Sudan

Lord Howell of Guildford Excerpts

Wednesday 15th June 2011 Lords Chamber

[Lord Chidgey]

To ask Her Majesty’s Government what is their response to the situation in Sudan.

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

My Lords, we are deeply concerned by the situation in Abyei and the current violence in Southern Kordofan. We call for an immediate cessation of violence and urge the parties to work through the African Union-facilitated negotiations to resolve their differences. Michael Ryder, the UK special envoy to Sudan, is in Addis Ababa today, supporting these talks. We are particularly concerned by the humanitarian impact and the lack of access for humanitarian agencies. We strongly urge the Sudanese armed forces from the north and the Sudanese People’s Liberation Army to allow humanitarian agencies immediate access to those who most need their help.

[Lord Chidgey]

I am very grateful to my noble friend for that Answer. Does he agree that the situation unfolding in Southern Kordofan is creating a major threat to regional stability? Will he confirm recent reports that of the 60,000 people in Kadugli, 40,000 have fled from the heavy fighting, which has included bombing and strafing by the Sudanese army; and that some 10,000 are now stranded on the roads without sustenance of any form? Will he confirm also the eye-witness reports of the Sudanese army going from house to house, pulling out opposition supporters and local officials and executing them? Will he confirm that UNMIS has completely failed to protect civilians and assure the House that we, as major donors to northern Sudan, will apply every pressure we can to ensure the restoration of peace, the protection of civilians and the securing of access to humanitarian aid before independence on 9 July?

[Lord Howell of Guildford]

My noble friend obviously follows these matters extremely closely. Of course I can confirm his last point; we will use every possible endeavour and will hope that the talks going on under the AU implementation panel in Addis Ababa will begin to lead to a calming down of the situation, and to the necessary humanitarian access that at present is being denied. My noble friend asked whether I could confirm various reports. Obviously, in detail, I cannot. What I can say is that we have had a range of reports with horrifying elements to them. We completely deplore the bombing of civilians by the forces of Sudan and Khartoum. All these developments must cease—there must be an immediate cessation of this kind of fighting—so that we can get back to what we hoped would be a pattern of peace under the comprehensive peace agreement, so that Southern Sudan can move towards its independence day on 9 July.

[Baroness Cox]

My Lords, is the noble Lord aware that there is reliable evidence, including photographic evidence, of the aerial bombardment of civilians in Southern Kordofan, including the use of helicopter gunships to chase civilians like wild animals; and that there are reports of UNMIS forces standing by while northern soldiers kill civilians in front of them? Will the Minister indicate whether Her Majesty's Government will press the UN Security Council to take effective action to ensure that UNMIS forces will be effective in their role, and also to give serious consideration to the priority request of local people for a no-fly zone?

[Lord Howell of Guildford]

The noble Baroness is right when she confirms what I said about the bombing, which we deeply deplore. On the question of UN action, there are proposals that may be moving towards a resolution, but of course resolutions do not necessarily deliver the goods. What is needed is a much stronger operation. UNMIS needs reinforcement and has had some already—although it has not been a total success in protecting civilians from the atrocities that the noble Baroness describes. There is also some hope—perhaps that is too strong a word and I should say some movement forward—to be gained from the agreement that appears to have been accepted in Khartoum that an Ethiopian, non-UN force should intervene in Abyei to try to bring peace and to stop any further fighting and conflict arising both from tribal differences and differences between the north and south.

[The Lord Bishop of Chichester]

My Lords, does the Minister agree with Archbishop Deng, the archbishop of the Episcopal Church of Sudan, that the situation at the moment has all the hallmarks of ethnic cleansing and potential genocide, and that this adds a very particular urgency to the need for effective international action to bring an immediate end to the bloodshed and also to secure a long-term, lasting peace?

[Lord Howell of Guildford]

I agree with the right reverend Prelate. I do not think that there is any doubt that this is a very serious situation, with some extremely ugly developments, and that it needs very urgent action by both north and south—but particularly by the northern forces, which are using heavy weapons to attack civilians in a completely unacceptable way.

[Baroness Kinnock of Holyhead]

My Lords, in the past few days we have heard a number of responses to the terrible situation in Southern Kordofan: the White House has talked about crimes against humanity and the targeting of individuals on ethnic grounds; and the most reverend Primate the Archbishop of Canterbury has described what he calls “government-supported terror” and “another Darfur”. However, from our Foreign Secretary we have had only a short Written Statement which talks of his concerns and condemnation. In response to such appalling atrocities, surely we have a right to expect more assertive words from the British Government, and a commitment to urgent action, such as, particularly, a movement to Chapter VII of the UN Charter.

[Lord Howell of Guildford]

I am the first to salute the noble Baroness’s concerns in this area, but I do not think that she is being quite fair. My right honourable friend the Foreign Secretary has spoken out about these matters both at Foreign Office Questions and in quite long Statements, and I know that it is a major preoccupation. Possibly the best evidence of his close preoccupation with these extremely worrying concerns is that he will attend the independence on 9 July, in Juba, together with other international leaders; the full support which is already reflected in our substantial consulate-general, to be an embassy, in Juba; the extremely close, daily involvement of our officials in the whole operation; and the very substantial aid programmes which we offer both to the new South Sudan as it emerges and to address the continuing problems of north Sudan—providing, I should add, that they, in a sense, follow more responsible policies and cease these hideous, open and atrocious attacks on unarmed civilians.

