European Union Bill
Lord Kerr of Kinlochard Excerpts(13 years, 7 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Kerr of Kinlochard
I apologise as I am standing up. Mine is the first name attached to the Clause 3 stand part Motion on the Marshalled List. The Minister gave extremely courteous answers to the questions that I asked. I am very grateful to him for taking my questions seriously, but I have to say that the answers that he gave do not satisfy me. He has not explained the substantive reason why we need Clause 3 as well as Clause 2, nor has he answered my question about why there is no significance test in Clause 2 but only in Clause 3. He and I agree that you cannot use Clause 3 to transfer competence; you can use it only for things that do not transfer competence. The converse is not true. In Clause 2, you could, under the ordinary treaty revision procedure, do things which did not transfer competence. You could do very small things such as changing the number of justices in the Court of Justice. You would have to do that as a treaty change and you would probably, almost certainly given the structure in Brussels and the advice you would want to take from the court, do it with the heavy procedure. Therefore, it seems to me that the significance test ought in logic to apply in Clause 2 unless the Minister’s position is that anything, however insignificant, done under the standard treaty revision procedure will require a mandatory referendum.
The minatory warning of the noble Lord, Lord Hannay, about the foreigners who read our Hansard is valid as regards bundling. I would add a second—the idea that, as the Minister said, what will happen is that,
“a whole raft of issues requiring attention can be wrapped up and packaged”.—[Official Report, 5/4/11; col. 1670.]
If we are imposing a referendum requirement on that package, it really is an insult to the public. We are asking them to vote on a package, not on the merits of individual measures. It seems to me that the idea of bundling is not just bad practice in Brussels, and not likely to be followed in future in Brussels—people are trying to get away from it—but is also inimical to the idea of a referendum, where the purpose, presumably, is that the people answering the question understand it. If there is a raft of six or eight questions and you get only one yes or no because it is a bundle, that seems to me to be acutely unsatisfactory as a way to proceed.
I also did not hear a satisfactory answer to the point made by the noble Lord, Lord Liddle, about urgency. It is perfectly possible to envisage circumstances where waiting for a year, a year and a half or two years might not be in the UK’s interest. Therefore, it seems to me that the Liddle clause, bringing in urgency and national interest, is an extremely good idea. But even if that were accepted, I cannot see any need to have Clause 3. I will not press my point now and I apologise for burdening the House with my arguments at too great a length, but we will have to come back to this on Report. Will the Minister please read what we have said in this debate and my questions and consider whether they deserve serious answers? Will he also please look back to what the noble Lord, Lord Deben, said in his striking speech at the start of our first day in Committee in which, as a member of the Minister’s party, he gave strong advice that there would be many fewer problems with this Bill if there could be some movement on the 48(6) procedure in Clause 3?
Lord Empey
My Lords, in the short time that I have been in this House, it has seemed very difficult to have discussions without noble Lords dividing on the basis that they are either for or against the European Union. Virtually every comment seems to boil down to that issue. However, I do not believe that that is right. People should not be put into one box or another; we are in the European Union and these measures—some of which have significant inelegancies, one has to admit—are there for a purpose. When the concept of nations working together is a perfectly good idea, when there is evidence that there is practical advantage in that, how is it that the general population do not share that view? Disillusionment has crept in because over a prolonged period of years Governments of different persuasions have made promises on these matters which they simply have not kept. This has built up a resistance; it has been seized on by red tops and tabloid newspapers and become a very stale and futile argument.
Nevertheless, we have to realise that there are certain practicalities. For instance, no subject is better at bringing Members into their places than a debate on Europe. I looked back and discovered that the largest number of Lords participating in a vote was in the Maastricht treaty debates in the 1990s, when 621 turned up to vote—the largest number that had appeared in this House since 1831. This clearly indicates that there is a huge interest and I suspect that it is because people are still on separate sides of the argument. We have to move away from that. We are in the European Community. I do not see any prospect of us being out of the European Community in the foreseeable future, so the issue is how can we make it more acceptable, more flexible and more answerable to the population?
