European Union Bill

Lord Howe of Aberavon Excerpts

Tuesday 22nd March 2011 Lords Chamber

[Lord Howe of Aberavon]

My Lords, it is ironic that I am speaking in this debate, which was opened by my noble friend Lord Howell. Many years have passed since we first addressed this question, at a time when he was handing over to me, or rather vice versa, the editorship of Crossbow in 1968. That distinguished journal is still with us. It published a 20-page supplement on the Rome treaty and the law, written by Dennis Thompson, which set out clearly the direct impact on the law of this country of accession to the treaty. There is no mystery; it has been there all the time. I congratulate my noble friend and the noble Baroness, Lady Symons, on their speeches, in which they addressed the problem with lucidity and balance, although without agreement.

I find myself dismayed by the persistent degree of schizophrenia implicit in the Bill, which is foreshadowed in the coalition agreement. Perhaps the coalition is by definition likely to suffer from schizophrenia. There are two themes running through this. First, there is the oft-repeated proposition that we want Britain to play, in the words of the coalition agreement,

“a strong and positive role with our partners, with the goal of ensuring that all the nations of Europe are equipped to face the challenges of … global competitiveness, global warming and global poverty”.

The text echoes the comparable but much more dramatic phraseology of Winston Churchill in 1950, when he called on Europe to unite.

Alongside that encouraging part of the agreement is the negativity of two commitments. The first is that no further powers shall be transferred to Brussels without a referendum. That is an absolute, comprehensive proposition. The second commitment is to examine the balance of existing competences and limit the application in some respects, and so on. What emerges from that has been commended by some people on the basis that we will live in an atmosphere with a host of referendum locks. The phrase “referendum locks” distresses me in the approach towards referenda.

The noble Baroness, who has now returned to her seat, referred to the difficulty of understanding the purpose of referenda. All of us who are sincere about this would be anxious to see an enhancement of the understanding of the British people of what the Community is about and how it works. We have failed to deliver as much of that as we should over the years, although great statesmen have endeavoured to do so. It could be the case that referenda by the score would be instructive and educative, but I am doubtful about that in the technical context in which we live.

Referenda are not being commended in this legislation because of their constructive effect. I am afraid that they are there, in one way or another, as effective locks that illustrate the belief that the extension of European jurisdiction is more likely to be unwelcome than welcome. That is my anxiety, and that is why I am apprehensive about the concentration on them in the Bill. There is no reason, as several noble Lords pointed out, for concern or dismay about the nature of Community law as it applies to us and as it has applied since the 1972 Act. It was under Section 2 of that Act that the impact of Community law was established and has been sustained ever since. It has a direct application to this country to the extent specified. That is important for a very positive reason. It is not something imposed just on us. The heart of the treaty is that the body of Community law should apply throughout the Community. If it imposes obligations and rights on our country, so be it, because for the most part those rights and obligations are advantageous. However, likewise it imposes obligations and rights on our fellow member states and enhances the opportunity for the states to work together. That is the very concept of the single market.

Had it not been for that core provision for the direct application of Community law and our ability to handle that and negotiate on it through successive European Councils, it would not have been possible, for example, for my noble friend Lady Thatcher and me to go through various summit meetings and achieve by agreement and negotiation not just the easy—he said laughingly—propositions about recovering part of the “bloody British budget” but, more importantly, those in the Single European Act. We were not able to foresee every detail or pre-emptively to get the propositions reviewed domestically either in Parliament or in referenda; we were working forward, as has to happen in negotiations of that kind in that organisation.

Referenda can be used as a means of informing the British people or encouraging them to understand the way in which the European Union is working as Churchill hoped it would—enlarging and expanding our resources and our ability to work together, although that need not be seen as the dominant impression of the European Union. However, there might be adverse impacts in certain areas and in certain cases, which is why I am apprehensive about frequent and, in many cases, unnecessary referenda.

We had one referendum in 1975, which resulted from the fact that a succession of Heads of Government —starting with Churchill and going through to Macmillan, Heath and Wilson—all came to accept the need for Section 2 of the 1972 Act, which is reaffirmed in Clause 18 of this Bill. Until the 1975 referendum, Harold Wilson, who had challenged the concept of the 1972 Act—I made the winding-up speech at the end of that debate—had been trying to expound the proposition that it was quite unnecessary to embrace Community law into our own law, as we did with Section 2 of the Act. He had been advised to the contrary by distinguished lawyers such as Lord Gardiner and Lord Elwyn-Jones. It has always been necessary for that to be part of our agreement and that is where we are today.

I can see the importance of considering the possibility of referenda if one wants matters to be acceptable to the country when we are making negotiations, but I do not think that they play a really valuable part. I do not think that they can be justified on their educational role alone, but it is of course important, as my noble friend has pointed out, that, a fortiori in those circumstances, Parliament should understand what is being sought and agreed and what is going to happen. I suspect that sometimes in the past we may have gone to European Council meetings having been a little less than candid about what we were seeking to achieve in our pre-Council presentations to Parliament, largely because we did not know quite what we would be able to achieve.

It is certainly right that Parliament should be consulted and be allowed to intervene and there may be provisions in the earlier clauses of the Bill in which a parliamentary survey of what is going to be agreed and what has been agreed should be strengthened. I do not accept that with great enthusiasm. My fear is that the shower or flurry of clauses that require referenda mean that the referenda are going to be obstructive rather than instructive. That is why it is important for Parliament to be given a larger role as we move forward, building up the effectiveness of Community law and working together in the kind of Community that we would like to see.

However, I do not like the emphasis in the Bill—an emphasis not made, I hasten to add, by my noble friend —on having referenda locks. We do not need referenda locks. We may need some referenda considerations, but I suspect very few. We certainly need to ensure that Parliament is consulted and plays an effective role in the negotiations that take place. We need to exploit the existing conditions whereby Community law applies throughout the Community, to our advantage in many areas, in this country and in others, and the extent to which the Community can work as a collective organisation on behalf of the whole of Europe. If only it had been able to do so on the Iraq crisis, for example, how much happier we would have been.

Let us favour that and ensure that the Bill adds a positive component to what is necessary, but please let us not clutter ourselves with undue and unnecessary referenda in too many cases and too many places. I hope that that is not too simplified a summation of the way in which I think we should handle this important legislation.