Gibraltar

Lord Howell of Guildford Excerpts

Tuesday 14th June 2011 Lords Chamber

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

My Lords, our embassy in Madrid made representations to the Spanish Ministry of Foreign Affairs and Ministry of Defence while the “Atalaya” incident on 3 May was ongoing, which we believe contributed to the speedy and peaceful resolution of the incident, along with the local Royal Navy response. Our ambassador in Madrid then followed up in person with the Spanish Ministry of Foreign Affairs on 6 May 2011. The embassy in Madrid dispatched an official written complaint to the ministry on 9 May. The Minister for Europe, my right honourable friend Mr Lidington, also raised it with the Spanish Foreign Minister in the margins of the Council of Europe meeting on 10 and 11 May.

[Lord Bilston]

How long will the people of Gibraltar have to tolerate the harassment and intimidation of the Spanish authorities? We should bear in mind that the Government of Gibraltar do not consider that physical confrontation or gunboat diplomacy is the proper or sensible way forward. Can the Minister explain to the House why it took almost an hour for the gunboat HMS “Scimitar” to be deployed to deal with this incident that really was unlawful, provocative and unnecessary by the Spanish navy?

[Lord Howell of Guildford]

Those are very understandable questions. I will answer the second one first. The response was fairly swift. We have to balance our diplomatic and our military response and we have to live with the reality that while in many fields Spain is our close ally around the world and helping us, on this issue we have our differences. It is a question of balance. As to the longer-term situation, our hope and our intention are rooted in the Cordoba Agreement, the trilateral forum of dialogue, which was set up very successfully under the previous Government. I emphasise that it involves not just Britain and Spain, but Britain, Gibraltar and Spain—it is trilateral. If we can keep that process going, it must be the way forward to end these incursions which, I agree, do create a sense of irritation and seem unnecessary.

[Lord Chidgey]

Does my noble friend the Minister agree with the statement made by Peter Caruana, the Chief Minister of Gibraltar, that there are absolutely no circumstances in which his Government will permit local waters to be treated,

“other than as waters of exclusive British sovereignty”,

under their exclusive jurisdiction? Will the Government join the Government of Gibraltar in appealing the ruling that their cases against the decision that these waters should become one of Spain’s protected sites under EU law are inadmissible?

[Lord Howell of Guildford]

We agree with Peter Caruana completely. We also take the view that, as these are British Government sovereign waters, any redesignation is for us and not for Spain.

[Lord Luce]

I declare an interest as a former Governor of Gibraltar. Does the Minister not agree that the trilateral forum, to which he referred, has made a great deal of progress in recent years in bringing, through economic co-operation, benefits to the people of Spain in the region, as well as to Gibraltarians? Does he also agree that, so long as the Spanish Government—a fellow member of NATO and the European Union—behave in this unacceptable fashion, it will not be possible to make further progress?

[Lord Howell of Guildford]

I would not for a moment dare to disagree with such a distinguished former Governor of Gibraltar. We seek from the Spanish authorities, who are our friends and allies in many parts of the world, an understanding that these matters can be handled by the trilateral forum of dialogue process and that these incursions—this one has a higher profile because it involved the Spanish navy, whereas normally it is the Spanish Guardia Civil which causes these incursions—add nothing to the hopes for resolution. Every time this occurs, we respond with the utmost urgency and the strongest protest that this is not the way forward.

[Lord West of Spithead]

My Lords, I was commander-in-chief when the Royal Marines inadvertently invaded Spain, so I am aware of how complex the waters are around Gibraltar. The Gibraltar Squadron has been reduced to the absolute minimum to do the task that is asked of it. Will the Minister confirm that there will be no further reductions in the size and capability of that squadron?

[Lord Howell of Guildford]

First, I note, along with your Lordships, that once again your Lordships’ House proves that it has massive expertise in every subject. We keep the naval response constantly under review. We will ensure that we have the means for an appropriate response, balanced with a diplomatic assessment of the situation, and we will make sure that that continues. There will be no question but that these incursions—if they have to continue, and I hope that they do not—will be responded to with the utmost speed both by the Royal Navy and by diplomatic means.

[Lord Hoyle]

Did we receive an apology, and what assurances did we get from Spain that this would not occur again? The noble Lord says that the Royal Navy will be ready but will it be ready immediately? The last time it was launched, the vessel in question had departed.

[Lord Howell of Guildford]

I am not quite sure that that last point is correct. I think that the vessel was seen off. It was warned and departed as the warning came—it all happened simultaneously. As to a response from Madrid, I do not think that there has been an apology or a reassurance that it will not happen again. However, there has certainly been a recognition that this was an unfortunate incident which they do not want to see recur. I would not put it higher than that. We have not got there yet.

[Lord Anderson of Swansea]

My Lords, I can only declare that I have visited Gibraltar. Does the Minister agree that, however provocative this incident, it is within the context of a much improved relationship with Spain on the Rock? However, does he also agree that there is now perhaps a danger that, if there were a change of government, there would be a rather more populist and nationalist attitude to the Rock on the part of Spain, and that it is very important to improve the hotlines and ensure that there are protocols for better co-operation and understanding if such an unfortunate incident arises in future?

[Lord Howell of Guildford]

That is very wise. One move that we have been anxious to make is to get back into regular meetings of the trilateral forum, which were interrupted before by concerns in Gibraltar. On his recent visit, my right honourable friend the Minister for Europe certainly succeeded in establishing that we should go forward with these ministerial meetings in a sensible way. The hope, although it has not yet been satisfied on the Spanish side, is that there will be a ministerial meeting of the Cordoba agreement group—the trilateral group—before the summer is out.

