they would meet him, but the press outside were speculating on how long he would last: would he be out in five minutes? In fact, that was precisely what happened: after hearing him for five minutes, they thanked him, said that they must now have their private meeting and asked him to leave. He could not face the press after five minutes, so he stayed in the lavatory for half an hour.

It is not very dignified to be outside the corridors of power. This, however, will be much worse. Obviously there were problems about joining the eurozone, but the regulation of banks will affect the City profoundly, and it will be another case where we are likely to be bypassed.

[Lord Hannay of Chiswick]

My Lords, I will address Amendments 23C, 23D and 23E, as did the noble Lord, Lord Deben, who gave us a brilliant illustration of why flexibility in this area is not only desirable but necessary.

I have, off and on, had quite a few dealings with the issue of energy in the European Union, and I have to say that we have got it comprehensively wrong. In the 1970s we fought desperately—of course, Mr Tony Benn was the Minister at the time—to avoid the European Union having any responsibility in this field whatever in case it stole our oil, which it was never going to be able to do because European law is perfectly clear on that point, and so we prevented any policy emerging then. Then, when the Single European Act was passed, we allowed—I agree that by then we were not favouring it—energy to be kept out of the single market at that stage because of the objections of the French and the Germans, and that was a disastrous mistake. Now, when we have discovered that we are not one of the three major oil and gas producers in the world, we have discovered, surprisingly, that we could do with a common energy policy, but it is quite difficult to get; and, as the noble Lord, Lord Deben, has said, it is in an area of shared competence. So it may very well be that, sometime in the not too distant future, we will want to support some changes that will give more powers to Brussels in the area of energy security, competition, interconnectors and all these things; yet here we are subjecting all that to a referendum requirement under which the no campaign would no doubt say yet again, “This is the European Union coming to take all our North Sea oil”, and so on. The result may very well be negative because that campaign would be very emotive. Heaven knows what the Scots would think about it—quite a lot, I should think.

I do really feel that this illustrates the case for flexibility—and the same is true on climate change. It is rather clear that the European Union will struggle under its current institutional arrangements to find a way forward through the next 30, 40 or 50 years on climate change. Things are going to be very different. Crises are going to emerge and Europe is going to have to find a response to them. Some of those responses may involve new powers for the Union as a whole. And yet again, this will be made extraordinarily difficult by the provisions of the Bill.

I am not saying that these particular amendments are the last words in wisdom on this particular issue, but I do really think that the Government ought to be taking this a bit more seriously. We have not had a single serious response from the Government since we began this Committee stage on any point that has been raised. I am waiting now for the response to this debate to have, for the first time, a serious response to the substance, because we have not had it so far. Those are issues of major importance. I think that if the Government were to go away and reflect on this now, they would see the wisdom, at the very least, of truncating the list of issues on which there need to be referendums.

[Lord Empey]

I am grateful to the noble Lord for giving way. A lot has been talked this evening about energy. Maybe I am missing something, but any of the energy sources that we will need for our future security will come from outside the European Union. In other words, they will be merely transmitted through the European Union, and that will largely be down to the authorities in each country, including planners, as to whether they will allow these things to pass through.

I was involved in a gas pipeline that transmitted from the United Kingdom to the Irish Republic and from the different parts of the United Kingdom to the Irish Republic directly. The European Union contributed financially towards it, because it could be done under a whole range of headings—infrastructure, the cohesion fund, economic development, climate change issues, carbon reduction. There are many mechanisms already in existence. I may be wrong on this, but I feel that the energy example is not necessarily the most relevant.

[Lord Hannay of Chiswick]

I am afraid to say that I believe that the noble Lord is wrong on this. He has used a particular example of which he has very great experience. It is extremely interesting for the House to hear that example, but it is not very typical. It does not deal at all with the issue, for example, of whether it might be in the interests of the European Union in the not distant future to give a negotiating mandate to a body—whether it is the Commission or the presidency or whatever it is—to negotiate for energy supplies from outside the European Union, particularly gas, and to negotiate as a single unit. That would require new powers. It is as simple as that, and is, I am afraid to say, nothing whatever to do with building a pipeline between Ireland and Northern Ireland, interesting and important though that was.

I think there is serious matter in the energy field, the climate change field and the pollution field to reflect on here and a need for greater flexibility. I plead with the Government that we do not have the preprandial/postprandial schizophrenia that we have had in recent Committee stages in which in one session we are told that we need not worry about this enormous number of referendums because none of them will ever take place and we will stop anything happening in Brussels that will cause them to take place and then immediately afterwards we are told that we need not worry because the European Union does not work that way, and there will be a big package and we will all be able to find some nice sugar-plums in it for ourselves. I thought that was where we came in and decided that that was nothing that we wished to encourage in future. I think the Government need to make up their mind whether they are trying to lock the door and throw the key away, which is what this Bill does, and the consequences of that are pretty damaging for this country, or whether they are trying to propel the European Union towards another big institutional package, which I do not believe to be in the interests of this country. I would like to hear a response on Amendments 23C, 23D and 23E.

