Syria

Lord Howell of Guildford Excerpts

Wednesday 8th June 2011 Lords Chamber

[Baroness Symons of Vernham Dean]

My Lords, I beg leave to ask a Question of which I have given private notice.

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

My Lords, today in New York, Britain and France, along with Germany, are asking for Security Council support for a resolution condemning the repression in Syria and calling for the Syrian Government to meet their people’s legitimate demands, release all prisoners of conscience, lift restrictions on the media and the internet and co-operate with the UN High Commissioner for Human Rights. The violence being meted out against peaceful demonstrators in Syria is an appalling response to the people demanding their basic rights and freedom. It is time for the Assad regime to stop the violence and reform or step aside.

[Baroness Symons of Vernham Dean]

My Lords, I thank the Minister for that very full response—but is it really enough? There are hundreds of Syrian civilians who have died in terrible circumstances; worst of all is the report of a 13 year-old boy who was tortured, emasculated and murdered. There are thousands pouring over the Turkish border and reports of police officers being executed for refusing to fire on crowds of civilians. Does not the Minister believe that the situation in the town of Jisr al-Shughour is so like that in Benghazi that similar measures should be taken to protect the civilians there? Does he agree with the French Foreign Minister, Alain Juppé, with whom the British Government are sharing the platform today, who said that the process of reform in Syria is dead and that Syria’s president has lost his legitimacy to govern?

[Lord Howell of Guildford]

The noble Baroness is absolutely right that the situation is far from getting better: it is getting worse. The reports of atrocities are disgusting. We have all been shocked by the news of the apparent treatment of a young child—indeed of many young children—in the mayhem of violence. All these questions are being debated today at the United Nations. We and the French—the noble Baroness mentioned Monsieur Juppé—are putting forward sentiments very similar to those that she suggested. It is a question of carrying all opinion in this direction in order to get effective co-operative and co-ordinated action. Not everyone, particularly in the Arab world, has yet reached the point where they have united in seeing that further measures are required beyond those that we are already proposing. I myself was able to consult with a number of Arab and Gulf leaders last week in that region and had some mixed opinions on whether this was the time for more forceful action. The noble Baroness can be assured that Her Majesty’s Government hold this matter in the strongest-possible and deepest concern. We believe, and fear, that stronger measures will indeed be needed.

[Baroness Falkner of Margravine]

I congratulate my noble friend on the new tougher resolution that the Government are trying to secure through the United Nations Security Council. Let us, however, speak plainly. We know that China is one of the countries that is likely to veto this resolution. My noble friend will of course be aware that Chinese workers in Libya had to be taken out on a Chinese frigate, and that China now has interests around the world. Will he urge the Chinese Government, as they engage around the world, also to build alliances around the world to promote the interests of their own citizens if not for nobler purposes such as democracy and human rights—which, alas, they do not respect?

[Lord Howell of Guildford]

My noble friend makes an extremely good point which has certainly occurred to me in discussions with senior Chinese diplomats. The traditional or conventional stance of the Chinese authorities and Chinese Government is that they do not interfere in foreign countries. The reality is that because of extended Chinese influence and involvement throughout the world, whether the Chinese authorities like it or not, they are involved and do have to move towards taking a responsible position as they become a world force and a world power, an active member of the World Trade Organisation and a responsible authority and influence in the world. If this is the role that they want to play, they will have to be involved in a much more positive way, as my noble friend says.

[Lord Wright of Richmond]

My Lords, it is now 30 years since I left Damascus as British ambassador to Syria. Of course I accept that we are absolutely right to condemn these appalling reports on what is happening in Syria, just as I hope that we condemned in 1982 similar reports of terrible massacres of people in Hama under the present president’s father’s rule. However, does the Minister accept that whatever its other faults, Ba’athism as a system of government is a secular system of government? I believe, and I hope that the Minister agrees, that we should be extremely careful to do nothing that could desecularise that wonderful country.

[Lord Howell of Guildford]

Those are clearly very wise remarks. I suspect that the noble Lord has more experience than I do of exactly how we reacted to the atrocious murders in Hama in 1982, which were conducted by the brother of the then president, Hafiz al-Assad. The noble Lord is right that Syria is a secular pattern. It is also a tribal pattern, and the tribal and family groups who have ruled Syria are of course not a majority; they are a minority, among many others. They have ruled by methods that we regard as reprehensible, and that are becoming even more so. I accept the noble Lord’s analysis that one could see a very serious disintegration of a country of many tribes and various religious groups and, indeed, a pattern that could develop a far greater infection of jihadism and extreme religious activity. For the moment we will have to see how events unfold. We hope that they will take a better course, but at present there is not much room for optimism.

[Lord Triesman]

My Lords, I also welcome the steps that are being taken today at the United Nations and I understand the limitations that this Government and the French and German Governments must feel about how far they can go. This is, as the Minister has said, a savage regime, conducting brutal behaviour towards its own people. Can the noble Lord tell us what steps are being taken to engage Arab support in the region and whether consideration is being given to the International Criminal Court, which must certainly be looking at these as crimes of concern to humanity?

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[Lord Howell of Guildford]

As Syria is not a signatory to the International Criminal Court it would need a UN resolution to direct such a course. I have no doubt that the idea has been circulated but no action has been taken on it. As for gaining the support of the surrounding region and the leading Arab powers, my right honourable friend the Foreign Secretary and other Ministers are in direct contact with a range of leaders in the area. Our posts are in constant contact with the area. I myself had contact last week with a number of leaders, including, although not directly an Arab leader, Mr Najib Mikati in Lebanon, which is directly affected by what is happening in Syria. We keep lines as open as we can with all the major influences and parties, not least the Turkish Government and Mr Erdogan who have some direct line of influence over Bashar al-Assad, but so far their efforts have been to no avail.

[Lord Anderson of Swansea]

UN Security Council Resolutions 1970 and 1973 were built on the platform of the Arab League agreement, and that provided a degree of cover, preventing Russia from vetoing the resolutions. What is the working assumption of the Government in respect both of the Arab League generally, which presumably is fairly pessimistic about support, and the way in which Russia will now react?

[Lord Howell of Guildford]

The noble Lord, with his experience, is describing precisely the modalities and parameters that my colleagues in the British Government and other diplomats are having to cope with in New York at this moment. There is some hope that a resolution can come forward. There are varying views within the Arab League and among Arab leaders about which way to go and how much pressure to apply. There have been in the past first the traditional Chinese attitude of non-interference, which I have already described, and secondly some reluctance from Moscow to be involved. But this could be changing and there comes a point in this transparent interconnected world where the sheer volume of the atrocities means that there is a unity of intolerance to the continual misbehaviour. We may get to that point soon.

European Union Bill

Lord Howell of Guildford Excerpts

Wednesday 8th June 2011 Lords Chamber

[Lord Liddle]

My Lords, I rise to move this amendment in a purely formal way. I anticipate that, in speaking to Amendment 2, the noble Lord, Lord Howell, will give us assurances that will enable us to withdraw this amendment, but without further ado I would like to hear what he has to say.

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

My Lords, I am grateful to those noble Lords who have sought, through the tabling of these amendments and in Committee, to clarify the spirit of the provisions in the relevant clauses of the Bill by tabling all but one of the amendments before us in this group. I am also grateful to the noble Lord, Lord Liddle, who has just indicated that he is moving his amendment formally in order, quite rightly, to elicit from the Government our case for the amendment that we have tabled within the group.

As my noble friend Lord Wallace made clear in Committee, it has not been and nor should it be the Government’s intention to tie the hands of Ministers and their officials who negotiate assiduously in the development of European Union legislation in order to protect and maximise the UK’s interests and priorities. The fact is that Ministers and officials have participated constructively for many years in the earlier stages of the development and negotiation of various EU measures, and nothing in this Bill will prevent that from continuing in the same way. When it comes to the point at which the final decision is taken in the European Council or the Council, what the provisions of the Bill are designed to do is to prevent a Minister from voting in favour of a treaty or other measure specified in Part 1 at this final stage, or otherwise allow the adoption of a treaty or measure to happen, unless and until he or she has the approval specified in the relevant clause of the Bill. As we know, this may be an Act of Parliament or it may be an Act and a referendum where there is a transfer of competence or power. The Bill does not prevent the Government from signing up finally to and participating in anything at the EU level, but Ministers would first have to have the support of Parliament and, where necessary, of the British people before doing so.

The amendment tabled in my name in the Marshalled List makes the position crystal clear, and I hope to the satisfaction of noble Lords. The effect of the amendment will of course govern the use of the phraseology we are concerned with throughout the whole Bill, and therefore not oblige us to table a series of consequential amendments because this change to Clause 1, which is interpretive, will govern the whole Bill.

As my noble friend Lord Wallace explained in Committee, the words we are concerned with, “or otherwise supporting”, are included to make clear that, at the point of the final and formal decision in Council or the European Council, a Minister would be unable to allow a measure to be adopted in Council or the European Council through means other than a positive vote, which under this Bill would have to be preceded by the necessary national procedures—namely, an Act and a referendum, if required. Articles 235(1) of the Treaty on the Functioning of the European Union and Article 238(4) make clear that abstentions at the point of final and formal decision in Council do not serve to block, but rather are treated as support for the adoption of a proposal requiring unanimity. Therefore, letting a measure through by abstention in the Council and then claiming by way of excuse or explanation, as it were, that although it transferred competences or powers and should have had national approval somehow it slipped through and Ministers could not help it, would not be allowed.

In addition, as many of your Lordships know, in Brussels matters often do not proceed to a formal vote. The chairman may just seek the sense of the room, and if no one dissents, take it that the proposal has been finally agreed unanimously. It is then ticked and it goes through. That could happen only after national procedures, which would require parliamentary approval, while if competences and powers are being transferred, it would of course require a referendum. So the phrase “or otherwise supporting” seeks to ensure that Parliament and the British people can be confident that there is no possibility that any inaction on the part of the Government of the day could allow a measure to be finally decided and agreed without the proper approval of Parliament or the people or, indeed, both. To allow a measure to be adopted in such a way would represent a sleight of hand that would cheat both this Parliament and the public out of their rightful say.

My noble friend also made the point that, in this way, the Government were replicating the phrase used by the 2008 Act, which was introduced by the previous Government when Parliament was approving the ratification of the Lisbon treaty. However, we accept the point—made, I think, by the noble Lord, Lord Davies of Stamford—that, although that was the position before, there is no reason why we cannot improve the drafting of provisions from the past, as indeed we can improve on much else that went on during the past Government and seek to do so.

We have reflected further on this point, as we have on all the amendments tabled in Committee, as we should. For the reasons I have given, we have tabled a government amendment to spell out, in the interpretation in Clause 1, exactly what is meant by “or otherwise supporting” and to explain when and where it applies: to wit, that it is only at the final and formal stage in the Council, or the European Council, that the bar on voting for or abstaining on—in other words, otherwise supporting—measures applies, unless or until there is parliamentary and, where necessary, public approval, in which case of course the support could go forward.

We feel that providing this amendment to the definition provides the clarity that noble Lords were seeking in their amendments. It spells out unambiguously the limitations on Ministers and in doing so makes clear—and I make clear now—that this and future Governments may negotiate proposals in future in the same way as they do now and they should seek the views of the scrutiny committees of both Houses in the same way as they do now and undertake any other existing national approval procedures that are required before finally agreeing to a proposal in the European Council or the Council.

That is the position. I hope noble Lords will accept that clarifies the concerns we all had in Committee on this matter and therefore I will beg to move the Government’s amendment. This will confirm to noble Lords that we have heard and addressed their concerns. I ask the noble Lord to withdraw his amendment, which seeks an exactly similar effect.

[Lord Hannay of Chiswick]

Before the noble Lord sits down, perhaps we could be just a little clearer. I thank him very much for the letter he sent me and other noble Lords about what I described as the chicken-and-egg situation, which is part of this nexus that he has been dealing with. That was a very helpful letter and I would be most grateful if he could agree that that letter should not only go to noble Lords who participated in this debate but could also go in the Library of both Houses, because I fear that sometimes the other place does not take very much cognisance of what is said by Ministers in this House. On this occasion, what is said in that letter, in particular about nothing in this Bill inhibiting Ministers from participating in negotiations other than on the final decision, is very important. I hope he can agree that the letter should go in the Library of both Houses.

On another point arising from what the noble Lord himself said, I have to confess to some slight confusion about how many of the instances of “or otherwise support” get taken out and how many get left in and whether there is not a degree of potential ambiguity from leaving any of them in at all. Perhaps he could just clarify that point. I had at first thought, and from what he initially said this afternoon, that he was actually saying that all the references to “or otherwise support” were going and that the statement would simply be that we would not allow any decision to be taken. That is, I think, the sense of what the Government have been trying to do and what those of us who have been trying to amend this provision are trying to do. However, I am still not quite clear where we are on that point.

[Lord Howell of Guildford]

On the first point, I will certainly endeavour to see that the words and wisdom of your Lordships’ House are spread as widely as possible and that the correctness of our view is recognised, in the way that we are changing the phraseology of the past in an improving way.

As to the question of what is amended by our proposed amendment, I think that I said that by changing the definition in the interpretative Clause 1, that change governs all references to the particular words we are concerned with throughout the Bill. It simply overrides and governs all those references, so that there is no need for your Lordships to be bothered with the task of going through each clause amending or adding the amendment at every stage of the Bill. By putting it in Clause 1, in the interpretative section, we are governing and rendering effective in the light of the amendment everything that is said throughout the entire Bill. That is the position as I would like to put it to your Lordships and I believe that that is the correct one.