European Union Bill

Lord Howell of Guildford Excerpts

Monday 13th June 2011 Lords Chamber

[Lord Liddle]

My Lords, we have had a long debate on this set of amendments. We on the opposition Front Bench strongly support this group of amendments, spoken to by the noble Lord, Lord Hannay. I shall focus our debate on Report on the essence of these amendments, which is to reduce the 56 varieties of referendum lock that the Bill contains to referenda on new treaties and three major issues: joining the euro, joining Schengen and the setting up of a single European army or force, as my noble friend Lady Symons mentioned.

What people who accuse us of proposing a set of wrecking amendments have to take into account is that the Bill as amended would be a substantial step forward in public accountability as far as the European Union is concerned. There could be no major new treaties containing the kind of proposal that former Prime Minister Tony Blair floated last week—for an elected president of the European Union—without a referendum. We could not join the euro, which clearly might now mean significant steps towards a fiscal union, under the amendments in this group. We could not join Schengen, which would certainly mean abolishing our own border controls and replacing them with border controls at the EU frontier, a common set of asylum rules, burden sharing and so on. Under the amendments that we are proposing, that would be subject to a referendum, as would a major step towards common defence.

Therefore, these amendments do not wreck this Bill; they just make it more sensible and get rid of the huge number of referenda in it. That is wholly in line with the spirit of your Lordships’ Constitution Committee’s recommendation that referenda should be confined to matters of major constitutional significance. One of the curiosities of the many days of debate that we have had is that we have never heard why the Government think they can set aside in this way the recommendations of your Lordships’ committee on these specific matters when it comes to the European Union. On all these other matters—on which, if this amendment were passed, there would be no need for a referendum—there would still be a need for an Act of Parliament. That is an enormous change from the position that we are in now. We are not wrecking this Bill; we are trying to improve it. I hope that on that basis the Government might be prepared to show a flexibility that they have so far lacked in these debates.

One of the very wise contributions to this discussion was made by my noble friend Lord Rowlands. In a distinguished career in another place, he was a sceptic in the proper sense of the word and had to be convinced about the case for Britain’s membership of the European Union and the pooling of sovereignty that it involved. However, as he said, we are setting up a far too overcomplicated process of accountability with the plethora of referendums proposed. What I find difficult about this is why the presumed lack of legitimacy of the European Union is seen as being so peculiar and special compared with the huge problems that our democracy as a whole faces in today’s world.

I looked at the Eurobarometer opinion poll for October 2010—that poll asks people questions about trust on a regular basis—and found that a very depressing 64 per cent of the British people do not trust the European Union. That is why we accept that there is a legitimacy problem. However, it seems that 66 per cent do not trust the British Parliament, 67 per cent do not trust the UK Government and 82 per cent do not trust political parties in Britain, so what is so peculiar about the lack of legitimacy of the European Union compared with the rest of our democracy?

It is argued either that confidence in Europe has been destroyed by so-called competence creep or that we face lots of threats to our sovereignty in future. As my noble friend Lord Triesman has said many times, if you are in government and do not want to do something, you just say no. The noble Lord, Lord Lamont, made a very interesting speech in which he pointed out that there is a very distinctive issue about the irreversible nature of the surrenders of sovereignty that take place in the European Union and the problems of a Union that moves by a process of intergovernmental compromise. Many of us who are pro-Europeans have been worried about this issue for many years and have wanted to think of ways of closing that democratic deficit. Certainly, we should have a debate about the role of the European Parliament, which plays a much bigger role now than it did 15 years ago, largely because of the treaties that the noble Baroness, Lady Symons, when she was leading for the Government, put through this House. However, I presume that the noble Lord, Lord Lamont, would not regard those treaties or the strengthening of the European Parliament as being good things. I agree with him that we have to think of ways of addressing that democratic deficit, but I suspect that he is not prepared to accept these kinds of remedies.

There is a problem of legitimacy vis-à-vis Europe that is particular to Britain, because over decades we have failed to establish a cross-party consensus about our membership of the European Union and failed to argue the case for British membership with a united voice. Amendment 31—which we shall discuss later; the noble Lord, Lord Radice, moved it in Committee—will try to address that problem in part. However, there is another explanation of why the EU has run into problems. The explanation is, as I said at Second Reading, that there are two ways of looking at legitimacy. One is to think about it in terms of how decisions are approved, but the other is to think about whether the institution is effective at doing the job that it is supposed to do. One of the problems with Europe is that it is not as effective as it could be, and this causes public disillusion.

I looked at a poll carried out last November about attitudes to the European Union. If you ask a general question—do people think that we should co-operate more or do they want us to loosen the links with the European Union?—only 21 per cent want us to co-operate more, but 49 per cent would have us loosen the links. However, when you ask people questions about specific areas such as climate change, attacking terrorism and crime, regulating banks, minimum rights for workers, or minimum levels of tax on business, a strong majority in Britain want the European Union to do more. I therefore argue that it is not a question just of how decisions are taken, but of how we make Europe effective. That is what we ought to focus on in our debate.