Some very interesting arguments have been put forward about the measures, and we will have them again at Report. I suspect that their purpose is to try to get away from a position where Ministers make promises which they simply will not keep. That has undermined support for the European Union, from which there are many advantages to be had. For eight years in Brussels I gained experience on a modest organisation, the Committee of the Regions. There are Members on all sides of the House who were on that committee, some of them at the same time as I was. I have to say that it was not a particularly successful part of the European apparatus.
Europe and the bubble in Brussels have become disconnected from the ordinary person and that is a most unfortunate development. I fear that if Clause 3 is removed without this Chamber taking a more comprehensive view on what we should do about this disconnect, and if we go back to the old ways where Ministers make decisions and put them through the House under the Whip, then there can be little confidence about gaining the acceptance of ordinary people. The Minister referred to the danger of people becoming elitist—we say that people do not understand things. However, if we put propositions to people then we should jolly well ensure that they do understand. People are perfectly capable of understanding the significance of certain things. I therefore feel that we should not run scared. If you believe in something and you think that it is worth doing as a Minister and as a Government, you should jolly well go to the people and put it before them and ask for their support.
European Union Bill
Lord Kerr of Kinlochard Excerpts(13 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Kerr of Kinlochard
Roderigo in “Othello”, Flavius in “Julius Caesar” and Bernardo in “Hamlet”—the House will instantly recognise what these three guys have in common. They get to start the play, they are completely unimportant characters and they have no influence whatever on how the plot subsequently develops. Afterwards will come the captain and the kings—I see that the names of five former Cabinet Ministers are attached to some of the more than 60 amendments that we are to debate—and of the 37 speakers at Second Reading on 22 March, more than 80 per cent were fiercely critical of the Bill. However, Shakespeare knew that, as the house shuffles its feet and settles down, first up should be a very minor character. The Bill has caused considerable concern on all sides of the House and the soliloquies from the stars will be worth waiting for. I hope that the play will not prove a tragedy, but I am merely playing Bernardo.
I will not repeat what I said at Second Reading about why I thought that the scale of the referendum requirements in the Bill was absurd in conception and damaging in effect, given that the requirements are for binding, mandatory referenda with no threshold on issues, many of them very minor and on all of which by definition the Government and Parliament have agreed. Nor will I say anything today about why I fear the chilling effect on our negotiators and on the perceptions of us in other EU member states or about the risk that, if we enact this Bill in this form, we will be repeating the Messina mistake and isolating ourselves from the future development of the European Union—I think that that is a risk, but I will not dwell on it now. Nor will I explain again why I believe that this is a bad Bill, which would damage both parliamentary sovereignty at home and our national influence and standing abroad.
Lord Davies of Stamford
The noble Lord said that he would not say anything about the potentially damaging effect on our negotiating position or negotiating leverage if this Bill is passed into law. I was disappointed to hear him say that, because there are few people in the world who have greater experience of negotiation in Brussels than he has. Does he agree that, when you are negotiating in any context in life, you have a certain leverage if at the end of the day, when you are persuaded and you have done a deal, you can actually deliver? However, if it is known in advance that you cannot deliver because you need a referendum to deliver—the Government are obviously not going to have a referendum on some subject of tertiary importance—does he agree that you will not really have any negotiating leverage at all, because no one will make concessions to you in the expectation of getting agreement if you cannot give agreement in the first place?
Lord Kerr of Kinlochard
The noble Lord exaggerates my experience, but I think that he is quite right in his point. It is the case, I believe, that this Bill, if enacted, would oblige British Governments to oppose in Brussels reforms that were acknowledged to be in the UK interest, because they would not wish to have to face a referendum on the issue in this country. We are talking here not about big issues but about relatively minor reforms that most people in this House would find useful.
However, I do not want to be drawn any further down that track for the moment. What Bernardo actually says at the beginning of the play are words to the effect, “Midnight has struck; fly home to your bed”. We were after midnight when we finished Second Reading and I was rebuked fiercely from the government Front Bench for contributing to the length of our debate. Therefore, rather than going back over ground that I touched on then, I will concentrate on the amendment that stands in my name.
The amendment would delete the first reference in the Bill to Article 48(6), which concerns treaty revision procedures. I am sure that I do not need to refresh your Lordships’ memory of Article 48(6), which we could probably all recite—and perhaps should have recited before we began considering this amendment—but let me just recap for a second. We are dealing with two treaties: the Treaty on European Union and the Treaty on the Functioning of the European Union. The first, the TEU, is about principles, values and institutions; the second, the TFEU, is about the competences and, in its Part 3, the policies of the European Union, how those are to be determined and how they are to be implemented.