[Lord Willoughby de Broke]

My Lords, on the issue of climate change, the subject of the amendment that we are supposed to be talking about, several hours ago the noble Lord, Lord Wallace, said that Amendment 21 was the most useless, superfluous amendment that he had come across during the hours of Committee stage. I believe that Amendment 23C actually takes the palm as the most useless and redundant amendment we have had. The idea that the European Union is effective in climate change is frankly laughable. Let me remind your Lordships that our policy on emissions is guided entirely by the EU and we have to have 20 per cent of our energy from renewables by 2020. Of course, there is not the remotest chance of achieving that, and in the past couple of years, that aspiration—that dream—has begun to collide with reality.

Just to give your Lordships a little information on that, I shall repeat what was said in two sets of figures from two separate reports over the degree of delusion that surrounds the wish of our Government in Brussels and their subsidiary here in Westminster that the centrepiece of our energy policy should be to build ever more windmills. The report that drew most attention was from a Scottish environmental charity that focused on the fact that last year, despite our building ever more wind farms, the lack of wind meant that they operated on average at only 21 per cent of capacity, and that was during the period of highest demand. Several times when demand was at its highest the contribution of wind to our electricity supply was virtually zero.

I do not know why, but less attention was given to an interesting report put out by our Department of Energy and Climate Change showing that the 3,168 turbines that we have built at a cost of billions of pounds contributed on average less than the output of one large coal-fired power station. From the DECC figure, it is possible to work out that for this derisory contribution we paid through our electricity bills a subsidy of nearly £1.2 billion on top of the price of electricity itself. In return for getting 3 per cent, roughly, of our energy, nearly 7 per cent of our bills are paid in subsidies for these completely useless wind farms, and that will go up as years go on because we have committed to this 20 per cent from renewables by 2020. That report dealt with last year.

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[Lord Willoughby de Broke]

The noble Lord says, “happily we are going to close down”. I hope that he has got a generator in his house so that he can watch his television and read his books because with wind power that simply will not happen. Nuclear of course is a different matter, but let us not get into that debate right now.

[Lord Hannay of Chiswick]

I merely want to congratulate the noble Lord on having raised the issue of gas storage, which is a subject close to my heart. I ask him to recognise that the best way to improve the level of gas storage in Europe would be to impose a minimum gas storage obligation through the European Union.

[Lord Willoughby de Broke]

Surely it could be up to the nation member states to impose their own minimum gas storage obligation. Why do we have to do it through the European Union? It is perfectly ridiculous. This unhealthy EU obsession, which is what it is—I am very sorry that the previous Government and this Government seem to have signed up to it—of using wind power to keep our lights on is one of the most damaging fantasies of our time. I oppose the amendment and I hope that it will be dealt with accordingly.

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[Lord Pearson of Rannoch]

My Lords, the noble Lord, Lord Deben, was good enough to mention me in his few remarks and to accuse me of what I think was the impossible and most undesirable dream of the United Kingdom being altogether free of the European Union in all these matters. He is of course correct. However, he then mentioned the common fisheries policy as though that has to be solved by the European Union and as though the EU will not solve the acknowledged disaster which the policy is, environmentally and in every other way, if it is prevented from doing so. Surely, from our point of view, as I have mentioned before, the answer is terribly simple. We simply leave the European common fisheries policy and take back our international waters. Seventy five per cent of the fish which swim in European waters all the year round swim in waters that used to belong entirely to the United Kingdom before we made the mistake of joining the European Union. We then manage our own waters, re-establish our fish stocks and let out any surplus to foreigners.

On energy, the noble Lord again believes that the European Union is essential to solve our energy problems but, surely—

[Lord Hannay of Chiswick]

I am afraid that the noble Lord is yet again misleading the House. The waters did not belong to Britain before we joined the European Union. We had 12-mile limits in those days and the areas beyond those limits were high seas. The decision to go out to 250 miles was taken by the European Union collectively when we were a member.

[Lord Pearson of Rannoch]

Yes, but we should not have gone along with that decision because we should not have been in the policy in the first place. I therefore insist that most of the fish which swim now in European waters and are fished by European boats used to belong to us and they could and should belong to us again. I do not wish to detain the House—

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As I think the architects of Lisbon hoped, a new treaty may arise in the longer-term future, but that is some way ahead. It may be five or 10 years away. It could be a very big package indeed designed to adjust the European Union to the new international landscape, just as my right honourable friend the Foreign Secretary is seeking, through his speeches in the network world in which we are now operating, to adjust the position of the United Kingdom and the whole European Union stance in relation to Asia, Latin America, the emerging powers and Africa. The rising, looming power of China probably needs adjusting for as well. I would not rule out the need for a treaty five or 10 years ahead. When that treaty comes, it will contain many issues that involve extensions of competence. It might even contain issues that involve the retreat of competence, but the extensions of competence will be there. Extensions and transfers of power will probably be there, and that treaty, in the view of the coalition and of 84 per cent of the British people, will require a referendum. That is what some—I admit, not all—of us argued for over the Lisbon treaty. That is what the Government agreed to over the constitution for Europe, which was the predecessor of the Lisbon treaty, and that is what most people in the United Kingdom want to be reassured about. To make certain that that happens, we must have an admittedly elaborate and complex set of arrangements to ensure that all kinds of transfers of power and competence do not creep under the radar or take place without proper transparency and consultation of the British people after the necessary parliamentary Acts have been passed.