Finally, in support of the amendment, perhaps I may say that we have had a good and long debate, but one of the depressing things about it is a tendency to be historical, to look back to the past, to take trips down memory lane, and to look at the debates in the 1950s, 1960s and 1970s. I am very prone to that tendency, and this is therefore a self-criticism. When we think about Europe, we really should remember that the world of which the European Union is part is transforming itself at enormous speed. Since the Maastricht treaty, communism has fallen and that aspect of the world has changed enormously, the Arab world is in revolution, China has risen enormously as a power, and the weight of the European Union in the world is decreasing at a rapid rate. Our weight in the world as the United Kingdom is decreasing at an even more rapid rate.

Yet, in response to these extraordinary developments of the past 20 years, this Government have come forward with a policy on Europe that is essentially, “Thus far and no further”. In other words, “We have no imagination about how the European Union might develop. We are saying there should be no change without a referendum”. This is a depressing attitude that destroys the flexibility that a British Government should have to respond to an unpredictable and unknowable future. I urge the House to support these amendments because they confine referendums to the really big issues on which the people ought to decide.

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

My Lords, we have had a rather amazing debate in which I found all kinds of echoes of agreement that did not seem to be there in the darker days of May when your Lordships first went into Committee to examine the details of the Bill. We have come a long way since then and there seems to be a greater appreciation—not necessarily combined with agreement—about some of the issues that the Bill seeks to address.

We have of course been down memory lane with the various comments by noble Lords who have been extremely experienced in European affairs over almost half a century. Edmund Burke featured again, although I must say that the more I think about that great man, the more I hear in my mind his remark, “Show me the man; show me the things”. In other words, he was interested in the situation as it actually was, rather than in the high theory of how it ought to be. I did not agree with the final remarks of the noble Lord, Lord Liddle. He should not be depressed because the possibilities for our leading in European reform are much greater than he accepts, although he is an expert in these matters. He is entirely right to say that the landscape has changed and that we are dealing with an entirely new situation.

--- Later in debate ---

[Lord Goodhart]

I accept that other countries in the European Union have been very reluctant, as have our Government, to join up to the EPPO and I think it is unlikely that there will ever be an EPPO, but that is mostly because of the inadequacies of the legal system in a number of those countries. For this country, under Article 86 of TFEU:

“The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment … the perpetrators of, and accomplices in, offences against the Union's financial interests, as determined by … regulation”.

That makes it perfectly clear that those who would suffer would not be ordinary citizens in this country. If the EPPO was brought into this country, those who would be subject to it would be international criminals and some major commercial companies. It would not affect the ordinary people in this country in the slightest.

[Lord Howell of Guildford]

I respect what my noble friend is saying, but one has only to pause for a moment and think about the phrase, the European Union's financial interests. Who will interpret that? How widely or narrowly will that be interpreted? Will offences be generated by the misuse of structural funds or other arrangements to do with the EU's finances? We do not know. We do not know who will define these things, but we can see clearly that they may well lead to a prosecution authority outside the UK, when we have our own prosecution authorities which are perfectly adequate in most—indeed, in all—cases to deal with those matters. We will have a prosecution authority from outside the United Kingdom for the first time charging and prosecuting British citizens. That is one reason why a huge uncertainty hangs over that.

Furthermore, once set up, although it is confined to EU financial interests now, the range can spread. Who is to say that it may not? We do not know. All those matters are reasons why many European countries—possibly the majority—are reluctant to see a development of that kind and why, if a Government in this country decided to change their mind, flatly against what the previous Labour Government wanted and flatly against what the present Government want, that should certainly be one item that should be put to a referendum.

I turn now to some of the comments made by the noble Lord, Lord Hannay, which were very reasonably put. I know that he felt that he was in a consensual and concessionary mood and looked for some reciprocity from the Government. In that, I fear that he will be disappointed. The passerelles allowing for a move to QMV, which are listed in Clause 6(5), have been included simply because they are covered by Schedule 1. That is obvious to most of your Lordships. It would be wildly illogical to provide for a referendum on an amending treaty which abolished those vetoes without also providing for a referendum on any decision to use the passerelles attached to the specific articles listed in Clause 6(5), which would achieve exactly the same result. That would be tantamount to locking the front and back doors of the house—not closing them, locking them; and not throwing away the key either, but giving the key to the British people—but leaving the kitchen window open.

--- Later in debate ---

[Lord Hannay of Chiswick]

On one small point of fact, the noble Lord, Lord Howell, said that we have just given up the veto on the annual budget. The annual budget has been adopted by a majority vote by a provision of the Treaty of Rome which was negotiated before we joined, which we have applied. Therefore, it has been taken by a majority vote throughout the period of our membership. It really is not wise to adduce changes which have not taken place during the period of our membership.

[Lord Howell of Guildford]

I totally disagree; I think that it is pertinent and a healthy reminder of what happens. We can contribute all we wish to in all these vital areas. The surrender of the veto can lead to consequences which can be extremely dangerous.

Finally, I should like to say a word on common defence, because that has come up and it is important. Amendments 15 and 16 suggest that the only controversial element of a decision to move to common defence would be a decision to develop a single integrated military force—in other words, that it is only that particular interpretation of common defence which is of real concern.

Successive Governments and successive Ministers, including noble Lords sitting here now in the Chamber, have rightly said that we do not support the introduction of a common defence. A Minister said:

“We oppose the introduction of common defence either at 25”—

there were 25 members when this was said—

“or through enhanced co-operation. We think it is divisive and a duplication of NATO”.