There are also two amending procedures. The first, the traditional procedure, involves an intergovernmental conference, which is now to be preceded by a convention of the kind on which the noble Lords, Lord Tomlinson and Lord Maclennan of Rogart, and the noble and learned Baroness, Lady Scotland of Asthal, served in 2002-03. That is the principal means of reforming the treaty. The second procedure is a simplified means—this is what we are talking about in Article 48(6)—which allows the European Council, or heads of Government, to decide without a prior convention or intergovernmental conference. Both means of course require absolute unanimity among the heads of Government of the member states and both means require ratification by member states by whatever means they choose. Since the treaty is a treaty and does not purport to lay down how we handle our domestic affairs, it says nothing about how we or anyone else goes about ratification.
So why are there two methods? The difference between the two methods is that the simplified procedure cannot be used to amend the Treaty on European Union—the treaty about principles—nor can it be used to amend the part of the Treaty on the Functioning of the European Union that is about the competences of the Union. It follows that Article 48(6), reference to which is what my amendment suggests be removed from Clause 1, cannot be used to effect any transfer of competences or powers from the member states to the Union. Adding belt to braces, it actually says that. Article 48(6), after referring to the previous steps in the process, says in its last sentence that the decision referred to in the previous paragraph,
“shall not increase the competences conferred on the Union in the Treaties”.
This article is not about the famous or infamous passerelle; that is something completely different, dealt with in Clause 7. We are talking about Article 48(6), which is covered in Clause 3. The question for me is: why is it there? This is the question that my amendment is designed to probe.
I may have misunderstood something, as the Bill is extremely densely drafted and hard to construe, but I listened carefully to what the noble Lord, Lord Howell of Guildford, said in his elegant and thoughtful speech at Second Reading and I confess that I am still puzzled. I am also now a little worried. In introducing the Bill, the noble Lord, Lord Howell, described its primary purpose. He said that,
“where a treaty change is deemed to transfer competence or power from the UK to the EU, it will in principle require the approval of the British people in a referendum”.
After explaining very helpfully how Clauses 2 and 3 are concerned with the ordinary treaty revision procedure and the simplified revision procedure, the noble Lord went on to say:
“Both clauses also provide that, where a treaty change of either type would also transfer power or competence from the United Kingdom to the EU, such a change should also be approved by the British people in a referendum”.—[Official Report, 22/03/11; cols. 600-02.]
That is, indeed, an accurate description of the Bill, but it seems to me to reflect a misreading of the treaty. Article 48(6) cannot be used in a way that would transfer any competence or power from the UK to the EU. Therefore, it seems to me that the references to Article 48(6) and simplified revision procedure in the Bill are otiose. The only other explanation for them could be that the Government envisage referenda on EU issues where no transfer of powers or sovereignty is envisaged.
What did the Minister mean by a treaty amendment “of either type”? A treaty amendment is a treaty amendment is a treaty amendment. You amend the treaty whatever the process that leads you to the amendment, so what are we talking about? Why are we distinguishing a subset of treaty amendments? There are lots of other things with which I disagree in the Bill, but on this minor technical point I see no reason for any specific provisions in relation to Article 48(6) other than, possibly, the parliamentary ratification procedures. However, that is not what the noble Lord, Lord Howell, was talking about.
It follows that I see no need for Clause 3 or for the specific reference in Clause 1, which is the subject of the amendment standing in my name. In moving the amendment, I seek enlightenment. I apologise for troubling the House with these arcana; they are arcana, but the arcana are in the Bill and that is very troubling. Exit stage left.
Lord Pearson of Rannoch
My Lords, perhaps it is time to have the smallest voice against these amendments. I shall do so by commenting on what noble Lords who have spoken so far have said. Can the noble Lord, Lord Kerr, tell us of any treaty changes so far that have not actually conferred power? I do not much like the word “competence” because it implies someone doing something competent, whereas we know that the European use of the word “competence” means power, which is nearly always exercised with great incompetence.