[Baroness Nicholson of Winterbourne]

I pay tribute to the Minister and to the Government for listening with such deep concern to what seemed to me to be perfectly acceptable phraseology, but which gave noble Lords opposite considerable difficulty. It seems to me odd that something that is comfortable, which we already passed in the UK 2008 Act, should somehow become a discomforting phrase here, but I am none the less absolutely delighted to see that the Minister is able to come forward with what is clearly to other noble Lords a major concession and clarify a phrase which to some of us seemed perfectly adequate. It is always good that we should have a consensus in this House—your Lordships are known for a consensual approach—and I congratulate and thank the Minister.

[Lord Howell of Guildford]

I am grateful for those remarks.

[Lord Liddle]

My Lords, I would not go as far as the noble Baroness in describing this as a major concession in the Bill. However, in the spirit of good will in the consideration of the Bill on Report, we are prepared to withdraw the amendments in my name in the light of what the noble Lord, Lord Howell, has said, subject only to two points of clarification: first, that his letter to the noble Lord, Lord Hannay, will be deposited in the Library; and, secondly, that we are absolutely clear that the amendment to the interpretative clause, Clause 1(7), does therefore govern all the other references to “otherwise support” in the rest of the Bill, and that no one is going to turn around at a later stage and say that a Minister cannot publicly advocate a position, either in the Council or in a wider forum, until the point at which a formal decision has to be taken, so it is possible for Ministers publicly to advocate their support for a position, subject to the final decision having passed all the requirements of this eventual Act.

[Lord Howell of Guildford]

My Lords, as a final word I repeat that the definition will apply to any use of this wording elsewhere in the Bill. That is the definitive statement I am making, and that applies.

[Lord Liddle]

On that understanding, I withdraw the amendment.

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Moved by

[Lord Howell of Guildford]

2: Clause 1, page 2, line 4, leave out from “Crown” to end of line 6 and insert—
“(a) voting in favour of the decision in the European Council or the Council, or(b) allowing the decision to be adopted by consensus or unanimity by the European Council or the Council.”

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[Lord Stoddart of Swindon]

I will make the point of order whether there are interruptions from other parts of the House or not. The noble Lord, Lord Triesman, said that we had had enough of this debate and that, when he got up, no other noble Lord would be able to speak. This is not in accordance with the Companion to the Standing Orders and Guide to the Proceedings of the House of Lords. If noble Lords turn to paragraph 8.139, on page 152, they will see that, as long as the House accepts that they should do so, noble Lords may speak until the Minister gets up. After this, there shall be no speeches. However, before the Minister or spokesman gets to his or her feet, with the permission of the House, any Member of the House may speak

[Lord Howell of Guildford]

My Lords, if the noble Lord, Lord Stoddart, is correct, as I have got up, this debate now comes to a close.

As always, it has been a fascinating debate with many profound remarks. It has predominantly been a debate about referenda, but I do not agree with the noble Lord, Lord Williamson, that the debate has been entirely separate from the Bill. Speaking as one of the, I suspect, rather few ex-Ministers who have taken a referendum Act through the other place in the distant past—the Northern Ireland referendum Bill—I suppose that, in the eyes of my noble friends Lord Deben and my noble and learned friend Lord Howe, I am damned before I start.

Nevertheless, let me set out one or two of the arguments that have perhaps not been exposed as clearly as they should. We know that the purpose of these amendments is to include a minimum turnout threshold for any referendums arising as a result of the Bill. If the threshold is not met, regardless of the result, hey presto, the referendum would become advisory and not mandatory. This proposition has a whole string of disadvantages, which are not all obvious but become clear if you think about them. First, as many of your noble Lords have pointed out, instead of it being mandatory on the Government, it leaves the British people in real doubt about what the effect of their vote will be. The noble Lord, Lord Triesman, is incidentally entirely wrong that it will be mandatory on Parliaments; it will be mandatory on Governments, though it is true that Governments often, but not always, control Parliaments. However, this goes by the board if we pass the amendment. It will be the end of the British people’s mandatory certainty and they will be back where they started, passing the ball back to Parliament and the party and Government controlling Parliament. This is where the record has, frankly, not been brilliant or reassuring. This is one of the reasons why we are facing these problems.

We have the glorious assertions of excellent and eloquent spokesmen like the noble Lords, Lord Tomlinson and Lord Triesman, that the only need is for the Government to say no. However, they have not said no. They have said yes, when many people have felt that this yes was the wrong and inappropriate proposition. The fear is that, now that we have said yes to Lisbon, we have said yes about handing many important powers to the European Union. We work with the European Union and believe that they should have powers. However, will it be a no or yes in future? The doubt remains. The doubt must be removed. The reassurance is not there. For the vast majority of the people, the call is for the reassurance to be there. Though the noble Lord, Lord Pearson, will not agree with me, I suspect that the vast majority in this country want us to be good Europeans and to be effective in Europe and effective in allowing Europe to use—and not have us unravel—its vast range of existing competences. They are, however, worried as to whether it will be a yes or a no in future. The noble Lords do not seem to have grasped this central point. It is simply not right to lead people in doubt about what their role will be. It leaves them with a doubt—a dangerous doubt—about whether they will be listened to, about the lack of clarity and about whether their views will count.

The noble Lord, Lord Kerr, brought us back to Edmund Burke. I love Burke. He is one of my favourites. However, he is not particularly my favourite when he warned that democracy only works if, as he put it, there is a policeman within each one of us. It is slightly different from the proposition about parliamentary democracy. We all know perfectly well that Burke was not operating in today’s situation. He perhaps did not foresee the iron discipline of party politics, where some parties get a complete grip on Parliament. Has the noble Lord, Lord Kerr, recently read—or ever read—Lord Hailsham on elected dictatorship? In it he would find a heavy antidote to the glorious idealism of the Burkean age, in which the noble Lord, Lord Deben, and Mr Burke could speak out to their conscience freely unaware of any party restraints. I have spent 31 years in the other place and I am afraid that every day I was aware of party restraints.

I cannot see that this 40 per cent threshold would reconnect the British people with the decisions being taken in their name at the EU level; it certainly would not do so. These devices do not serve to solve the problem, as astutely identified by a great many commentators day after day on the radio or in the newspapers. I see that my brief refers to the BBC’s Europe editor, who said the other day that,

“Across Europe voters feel insecure, suspicious of an elite with its own vision of an ever closer union but which doesn't necessarily address their hopes or fears”.

I would hope that this wise House of Lords, where we wear our party allegiances somewhat more lightly, would support efforts to resolve this concern and to see the European Union on a more solid basis than, frankly, it is today, not only for lack of popular support but because it is facing very serious policy issues as well. For those of us who want to build a better relationship between the British people and the EU and, indeed, people generally and the EU right across the 27 countries—soon to be 28 or more—I would have thought that this is the way to go.

By the same token, the amendment before us undermines that whole aim of the Bill. That is the first point which must be taken into account and cannot be dismissed, unless those who do so think that popular support and consensus are irrelevant, do not arise and that parliamentary wisdom is so entrenched and admired that anything decreed by Governments in Parliament will be immediately accepted—it will not. Secondly, the point has rightly been made that thresholds of this type encourage game playing during a referendum campaign rather than a proper presentation of the arguments to achieve a desired result. For example, if supporters of the yes campaign know that Parliament supports the treaty change in question, they have a huge incentive to keep the vote down below 40 per cent rather than going out and making the case for change.

Thirdly, the Government believe that we should encourage public participation rather than providing reasons for keeping that down. We could wish that the internet age had never occurred and that the days of massive and wide public consultation had not developed, but they have. As my noble friend Lady Nicholson rightly pointed out, are we saying that local elections are not legitimate? We can wave a hand and say that they are different but that is just an assertion. I do not think that they are all that different. Are we saying that the European parliamentary elections are not legitimate? What does it do to the trust in the body politic if a majority have voted no in the referendum but Parliament decided, because it has the power to do so, to go ahead anyway? That would be extremely damaging.

Fourthly, the Lords Constitution Committee, to which some of my noble friends referred, in its wisdom—it is a very wise committee—shares opposition to thresholds. Its report on referendums in the UK concluded that,

“there should be a general presumption against the use of voter turnout thresholds and supermajorities”.

Thresholds are bound to distance voters from the issues on which the British people want to have their say. Incentives to campaign to abstain would be vastly increased.

There is a further question. During our first days in Committee on the Bill, the wise noble Lord, Lord Kerr, said that during the debates on the EEC Referendum Act 1975, the noble Baroness, Lady Thatcher—then Margaret Thatcher—had objected to the possibility of the referendum being mandatory. She also said:

“The Government might regard themselves as bound, but the result could not fetter the decision of Parliament”.—[Official Report, Commons, 11/3/1975; col. 315.]

That, of course, is exactly our point. That is why I fear that the noble Lord, Lord Triesman, is wrong. These referenda, or the referendum that might occur—I think that it will occur only once every few years, but I will come to that in a moment—are mandatory on government. That is the whole point of the Bill. However, they are not mandatory on Parliament. They cannot be. Parliament’s view of the treaty will be taken during the passage of legislation for the referendum. If Parliament did not support the treaty, it would not pass the legislation, so Parliament has its say and remains supreme in every sense.

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[Lord Kerr of Kinlochard]

My Lords, I need to recant. In Committee, I was against the amendment on the grounds that it complicated things. However, now it seems that it may be the only hope for dealing with a problem that I had hoped would be dealt with by another route. I was young, innocent and idealistic; I did not realise that we would end up cheering a government concession that means that, in the Bill, “support” is a term of art defined at the beginning, and the various prohibitions on Ministers of the Crown in any way supporting X, Y and Z does not mean that they cannot propose, advocate or support them in Brussels—just that they cannot vote for them. This is a huge advance and I am beginning to understand how difficult the legislative process is.

Clauses 2 and 3 have two different procedures, depending on whether the treaty amendment emerges by the classical method plus a convention, or by the accelerated method that is meant to deal with emergencies. We have two different procedures, and one of the paradoxes is that we have a significance test in the second but not in the first. Therefore, we envisage that any treaty amendment by the first, traditional method plus the convention must be significant. The second curiosity is that I thought that a treaty amendment was a treaty amendment, whichever route it came by. The third curiosity is that the accelerator method, covered in Clause 3, is meant to be used in an emergency, but we do not have any emergency or urgency test built in.

The charm of the amendment, as I now see, is that it brings in these tests. It would get significance into the traditional method, where it is not at the moment. It would also bring in urgency and the national interest, which perhaps is not a bad idea. It is a complication and it is a great pity that we have not had any clear rationale for the separate methods that depend on the origin in Brussels of the treaty amendment. However, we are where we are and clearly the Government are not going to give us any concessions on that. Therefore, faute de mieux, I support the amendment of the noble Lord, Lord Liddle.

[Lord Howell of Guildford]

My Lords, I begin by dissociating myself entirely from the statement of the noble Lord, Lord Liddle, that somehow the Bill gives encouragement to referenda and public votes “on anything and everything”. That was his phrase, but it could not be further from the truth. It would be impossible to think of a proposition that is more remote from what the Bill is intended to do. The Bill is about transfers of power and sovereignty—over a wide range of issues, I concede—from the United Kingdom and this Parliament to the European Union. I am left almost speechless; what is unimportant or trivial about that? These are issues that we have dealt with again and again—the famous red lines that successive Governments have found to be of extreme importance to Britain. The argument is not that we should not be involved with the European Union in all these areas, but that we should retain a veto power if we are pressed too far; that all the powers that are needed have been conceded under the Lisbon treaty; and that those that were left out—the remaining issues where unanimity must prevail, where the veto must be kept in place and where no further treaty competences should be transferred—are all the important remaining ones, which many of the 27 countries insisted on preserving.

These are the important issues: defence and security, national security, military issues, national tax, fiscal and energy policy, provisions under the EU budget, financial management of the EU, citizenship and elections, foreign policy and social security. These are not trivial issues that can be dismissed. What prevails in these comments is a devastating lack of understanding of the importance of the remaining issues that are not within the competence and power of the EU because the nation states do not feel that it is necessary for them to be there—and, on the contrary, think that they should remain under national and sovereign control. Therefore, the starting point of many of these comments is so far removed from what is in the Bill and what the Bill is concerned with that I find it very hard to find a bridge of words to link the two, but I will try my best.

Under these amendments, decisions on whether a referendum on treaty change or a decision—these are big issues—should be held would be made by a special committee of both Houses. This is similar, though not identical, to the debate we had on amendments in Committee. They were limited to Clause 6 decisions, and seem to have widened the scope of the so-called European referendum scrutiny committee to cover treaties and Article 48(6) decisions. This is a big assignment of discretion to this parliamentary committee. How this committee would come about, I am not too sure. I have to say in the best of spirits to the noble Lord, Lord Kerr, that if he thinks that this committee would be free of interference from the Government or party-political pressures of various sorts, then his innocence is not entirely lost.

I am at least pleased that this amendment recognises that consideration should be given to the need for a referendum when treaties or Article 48 decisions are to be made. This is a clear step forward from the status quo, where it was entirely down to Ministers to decide whether a referendum was to be held and where, as we have sadly seen, Ministers and Governments can and do change their minds—hence many of our problems. The amendment appears to have retained the provisions in the Bill—which is good—that all treaties and Article 48 decisions must in future be ratified through an Act of Parliament. At least it retains a greatly increased role for Parliament, which this Bill stretches for and seeks to provide. This is a definite advance.

Moving from ministerial discretion over whether a referendum should be held, to parliamentary discretion over whether a referendum should be held, really is not sufficient. What we would have is an extra step in the process of deciding whether to have a referendum, which I suspect would merely diminish further rather than increase the confidence and trust of the British people when compared to the current provisions in the Bill and to what the Bill is trying to do. It would cut right across, and therefore potentially diminish, the work done by the European scrutiny committees of both Houses, which—despite the overrides, which one must concede have been too frequent—has been valuable in giving some impression to the general public and to the electorate of this country that there are some brakes on the system.