We do not support,

“anything such as the creation of standing inner groups or an inner core on ESDP,

which,

“would undermine the inclusive, flexible model of ESDP that the EU and NATO”—[Official Report, 11/5/04; col. 242]—

have agreed. That comes from a Minister in a previous Government. It is extremely telling and sums up the case very well. However, there would be confusion about any decision that resulted in the establishment of a single integrated military force. For example, would the establishment of an integrated command structure or integrated units or the achievement of integrated budgets count? It is just that lack of clarity that allows for the sort of competence-creep which caused so much distrust and which we are trying to overcome in the Bill.

In addition, we have concerns about a move to a common defence that goes beyond the establishment of a common force. A decision to move to a common defence could lead to the loss by the British Parliament of final decisions over whether to send our troops into harm’s way. Like the previous Government, we think it is vital that the UK is able to maintain an independent defence policy. Indeed, it was one of the red lines during negotiation of the Lisbon treaty, and I cannot understand the Labour Opposition wanting to move away from that today. I accept that a common defence is ill defined but that problem would not be solved with this amendment, which could apply only to the UK. Instead, our promise is that any decision to move to a common defence should be subject to the full scrutiny of the British public.

I have gone on for a long time but this has been a huge debate. There are many vital issues to address and it would be wrong to ignore them. I am pleased that noble Lords recognise the utility of the referendum lock in its application to any proposal to abolish our border controls or adopt the euro. However, I ask your Lordships also to consider the sheer inconsistency of seeking to remove from Clause 6 other measures that would transfer further competence and power from the UK to the EU. They are directly related to the crucial six issues on which successive Governments have insisted they want to protect Britain while being forward and active in encouraging the European Union within their full competences. This is a good European policy and the Bill reinforces it. It should be supported and the amendment should be withdrawn.

[Lord Hannay of Chiswick]

My Lords, I am most grateful to all noble Lords who have contributed to this lengthy and interesting debate. I hope that I may be forgiven for saying that there were moments during the afternoon when I thought we were moving back to the future—namely, heading rapidly towards a Second Reading debate. A fair number of contributions bore little relation to the amendments on the Marshalled List but a great deal to the discussions that we had during Second Reading. However, I shall not follow that road now, when we need to focus on the amendments in a much more controlled way.

I thank the noble Lord, Lord Howell of Guildford, for his very thoughtful response and for being so frank about the fact that, although those in whose names the amendments stand were introducing an element of compromise, he did not intend to do so. That was made extremely clear and I hope that all those who listened to the debate will draw the appropriate conclusions from the lack of flexibility on the part of the Government.

There are not many detailed points that need to be referred to. A certain amount of a meal was made by those who spoke against the wording of the amendment relating to an integrated military force. What we are talking about is fairly obvious. We are talking about our old friend—much beloved of the Daily Mail—the European army. We are talking about, for example, our treaty commitment in NATO under which we are part of an integrated military force. I only say to the noble Lord, Lord Waddington, that he will know very well that the NATO obligations apply in exactly the same way to the Navy and the Air Force as they do to the Army. The use of the word “military” is not exclusive to the Army. Therefore, it is obvious what the amendment tries to do: it tries to ensure that, if we were ever to have a British Government who wanted to move in that direction, they would have to submit the matter to a referendum. That is a recognition by those in whose names the amendments stand that the Government are right to have identified that issue as one of fundamental constitutional significance. However, I am afraid that issues such as whom we fought alongside in Iraq are totally irrelevant. We did not fight in Iraq on the basis of any treaty whatever; we fought on the basis of a coalition of the willing without a legal base. Therefore, we should not get muddled up with that issue. There seems to be less trouble about the euro and Schengen. Then, ultimately we come back to the question of whether we should be trying to reduce the number of potential individual referendums. The arguments for that are very strong.

I have been a little saddened by the way in which so many of the protagonists of the Bill and the opponents of the amendments have denigrated the parliamentary process. They have, in fact, thrown up their hands and said that it is completely useless. They seem to have discovered the whipping system, which I think has been in effect since the 18th century or perhaps even earlier, as being at the root of all this evil. That is pretty sad. There are quite a lot of former Whips sitting here and I do not see them covering their heads in sackcloth and ashes and saying that they made terrible mistakes by doing so. It has been part of our constitutional practice for a very long time and we have managed to achieve greater constitutional stability than a lot of countries that do not have it. It is a bit sad that we should be heading off in the direction of plebiscitary democracy-a-go-go instead of thinking about how to make our parliamentary institutions work more effectively. That is why one of the most important points made by the proponents of the amendments is the fact that you need primary legislation for every single change in the Bill. That is really important. It is the way to make parliamentary scrutiny more effective and that is what is needed—not a dash towards plebiscites, which is a very revolutionary approach. I have to say that it comes from a rather unlikely band of revolutionaries from a party whose name suggests that they are counter-revolutionaries. Nevertheless, I think that it is a move in the wrong direction and I should therefore like to test the opinion of the House.

European Union Bill

Lord Howell of Guildford Excerpts

Monday 13th June 2011 Lords Chamber

[Lord Triesman]

My Lords, it may dismay the House, but I will pick up from the point where this argument has arrived. Like the noble Lord, Lord Hannay, when I looked at the proposal put forward by my noble friend Lord Davies of Stamford, it did not seem to me that the consequence of it was that there would be an immediate move without any further ado to qualified majority voting. Instead, there would be a very substantial process before anybody got there, even if they had the desire to get there. It seemed that whatever difficulties and barriers were raised by those who thought it best to have a closed-market system rather than an open-market system in the defence industry, it would be harder in the middle and long term for them to sustain the restriction on free markets were they to be deprived of the veto as the automatic response. In short, over a period of time—I am sure that it would be over a period of time if it happened at all—it might be possible through a different mechanism to change from this restriction to a free-market solution.