Lord Kerr of Kinlochard
The answer is “legion”. The appointment of judges to the European Court of Justice requires an intergovernmental conference, as does a change in the number in the European Parliament, and a treaty change is required in both cases. The answer is “legion”, I promise the noble Lord.
Lord Howell of Guildford
Labour did not oppose the Bill overall, but it certainly urged that we should scrutinise it and that, by heavens, is what we are doing. No doubt we will be doing a good deal more of that.
With this legislation, we are, in our view, plainly acting in the spirit of the Laeken declaration, which noble Lords will remember urged that we should seek to find ways, which are widely recognised throughout the whole of the European Union, not just in this country, to bring the processes of the Union and its legislative procedures closer to the people. That was 10 years ago. It urged us to act on that basis. It seems to me timely—if anything, a little tardy—and certainly appropriate for the era in which we now live that we should bring forward legislation on which, we hope, we can build an architecture of faith and commitment to the European Union for the future and a building that we hope will last although, obviously, we would not like to see—we will be debating this later—future Governments remove the foundation stones from that architecture and destroy it. That would be a pity, but it will again be a matter of opinion and debate. The Bill is put forward with that kind of faith and intention in our minds. Frankly, calling it a fraud on the public is a deeply regrettable statement—deplorable, in my view—and not at all in line with the tone of debates in this House of Lords. I think that it is a pity that people should speak in that way.
I want to come to the core issue in the debate. The simplified revision procedure allows the European Council to decide to make amendments to the part of the Treaty on the Functioning of the European Union that concerns internal policies. That is what the noble Lord, Lord Kerr, stated quite clearly. This is the Article 48(6) issue. The noble Lord said that the treaty changes under the simplified revision procedure are not allowed to transfer further competence from the UK to the EU. Here I hesitate, because I am going to challenge the viewpoint and authority of the noble Lord, Lord Kerr, and many others, but certainly the noble Lord, Lord Kerr, who is a great expert. After all, he was, I understand, rapporteur of the European constitution, which came to, I am afraid, a sticky end, but he has vast expertise. However, it is possible to transfer further powers from this country to the institutions of the EU. The potential for a substantial amendment to be made under this mechanism means that we should treat, logically, changes under the simplified revision procedure in the same way as we would treat other types of change. I was challenged again and again about what sort of things are involved. I have a long list of powers in the past, present and future that will be affected by the transfer of powers.
Lord Kerr of Kinlochard
Could the Minister give us some examples? I cannot think of examples of transfers of powers that do not involve a change to the treaties. Can he explain what these transfers are?
Lord Howell of Guildford
I was in the midst of saying that I would do that. Article 48(6) can be used to amend Part 3 of the TFEU, which covers Union policies and internal actions, such as the internal market, agriculture, freedom, security and justice, competition, employment, the environment and public health. In the past, the Lisbon treaty agreed to move 51 vetoes from unanimity to QMV. Somewhere I even have a list, which I shall secure in a moment, of the kind of vetoes, emergency brakes or moves to compel the United Kingdom to do something new or a new power or sanction on the UK involving a treaty change that might or might not qualify under paragraphs (i) and (j) of Clause 4(1) as significant, might or might not be exemptions if they did not affect this country and might or might not therefore become one of the items that might lead to a legislative treaty ratification process that might require a referendum. That is the situation.
Lord Howell of Guildford
I have given some examples from the past and I have some more here. There have been 51 vetoes to unanimity, most of which would have failed a significance test, would have been exempted, would not have applied to this country or would have had no influence on our affairs. I am advised that another past example of a transfer of power is when the Court of Justice was given the new power to impose fines on member states for non-compliance in specific areas. Were that to have been proposed in an area under Part 3 of the Bill or Article 48(6), it would represent a transfer of power which would have to be assessed over the tests in this Bill.
I want now to turn to the crucial implications.
Lord Kerr of Kinlochard
I think that the proposal to which the Minister was referring for giving a fining power to the court was originally proposed by the United Kingdom but I am more worried about the definitional point. I have not yet heard an example of a transfer of competence or powers—the words used by the Minister at Second Reading and again today. I hear about voting rules, and the Government can of course refuse to change the voting rules, but I have not heard about a transfer of power.