Why would the arrangements for the proposed European referendum scrutiny committee diminish public trust? The answer is that because whereas the Bill is, with the exception of the narrowly defined significance test, very specific about which transfers of power and competence would lead to a referendum—that is what this whole Bill is about—these amendments would do away with the certainty. In agreeing the Bill as drafted, Parliament would be giving a clear signal to the public as to when a referendum would be held. If the amendment were agreed, the whole process would be lost in a whirlpool of subjective political judgments and, I have no doubt, of manoeuvres as well, and of all the pressures that operate through our political system—perfectly properly, because that is the way that a democratic system works. The idea that they would be absent and that an isolated, divinely independent judgment could be reached by this committee is absurd and naive.

These amendments require the committee to assess all treaties and Article 48 decisions against significance, urgency and the national interest. These are highly subjective terms which are capable of a far wider range of interpretation than the criteria in Clause 4, which have been carefully analysed and crafted. This amendment moves the whole debate away from an objective consideration of whether power or competence has been transferred from the UK to the EU. It moves it away from objectivity to subjectivity of precisely the kind which works against trust and against confidence, and against support for the whole European Union project which I thought so many noble Lords wanted to see reinforced.

Government and Parliament will of course take into consideration issues of urgency, importance and certainly the national interest when negotiating a treaty change, and in passing Acts to ratify treaty change. These are centrally important issues, but they are not the right criteria on which to decide whether a referendum is needed before a treaty change or an Article 48 decision is ratified.

The other problem with these amendments is that the decisions on these highly subjective issues will be made, frankly, by a small number of parliamentarians. I have said that we are not quite sure how they would come to be on this committee. The way this committee is set up means that it could only ever deny the public a referendum, which is what is promised under this Bill. I do not like to say it, but when my noble friend Lord Hamilton points it out, it is a fact that the British people’s trust in the institution of Parliament and the political parties within it has, in this area, been eroded over the years, particularly on issues of Europe; I sometimes think that on other issues it is grossly exaggerated. One always marvels at how many people are generally critical of the political class, but when they start talking about individuals—the hard-working Members of Parliament—they say, “Oh no, our person is splendid. It is just the general lot we do not like”. It can be overdone. However, on the issue of Europe, it is quite clear, by every measure that we have seen of the public’s support and the general tenor of the public debate, that a lack of trust is noticeable. People have been promised a referendum on a treaty change, only to see it taken away again. This is reflected in the number of people who do not value the EU, who do not trust it or who simply do not seem to grasp its work, aims or purposes. There is a sense of apathy, because people feel powerless to influence decisions which affect their daily lives. To deny this really is to shut our minds to the good and valuable side of the EU’s work, which I believe is enormous and often underestimated.

The coalition Government intend to address this cynicism, apathy and lack of trust. The aim is to reconnect the British people directly to the key decisions on the EU and assure them that, while there are now vast powers and competences in the EU’s hands, any further expansion of these would have to be very carefully argued and in many cases put to the British people for their approval. It remains a mystery to me why the Opposition still somehow argue that there should be these extra powers—that we are going to need these future treaty changes—but what for? One is left groping the air, trying to understand the mystery of it all. It is a sort of apophatic doctrine, that somehow there are issues ahead so complicated that the people cannot put them into words or understand them, and that these require the flexibility which the noble Lord, Lord Hannay, keeps returning to.

We know that the British people want a say. The June 2009 survey by the European Parliament found that eight out of 10 people in this country agreed that future EU treaty changes should be decided by referendums. Fewer than one in 10 disagreed. These amendments do not represent the modern reality about transparency and openness that we in the coalition Government want, and which reflects a modern attitude to participatory democracy. They are a step back in time which may be nostalgic and romantic, but they take us away from reality and away from the future.

I am grateful to my noble friend Lord Waddington, who is not in his place at the moment, for what he said about these proposals in Committee. He said that,

“you are moving even further away from a situation where the general public has any confidence at all that its views are considered when vital decisions are made”.—[Official Report, 16/5/11; col. 1230.]

However well intentioned these amendments, they cannot serve to enhance this Bill or its underlying virtues and purpose. The Bill is deliberately designed to set out as clearly as possible which treaty changes would require a referendum, while avoiding the need for trivial referendums. That seems to me to be a scare story which I hope we are not going to hear repeated because it is not connected with the reality, the intention or the possibilities which arise from this Bill. Leaving it to the discretion of a committee of parliamentarians to decide whether a referendum is needed will do nothing whatever to reconnect, re-engage and regain the trust of the British people. I believe this is an amendment that we could do without and that does not help the Bill or the underlying purposes, which I believe most noble Lords in all political parties and in none basically want reinforced. I think these amendments go the other way and take away from us the purposes and goals that we should be pursuing, so I ask the noble Lord to withdraw the amendment.

European Union Bill

Lord Howell of Guildford Excerpts

Wednesday 8th June 2011 Lords Chamber

Moved by

[Lord Howell of Guildford]

7: Clause 3, page 2, line 38, after “decision” insert “also”

--- Later in debate ---

[Lord Howell of Guildford]

My Lords, perhaps it is for me to try to put this amendment back in its box, from which it seems to be rapidly escaping into fascinating issues such as reform of the House of Lords. I am not sure whether that is immediately germane to this amendment, which does not involve any transfer of powers or competencies to the European Union as far as I can see from the debate. I shall, if I may, abandon that and return to the amendment which the noble Lord, Lord Liddle, moved with fiery eloquence. He was frank enough to admit that the purpose of the amendment was an attempt to say, I think his phrase was, the same thing in a different way. I shall try to avoid giving the same answer in a different way, but I am afraid that the answer I am going to give will not please him very much. Anyway, I will do my best.

The amendment seeks to extend the scope of the significance condition beyond the two types of transfer of power identified by Clause 4(1)(i) and Clause 4(1)(j). We had a similar amendment, did we not, in Committee? I explained at that stage that the significance condition as drafted applies only where there may be a proposal for treaty change under the simplified revision procedure which would result in a transfer of power—I shall come to the competence issue in a moment—from the UK to the EU, as defined by the criteria in Clause 4(1)(i) and Clause 4(1)(j), namely treaty changes which seek to impose or extend a requirement obligation or sanction on the UK. It is only then that an assessment by the Minister is required as to its significance. As I said at the time, the significance condition is applied deliberately to such a limited range of proposals in order to establish a transparent and un-fuzzy, un-grey, unequivocal set of criteria, for Parliament as well as for the people, for which a referendum will be required under the Bill.

--- Later in debate ---

[Lord Davies of Stamford]

I am most grateful to the noble Lord for giving way. With the greatest respect, this amendment is about having a referendum, or not having a referendum, on matters the effect of which—to quote the Bill—

“in relation to the United Kingdom is not significant”.

Nobody in the world would argue that setting up a finance ministry for the European Union was not significant for the United Kingdom; the question is why we should have referenda on matters which are not significant. The noble Lord has cited a lot of possible scenarios, all of which involve dramatically significant events which would obviously be significant events for us, but the big issue concerns why we should have a referendum on matters which are known not to be significant for the United Kingdom.

[Lord Howell of Guildford]

I think that we are arguing in a circle because the Bill provides the significance test and matters in paragraphs (i) and (j) of Clause 4(1), which I have described, might well be ruled by Ministers not to be significant, and therefore there would be no referendum. Furthermore, in Clause 4(1) there is a whole string of exempt conditions where no referendum will occur. Therefore, I do not see what the noble Lord is worried about. As regards issues that are deemed to be insignificant, or issues that are deemed to fall under Clause 4(4)—sorry, I said Clause 4(1), whereas I meant Clause 4(4)—Clause 4(4) states that:

“A treaty or Article 48(6) decision does not fall within this section merely because it involves one or more of the following”.

There is your list. There are the things that are not significant which will not attract a referendum. The noble Lord was speaking with great feeling and fervour but I cannot see that his worry is well founded. I am clear that this amendment would not assist the purposes of the Bill and would undermine certain values and aims of the coalition’s European policy. On that basis, I strongly urge the noble Lord to withdraw it.

[Lord Liddle]

My Lords, I will withdraw the amendment, but the Government are making a major mistake in not listening to the points made not just from the opposition Benches but from the Cross Benches as well about the necessity to keep open some flexibility to deal with the unforeseen. If the United Kingdom wants to resist major treaty change, we will almost certainly have to propose minor changes which would demonstrate a willingness to deal with the practical realities of the situation that the EU would be facing. It is the Government who are not living in the real world and not facing up to what it is necessary to do if we are to be an effective member of the European Union in the years ahead. I regret very much having to say that, but with that I beg leave to withdraw the amendment.

European Union Bill

Lord Howell of Guildford Excerpts

Monday 6th June 2011 Lords Chamber

Moved By

[Lord Howell of Guildford]

That the amendments for the Report stage be marshalled and considered in the following order:

Clauses 1 to 6, Schedule 1, Clauses 7 to 17, Schedule 2, Clauses 18 to 22.

Motion agreed.

European Union Bill

Lord Howell of Guildford Excerpts

Wednesday 25th May 2011 Lords Chamber

[Lord Liddle]

I think we should thank the noble Lord for that, so that we can get on to our quick lunch and then to President Obama.

This debate on sunset clauses has been important. Amendment 63 is in my name. Frankly, I would happily support any of the amendments, because in this long Committee stage the Government have failed to make the case for the detail of the Bill as it stands. Because they have not done so, we are legitimate in proposing a sunset arrangement. Of course, on this side of the House we accept that there is a genuine issue about the popular legitimacy of the European Union. That is a matter for regret from our perspective, but it has to be addressed. The best way in which it could be addressed in this country is by establishing a cross-party consensus in favour of our membership of the European Union and for all parties to speak in that way. I do not think that the Bill is going to do much to establish that cross-party consensus, but it is an opportunity to address anti-Europeanism in our country. The rise of populist parties in other parts of Europe is also a matter of great concern. Britain is not alone in facing this legitimacy question.

We need to do something to strengthen the EU’s legitimacy, but do we need this Bill? There are features of the Bill that the Government have put forward that we are prepared to accept. They represent a strengthening of parliamentary accountability and of the circumstances in which referenda might be held. We now accept, which was not the case when the Lisbon treaty was ratified, that most of the things that come under passerelles and other consequentials of the Lisbon treaty should require a full Act of Parliament. I say to the noble Viscount, Lord Trenchard, that this side supports strengthening parliamentary accountability over what decisions the Government take in Europe. On that, we are agreed. We also accept the codification in statute of the political consensus that we would have to have a referendum to join the euro and that referenda should be considered on issues of major constitutional significance. As I said earlier in Committee, a major constitutional treaty that, for instance, led to the direct election of the president of Europe would be that kind of constitutional change that would require a referendum. There is also a strong case to be considered for referenda should we wish at some stage in our national interest to surrender our border controls or to establish a common defence force. These are very big issues which could be suitable for referenda.

This Bill does not do that. It does not focus on the simple, straightforward case that in most issues you should strengthen parliamentary accountability and then on really big issues you should accommodate the possibility of referenda. Instead, it puts in place multiple referendum locks. We count 56, although I am not quite sure whether that number is right. This is a wholly new constitutional innovation on which many Members on all sides of the Committee have expressed severe reservations. In the course of the Committee, we have tried to reduce the number of referendum locks. We have argued, again with the support of a broad range of opinion in this Committee, that Ministers should be able to exercise judgment about which matters are significant on many of the minor changes and minor treaty revisions on which this Bill imposes a referendum lock. We have argued for a parliamentary process—a Joint Committee of both Houses—to consider where referenda might be necessary. We have supported amendments that would simplify Clause 6 and boil down the number of referendum locks to the really big issues.

We have had no give from the Government on any of those issues through this long Committee. That is why we come back to say that the Government have not been prepared in any way to consider the wide range of opinion in this House that the Bill needs substantial amendment, so it is right to suggest that if it is to stay as it is, the whole thing should be sunsetted. I do not blame the Minister for that; I think he has very little freedom to make concessions in this House. The only time we will get concessions from the Government is if, in voting on Report, we can make changes to the Bill. We have no intention of pressing the issues to a vote today. The whole Bill rests on the misjudgment that the leadership of the coalition has made that Europe is somehow a dead issue in our national politics; that the Lisbon treaty was, as it were, Europe's last gasp in terms of changes in its constitutional architecture; and that the Bill is therefore a cheap bone that can be thrown to the many Eurosceptics on the Benches supporting the coalition in the House of Commons.

That is a great shame for a couple of reasons. First, as the noble Lord, Lord Kerr, said, no one can precisely foretell now how the European Union might have to adapt in future. Therefore, the warning of the Council’s former legal adviser, Jean-Claude Piris, that Britain might find that others go ahead and Britain is marginalised, is likely to prove correct were the Bill to last for the longer term. It could have that very damaging long-term effect on Britain's position in Europe. That is a shame, because the coalition Government, in their day-to-day policy on Europe, are trying to be positive. They present the Janus-faced stance of appealing to the anti-Europeans with this disgraceful piece of legislation on the one hand; and yet, when they go to Brussels, they try to present a positive picture of Britain's role in Europe. They signed up for the defence treaty with France. They have argued for deepening the single market. I would not disagree with a word of the speech to be made today by David Lidington, the Europe Minister, which was trailed in the Financial Times this morning. The Government are being positive, but the truth is that, were the coalition to stay in power—of course I would not wish for that—or the Conservatives to be in power for the longer term, if they wish to pursue a positive European policy, because there will need to be adjustments to the rules over time as well as to decisions, they will find their Bill increasingly an albatross. I think that it was my noble friend Lord Davies who described it as the handcuffs of the multiple referenda.