It may be thought curious that from this opposition Bench I argue trenchantly for free markets in Europe. However, it does not seem odd to me; I have held this view consistently for a very long time. Like my noble friend Lord Davies, it appears to me that when we take a serious and hard view of the areas in our manufacturing industry where we might be very successful, among them are the products of our defence industries. They are very fine industries; they are hallmarked by exceptional research and development; they are among the industries that co-operate most successfully and most frequently with the best of our university departments that are working in the same areas of research and development; they manage to do it on a large scale; and they manage to create extremely valuable intellectual properties of a kind that we cannot always achieve in many other parts of our manufacturing life.

As a former Minister responsible for intellectual property, I frequently came at this from a different ministerial portfolio from that of my noble friend Lord Davies, but none the less I was frequently full of admiration for the high quality of patents that were created in that industry and very well aware of the value that they could inject into free-market circumstances. It is very easy to see why, even when there is a concrete commercial rationale for this country, there will be others who will seek protectionism because they are fearful that their industries cannot compete in industries of this kind, particularly where those industries are so driven by outstanding research and development and by their links with the university research world. It is a tough environment to compete in—that is for sure—but that does not seem to me to be a reason to protect those kinds of industries in other countries any more than somebody could argue that we should simply protect them in our country from any difficult winds and buffeting of international competition in a fully commercial sense.

I can also understand the argument that some of those countries will be looking at industries—as we have in defence in the past—as being of considerable strategic importance and we have been cautious about whether that strategic importance should be so lightly set aside. Westland helicopters and so on have been examples of it. However, broadly speaking, we have been at our best as a country when we have been prepared in free markets to compete where we can and to achieve results on the basis of the excellence of what some of our manufacturing industries can do with freedom to operate properly in markets.

In summary, I return to the point that the noble Lord, Lord Davies, has made, that the noble Lord, Lord Hannay, was making and that I made at the beginning of my remarks. Nothing in this proposal moves us with any suddenness onto a different trajectory. I am loath to believe that the House and the general sentiment in this House would be against the possibility of the full operation of free markets and the benefit to United Kingdom industry of competition in a free market, especially where we believe that we can succeed way beyond many of our competitors in that market. It is a very strong argument and I hope that it will appeal to any free marketer looking at the benefits of the European Union in free market terms, which, many noble Lords have urged, were among the founding reasons that they could see for the rationale of the EU in the first place. I support this amendment and I believe that, on free market arguments alone, it should succeed.

[Lord Howell of Guildford]

My Lords, this amendment seeks to remove Article 346(2) of the Treaty on the Functioning of the European Union from Schedule 1 to the Bill. The article has appeared verbatim in every European treaty since 1957, so it is not new on the scene. At present, unanimity is required for changes made to the list of military products for which single market provisions do not apply. Under the Bill, a proposal to move to QMV would require approval by Act and by referendum. The noble Lord, Lord Hannay, and others are correct that it does not immediately mean that the veto is removed. It merely means that the move would require approval by Act and by referendum. The amendment of the noble Lord, Lord Davies, would remove that requirement.

The noble Lord, Lord Davies, spoke at length on this issue during day six in Committee, and he has spoken again now. Of course, he has considerable experience as Minister for Defence Equipment and Support, and in my view he has made the case extremely well that there could be some benefits to the UK from a move to QMV in this area. Having conceded that point, I hope that he and other noble Lords will excuse me if I now at least set out the other side of the argument, particularly as the noble Lord, Lord Davies, has just said that there is no guarantee that his proposal would work. Why is that so? It is because a move to QMV would also come at considerable cost to the UK, which a responsible Government have to consider. We must remember that this article is sensitive, as it applies to national security and defence. It is one of the wires that feeds directly into the red lines that all parties in the United Kingdom and other member states have always maintained during treaty change negotiations. Obviously that applies to previous Governments as well as this one.

The noble Lord, Lord Davies, said with some passion that Article 346 of the TFEU is a protectionist measure and he portrayed the Government as,

“using a referendum to block the removal of a derogation from the single market legislation”.—[Official Report, 17/5/11; col. 1364.]

The noble Lord, Lord Triesman, has spoken in the same vein just now. I have to point out that the UK’s veto could be used also to block any proposals to extend the protectionist measures with which the noble Lord understandably takes issue. A qualified majority could push through decisions which would favour greater national discretion and protection. The list, which has been unchanged—

[Lord Kerr of Kinlochard]

I thank the Minister for letting me intervene. The point that he is making is absolutely right—it could work either way—but the trouble is that the list is very long now. The UK interest is to have the list reduced. The list is very long because particular countries have particular little defence industries which they are keen to protect. The chances of it being possible to reduce the list are therefore low but would be enhanced if there were qualified majority voting on the composition of the list. We are starting from a bad place. It is unlikely to get worse; it is difficult to get it better; but you cannot get it better without qualified majority voting.