I do not think that any example yet given by the Minister is of a transfer of power; that is, something we give up. If the Court of Justice is given a fining power, no British court has a power to levy fines withdrawn. It is not a transfer. I agree that that may be an additional power to the Court of Justice but that is nothing about its competence. It is not a transfer of power if we are not giving anything up. We want the Court to enforce EU law.
Lord Howell of Guildford
I think that we have agreed that we are concerned with powers under Article 48(6) and the noble Lord is worried about powers rather than competences. It is true that the transfer of powers is not defined in European legislation, so we have to look at these detailed points, such as the surrender of certain vetoes or the removal of the availability to hold to a veto, and look at issues where a sanction is imposed on the United Kingdom which involves the limitation of a power moving to the higher levels of the European Union and taking it away from this country. These may be small powers. I want to come to what I believe to be a canard—that all this will lead to an endless series of referenda. It will not and I shall show exactly why it will not. But they are transfers of power and they come in a variety of forms. I have mentioned two or three. I will seek to get a longer list as we discuss these things but the pattern is there. The pattern of power must be considered as well as the pattern of competences.
Let me address what lies behind the amendment and the worry about Article 48(6); namely, will this procedure as applied to the transfer of powers as well as to the transfer of competences which would trigger the referendum requirement, provided they got over the significance hurdle, the exemption hurdle and other hurdles, lead to numerous referendums on trivial issues? If it did, I think that I would agree with some of the rather cruder and blunter criticisms of the Bill that this would not be a sensible way to proceed, with constant concerns about quite small issues triggering a referendum for the whole United Kingdom. Clearly, that would be absurd.
Baroness Anelay of St Johns
My Lords, of course I do not seek closure. I know that my noble friend has been very generous in his winding-up remarks and that noble Lords have been keen to intervene to achieve elucidation. These are indeed very important matters. I appreciate that we are now reaching two hours, 48 minutes. We do not have anything by way of a guillotine in this House, but we have self-regulation. I believe that it is the sense of the Committee that it would be right for the mover of the amendment to respond now to the position put by my noble friend Lord Howell.
Lord Kerr of Kinlochard
I am grateful to the Minister for his considered reply. I strongly agree with his point about public disquiet and concern. Particularly in this House, we underrate the extent to which public opinion has moved against the European Union in recent years. However, the Bill will do absolutely nothing to remedy that concern and disquiet. What we need to do, and this is a responsibility particularly of the Government, is to be out selling in public the truth about the European Union. However, I agree with the analysis that the Minister provided at the outset of his remarks.
He was also quite right to range widely before focusing on my amendment, because, alas, the debate had ranged very widely. I did not realise how many of the captains and the kings would come in and how much Sturm und Drang we would have as we ranged over the battlefield. Quite a lot of the debate was, as the noble Lord, Lord Richard, pointed out, technically a little bit out of order, but it was very interesting.
I have to disappoint one or two noble Lords who spoke in favour of my amendment—and I note that only two spoke against it, none of them from the government Benches. My disappointed comes from the fact that the scope of my amendment is extremely narrow. If the Government were to accept it, and I do not know why they do not, the particular procedures applying to treaty amendments that result from the simplified process would fall away and all treaty amendments would be handled in the same way. I do not know why Clause 3 is needed as well as Clause 2. I was not arguing today that nothing that is done by the simplified procedure should ever justify a referendum—that is my view, but it was not the argument that I was making today. My argument today was that there was no need for Clause 3 and no need anywhere in the Bill for any reference to Article 48(6). We need proper, substantive definitions based on the content of a treaty amendment—what it says, what it does—to decide how significant they are and whether there is a requirement for a referendum. I will probably be somewhere else on the spectrum of that debate from the Minister. You need to address the substance of the treaty amendment, not the process by which the treaty amendment was arrived at.
Clause 2 refers to: “Treaties amending or replacing TEU or TFEU”. The title of Clause 3 is: “Amendment of TFEU under simplified revision procedure”. If Clause 3 vanishes, the only procedure you would have would be that set out in Clause 2, and it would apply to all treaty amendments. I cannot see why the Government do not buy that.
The Minister spent a long time trying to persuade us that you could, under the simplified revision procedure, transfer competences to the European Union, despite the plain wording of Article 48(6) that you cannot transfer competences to the European Union by that root.