That is a great pity, because far from Europe being a dead issue, we are at a turning point in our national affairs where, in economics, we have in this country to search for a new economic model. We have to rebalance our economy, which can be done only through rebuilding our export strength. Nothing is more important for that than our full engagement in the European single market, and therefore we have to be as co-operative and positive as we can. In terms of our role in the world, we should heed what the noble and learned Lord, Lord Howe, said in his speeches both today and a couple of days ago. As Asia emerges ever stronger, Britain is more dependent on the influence it can multiply through the European Union to have a role in the world. These are big reasons for showing our full commitment to Europe and why we have to be prepared to be flexible in our dealings with our partners rather than lock ourselves out, which is what the impact of this Bill will be.

In conclusion, like the noble Lord, Lord Kerr, who quoted from A Midsummer Night’s Dream, on this side of the Chamber we believe that the European Union is a lasting dream, but this Bill is a nightmare and should be sunsetted at the Report stage.

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

My Lords, I thank all noble Lords who have participated in this debate, sometimes colourfully. There have been a lot of references to William Shakespeare, which I was rather glad about, having spent many years as a director of the Globe Theatre. I have sat through some Shakespeare which, frankly, I could not understand, but in other plays I have heard some wonderful, inner-illuminating phrases, so I am glad they have come into our debate. The noble Lord, Lord Kerr, has led the way in that. As to whether he is Prospero doing such things as cannot be described, whether he is King Lear, or whether he remains in his midsummer night’s dream, I do not know. Perhaps I should leave Shakespeare there.

I thank the noble Lord, Lord Liddle, for his presentation of his party’s position. I listened carefully to him, and if I may put this in a non-derogatory way, I would say that his speech was constructive in parts. He is right that we are at a turning point in the European Union. Indeed, one of my criticisms of some of the comments made during this long Committee stage is that we seem to be discussing the EU of yesteryear, a sort of pre-Lisbon world. Not only are we in a post-Lisbon world, we are moving into an entirely new international landscape where power is distributed in different ways. We have all said this to each other, and I know that your Lordships are acutely aware of it, possibly more than other bodies are.

There is a new international scene that requires new policies and approaches by both the member states and the European Union itself. The noble Lord was therefore right to say that we need to build a new consensus in support of the European Union and our role in it, but I must say that he has failed utterly to convince me in his various interventions, including this one, that the flexibility which Her Majesty’s Opposition seem so keen on and so anxious to see, would not turn out to fill the Bill with holes and undermine all our efforts to create consensus and restore the confidence and trust of the people so that they do not feel that the political class—Governments and Parliament—was not undermining their position in a stealthy way. This seems to me to be a contradiction that is not yet clear.

We will come to Report after the Recess. A great many wise and useful things have been said by Members on all sides in our Committee debates, and of course the Government will consider everything that has been said. My colleagues and I shall certainly do so before we reach the next stage. That almost goes without saying. For the moment, however, I must address the amendments before us, all four of them, about the idea of a sunset clause. It will not be much of a surprise to your Lordships when I say that the coalition Government, for which I am the mouthpiece today, oppose the proposal for a sunset clause. Although I know I shall not get full agreement, I shall try to set out as precisely and as clearly as I can why we do so.

Let us start with the general proposition of including a sunset clause, and why it would be absolutely unprecedented and extraordinary to include one in this kind of legislation, which is constitutional legislation—there is no disguising that—and intended to build a consensus to improve and enlarge our democracy in the modern world, in the midst of this informational revolution that has transformed the whole nature of public domain and decision-making, and to give the British people a greater say, which they clearly want, over important decisions on the future direction of the EU.

I do not at all share the view that these are obscure and arcane issues that no one discusses. On the contrary, particularly the much-maligned Schedule 1 issues, and indeed many others in Clause 6, are highly contentious so-called red-line issues which both Parliament and the public have stormed over—and the media have often joined in in ways that some of us find unattractive and not suitably calibrated. However, these are red-hot issues. The idea that they are not absolutely central to the concerns of the British people—to how we govern ourselves, position ourselves in the European Union and conduct our domestic affairs—seems to me not to be of the real world.

These are very serious and central issues. The truth is that a sunset clause of the kind proposed—we are dealing with a number of different aspects, which of course I want to come to—would seriously undermine our attempts to reconnect the British people with the European Union in its changing form and the decisions taken in their name. Here I would say that I do not think that the noble Lord, Lord Pearson, will accept—but I ask him to accept—that I am very tempted to have a lovely debate on the eurozone in all its aspects, but I do not think that this is quite the opportunity or even the time to do so.

Let me return to this general idea that there should be a sunset clause in a Bill such as this. There were no sunset clauses, of course, in the Constitutional Reform and Governance Act 2010 or, indeed, the European Communities Act 1972, and there is a very good reason for that. Such clauses would be a recipe for uncertainty where certainty is most needed, namely in the framework by which our democracy works. This Bill belongs to the family of certainty-building and not to the family of those who wish to experiment and say, “Let’s just try this measure once and then close it down again”. It would hamper our efforts to rebuild the trust of the people that has been lost in recent years. Why? It would hamper them because we as a Parliament, and the Government as well, would be saying to the British people, “You can have a say on future transfers of competence or power from Britain to the EU, but sorry, it’s only for a limited period unless the Government decide in their wisdom that the right should continue”. That seems to me to be completely the wrong way to go about the purposes, which even the noble Lord, Lord Liddle, seemed to share to some extent, behind the Bill. It would of course also absolutely guarantee the further alienation of Government and Parliament from the people whom we are supposed to serve and whose support and understanding of the values of our effective membership of the European Union we want to increase. It would be a retrograde step in the whole battle—

[Baroness Falkner of Margravine]

Given the time, I am sure that the noble Lord is keen to get under way, and I will not intervene again. Perhaps I may just put to him the simple proposition that if he is concerned about uncertainty at the same time as being concerned that the Bill’s fundamental purpose is to reconnect with the voters, the ideal solution would be to have a sunset clause sometime in the future with a general election in the middle, allowing the voters to express in that general election their view one way or another on how the Bill has panned out.

[Lord Howell of Guildford]

What parties put in their manifestos is certainly not within my control or that of anyone else in Parliament. The parties can make their own decisions. I respect very much what my noble friend and her colleagues are saying and the nature of their amendment, and I want to consider it in considerable detail in the time left. I consider that a very important thing to do.

I was just saying that if the pattern I have described is the right one, the measure would be a retrograde step in an age when the British people have come to expect more of a say than ever before in a wider range of issues. We might not like it, but that is the reality. That applies not just to the British people, of course, but to electorates throughout the entire planet, of which one-third are now on the worldwide web with their linkages and networks expressing their views. Therefore, this measure would do nothing whatever in our view to help to demonstrate to the British people why our continued membership of the European Union is in the interests of everyone in this country and in our national interest. That is something in which this Government believe, although it is not a view that is shared by all noble Lords.

We would be taking power away not only from the British people but from Parliament, because what this Bill does in part, as the noble Lord, Lord Hannay, and others have reminded us, is to enhance the power both of Parliament and the people. We would be promising Parliament more control over decisions taken by the Government at the EU level only to take it away again. Weakening parliamentary control in this way would run contrary to the key principle of the Bill. That principle, incidentally, has been welcomed by the Constitution Committee of this House and by a number of noble Lords in debate.

The noble Lord, Lord Taverne, spoke with great fluency and feeling on whether the Bill binds future Parliaments. Given his remarkable career, he has been at the centre of how the EU should develop and how Britain should work within it, so I totally respect his comments. However, this Bill does not attempt to bind future Parliaments. That is not its intention and it is not the way in which it works. It is open to this and to future Parliaments to repeal, disapply or amend this legislation, once it has been enacted, as Parliament can do with all legislation. The Bill does not alter this fundamental tenet of parliamentary sovereignty, and nor should it. I pray in aid here an interesting remark of Edward Short, a man for whom I had great admiration although he was not on my side politically. When he was Leader of the House of Commons, he said during consideration of the Referendum Act 1975, which my noble and learned friend Lord Howe remembers so well:

“Although one would not expect hon. Members to go against the wishes of the people, they will remain free to do so”.—[Official Report, Commons, 11/3/1975; col. 293.]

Rather than binding future Parliaments, this Bill is an attempt to engage and guide this and future Governments—not Parliaments—and to bind them to seek the views of Parliament, and where necessary the British people, before signing up to any further transfers of power over and above the powers and competences that the European Union has. I have argued throughout Committee that those powers and competences are ample—some would say they are more than ample—to perform all the tasks that we want to see performed in the upgrading, development and strengthening of the European Union as it adjusts to 21st century conditions. It is our wish and our intention that this Bill should become a settled part of this country’s constitutional furniture. If people say, “You should not say that”, my answer is that any Government wish to see their architecture—their longer-term aims and hopes—last into the future and be adopted by the next Government.

One makes no secret of the fact that where we are talking about architecture rather than a one-off task, it is natural that we should want the following Government to pursue it. I recall being a member of a Government some decades ago who promoted the dreaded phrase “privatisation”. In fact, the noble and learned Lord, Lord Howe, did me the honour of suggesting that I had invented that word, adding that it was a particularly ugly one and everyone wanted to get rid of it. However, privatisation came in with a range of laws. We hoped and prayed then that successor Governments would not repeal those laws and renationalise everything. Our hopes were fulfilled. The successor Governments to the Conservative Governments of those days kept the balance of the private and public sectors; indeed, they enlarged the private sector. We did not say that we would bind the next Government; we merely hoped that that architecture would stay in place. It did, and exactly the same issues apply now.

I made the point a moment ago that the Bill seeks to bind future Governments. All Governments, when they put long-term measures in place, do not want to see future Governments just chuck them out. This Government said in the coalition agreement that they would not agree to any further transfer of competence or power from the UK to the EU in this Parliament, nor do they intend to do so. We think that the European Union has enough competences and powers and we see no great need or pressure for expansion or for the flexibility about which the noble Lord spoke from the opposition Front Bench. Of course, the Bill, from the very moment it becomes an Act—if it does—applies to this Government as much as to future Governments; I cannot see anyone suggesting otherwise.

Any treaty change would still need a statement from the Government and an Act of Parliament; any passerelle would still require parliamentary approval. It may be—for nothing is certain in the future—that for whatever reason, however unlikely it is and however much it goes against our firm coalition commitment, a need emerges to agree some great treaty change that would transfer competence or power during this Parliament. As the noble Lord, Lord Taverne, said, we cannot be sure. That is all the more reason for having this Bill in place.

If such things appear, and if they fulfil the conditions described in the Bill and relate to very serious issues—I think noble Lords underestimate how serious many of these issues are, particularly those listed in Schedule 1—there would be a referendum. That makes it all the more important that the Bill be in place, to govern, reinforce and consolidate the political commitment of this Government with a legal undertaking, and we hope to guide future Governments along exactly the same path.

Your Lordships are of course aware that this Government have a policy to ensure that, where new regulations on businesses can have a time limit put on them, then they should. That is quite different; that is for a specific operational reason—to ensure that businesses are not overburdened by bureaucracy. There are other areas where the sunset idea is valid. The Prevention of Terrorism Act 2005 allowed for an annual review of extended detention periods for terrorist suspects. There was good reason for that, since severe forms of control order require a derogation from Article 5 of European Convention on Human Rights legislation before they can be implemented.

More recently, the Public Bodies Bill contains a sunset clause—which has been described as a “use it or lose it” clause and makes perfectly good sense—to allow a fixed time for the Government to introduce desired reforms through provisions that would then expire. The noble Lord, Lord Kerr, raised the question of the sunset amendment to the Fixed-term Parliaments Bill—that was not a government amendment but was inserted by your Lordships in their wisdom. As was explained in the debate, one can see perfectly well why. The coalition exists, and I hope that it continues to exist in strong fine form during this fixed-term Parliament, but after that we have a new landscape. Who knows who will govern? Who knows what the pattern will be? It made perfectly good sense for that legislation to have a limited life before coming to be re-examined.

These examples and others have been in cases where power has been given to the Executive on a given issue for a given period of time. The contrast with this Bill is total. This Bill seeks to devolve power from the Executive to Parliament and the British people. I am afraid that the amendments would take away that devolving effect and, in effect, give it back to the Executive. As my noble friend Lady Nicholson said, matters would again be left purely in the hands of Ministers.

Furthermore, and I say this particularly to my noble friends who suggested that in Amendment 64 one might have a middle way—a little bit of sunsetting, but not too much—a system of post-legislative scrutiny is in place for all legislation, not just the legislation before us today. If people are surprised to learn that, I tell them that in March 2008—this is an inheritance from the previous Government—Ministers put in place a systematic process whereby, between three and five years following Royal Assent to an Act, the Government must submit a memorandum to the relevant departmental Select Committee comprising an assessment of the operation of the Act relative to the objectives of the legislation. The relevant committee can then decide whether it wishes to conduct a more extensive scrutiny of the operation of that Act. That is what will happen anyway. I think that noble Lords will agree that it is a bit of a contrast to the idea in Amendment 64 that if the Bill expired at a certain time, new legislation would be needed to restore the role of Parliament, and would take it back even to the 2008 position, let alone the position that I think all parties want today. Such matters will still be decided by Ministers. Although I can see that the amendment is meant to be a pragmatic solution, it would not actually solve—in fact it would dissolve—the requirement for more trust.

Our sincere hope in government is that future Governments will not cut the cord of returning trust, which the Bill provides for, and that they will not take this step back in time to the age of suspicion over the European Union and its direction that we knew in the past. There is nothing in this legislation that binds Parliament, because one cannot do that.

I have outlined powerful reasons for the Bill—not least the need to meet effectively the legitimate expectations of the British people for a say in whether or not to transfer further powers to the European Union, which is not necessary at all at the moment; and not least the need to align our country with the movement throughout Europe for a greater democratic say by the people. That is an attitude that my honourable friend the Minister for Europe has encountered as he has visited every Government and talked to a vast range of Ministers and public opinion formers throughout all member states. He has never found the ideas and proposals of the coalition in the Bill any problem at all. I say that to the noble Lord, Lord Kerr, who suggested that I should do a bit more travelling. I should quite like to do a bit of travelling, but my duties nowadays frequently seem to be here. Perhaps I will be released over the next few days for a little travelling. Indeed, I intend to head off to the Middle East almost as soon as these debates are over.