[Lord Hannay of Chiswick]

I am sorry to interrupt the noble Lord, but no one, as far as I know, has tabled an amendment to Clause 2. It states that if there is a major new constitutional package there will have to be a referendum. No one has argued about that—not one person. What we are all arguing about is whether you need this cascade of Clauses 3, 4, 5 and 6 that block off the non-intergovernmental conference treaty big-package route. Honestly, I ask the noble Lord not to answer the wrong question. All the amendments relate to this cascade of referendums for matters that are dealt with within the Lisbon treaty.

[Lord Howell of Guildford]

The noble Lord, who is very skilled in these matters, knows that he is putting the question upside down. It is dangerous to halt a cascade, because you may have to divert it, and the cascade that the Bill is designed to halt is the cascade of small competence and power transfers that have been going on over the years in many areas and have caused a lot of people to fear that competence creep—I am sorry to repeat that unfortunate term—and power creep are continuing all the time, allegedly under parliamentary control, but somehow without proper public discussion, and certainly without the consent of the people.

The referendum-lock device is precisely to ensure that when the big transfers of competence and power come, they are in a clear package. The noble Lord said that that was the wrong thing to talk about, but that is the way that it will happen, like the Lisbon treaty, and the country will be invited, because of the many items that will involve competence transfer, to have a referendum on them. That is precisely my point. There will be no cascade because, if the Bill works effectively, which I think it will, the great changes needed in the 2020s and 2030s in the European Union, as it adjusts to new conditions, will have to be treated in a substantial treaty that must and will automatically trigger a referendum. That is entirely right and it will offend only those who, like my noble friend Lord Deben, do not like referenda at all. However, for most people, including 84 per cent of the country, or their children, that will be the right way to proceed. It should ensure that some degree of trust, reconnection and support for the great European cause is resurrected. At present that support is fading away very fast. It is draining away in Finland, Hungary, to some extent in Poland and in many other countries. I am not sure that even in Germany these matters carry the popularity and support needed for the kind of reforms we want to see in Europe.

This is a very serious matter. I do not say that this Bill alone will do the job of reconnection—of course it will not. We need leadership, articulation and an understanding that giving more and more powers to the centre is an outdated 20th century idea and that the more you accumulate powers at the centre, the more you get public disaffection and remoteness. That must be understood. It must be understood that in this networked age, you do not need centralisation to carry out effective powers. Once that is understood, we will begin to get shapes in the European Union that relate to and connect with the people, as the Laeken declaration pleaded for almost a decade ago. That is why I believe that these exemptions will increase mistrust and take Europe back, rather than forward to the 21st century adjustment needed in the information age, and why I therefore plead with the noble Lord and his colleagues to withdraw the amendment.

EU and NATO: Peace in Europe

Lord Hannay of Chiswick Excerpts

Thursday 28th April 2011 Lords Chamber

[Lord Howell of Guildford]

The Libya issue is going a bit further than this Question, but the Americans are playing an active part, as we know, in a whole range of areas in trying to bring some stability to a divided Libya. Other members of NATO are in constant dialogue and have been asked whether they will contribute. It is true that not every member of NATO is involved. There is the particular question of Turkey, which has not so far played a hard-power part in the NATO operation. At least this is a core of members in NATO and it is under NATO organisation as a whole, so it is working.

[Lord Hannay of Chiswick]

Does the Minister not agree that conducting a beauty contest of the sort posed by the Question is a futile exercise and that what we really need to be focusing on is how NATO and the EU can work together and co-operate in areas where they are both involved, of which there are quite a lot in the Balkans and north Africa? Will he say something about the progress of the remit that was given to the High Representative, the noble Baroness, Lady Ashton, and to the Secretary-General of NATO at the NATO conference last year to report by this spring on how the problems that have arisen about co-operation between the two can be eased?

[Lord Howell of Guildford]

The short answer is that foreign ministers, including our own Secretary of State, the noble Baroness, Lady Ashton, and NATO leaders are on the case. There is pressure to try to make progress and overcome the particular problems that arose over the Cyprus-related issue of Turkey, with which the noble Lord is extremely familiar, which have slowed down the integration and co-operation. Even so, in areas such as the West Balkans, where Eurofor and KFOR are operating, they have worked very closely together, so at a practical level there has been progress but on the bigger issues, which tend to be the visible ones, I agree that it has been slow progress for precisely the reason I mentioned.