Lord Howell of Guildford
I hesitate to do to the noble Lord what has been done to me for the past two hours—constant interruption—but I did not say that. I was talking about transfers of powers. I conceded the perfectly clear point made by the noble Lord that transfers of competences under Article 48(6) are not possible because they are excluded in the treaty. We are talking about transfers of powers, which is a different matter. I described the kinds of powers and said that, in order to be comprehensive and logical and gain the public confidence, it is our belief that the procedure should cover the transfers of both competences and powers. That is what I said.
Lord Kerr of Kinlochard
My Lords, I fear I am still unconvinced. I do not understand these powers. Can we have a definition of powers? What do we mean by powers when we talk about the Bill? Most people seem to think that the powers of the European Union are the powers we have given it. Over there they are called les compétences de l’Union, which is badly translated back into English as competences. This is about powers; the two words mean the same. At least that is my understanding. If we are giving them a different meaning, fine—but let us have a definition.
My bigger point, however, is that this is a technical amendment designed to probe why we need to have a Clause 3—I cannot for the life of me see why—but the Minister did not address that point in his response. I am very grateful to him for considering the debate and responding as he did, but I am unconvinced. Although I am ready to withdraw the amendment today, I shall be back. For the moment, I beg leave to withdraw the amendment.
Lord Wallace of Saltaire
I foresee that when we get to the debate on Clause 18 we shall have a great many discussions on the exact relationship between the judiciary and Parliament and parliamentary sovereignty. The time for that debate is not now but then.
Lord Kerr of Kinlochard
Does the Minister agree that the likelihood of judicial review is greatly enhanced by the creation of the significance test? In almost any case where Parliament does not wish to have a referendum because it has accepted the Government’s statement that the issue is not sufficiently significant to justify a referendum, that will be challenged in the courts. The issue will not be whether to go ahead and complete the process of ratification but whether or not to have a referendum. It will be a bold Government who decide to go ahead and complete the process before the court has ruled on the significance point. What is extraordinary is that we should create a system where we are going to invite the court into the middle of our legislative procedures. If we have not finished here in Parliament, we will have to suspend if the significance test is being challenged.
Lord Wallace of Saltaire
My Lords, my understanding, and I stress that I am not a lawyer, is that it is the ministerial judgment that is subject to judicial review and not the parliamentary decision. I will clearly have to consult before I come back on Report on the exact meanings at stake, but my understanding is that parliamentary decisions are much more robustly resistant to judicial review.
European Union Bill
Lord Kerr of Kinlochard Excerpts(13 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Howell of Guildford
Yes, except, of course, where the other exemptions apply, in particular, the one I mentioned that the treaty, such as the one we discussed in this very House last night, does not affect the United Kingdom and there is no competence transfer or power transfer. In those, there is no referendum, but where there is a clear transfer of competence or power and the treaty is being changed to that effect, there is indeed a mandatory requirement for a referendum. It is on the major issues that I have described, which everyone in this House is concerned with. We have mentioned them all many times, so I shall just take one very topical one: should we join the eurozone? We feel it is right that the people should be consulted through a referendum and so do, I think, the majority of people in this country.
We also feel that it is right that at the lower level, where we are talking about matters being handled by an Act of Parliament rather than just a resolution through the House, it is right, and the Constitution Committee agrees with us, that there should be more effective parliamentary control over what is happening and the passing of powers and competences. I think the position is as I described it in considerable detail to my noble friend. If I did not satisfy him, and I suspect I have not, there will, no doubt, be plenty of opportunity in Committee to go through these things in even more minute detail than I am going through them now.
I want to refer to Clause 18 because it will be recalled that the coalition set out in our programme for government that we, the coalition, would examine the case for a United Kingdom parliamentary sovereignty Bill. Following that examination, the Government resolved to include a declaratory provision in this Bill which makes it clear that EU law has effect in the UK legal order for one reason only; namely, that that authority has been conferred upon it by Acts of Parliament and that its authority lasts only for as long as Parliament so decides. This is a principle that to date has been upheld consistently by our courts.