Those are the reasons why, with the best will in the world, the idea of sunsetting or expiring legislation that can be renewed in some way by a future Secretary of State does not belong to this kind of legislation. This legislation is intended to be the architecture for a better and more settled relationship between this country and the European Union, by our exertions, and one hopes in the European Union generally, by our example. That is the possibility of the future. It does not to any degree tie Ministers’ hands in the way that has been dramatically asserted, just as the negotiating positions of other Ministers in other countries with similar restrictions—sometimes by referenda or complicated mandates agreed with other parties in their Parliaments—are not tied but strengthened.

All of that is a fear of hobgoblins that I suggest my noble friends should dismiss. There is nothing in this that weakens our position, but there is a great deal that strengthens it. There is a great deal of hope for the future in better and settled relationships with the European Union, with popular support. That is why, for the time being and as an enduring fact, I have to say that sunset clauses do not, alas, fit the purpose of the Bill. I ask the noble Lords who have suggested them to withdraw them.

European Union Bill

Lord Howell of Guildford Excerpts

Monday 23rd May 2011 Lords Chamber

[Lord Empey]

My Lords, before the Minister replies, perhaps I may take up the point which the noble Lord, Lord Triesman, has just made and which the noble Lord, Lord Kerr, made earlier regarding what he described as commonplace political processes in which someone would much rather be defeated on an issue than argue their case differently. In theory, that sounds perfectly reasonable. However, is that precisely because Ministers’ rhetoric and Governments’ rhetoric in the past has never quite matched the decisions that have emerged?

It is commonplace in politics for someone to put forward an argument, and the noble Lord, Lord Kerr, quoted the German case. To avoid a certain procedure within the German constitution, people would say, “A nod and a wink. I’ll do a bit of talking here. I’ll put up a good fight but at the end of the day I know perfectly well that I’m going to get beaten and therefore everything will be all right on the night”. In some senses, that can be seen as normal but others may see it as chicanery. People might see that as undermining the process in Brussels but some, and I am one of them, may argue that there was a prolonged period in history when cases were put in exactly that way with exactly that outcome, which led the people drafting this legislation to take measures—they may not be the most elegant but perhaps the Minister can confirm that they exist—to protect against that precise situation. Let us face it: if a parliamentary decision has to be taken on a particular proposal, a political argument develops in the media to try to influence it, and a Minister sitting at the table can play a major part in creating and framing the debate when it goes into the media and try to build support for it. There is nothing wrong with that. The idea that people are going there secretly with one particular agenda but in fact pretending to have another is precisely why the European Union is in so much trouble with the population of this country. I hope that the Minister can indicate whether that is part of the rationale behind this or whether our fears are unsupported.

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

My Lords, I am grateful to the noble Lord, Lord Triesman, for indicating his general support for at least subsection (1) of Clause 7. It reflects the general view that we have heard in the debate so far that primary legislation is the right instrument in a number of fields, which we have discussed at considerable length.

This clause also brings the UK more into line with the commendable practice of a number of other partners, in particular, Germany, of ensuring that national parliaments have a greater say in the developments of the European Union. It is also consistent with the principles of Laaken, to which I have referred frequently at this Dispatch Box in the past, and it is consistent with the trend in the Lisbon treaty to give more control to national parliaments across Europe.

I want to come to the specific issues that have been raised with considerable knowledge and expertise and try to offer what I hope will be a constructive response. First, I refer to the theme on which a good deal has been made in the debate on the words, “or otherwise support”, raised by the noble Lord, Lord Kerr, my noble friend Lady Williams, the noble Lord, Lord Hannay, and others. The noble Lord, Lord Davies of Stamford, would immediately call me to order if I were to say that this is inherited phraseology. When I sat where the noble Lord, Lord Triesman, now sits, through the long nights that we were dealing with the Bill on the Lisbon treaty, I am trying to remember whether we had amendments on these words. I cannot remember and do not have the electronic memory to retrieve it, but the words were in the Bill which became an Act and which was drawn up by the previous Government, ratifying the then Lisbon treaty. Those with long memories will remember that people like me were not terribly enthusiastic about the treaty or how it should be treated.

However, that is the past and out of the past has come this phrase, “or otherwise support”, which also raises some difficult questions, to which the noble Lord, Lord Kerr, rightly referred. Of course, we want to see in this Parliament a pattern of legislation in this enormously complex area of EU measures which minimises the obscurity and maximises the clarity. I should like to take away the points that have been put very clearly and reflect on the noble Lord’s arguments. I do not know whether that constitutes, in the words of the noble Lord, Lord Hannay, “breaking ducks”, merely passing balls gently to the boundary, or whatever, but the matter clearly needs some reflection because there is clearly obscurity. I suspect that that has been pointed out again and again in debates on European legislation in the past few years; it is nothing new but it does not mean to say that we cannot get it better now, so I will reflect on the points that have been made.

[Lord Hannay of Chiswick]

Will the noble Lord confirm that he will take away and look at all the references in the legislation to the words “or otherwise support”? Here we are discussing only one of them. I am sure that his intention is to look at all of them: if he will confirm that, I will happily agree that he has scored a boundary.

[Lord Howell of Guildford]

Reflections on the words as they appear here will be bound to have cross-reading repercussions. I will put it like that: that is what I am saying that I will seek to do.

I turn now to Article 333(1) of the TFEU, on enhanced co-operation. The pat answer that the Bill gives if you stare it in the face is that if a sensitive veto listed in Schedule 1 is removed, there will be primary legislation for the removal of other vetoes. That is something that the noble Lord, Lord Kerr, questioned. He cited the German example to which the noble Lord, Lord Empey, also referred. That is stretching it a bit. I cannot see that the pattern in Germany—for which there may well be good reasons, such as anxiety not to offend the Länder—arises here. I trust that it does not sound too austere to say that it would not be our way to go through that kind of action in the hope that people would understand that we really wanted to do the reverse. Nevertheless, it is a complex point and I have more to say about it.

This is to do with whether we maintain or surrender a veto in these areas. We are not talking about action in those areas: I am sure that that is perfectly obvious to noble Lords. Enhanced co-operation decisions will not be agreed overnight: they will be agreed as a matter of last resort in areas of sensitivity for some member states. A move to set up enhanced co-operation has happened only once, and is being proposed now in the context of the European patent.

[Lord Kerr of Kinlochard]

I had hoped that the Minister would score another boundary: he was starting splendidly with his exegesis on Germany, with which I entirely agreed. Does it not say in Clause 7(4)(e) and (f) that we are talking about a particular enhanced co-operation? We are not talking about the general rules for enhanced co-operation. I accept the first point that the Minister made about precedent. It seems to me—and, I think, to him—to be an insufficient answer, but it was a sort of answer. The point that he is making now surely does not apply, because paragraphs (e) and (f) state that the decision will relate to a specific reinforced co-operation in which we will be a participant.

[Lord Howell of Guildford]

That is precisely the point that I am making. I mentioned the European patent, which is a good example. A decision to move to qualified majority voting would not be something that we would agree overnight. It would be much more likely to be subject to negotiation over a lengthy period, not least because it would result in one or more member states being outvoted. I simply do not accept that the provision would hold up the taking of a specific decision. I am afraid that my mind may not be meeting that of the noble Lord, Lord Kerr. I cannot see what his concern is. This is to do with removing the veto, not taking that decision. That is the best explanation that I can give: I think that it meets his concern, which he put forward in a very valuable and experienced way.

[Lord Kerr of Kinlochard]

If we are talking about a specific enhanced co-operation, and the Minister accepts that we are, we have something going on out in the field—this is Article 333 on common foreign security policy. A particular kind of external activity is taking place and we do not know what it is. Those who are taking part in it have to make rapid decisions. They have to decide what we do tomorrow about situation x. The treaty says that if they unanimously so decide, they may take implementing decisions by qualified majority in relation to that specific deployment, or whatever it is. They are not changing the treaty or the general rules but are dealing with the problem that has arisen now. I do not understand the different scenario that is being presented when the Minister says that this will be prepared over time and that there will be a lot of consideration. This is about implementation. It is about people in the field. That is why I think it is rather inappropriate. Is the Minister quite sure that it is appropriate to make this a matter on which the UK would need to pass primary legislation?

[Lord Howell of Guildford]

I am not sure I agree with the picture of decisions having to be taken instantly. On the contrary, it seems to me to be much more likely that there would be all kinds of negotiation, not least because it would result in one or more member states being outvoted. I do not think these are. This is a very complex matter, and I have sought to try to explain as best I can how we see it working but, of course, I will write to the noble Lord in more detail about his precise concerns. I am not sure that he has really satisfied me about the cutting edge of his amendment, and I have clearly not satisfied him. We will just go on boxing and coxing while other noble Lords have to listened, so I think it is better if I write to him and try to clarify the Government’s understanding of the reasoning and the reason why primary legislation would be justified against his clearly very strongly held view that it would not be justified and might hold things up.

[Lord Stoddart of Swindon]

Will the Minister ensure that all Members of the Committee who have taken part in our debates so far also receive the letter that he is going to send to the noble Lord, Lord Kerr?

[Lord Howell of Guildford]

Yes, of course I will.

I want now to turn to the next point that the noble Lord raised, which is to do with Article 64(3) of the TFEU on the reverse of liberalisation of capital movements to or from third countries. The noble Lord, Lord Kerr, indicated he did not fully understand what the Bill means. He interpreted it as allowing a move back from QMV to unanimity. Article 64(3) allows for unanimity for the adoption of,

“measures which constitute a step backwards in Union law as regards the liberalisation of the movement of capital to or from third countries”.

I do not know where this phrase “step back” originally emerged from. I do not know whether it was way back in the original draft of the European constitution. It may have been. It is used to do that which we believe should be subject to an Act of Parliament. Once again, I will obviously look at it very closely, but that is why we believe it is in the Bill in the form that it is and why we think an Act of Parliament is the right way forward.

Those are the detailed points that were raised. As I said about the phraseology that comes down to us from legislation under a previous Government, there is matter for further reflection. I fully accept that just because it was there before does not automatically mean that it is the right way forward now, although the previous Government undoubtedly thought that there were good reasons for it, otherwise they would not have put it there.

Clause 7 covers four categories of passerelles—I do not want to detain the Committee by listing them all now—that cover a wide range of different passerelle devices with which we are concerned. I like to think that Clause 7 represents a clear step, which in principle although maybe not in detail has the support of noble Lords generally, towards enhancing parliamentary control over the Government’s participation in a range of important passerelle decisions at EU level. The result ought to be—indeed, the coalition Government believe it will be—an increase in Parliament’s, and ultimately the British public’s, sense of ownership of and engagement with the future direction of the EU.

Of course, in the highly sensitive areas listed in Schedule 1, as we know and have debated endlessly in Committee, the referendum lock would apply on top of parliamentary approval. However, an Act of Parliament is required in the other areas listed in the clause, which surely can only be a bonus for the public trust and accountability that we are all working towards in this legislation and in our work on the European Union generally.

[Lord Kerr of Kinlochard]

I thank the noble Lord warmly for his reply, particularly for what he said about looking again at the wording “or otherwise support”. Whatever its origins, I am sure the Government can do better and that the change would solve a lot of problems not just in Brussels but here. How would the Government advance the case for the Act of Parliament that would be necessary if the law prevented them supporting it? We are slightly in Alice in Wonderland here, and plenty of adjustments to the wording would solve our problem.

The noble Baroness, Lady Falkner, asked me a question that I do not quite understand. My objection to Clause 7(3) is based purely on its wording “or otherwise support”. My objection to Clause 7 as a whole applies in addition to the list in Clause 7(4), which, as the Minister understands, I think is a little too long. I have no objection to Clause 7(2), but I am puzzled by Clause 7(4)(c), (e) and (f). I am very grateful to the Minister for saying that he will reflect on Clause 7(3). I echo the noble Lord, Lord Hannay, in talking about the locus classicus for “or otherwise support”. The phrase is most likely to cause us major problems at the start of Clause 6, which deals with bigger issues than those that we are looking at in Clause 7.

I am grateful to the Minister for saying that he will reflect on the matter and that he will write to me about Clause 7(4)(e) and (f). I hope that he might also write to me about Clause 7(4)(c), if only to explain to someone ignorant like me exactly what the relevant passage of the treaty is all about, and why the Government would object to a move back to unanimity, which seems to me to be slightly inconsistent with their overall stance on decisions.

I do not wish for the moment to protract the discussion on whether Clause 7 should stand part.

European Union Bill

Lord Howell of Guildford Excerpts

Monday 23rd May 2011 Lords Chamber

[Lord Triesman]

My Lords, I welcome this amendment from my noble friend Lord Radice, whose expertise on Europe is well known in the House. Several of the speeches that have been made by Members of the Committee have reflected their own extensive knowledge of Europe and their understandable disappointment that we have been so churlish in the way that we have talked about Europe and the European project over the years. Like the noble Baroness, Lady Williams, I take the point that there are things to criticise. However, that is scarcely a reason for the trajectory on which we have embarked.

In addressing the amendment specifically, it is clear from the beginning of Clause 2 that a referendum would be launched following matters being laid before Parliament and fully debated, a decision being taken by Parliament and a treaty approved by an Act of Parliament. Clause 3 gives essentially the same sequence: Parliament takes a fundamental view, looks at it and decides that a referendum should be held because of the conditions to hold one as set out in the Act. Under Clause 6, a Minister of the Crown must start with a draft decision approved by an Act of Parliament. The referendum condition is then triggered. In all the circumstances in which a referendum condition is triggered—were one ever to be triggered—the reality is that Parliament will have reached a conclusion. Obviously, it will not have done so in secret. It will be a decision that is well known to the public as a whole. Parliament will have decided that the point at which a referendum is required has been reached.