[Lord Howell of Guildford]

It is unlikely to be shortened, but I do not think that any of us can be sure. Protectionist pressures operate all the time, particularly in the defence industries. as the noble Lord, Lord Davies, knows better than all of us, and will continue to do so. The noble Lord said that the position is unlikely to get worse, but I think that we have to guard against that. A qualified majority could push through decisions which favoured greater national discretion and those pressures exist. The list has been unchanged since 1958 and can be expanded as well as contracted. I have before me the list as it is at present; it is a long list. It could certainly be expanded, so keeping the veto is as much, if not more than, a guard against protectionism as a barrier to liberalism, much as one believes, as I believe very strongly, in liberal free markets. The noble Lord’s zest for liberalism, which is certainly equalled by mine, could end up the opposite way round.

[Lord Kerr of Kinlochard]

The Minister is now making a general argument against the Single European Act and against having qualified majority voting on any area of the single market because it might go the wrong way and in a protectionist direction. All history suggests that the Single European Act was a good bargain. On the whole, it got us a more open market. It was a good, Conservative, market-driven measure which worked pretty well. The exception of defence goods is there because it was there before we joined the European Union. We have to my knowledge always argued against applying single market disciplines, which we believe in, to all sectors of the economy. That is the argument for the amendment.

[Lord Howell of Guildford]

I am not a Latin scholar, but I have a feeling that there is a Latin phrase to describe what the noble Lord is doing, which is projecting from a particular area which has its particular features and qualities, with which we are all quite familiar, on to the general case for free markets and expansion of trade, which we all seek, as we have done throughout the history of our membership of the European Union and will continue to do. I suppose that the noble Lord’s proposition is that the interweaving of political pressures and the defence and security industries operates just the same as everything else. I do not believe that it does; I just have to disagree with him. In this case, we are dealing with different pressures which are evident to those who examine these patterns. There are dangers as well as gains.

Retaining unanimity does not prevent product list changes, but it ensures that we can oppose any decisions that seek to install greater, inappropriate levels of protectionism for products—weapons, equipment, trucks, APVs and all the rest—that we feel should not be exempt from single market provisions. This allows us to take decisions on the basis of what would be best for the effectiveness of the single market and our own defence industry. Unanimity enables us to oppose removal of any products in the list where that would have unwelcome consequences for the UK and might prevent us from acting quickly to secure the right equipment for our troops in times of urgent need. I reassure noble Lords that, despite the doubts that have been expressed, the Government fully support the goal of better value for money through collective arrangements for identifying gaps and procuring equipment, pooling our multinational capabilities and forces wherever we can.

--- Later in debate ---

[Baroness Williams of Crosby]

I will always take instructions from my former colleague, the noble Lord on the other Benches. I commend him on the pressure that he has brought to bear on the issue, which is of immense importance.

[Lord Howell of Guildford]

My Lords, when my noble friend Lady Williams speaks about the need for strengthening the teaching in schools and in citizenship classes of Britain's role in, and relationship with, Europe—and dare I say in the Commonwealth generally and in the new landscape that is building around us—it strikes a chord with me. She is absolutely right that the quality of teaching needs a considerable uplift in this area.

I will begin with a tiny bit of propaganda for the Foreign and Commonwealth Office. We have supported the Hansard Society in producing a new booklet to help citizenship teachers teach secondary school pupils about the European Union and our role—our very effective role, despite some minor criticism in the European Union and in Europe generally. We are taking action to improve the resources available, as citizenship teachers asked us to do. That is the kind of way forward that we should all work towards instead of spending a lot of time sitting around talking down our nation and its extraordinary talents and abilities to adjust to the new world situation.

I wish I could say such enthusiastic things about this amendment. It strikes me as a bit curious because it seeks to place a statutory requirement on the new Bill that, during a referendum held under the provisions of the Clauses 2, 3 and 6, or in implementing any of the other provisions of this legislation, the Government of the day should have regard to the benefits of the UK’s continued membership of the European Union. This sounds as though there is a desire to switch on a light at this particular moment rather than concentrate on the broader issues reflected in the observations of the noble Baroness, Lady Williams, and of the noble Lord, Lord Radice, that these matters cannot just be switched on and off but require sustained and effective narrative—not propaganda but an effective story to show how we fit into, how we contribute to and how we are able to draw strength from associations in the European Union and elsewhere.

As the noble Lord, Lord Triesman, candidly admitted, the past record has not been too brilliant, to put it mildly. If one just looks at those who have been in government over the last decade—which happens to be one party—one can see that they have not achieved a dazzling success in uplifting public support for, or even public awareness of, the role that this country has played, is playing and is capable of playing in the future in the European Union. When we discussed this amendment in Committee, the noble Lord, Lord Radice, said that the EU Bill was,

“based on the wrong premise about our membership",

and that instead,

“we should recognise that the sharing of responsibilities with our partners has been good for Britain and good for Europe”.

We have no difficulty with that. As I tried to make clear in Committee, we fully recognise the benefits of EU membership and the flow both ways of advantage of our being a key member of the European Union. This Bill does nothing whatever to alter our current commitments within the European Union, nor our current active engagement within the existing powers and competences of the EU, which are very extensive, nor indeed our positioning to reform and equip the EU for the 21st-century challenges that lie ahead, because, just as we are trying to adjust the position of this country to the new landscape, so everyone recognises that the European Union as a whole needs to do the same.

The noble Lord, Lord Radice, also said,

“according to public opinion polls, the British remain reluctant Europeans and fairly ill informed about the EU”.—[Official Report, 23/6/11; cols. 1626-27.]

That just about sums up the key concern that this Bill has been crafted to focus on. It is that reluctance that the Bill seeks to address by making clear to the public that they will have their say over any future transfers of power and competence and that a future Government will have to make the case as to why such changes are in the national interest. That is the aspiration of this Government for the future. It is nonsense to say that it binds future Parliaments, which we cannot do, but that is our aspiration. This is a construction, an architecture that will be sustained and built to help the EU in the future.