Nevertheless, in recent years, legal and constitutional academics and others have suggested that the doctrine of parliamentary sovereignty has been eroded by, among other things, our membership of the European Union. Put another way, European law has now acquired an autonomous status within the UK legal order independent of the will of Parliament through its Acts. This argument was advanced most vigorously by the prosecution in the so-called metric martyr's case—Thoburn v Sunderland City Council—in 2002. On that occasion, the Divisional Court rejected the plea. In order to guard against the risk of any such argument gaining credence in the future, we have decided that it would be beneficial to place it beyond speculation that directly effective and directly applicable EU law owes its status within the UK legal order because statute has provided that this be so. The clause is declaratory, but lays down a firm marker about the sovereignty of this Parliament.
Finally, I reaffirm our firm belief that this legislation would have a positive impact for the people and the democratic governance of this country. We also believe it would help address the democratic deficit across the whole of the European Union today. The Government are clear that this legislation will not have any adverse impact on the influence or the engagement of the United Kingdom in the European Union. On the contrary, colleagues in the EU have agreed that it is for member states to determine how they consider and approve key decisions. The President of the European Council made precisely this point on a recent visit to London. Although they have other constitutional frameworks—this meets the point made by the noble Lord, Lord Clinton-Davis—other member states have similar provisions to those in this legislation. Several have referendum provisions in specific circumstances and, as I said earlier, the German Parliament has a series of provisions to approve a similar set of passerelles as those listed in this Bill.
There is no suggestion that those provisions in other member states pose a hindrance to their influence, in particular in the case of Germany, and we do not accept that this will be the case with the United Kingdom either; on the contrary, as I outlined, the Prime Minister continues to lead the Government’s close engagement with our European partners on those areas of policy where the EU can make a positive difference to the people of this country. Nor would this Bill hinder the day-to-day business of the EU. The provisions of this legislation do not extend to those items of legislation that are proposed under the existing competences conferred on the EU under existing treaties save for those proposals involving passerelles listed in the Bill. These decisions remain, of course, within the scope of our existing parliamentary scrutiny arrangements.
This legislation represents a significant step forward in ensuring sufficient parliamentary and public control over the key decisions taken by the Government in the EU.
Lord Kerr of Kinlochard
I am grateful to the Minister for giving way. He passed rather rapidly over Clause 14, so perhaps I may take him back to it for a second before he sits down. I find it very puzzling. If, as most of us believe, parliamentary sovereignty is absolute, Clause 18 is not necessary. If I am wrong and parliamentary sovereignty is not absolute but could be overruled by another legal order, then nothing that we say in this Bill or this Act could change that. So Clause 18, surely, is either superfluous or ineffective.
Lord Howell of Guildford
That is a good try, but it does not quite meet the point that what we are trying to do is put the principle into statute law rather than common law. It is a change in that degree; but, otherwise, I fully concede that it is declaratory and intended to reinforce the point, which is widely but not totally accepted. So it does make some difference. However, if the noble Lord is saying that it is not a decisive, world-shattering, course-altering piece of legislation, I would have to agree with him.
I was saying in conclusion that this legislation represents a significant step forward in ensuring sufficient parliamentary and public control over the key decisions taken by the Government. The Government’s clear aim is that this will become an enduring part of the United Kingdom's constitutional framework. It will serve to re-engage the people with the decisions taken in their name. It will give greater democratic legitimacy to the pursuit of the UK’s objectives as a leading member of the European Union and will play an important part in the necessary increase in the democratic legitimacy of the European Union as a whole, not just among the people of this country but among the people of all the member states of the European Union. This is all part of enabling us, the British, to play an active and activist role in the European Union, which is, we believe, clearly in this country's national interest.
This Bill has received considerable and considered scrutiny from another place. The House will note that during that scrutiny this legislation was unopposed both on Second Reading and on Third Reading and that no amendments were proposed in Committee or on Report which affected the fundamental provisions of the legislation. The EU Bill had the support of all sides of the other place. I am therefore hopeful that this legislation will receive similar support from all sides of your Lordships' House. I therefore commend the Bill to the House and beg to move.