In those circumstances it would be inconceivable that no argument would be advanced to the people who were going to vote in the referendum to account for the decisions that Parliament had taken. It would be an extraordinary set of circumstances in which that decision did not have the visible consent of the Government. If the Government had put a proposition of that kind to Parliament and it had been defeated, it would be a significant blow to any Government. It must be the case that the arguments that had been held in that forum—or forums, taking this House into account as well—would have come to a positive outcome.

I turn to Clause 13. The Electoral Commission,

“must take whatever steps they think appropriate to promote public awareness of the referendum and how to vote in it”.

In other words, it must make sure that people know the referendum is taking place and what they need to do to take part in it. Curiously, under paragraph (b), the Electoral Commission,

“may take whatever steps they think appropriate to promote public awareness of the subject-matter of the referendum”.

In short, it must make sure that everybody knows about the referendum but it may take steps to make sure that people know what the referendum is about. I make this point because if, in those circumstances, the Government or a Minister did not take steps to deal with the policy issues under discussion, it would be the most curious discussion that there had ever been before a referendum, especially if the Electoral Commission itself did not get into the theatre of argument about the subject matter. It seems to me that it is less likely to do that than the politicians who are involved in it.

There is, therefore, a huge amount of good common sense in the amendment of my noble friend Lord Radice. If you look at the specific text of the amendment, Ministers of the Crown are asked to,

“have regard to the desirability”.

This is not a monumental hurdle to have to cross. Ministers are expected to put the argument in a way that at least conveys why Parliament has taken the decisions that it has taken, and to do so in a way that is positive. Does that disbar anybody from saying, “There are issues here. We can see the following negatives”? No, of course it does not. I have no doubt that in any referendum debate people will say what they think the downside of the argument is. However, the amendment would ensure that the upside of the argument is also presented, even in a climate where a large part of the media of this country may not be sympathetic. That is probably the only route to achieving any balance in the discussion that will take place in advance of a referendum. Therefore, I welcome this amendment. One can look back and see how it links with the other clauses, and particularly how it deals with the rather conditional “may take” provision in Clause 13. In my view it would ensure that the argument was well made.

Having made that rather narrow point about the purpose of this amendment and how it would operate against the background of a parliamentary decision, I assert that in a generally extremely sceptical climate it can do no harm whatever to argue the case for the benefits of the European Union in a positive way. No doubt some Members of your Lordships' House do not believe that there are any positive benefits, or that they are so marginal that they should not be referred to because it is a waste of breath. However, a good many more of us believe that there is a very good and strong case to be made in favour of the European Union, and that it is sensible that it is made, as this amendment would ensure.

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

My Lords, I was going to begin my comments by congratulating the noble Lord, Lord Radice, on the very sensible and balanced way in which he put his case, although his peroration slightly took off the ground towards the end of his remarks, but perhaps that is the nature of perorations. However, as the debate has gone on, I have begun to share the sentiment expressed by my noble friend Lady Williams that the situation is sad in a sense, although I suspect that I disagree somewhat with my noble friend on how the EU should develop in the 21st century and be made fit for purpose, where the great trends should go and how this country should reinforce them. Nevertheless, I agree with her that all the old polarities of debate have prevailed for far too long. Over the past decade or so, one has needed to see emerge a new and much more positive British presentation and role than we have seen. That is a matter of regret.

The Government have no difficulty in supporting the main sentiment behind this amendment. We are members of the European Union. If we are members of organisations such as the massive and amazing European Union, it would be absurd to do anything short of making the very creative best we could of that. Therefore, the noble Lord, Lord Radice, makes an important point about the need for the Government to be a more vocal and effective advocate of the European Union of which we are members, given the way that the world is shaping. This applies also to other great bodies in the world of which we are members. I am sure he will join me in saying that we need to do better than the efforts of previous Administrations in our approach to this vital task. Indeed, the noble Lord said as much. We should do so by explaining more clearly how good and positive EU membership is part of our overall adjustment to a totally changed world landscape in which major markets are growing up outside Europe and in which Europe and the European Union, including this nation, are going to have to compete with increasing vigour. We need to ensure that the European Union is understood to be, and is seen as, a force for good. We want people to understand that the European Union, and our membership of it, has been, and can be, a force for good. We need to improve the effectiveness—this is slightly off the brief—of the EU’s own voice. Many of us feel that sometimes in recent years that voice has not been quite so effective and focused as it should have been. We seek to present positively to the British people the benefits of these activities and our membership of the Union. The coalition is doing that. Indeed, all Governments should do so as a matter of course into the future.

--- Later in debate ---

[Lord Davies of Stamford]

I put it to the Minister that this Bill will be seen by our partners on the continent of Europe and in Ireland as an example of terrible British negativity about the European Union. That is quite the wrong spirit in which to negotiate with friends and partners to defend the national interest and to achieve successful outcomes from difficult and complex negotiations. What do the Government propose to do to try to persuade our European partners that, despite the evidence of this Bill, the British Government are positively committed to making a great success of our membership of the EU, and to continuing to build up and strengthen the institutions of the Union?

[Lord Howell of Guildford]

I welcome the noble Lord back to our debate although I am not sure that I welcome the spirit of his contribution. He has certainly made a very lively contribution to previous debates and we missed him earlier this evening. However, his premise is wrong. We have clear indications that there are no difficulties. Jean-Claude Piris, the former head of the Council’s legal service in Brussels, has commented that he sees no difficulties with Clause 18, and that he also has no difficulties with the thrust of the Bill. We have checked with people around the European Union and we are not getting the picture that the noble Lord talks about. Of course, it depends who you talk to. If you find people who support your views, that will reinforce your argument as you can then say, “These people support my views”. However, I assure the noble Lord that throughout Europe there is a real desire on the part of different countries, with their different models and different ways, to seek to enhance the transparency, accountability and public support for the European Union, and to do it in ways not dissimilar to ours—which is to say that this great Union has all the competences it needs and can go forward in a whole range of areas. It does not need to draw new powers from the nation states through treaty changes, competence transfers or power transfers.

All around Europe there is a strong sentiment in that direction. It is a pro-European sentiment and I do not think that it does at all what the noble Lord says. On the contrary, this spirit shows that we are trying to make the architecture—I hope an enduring architecture; and we will debate that later—for a more democratically based Europe that is soundly build on a popular consensus, instead of one that is regarded with hostility and suspicion.

[Lord Radice]

This has been a good debate. We have heard a lot of views, some of which have been predictable, and others that have perhaps been less so. I should like to take up two or three points before I conclude.

The noble Lord, Lord Blackwell, said that he hoped that I was not arguing for propaganda. Of course I am not. I am arguing for the facts, and that requires a balance. Of course there is a cost in our membership but, as the Commercial Secretary to the Treasury said, the cost is considerably outweighed by the benefits. I should like that to be argued out, and to that extent I support the case for costs and benefits to be set out.

At the moment, the debate is unbalanced because there is no strong pro-European voice, and we need to restore that balance because it is not being heard. That is why, when moving the amendment, I put the accent on the positive. We were told by members of UKIP that the Government have no place in this argument. Of course the Government have a place in the argument. They are our Government. We are members of the European Union and we have been members for nearly 40 years. As the noble Lord, Lord Howell, said, it is up to members of the Government to put the case—and it is entirely right that they should do so.

I thank my noble friend Lord Triesman for making an even better case for my amendment than the case I made. He made a subtle and excellent case. I accept that this may be an obligation that should not be in statute but, frankly, I would not have put my case in the way that I did if I had not felt that we in this country faced a serious problem, whereby we are a member of a great Union that neither we nor our Government argue for. I included my own Government in my strictures.

I was pleased that the noble Lord, Lord Howell, put the case in general terms for our membership of the European Union. He rightly said that our case needs refining and developing, as does the European Union. I should like him to make a major speech on the issue, and I very much look forward to hearing it when he has finished with the Bill. I want the coalition to live up to the constructive part of its agreement on Europe. We have heard all the negative bits. Let us have some of the constructive bits. That is my message.

I intend to send a copy of this debate to the Prime Minister, the Chancellor and the Foreign Secretary through the noble Lord, Lord Howell, because it is important that they know what we are saying in this House—that there is a major problem and we need to do something about it. I shall closely monitor, as all of us on this side of the argument will, the performance of the Government to ensure that they stick to the coalition agreement. We have heard a lot about the coalition agreement. Let us make sure they stick to it. I shall, for the moment withdraw my amendment, but that is not because I do not think the issue is important. It is vital.

--- Later in debate ---

[Lord Triesman]

My Lords, what has come through in the debate is that it is hard to see a strong purpose for Clause 18. It is not the best drafted clause I have ever read in legislation, and I understand why—or at least I think I understand why, which I will come to in a moment. But it is also true to say that the Explanatory Notes to the Bill do the clause no favours. They do not set out why it is compelling or why any of us who think that it is obscurely drafted should feel that we can put our hand on our heart and say that we know exactly why it is written as it is. I certainly do not feel that way. I am not a lawyer. I am not learned in the law, which is the expression that has gone around the Chamber. I am a humble mathematician and I am trying hard to understand the considerable obscurities of law when compared with mathematics.

It is important to ask, as did the noble Lord, Lord Deben, only a short while ago, what the clause as it is written is for—I shall come on to the alternatives in a moment. Everybody agrees that it is declaratory in its reference to the 1972 Act. It looks as though it is attempting to balance a number of arguments which plainly have gone on in the background between those who are uncomfortable with the idea that Europe has any bearing on the way we conduct our legal lives, and may continue to do so, and those who recognise that that is a fixed reality because of the processes that the noble and learned Lord, Lord Howe, described in a very helpful speech. It is hard to understand the necessity of Clause 18 and it is reasonable to say that, as drafted, it is open to very wide interpretation. As a couple of noble Lords have said, that would probably make it open to judicial review.

I find myself in strong agreement—I hope that it will do her no harm—with the noble Baroness, Lady Falkner, who said that the House of Commons European Scrutiny Committee’s report gave not the most glowing reference which anybody has written to a piece of legislation. The report is written with the niceness that parliamentarians occasionally reserve for a description of something they think is very poor, but, none the less, it says, in terms pretty much, that it is very poor. The Government in their response almost give up the ghost after a very short period of trying to defend it, because there is no certainty, I think, even on their part, that this was the right way to do it.

I cannot see the point of the clause or that it is at all helpful. I have real sympathy with the point made by the noble Lord, Lord Stoddart, that parliaments cannot bind their successors. That view at least, about the character of parliamentary Government, must be common ground among us. In those circumstances, it must be common ground that Parliament is supreme, and it must be common ground that, should Parliament wish to stand down the 1972 Act, it would be within its competence to do so. It is extremely unlikely that it would, but that is neither here nor there in the terms in which the noble Lord put that proposition to the Committee. The supremacy argument is very powerful. One of the reasons that I have great difficulty with much of this legislation is that it seems to reduce the role of Parliament and the supremacy that it should enjoy. The points that have been made ad nauseam in your Lordships' House about multiple referenda do nothing for the objective of propping up the supremacy of Parliament, but the general proposition made by the noble Lord, Lord Stoddart, must be right.

If the Government feel that it is essential to have in place a clause that is declaratory, it might as well have the following characteristics. First, it should be so clear that even those of us who are not learned in the law understand it. Secondly, it should be sufficiently clear that it does not give rise to frequent legal challenge. Thirdly, it should make reference to—if I may put it this way—the core code that is involved in European legislation and not gloss over that. For those reasons, Amendment 57 offers greater clarification. It may well have been written with people who are used to dealing with sovereignty issues somewhere in the background, but it is none the less a straightforward clarification. Beyond that, Amendment 59 does that by a very direct reference to what I described as the core code—to the central proposition about why the status of our relationship to Europe is as it is.

If we did not have this clause at all, which would be my preference, much of what I said in the past few moments would not be particularly relevant. But if there is to be a declaratory cause it should at least have the characteristics that the noble and learned Lord, Lord Mackay, introduced in his speech this evening. It is impossible to misinterpret or misunderstand it. That has great merit and I hope that he will not mind my saying so from the opposition Benches. It does not alter my view that, as the noble Lord, Lord Armstrong, said, the clause is not really necessary, but Amendment 59 has a convincing pedigree and that is what recommends it to me.

[Lord Howell of Guildford]

My Lords, I will look first at Amendments 57 and 58 and then come to the vagueness charges embodied in Amendment 59. I will seek to explain why the words are in the Bill. Whether the explanation is acceptable to the Committee is another matter at the moment. I will explain that the words that are in the Bill work the other way: they add to the precision of the legislation rather than to the vagueness of it. I will come to that in a moment.

As noble Lords have recognised, Amendment 57 would include on the face of the Bill that Clause 18 does not alter the rights and obligations that the UK signed up to on becoming a member state of the European Union. It also seeks to legislate explicitly that Clause 18 does not alter the primacy of EU law. I am grateful to your Lordships for drawing attention to these two important principles: that the EU law has primacy and that the UK must honour its obligations as an EU member state. I assure the Committee and particularly the noble Lord, Lord Lea, with his Amendment 58, that the Bill supports both those principles. Indeed, the Bill has to support them. It is not a question of choice. The Bill has to support those principles because to do otherwise would put us in breach of our obligations as EU members.

