European Union Bill

Lord Howell of Guildford Excerpts

Tuesday 17th May 2011 Lords Chamber

I think that the schedule, as presently drafted, is a complete mess. It would be shameful if the Government came back with it on Report. I hope that they will be willing to give fundamental consideration to an amendment to the Bill.

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

My Lords, I want to be brief, too, but I am not sure that I will succeed. This has been an immensely interesting and wide-ranging debate, as is often the way with European Union issues. All sorts of aspects have come into the debate, which are raised by the contents of Schedule 1, which we are debating. The noble Lord, Lord Liddle, has described it in various critical terms—was it mishmash? I cannot remember.

I shall attempt to explain exactly why the things in Schedule 1 are there, and I think that I will be able to show that this is not quite the random selection or lottery that has been implied. I appreciate that there are obviously a number of views on the existence and scope of the provisions in Schedule 1. I have obviously looked very carefully at the amendments tabled and at some of the arguments that have been used this evening, as we have done with all amendments tabled in Committee. I do not accept the censorious view that these matters have not been addressed seriously. Every single item in the Bill has been considered very seriously, particularly all the items in Schedule 1, just as there is a long list of less significant issues where there is unanimity at present and a veto could be removed, which are not even in Schedule 1.

The idea that there has been no consideration of these matters is not really representative of the reality. There has been immensely detailed consideration of every one in Schedule 1. Last night we went over some of the implications, which are huge, behind the nature of the different groups of items in Schedule 1. We did not go over the many other items that are not in Schedule 1, where a veto could be lifted. It is thought that although that is significant it would justify just an Act of Parliament and not the deterrent of the referendum lock. I must address the central issue—again, this will take time—put by the noble Lord, Lord Williamson. He asked whether there was any one item that one could remove from the referendum lock category down to the parliamentary Act of Parliament lock instead, or maybe even to a lower lock of merely approval of the two Houses—the sort of not very secure lock that has existed in the past over many areas. I understand that opposition spokesmen are saying that they now want to move on from that, and found not so much difficulty as they did in the past with Acts of Parliament.

Can one think of any of these areas and why the present list in Schedule 1 is as it is? It is not just the random British view of a whole series of things that people want to keep unanimity for. Many of these items are there because during the discussions leading up to the negotiation of the Lisbon treaty, which many noble Lords are very familiar with, a whole range of countries insisted that they should stay at unanimity. All kinds of other matters were moved away to QMV in the Lisbon treaty and in previous treaties, but people argued at the time—we all remember it—that the Lisbon treaty was, as it were, the high point and that many issues had been moved to QMV, but that in the national interest of many member countries a certain range of matters should be kept at unanimity, and that the veto should not be surrendered for those countries. That in itself explains why Schedule 1 exists in the form it does.

[Lord Dykes]

I apologise for making a brief intervention, but is that not an extraordinary suggestion? Why then are the UK Government including some of those items if they are not particularly interested in them, because they came from other countries? What about innocuous articles such as Article 155? Why is that in this long, provocative list of items? It is an extraordinary proposition.

[Lord Howell of Guildford]

The noble Lord used the word “innocuous”. I do not believe that any of the matters in Schedule 1, which were put there with very careful evaluation and judgment, are innocuous. As I tried to explain last night, there are other areas of unanimity in which a veto could be removed that could be put in the less significant, if not the totally innocuous, category.

The list in Schedule 1 is not there by chance, accident or lottery; it is there because each has been evaluated and covers very sensitive issues where there would be a transfer of power. If the opportunity were taken to remove our veto in these areas—not to act, be active or develop policies in the areas—that would surrender an important power, which might greatly damage this country’s future national interest. I appreciate the sensitivity of the issues concerned.

I do not want to raise any hopes, but I do not think that the amendments, some of which have been advanced with great clarity and feeling—I shall come to specific amendments in a moment—are an appropriate opportunity to remove items from the schedule. I want to set out as clearly as I can, and as seriously and in as detailed a way as I can, why that is so. Of course, I shall continue to reflect on the points raised in today’s debate. As I said last night and in earlier Committee sittings, I am very happy to meet colleagues who want to discuss and analyse this or any other aspect of the Bill.

As ever, I have carefully listened to the Opposition’s wish—I believe it is a central theme—that they want more flexibility. I say “more” flexibility because there is flexibility in the whole pattern, as we discussed earlier. In Clause 4, there is flexibility, through the significance provisions. There is flexibility in the sense that all kinds of issues are not in Schedule 1, and those that are included in it are there for very careful reasons. As we shall learn as our discussions in Committee proceed, there is also flexibility in that a number of issues will be suitable, if changed, for an Act of Parliament rather than the application of the referendum lock. That is the flexibility theme that the Opposition have developed. They want, as I understand it, to lift the lock on some matters of competence and power. I do not want to make a cheap debating point—the noble Lord, Lord Triesman, possibly seemed to be indirectly reproving me—but I am not 100 per cent clear where, after all the work in the Lisbon treaty and the huge range of competences that exist in vital areas, about which the noble Baroness, Lady Williams, spoke so graphically, they want us to further extend the EU’s powers. My noble friend Lord Goodhart made it crystal clear, as usual, with the clarity of a fine legal mind—I say that with envy, because I wish I had the same sort of legal mind—where he wanted unanimity to be given up. I want to address his points specifically; he urged that unanimity should be given up—he used strong words, one of which was “absurd”, about there being any resistance to abandoning the veto in these areas. It was obviously not resistance to operating in these areas—we all want to see all sorts of operations—but resistance to giving up any veto.

--- Later in debate ---

[Lord Goodhart]

Does my noble friend agree, however, that a situation might arise in which it is desired to change from unanimity to a qualified majority vote on the ground that some member states might become very obstructive to the choice of particular members of the judiciary or the advocates-general, and that it, might be the only way of ensuring that the problems did not become overwhelming?

[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—

[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.

[Lord Grenfell]

Before my very good friend the Minister sits down, perhaps I may put one very quick question to him of a practical nature. He mentioned that we were not the only country in the European Union that had referendum locks. Does he agree that it would be very helpful to the House if, when we get to Report, he could provide us with the list of countries and how many referendum locks that they have. I have a feeling that their number, collectively, may not add up the number of referendum locks that are being proposed by the Government.

[Lord Howell of Guildford]

I must hurry because time is running out, but I have in front of me a long list of countries both which have various forms of filter, referendum lock and mandate reference and which have opposed at every point any abandonment of unanimity on a whole range of issues, many of which I have covered this evening. Under my hand, I can see 15 to 20 countries straight off. I shall try to provide for noble Lords as much information as I can on the details of other countries doing what we are doing.