Let me remind noble Lords that for a referendum to be held under the terms of this Bill, both the Government and Parliament have to be in favour of the proposed treaty, as many of my noble friends and indeed almost every speaker have recognised. That is the starting point for any referendum activity. Otherwise, if the Government did not like the measure, they could block it at the European Council, or Parliament could simply legislate against it. Parliament would be fully in control. Therefore, the change in question would have to be considered by the Government to be in the national interest before it could be put to Parliament. That would be the necessity, the sine qua non. While the referenda provisions will help address the reluctance that exists in Britain and that must be faced, no one is claiming that they are sufficient to address the general lack of information on, understanding of and enthusiasm for the European Union. Clearly, that cannot be done just when action under the Bill is needed. The oddity of the amendment is that it so inadvertently implies that action is switched on only when there is activity under the Bill, not least because the EU Bill focuses on future changes to the treaties and does not call into question our membership of the European Union.

Yemen

Lord Howell of Guildford Excerpts

Thursday 9th June 2011 Lords Chamber

[Lord Clinton-Davis]

To ask Her Majesty’s Government what steps they are taking to secure the departure of United Kingdom citizens from Yemen.

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

My Lords, we remain extremely concerned at the situation in Yemen. Recent events have shown how quickly the security situation can deteriorate. Since 12 March this year, we have been urging all British nationals to leave Yemen without delay by commercial carriers. My right honourable friend the Foreign Secretary issued a statement on 3 June repeating the message in our travel advice to all British nationals to leave by commercial means, adding that people should not plan for or expect the British Government to be in a position to assist them to reach safety. In the other place, on 7 June, he repeated the message that an assisted evacuation will be extremely unlikely. The embassy in San’a retains a core complement of staff. With consular staff in London and at our passport processing centre in Paris, we are working with the embassy to ensure that all those eligible for British travel documents receive them as soon as possible.

[Lord Clinton-Davis]

I thank the noble Lord for that Answer, but will he be more specific about the situation in relation to members of the embassy staff, who face a particular threat from the authorities in Yemen? Does he agree that, with a president who nominally heads a discredited regime—I witnessed it myself several years ago—and is ignored by Governments of all persuasions, the position there is extremely dangerous and uncertain?

[Lord Howell of Guildford]

The noble Lord is absolutely right: the extreme danger is unquestionable. We have drawn down the staff at our embassy to a small, core team and a further withdrawal of staff may be necessary if conditions dictate—we are watching the situation very carefully indeed. For obvious reasons, which I know the noble Lord will understand, it would be wrong for me to comment in detail on any contingency plan, but that is the position.

[Baroness Falkner of Margravine]

My Lords, are the Government minded to support opposition demands for a presidential council to be established in Yemen to ease the transition from power and to send a clear message to President Saleh that he is no longer fit to rule? Will my noble friend also tell the House whether he believes that the Friends of Yemen group has any further usefulness, given that it is so closely aligned to the old regime?

[Lord Howell of Guildford]

Our general position is strong support for the Gulf Cooperation Council’s plans, which have been brought forward with considerable detail and support from the neighbouring countries and the whole region. We believe that, for the moment, that is the best plan on the table. I certainly concede to my noble friend that it is not working well at the moment, but that seems to be the best possible avenue through which one could begin to see some kind of settlement emerge. That is all that I can say at the moment, beyond the fact that, of course, the United Nations remains very interested and is watching the situation closely as well.

[Lord Dykes]

My Lords, does the Minister agree that it is essential for the British Government to be even-handed in their attitude to all the countries involved in the Arab spring revolution and to wish the local population well in that process? Should that not also include Israel? Have the Government taken steps to ask the Israeli military to exercise restraint and not to shoot at unarmed civilians?

[Lord Howell of Guildford]

This Question is about Yemen. We certainly aim for even-handedness in pursuing our own principles and values but, unfortunately, as every country has different situations that require delicate and different handling beyond the general principles, we have to appreciate, respect and understand the inner workings of these countries to be effective.

[Baroness Symons of Vernham Dean]

My Lords, the situation in Yemen has been very grave—it has been a fragile state—for a long time. We all owe a debt of gratitude to those members of the Foreign Office who are still prepared to stay in the embassy, given that it has come under attack on a number of occasions. I know that this is very difficult, but, given that we know that Yemen will be the target of groups such as al-Qaeda, will the Minister assure us that in the possible eventual absence of British personnel on the ground, none the less we will be able to monitor properly what is going on in Yemen and not leave it solely to Yemen’s neighbours to pass information to us? I hope that the noble Lord can give us that assurance, without going into detail.

[Lord Howell of Guildford]

That clearly would be the ideal. I cannot go into precise contingency arrangements for the channels and passage of our information. Obviously, we need to get high-quality information of the best kind. On the question of al-Qaeda involvement, there is constant concern that al-Qaeda training groups are operating in the area. Some people have an interest in pursuing and purveying the story in one way and others in presenting it in another, so getting accurate information is bound to be difficult. Of course, the noble Baroness, with her considerable experience, is right to urge that our channels of information should remain as good and direct as we can possibly engineer.

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?

--- Later in debate ---

[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.

--- Later in debate ---

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.”

--- Later in debate ---

[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.

--- Later in debate ---

[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.