I have serious concerns about Amendment 57. It does not reflect accurately the legal position regarding the UK's membership of the European Union. I say that because the UK follows the dualist constitutional model. Giving treaties effect in the UK is always a two-stage process. That did not seem to feature in the debate that we just had. The first stage—the signing of the treaty during which the UK may take on rights and obligations—is governed by public international law. The rights and obligations assumed by the UK on becoming an EU member state are governed by public, international law rather than domestic law. Those rights and obligations are binding on the United Kingdom under international law irrespective of the existence of the European Communities Act or any other Act of Parliament and will continue to be so as long as the UK continues to be a member state of the European Union. It follows that the EU Bill does not and cannot change the rights and obligations assumed by the United Kingdom on becoming a member of the European Union. It would be misleading to suggest in this or in any Bill that any Act of Parliament could do this. Such a change could only be done by the UK renegotiating the terms of its membership of the European Union.

I say to the noble Lord, Lord Pearson, that Governments can of course seek to bind future Governments. Most Governments whom I know, and whom many of your Lordships know, have sought to bring in great legislation. Let us take, for instance, some of the privatisation provisions under the earlier Thatcher Government. Our hope was that those would endure. We hoped that a future Government would feel bound by privatisation visions, not renationalise the whole of the then privatised sector—indeed, our hopes were in fact borne out. However, a Parliament cannot bind a future Parliament; that is a completely different proposition. It is of course possible that a future Parliament could repeal the 1972 Act although, interestingly, that would not remove the United Kingdom from the European Union. It could only be done by negotiation through Article 50 of the Treaty on European Union but those things are possible. Parliament can do anything and is supreme.

Noble Lords have asked what the point of Clause 18 is and why it is in the Bill. It confirms that the second stage of the dualist system, whereby the rights and obligations taken on by the UK are given effect in UK law and can therefore be enforced through the UK courts, must always be done by an Act of Parliament. Any suggestion that EU law constitutes a new, higher autonomous legal order and has or can develop into part of the UK’s legal system independent of statute are thereby refuted. That is very important indeed. Noble Lords may say: “So what? That is what the courts have always upheld”. However, as the noble Lord, Lord Williamson, acutely observed, it has been challenged. I think that the prosecution in the metric martyrs case tried to float the idea in the counter case that EU law had some autonomous existence independent of our own statute law. It has been raised and to say that it is not in question is simply factually wrong when people have questioned it.

It is therefore the view of the coalition that it is right and valuable that this declaratory clause should be in the Bill. Even if it can be said that the courts have so far upheld that position, as my noble and learned friend Lord Howe is well aware—having been, as he said, the father, godfather and grandfather of the 1972 Act and much of the legislation that flows from it—and as I know and we all know, these matters are challenged. They are, from time to time, challenged by learned legal minds and there is dispute about them. Far from this clause being unnecessary, as the noble Lord, Lord Armstrong, ventured to argue with great clarity, I maintain that on the basis of our own experience—what we hear, read and see in the public debate—it is necessary that it should be in place. That is my view on Clause 57 but I will obviously think hard about the views that were put forward by extremely acute and expert minds on this matter. However, I said that I would set out how the Government see the matter and that is how we see it.

Amendment 59 was a very important part of the argument put forward by a number of noble Lords, including my noble and learned friend Lord Mackay of Clashfern. Let me explain why we have in there “an Act of Parliament” rather than “by virtue of the European Communities Act 1972”. I reassure my noble and learned friend that we have thought about this very carefully because it is a complex balance of issues and we wanted very much to get it right.

The Government accept that Section 2(1) of the European Communities Act is commonly identified as the primary way in which EU law takes effect in the UK, but unfortunately that is not quite right. There are other Acts which can be interpreted as giving effect to EU law within the UK; for example, there are some provisions of the Scotland Act 1998, the Government of Wales Act 2006, the Northern Ireland Act 1998—and I believe there were other earlier Northern Ireland Acts as well, as I remember taking part in some myself. Then there are the Enterprise Act 2002 and the Equality Act 2006. They all put Ministers under an obligation to act in accordance with EU law without reference to the European Communities Act—and there may be other such Acts in future. Who knows? We have to prepare for these things. It was to address this concern and those facts that Clause 18 was deliberately drafted to refer to Acts in the plural, or an Act of Parliament, rather than solely referring to Section 2(1) of the European Communities Act 1972.

I reassure my noble friends that having carefully thought about it and come down on that side of the argument, which we believe to be the comprehensive and effective one, there was no sinister purpose. It was simply a design to ensure that all the means by which directly effective or applicable EU law could be given an effect in the UK legal order are addressed. That is the raison d’etre and the underlying argument why the clause is there, why it is necessary and why it is so worded.

I would like to say a final word, or semi-final word—or penultimate word—about the point made by the noble Lord, Lord Kerr, at Second Reading, which he touched on again today. He queried what on earth paragraph 113 was doing in the Explanatory Notes, which refers to the,

“UK subordinate legislation … and … Acts and Measures of the devolved legislatures”.

The answer is that EU law can be given effect in the UK legal order, not only directly through primary legislation but through means of delegated legislation adopted under primary legislation. The obvious example of this is the secondary legislation giving effect to EU measures adopted under Section 2(2) of the European Communities Act, and the reference in Clause 18 to,

“by virtue of an Act of Parliament”,

covers that aspect.

I said that was my penultimate comment. My noble and extremely learned friend Lord Howe did that dangerous thing of mentioning the Commonwealth, which has not really come into this Bill at all. I cannot resist making the point that if we are to promote the interests of this nation as a positive member of the European Union, and to do so fit in to this extraordinary new world in which all the wealth and accumulated savings and first the economic and now the political power have shifted to a degree away from the Atlantic nations and the West to the new emerging worlds of Asia, Africa and Latin America, these are the new networks in which we must also involve ourselves. We must work to ensure that our European membership enables us to take our full part in these things to reinforce each other.

I had to get that in, only because my noble and learned friend tempted me. It has very little to do with the amendment, but I think that I have explained why the two points raised by noble Lords with great learning and authority fit in to the fact that the clause is necessary; it may be declaratory but it does a job, and that is why it is there, and it is drafted as an Act of Parliament rather than the European Communities Act 1972 but deliberately and carefully.

I think I said a word about the amendment intended to help proposed by the noble Lord, Lord Lea. I assure him that there is no way in which Clause 18 alters the commitment or position of the primacy of European Union law, which in turn rests as it always must on the will and Act of Parliament supported by the courts. That is why I would ask noble Lords and the noble and learned Lords to consider what they have put forward and withdraw the amendment.

[Lord Pearson of Rannoch]

My Lords, I would like to spend a little time ruminating on something that the Minister said. He said that if this Parliament repealed the 1972 Act and the relevant parts of the other Acts that he mentioned, we would still be bound by Article 50 of the Lisbon treaty. Article 50 is of course the laborious and expensive process that Lisbon allows for a member state to leave the European Union over a period of some two years. Why is that so? Surely if we have repealed the 1972 Act, have we not repealed everything that flows from it, including Article 50. Could we not then get out much quicker and rather more cheaply?

[Lord Howell of Guildford]

I am proceeding on this subject on the close advice of lawyers. I am advised that even if we repealed the Act, under international law we would remain a member of the European Union until such time as we negotiated our way out of it under Article 50. That is the point that I was making.

--- Later in debate ---

[Lord Liddle]

I will say something on this, prompted by the Minister’s speech, just to oppose that Clause 18 should stand part of the Bill. We have had an excellent discussion—civilised, expert, well argued and showing the real quality of the House of Lords. The noble Lord, Lord Howell, at the end did his best to explain why the Government think that the inclusion of this clause is necessary. I am no lawyer—one comes to these matters as a bird of little brain—but we will have to give what he said in his speech a lot of thought over the Recess. I am glad that we have the Recess to think about it.

The fundamental question at the back of my mind on this clause—and at the back of the minds of many Members who have moved amendments to it—which the Government have failed to answer, is: why is this clause required now? We have been members of the European Union satisfactorily for nearly 40 years. Why do we need to introduce this clause at this stage? How will it improve our relationship with the EU? I have not come across a good, objective answer to that question. I am sorry to lower the tone and talk about crude politics but I think the reason why this clause is included is because it is intended to satisfy and appease some of the worst elements—from our point of view—of feeling about Europe in this country.

I have always believed in something that I call the Dora Gaitskell principle of politics. This is based on the story that when Hugh Gaitskell made his great “thousand years of British history” speech at the Labour conference in 1962, and it was a tremendous success and the hall rose—the noble Baroness, Lady Williams, was probably there—Dora turned to Hugh and said, “But Hugh, all the wrong people are cheering”. I wonder who is cheering this sovereignty clause. Why are the Government doing this? The whole idea of introducing some sort of sovereignty clause goes back a long way. I was not at the Labour conference in 1962 but I had to listen to the comments of the Common Market Safeguards Campaign and the Labour Common Market Safeguards Committee in the 1970s. I remember Peter Shore, for whom I had the greatest respect as an individual, strongly putting forward the argument that we should renege on Section 2 of the European Communities Act. For the past 20 years we have had the redoubtable and indefatigable William Cash making these kind of arguments in the other place.

The Government have to explain to us why, after 40 years of membership, we need this clause now. My fear is that anything we do in this area will be misinterpreted and will be an invitation to the courts to change what has been a relatively clear position up to now. That is why we must come back to this issue with all seriousness on Report. With that, I withdraw my opposition at this stage to Clause 18 standing part of the Bill.

[Lord Howell of Guildford]

My Lords, the noble Lord has touched on a number of the issues that we have already covered. He asks yet again why the clause is there. The noble Lord, Lord Hannay, slightly mocks the coalition, and mocks me, by suggesting that this all turns on the prosecution’s line in a particular case. It does not, of course; it turns on a very wide number of views. I do not know whether he has studied all the academic views submitted to the scrutiny committee in the other place, but they were substantial. They reflect a substantial body of thought which asserts that EU law is autonomous and independent. This measure is in line with the practice of other member states. Germany’s Federal Constitutional Court, the Bundesverfassungsgericht, ruled in 1993 in the case of Brunner v the European Union Treaty—this was in the Common Market Law Reports 57—that Community law applies in Germany only because laws passed by the German Parliament say that it does. Therefore, although the noble Lord, Lord Lea of Crondall, put it extremely kindly when he said that we are raising the bar above others, I am not sure that that is so. In some cases, we are actually catching up with others. We are simply moving to a position of declaring that the will of Parliament is supreme in all our laws in this kingdom, but that Parliament has willed that EU law should have supremacy. That is and has been the position since we passed the 1972 Act all those long nights and years ago, as my noble and learned friend Lord Howe reminded us.

There it is. I have clearly listened carefully to this excellent and learned debate. I owed it to the House and to your Lordships to explain why the coalition reached the view that a clause of this kind, after careful consideration, should be worded in this way. That is particularly important because I hope that the clause now carries a little more support from my noble and learned friend Lord Mackay of Clashfern, the noble Lord, Lord Armstrong, and others. I tried to explain the position as clearly as possible. We have a good and valuable case that reinforces our stance vis-à-vis Europe, which is, as I said, positive and constructive in the dangerous and fluid world where new and positive thoughts are urgently required.

Clause 18 agreed.

Education: Bahraini Students

Lord Howell of Guildford Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Avebury]

To ask Her Majesty’s Government whether they will make representations to the Government of Bahrain on behalf of those Bahrainians studying in the United Kingdom whose courses have been terminated.

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

My Lords, we urge the Government of Bahrain to meet all their human rights obligations and to uphold political freedoms, equal access to justice and the rule of law. The British Government are aware of allegations about the Bahraini Government’s actions towards some Bahraini students studying in the United Kingdom. These are clearly of considerable concern. Our ambassador in Bahrain raised the issue with the Bahraini Minister of Justice on 4 May, saying that it was wrong for students to be punished for exercising a right to peaceful demonstration, as recognised by the International Covenant on Civil and Political Rights. We will continue to make our concerns clear to the Bahraini authorities.

[Lord Avebury]

My Lords, has my noble friend actually made representations to the Bahraini authorities that they should restore the grants to these particular students, who will otherwise be left destitute in this country? Does he think that these students are likely to obey the summons to return to their country when, this morning, the court sentenced demonstrators to 20 years’ imprisonment?

--- Later in debate ---

[Lord Howell of Guildford]

We have certainly made representations along those lines, in very strong terms. I could not speculate on what kind of result the pressures will have, but we have made the point that students are free to carry on activities here as long as they do not commit a criminal offence. That is the law and we have made the situation absolutely clear to the Bahraini authorities.

[Lord Ahmed]

My Lords, is the Minister aware that MINAB—the Mosques and Imams National Advisory Board—has expressed deep concerns about the Bahraini authorities’ demolition of 10 Shia mosques? As a Sunni, I hope that Her Majesty’s Government will make representations to the Bahraini Government asking them to refrain from demolishing places of worship.

[Lord Howell of Guildford]

Yes, we certainly will do so—and may well have done so already. I appreciate very much the insights of the noble Lord, as he understands the tensions, difficulties and divisions of this situation. In addition to making representations—which of course is not good enough unless one gets results—we have noted that the authorities in Bahrain have agreed to lift the state of emergency and to accelerate investigations into deaths in detention, and they have invited in the UN to investigate abuses at the Salmaniya hospital. That goes beyond the question of mosque demolition, but it indicates that we have the sustained pressure and that we might be getting some progress. However, there is a long way to go before we move to the dialogue that we want to see the Bahraini authorities organise in their country.

[Baroness Falkner of Margravine]

My Lords, is my noble friend aware that in addition to the sanctions against the students here in the UK—who, as he said, were exercising the democratic right to protest peacefully that is available to them here—their families have been arrested, locked up and told that they will not be released until the students stop protesting and opposing the regime? Can my noble friend tell the House whether the UN and other international bodies working on this Bahraini impasse would consider appointing an envoy to go to Bahrain and investigate these abuses?

[Lord Howell of Guildford]

I have not had reports this morning about the first point that my noble friend raised, but obviously there is concern in all the international bodies about what has been happening. As I have said, we have urged the Government of Bahrain to create the environment in which a dialogue can take place. This is the pressure being put on the Bahraini authorities at the moment and we intend to pursue it. The issue of taking wider action at the UN has not arisen and, at the moment, there is no sign of organised support for any movement of that kind. But, obviously, these matters are always in our minds.

[Baroness Symons of Vernham Dean]

My Lords, does the Minister agree that the situation in Bahrain is very complex and different from a lot of the other centres of unrest that we are witnessing in the Middle East, not least because of the problems alluded to by my noble friend? There is the Shia-Sunni conflict, the problem of outside influences and, indeed, tensions within the Bahraini Government themselves. Would the Minister consider chairing a meeting of those of us who are interested in Bahraini issues so that we might have an opportunity to discuss some of these issues in perhaps greater detail, perhaps with some briefing as well from the Foreign Office? I think that that would be immensely helpful and I would be grateful if the noble Lord would consider doing it.

[Noble Lords]

Hear, hear!

[Lord Howell of Guildford]

As far as I am concerned, I am always free to do that—of course—and I suspect from the noises that I hear around me that that would be a good move. Let us work to see if we can find time to get together and move ahead on that basis.

[Lord Tebbit]

My Lords, at the risk of striking a discordant note, could I put it to my noble friend that the business of the Government is governing this country rather than telling eternally almost every other Government in the world how to govern theirs?

[Lord Howell of Guildford]

I am very surprised that my noble friend is striking a discordant note, but he makes the perfectly serious point that we cannot resolve every issue in every corner of the earth. However, there are our interests—and our interests happen to be rather acute in this very sensitive area of the Middle East, where not only does one of our major allies have a huge fleet and we have our contact and communications operations for trying to control the piracy that is a direct affront to our interests, our shipping and our prosperity, but there are many other British interests as well. I think that we are entitled to look after our interests in a reasonable way without—my noble friend is quite right—interfering in every conceivable situation.

EU: Transfer of Iranian Refugees

Lord Howell of Guildford Excerpts

Thursday 19th May 2011 Lords Chamber

[Lord Corbett of Castle Vale]

To ask Her Majesty’s Government what is their response to a proposal from a European Parliament delegation to Iraq that the European Union Council of Ministers and European Commission seek international support for the voluntary transfer of Iranian refugees at Camp Ashraf to European Union member states, the United States and Canada.

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

My Lords, we are aware of the recent visit to Iraq by the European parliamentary delegation and its proposed solution to the complex challenges that Camp Ashraf presents. Resettlement may represent a way forward, although we do not assess that residents would qualify for resettlement in the UK. Responsibility for Camp Ashraf lies with the Government of Iraq, and we call on all sides to engage in constructive dialogue to reach a lasting solution. We deplore the recent loss of life and injury.

[Lord Corbett of Castle Vale]

Will the Minister understand that attempts peacefully to resolve the position of Ashraf cannot begin until Iraqi and Iranian forces stop the brutal murder of residents of Ashraf, the wounding of literally hundreds of residents and the use of psychological torture through 280 loudspeakers around the camp perimeter, threatening the lives of those in the camp? Will he now ask the Prime Minister to urge the UN Security Council to take over responsibility for the protection of Ashraf residents, to secure the withdrawal of Iraqi and Iranian forces from the camp and to ensure that the wounded get the treatment and the medical supplies that they need to get better?

[Lord Howell of Guildford]

As the noble Lord knows very well—indeed, he must be saluted as the campaign leader in this very ugly situation—the UN Assistance Mission for Iraq, UNAMI, has requested that another humanitarian monitoring mission be sent to Ashraf as soon as possible, and we fully support that. The problem, as the noble Lord appreciates, is that this is Iraqi sovereign territory and there are limits to what those of us outside can do. Despite making constant representations, our own visit on 16 March and our deploring of the confirmed killing on 8 April, we cannot intervene in the internal affairs of Iraq without the recognition and support of the Maliki Government, which we need. That is what we must work for all the time and what we back the UN in doing as well.

[Baroness Nicholson of Winterbourne]

My Lords—

[Lord Alton of Liverpool]

Did the Minister have the chance to see the speech made by the noble Baroness, Lady Ashton, in the European Parliament on 10 May, where she reiterated the duty to protect which the noble Lord, Lord Corbett, referred to a few moments ago? The noble Lord asked the Minister about the role of the United Nations and the declared doctrine of the duty to protect. Given that, in April, 35 people were killed and 350 were injured, is this merely an internal question for the sovereign Government of Iraq or is it not something that the international community has a duty to be involved in?

[Lord Howell of Guildford]

It is a matter that should and does concern us all. I am very glad that the noble Baroness, Lady Ashton, has now agreed to take the Ashraf issue on to the agenda at the next European Union Foreign Affairs Council on 23 May. We are moving in that direction.

[Baroness Falkner of Margravine]

My Lords, is my noble friend aware that not only are the wounded still not gaining medical supplies but that these people have not even been allowed to bury their dead in their own cemetery? Will he accept that, under the Geneva protocols, these are protected persons? At the risk of offending the noble Lord, Lord Tebbit, again, can I add that international law requires other states to take positive action to protect innocent civilians in these circumstances? Will the international community come together to resettle these people voluntarily, either within Iraq or in other countries?

--- Later in debate ---

[Lord Howell of Guildford]

I referred earlier in my Answer to the noble Lord, Lord Corbett, to the problem about resettlement in different countries. Neither this country nor our neighbouring countries are in a position to resettle these people; they simply do not qualify. On the medical treatment issue, these points have been raised and the UN, again with our support, has stressed the importance of the Iraqi Government co-operating with the camp’s leadership to ensure that residents get the treatment they need. After the dreadful 8 April incident, a number of the injured were transferred to a US hospital and all those have now returned to the camp. The issue of serious medical deprivation and serious medical assistance is very much in our minds and in the minds of the United Nations, and we will continue to watch the situation very carefully. There appear to be some transfers of cases to hospitals in Baghdad and Erbil. The situation is not totally black, but it is very dark indeed.

[Lord Eden of Winton]

Does my noble friend agree that this situation has now reached the point where a fresh approach is required if it is ever going to be resolved in a sensible and humanitarian way? Is it not clear that Iraq would like to have this issue settled one way or the other but that it is choosing a route that is resulting in grotesque crimes against the civilian population in Ashraf? Surely the moment has come when the United Nations and the European Union together should take the initiative to find a lasting solution that will satisfactorily rehouse the residents of Ashraf elsewhere out of Iraq?

[Lord Howell of Guildford]

I certainly hope that that moment will come. The present course of Iraq appears to be that, by means that are not at all acceptable, it can shrink the perimeters of this very large camp. This has led to the kind of horrors we saw on 8 April and so clearly that is the wrong route. I hope that at the meeting of the European Union Foreign Affairs Council, which I have already mentioned, the prospects for redirecting the Government of Iraq into a wiser course and taking broader steps with the support of the European Union will crystallise. That is what I hope will happen.

[Lord Clarke of Hampstead]

My Lords, on the protected persons status under the Geneva Convention, is the Minister aware that his colleague, Alistair Burt, wrote to me on 9 May saying that my concerns about this protected persons status were not sustainable because there was no warlike “scenario”, as he described it, in Camp Ashraf? Does the Minister agree that the people who were attacked on 8 April, when the camp was invaded at four o’clock in the morning and resulted in at least 38 people being slaughtered, including eight women, could be forgiven for thinking that it is a warlike situation? Mr Maliki should be told that his freedom in Iraq is there only because of the sacrifice of British and American troops all those years ago.

[Lord Howell of Guildford]

I agree with the feeling behind the noble Lord’s statement. If the underlying thought of the question was whether these people could be protected by the fourth Geneva Convention, I am afraid the answer, again, is negative; it is not, in the sense recognised by the convention, a war situation. It remains, nevertheless, whatever the lawyers tell us, a very unpleasant situation, and we must all move to see whether we can advance towards a creative solution.

BBC World Service

Lord Howell of Guildford Excerpts

Tuesday 17th May 2011 Lords Chamber

[Lord Fowler]

To ask Her Majesty’s Government what discussions they have had with the BBC on the development of the World Service.

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

My Lords, we have regular discussions with the BBC World Service. We are aware that the BBC World Service has already reprioritised resources to minimise the effect of the cuts to the BBC Arabic service. We are also looking at ways that we can work with the BBC Arabic service and the BBC World Service Trust on specific projects under the Arab Partnership Initiative. We have also been in discussion with the BBC Trust, the BBC World Service and the Department for Culture, Media, and Sport over an amendment to the BBC agreement that will include setting out the role of the Foreign Secretary once the funding of the World Service transfers to the licence fee in 2014-15.

[Lord Fowler]

My Lords, I thank my noble friend for that reply, but perhaps I may raise specifically the cuts being planned in news reporting on the Arabic service, which, incidentally, will be unaffected by any resources from DfID through the World Service Trust. Does he not agree that this is a crucial time in the Arab world and the Middle East—so important that other television stations are expanding their reporting and Sky is soon to introduce an entirely new service there? Given that the World Service is already well established, respected and cost-effective, should not our aim be to develop the Arabic service, not to cut it back?

[Lord Howell of Guildford]

Of course that is absolutely right and my noble friend is extremely well informed on these matters. In fact, I really wanted to say to him that when he spoke about these matters the other day, I said that he was “misinformed”. On reflection, I think that that is too strong a word, and I apologise to him for it. He was correctly drawing on the BBC World Service circular, but that did not quite present the whole picture about the fact that the 24-hour service is being maintained in one form or another—although it is perfectly true that live broadcasts have been curtailed.

Nevertheless, as I mentioned in my Answer, we are working on specific projects under the Arab Partnership Initiative, and we hope that that initiative will be expanded and, therefore, that opportunities for more support for the service will expand. I should add that if one looks at the totality of the projection of our soft power communication with the Arab world, since between November last year and February there has been a 263 per cent increase in online BBC Arabic usage, a 949 per cent increase in requests for Arabic TV online streaming from the BBC, and a 559 per cent increase in online video requests. No one can say that we are backward in promoting the British message, persuading, using influence and communicating in a highly effective way with the turbulent Arab world.

[Lord Soley]

Has the noble Lord taken into account the very important fact that not just in the Middle East but in Iran as well television coverage is particularly important and that it is much more expensive than radio coverage? Will he give the House an undertaking that, in looking at these figures, the Government will take into account the additional cost of TV coverage to the Middle East and Iran to make sure that we do not undermine this crucial part of our soft power?

[Lord Howell of Guildford]

The noble Lord is quite right. As I indicated in the figures that I gave, although radio remains immensely important, the trend is towards television becoming the dominant leader. We can see from the enormous rise in the influence of Al-Jazeera just how powerful it is and how important it is to promote our own TV services. Therefore, although I cannot give precise undertakings on precise figures, that is clearly a high priority.

[Baroness Coussins]

My Lords, following the reprieve of the Hindi service, are any of the other foreign language services that have been cut likely to be able to benefit from a similar rescue package, possibly including commercial partnerships?

[Lord Howell of Guildford]

My right honourable friend the Foreign Secretary gave permission for five foreign language services to be cut, mainly because their usage had fallen dramatically. However, the allocation of resources for maintaining foreign language services and the possibilities of bringing in commercial support are matters for the BBC World Service and, after 2014, for the BBC. The Department for International Development is discussing ways in which it can work in a more strategically joined-up manner with the BBC World Service Trust, which itself produces the prospect of more support for the services we want to keep and are effective and fit into the modern technological pattern.

[Baroness Trumpington]

My Lords, I hope that this is not irrelevant. If, as the noble Lord said, the BBC is cutting back, why do I have to listen at 3 am to the most ghastly children’s programme for the under-fives when that time could surely be put to use for foreign broadcasts somewhere in the world where it is not 3 am?

[Lord Howell of Guildford]

I have a feeling that the slightly cop-out answer is that that really is a matter for the programmers and directors of the BBC World Service and not for me at 3 am in the morning. Nevertheless, although the World Service and many other aspects of government and government agencies have had to trim their sails in line with the general austerity measures, for reasons which we all know about, in general great strides are being made in expanding the communication network in these areas and in reorganising BBC programmes in a way that, I hope, will not disturb my noble friend quite so challengingly.

[Baroness Bonham-Carter of Yarnbury]

My Lords, I suspect that many noble Lords saw the photograph of a young man protesting in Deraa, Syria, holding up a placard on which was written “Thank you BBC”. I think that that says it all. Can the Minister persuade his friends at DfID that the World Service is regarded by the recipients of our aid as priceless and ask them to look up exactly what that means?

[Lord Howell of Guildford]

I think that my honourable friends and colleagues in DfID are well aware of that. It is a very important element in the deployment of soft power by this nation and it makes an important contribution to the overall soft-power communication message. No one doubts that for a moment. The budget is still substantial. It has had to take a cut proportionate with the huge cut that the Foreign Office had to take at the time of the exchange rate farrago. That had a huge impact on the Foreign Office. All the agencies concerned have had to take a proportionate share of that, but no more than proportionate compared with 2008.

[Lord Corbett of Castle Vale]

When the BBC accepts financial responsibility for the World Service, who has the final word on to which countries and to what extent the BBC broadcasts: the Foreign Secretary or those who pay the piper, the BBC?

[Lord Howell of Guildford]

The finality and responsibility will be very carefully defined. A new broadcasting agreement is now being worked out between the Department for Culture, Media and Sport and the BBC that will define exactly the rights and responsibilities of the Foreign Secretary. However, at present, the final word is with the Foreign Secretary and it was he who sanctioned and approved the cuts in, I think, five of the foreign language services. Beyond that, it has been a matter for the BBC World Service itself to work out how best to use its resources.