Lord Pearson of Rannoch
My Lords, I do not think that I am the one who is wasting the time of your Lordships’ House. I suggest that the noble Lord reads the opinion of the noble and learned Lord, Lord Woolf, and of our Sub-Committee on Lords’ Interests, and any other noble Lords who are interested in the subject should do that. I think it lowers the tone and skews the quality of your Lordships’ debates if people who are exposed, however remotely, to losing a very substantial pension do not continue to fulfil the obligations they had when they were Commissioners. In that, I think the EU pension is unique. It is a great shame.
Lord Kerr of Kinlochard
It was extremely handsome of the noble Lord to start his remarks with such a fulsome apology, but I hope that he might now address the Bill.
Lord Pearson of Rannoch
Given the chance, that is exactly what I was going to do. We have now wasted five minutes on this.
Foreign Policy
Lord Kerr of Kinlochard Excerpts(14 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Kerr of Kinlochard
My Lords, we owe a great debt to the noble and learned Lord, Lord Howe of Aberavon, for the way in which he introduced the debate. He regularly reminds the House that I used to write speeches for him. I think he does that only so you notice that they have got so much better.
I read the Foreign Secretary’s speech, unlike the noble Lord, Lord Butler of Brockwell, and I would not dream of giving a considered reply to such a serious speech off the cuff; it needs careful thought. I did, however, enjoy hearing him on the “Today” programme this morning, when he cheerfully agreed with Evan Davis that Britain must “bat above its weight”. If I were to risk a response, I suspect that I would be “punching on a sticky wicket”. He has all the qualities to be a great Foreign Secretary, and in due course he will master the Foreign Office’s cricketing metaphors, or better still abolish them.
I hope that the Foreign Secretary will also follow the wise advice of the noble Lord, Lord Maples, in his brilliant maiden speech, and steer his party away from its infantile atlanticism. It is time that the Back-Benchers understood that there is no question of a choice between being close to the United States and being active in Europe. One’s importance in Washington now is a function of one’s perceived importance in Brussels. There is no conflict; they are mutually reinforcing.
The Motion in the name of the noble and learned Lord, Lord Howe, is about the objectives of foreign policy. My plea is to keep them simple. The objective of our foreign policy is advancing our interests and protecting our citizens. Everything else is secondary. Diplomacy is not primarily about preaching; it is not about preaching on ethics, light-touch regulation or even action against global warming. The foreigners tend to look at what we do rather than what we say. Nor is it about praising our own systems, our society or our culture.
The Foreign Secretary spoke eloquently this morning about the importance of cultural diplomacy, and I too pay tribute to the British Council and the World Service, but cultural diplomacy works both ways, and great global institutions such as the British Museum remind us of the importance for effective diplomacy of studying others’ cultures. Effective diplomacy is listening diplomacy, and knowledge-based diplomacy. It understands why others say what they say. It is steeped in their societies and so can predict when they may say something different, and what they will say tomorrow. It spots synergies with our interests, defines possible deals and trade-offs, and optimally focuses our efforts and supports our exporters. It requires long memories and linguistic skills. The Afghan war that we won this century—the autumn 2001 war—was won not by the cruise missiles on the al-Qaeda camps but by the brave men in the mountains who spoke the languages, had been there before, and turned the tribal chieftains against the Taliban.
The FCO vote has been under pressure now for eight years. Real-terms decline in the overall vote has been exacerbated by a preference for maintaining programmes rather than people or posts. I suspect the reason has been that programme spending is more susceptible to output measurement and quantified objectives. Spending on understanding foreign societies is harder to justify to management consultants or the Treasury. I know that the Foreign Secretary has a McKinsey past, but I hope that he will avoid this heresy, for heresy it is.
If the FCO vote were to be cut again, a small service would get still smaller and become less effective, which would defeat the Foreign Secretary’s declared aim, which was so eloquently expressed this morning, of expanding our global reach and influence. He spoke of developing and deepening our relations with the United Arab Emirates. I warmly agree, but that means having experienced Arabists in post in Abu Dhabi, Dubai, Doha, Kuwait, Muscat and Bahrain. We have never had an ambassador in Beijing who does not speak Mandarin, and we must never; we have never had an ambassador in Tokyo who does not speak Japanese, and we must never; but keeping these cadres of qualified people healthy means investing in a manpower margin. These languages are hard to acquire and these societies deserve sustained study, which needs to be incentivised. Understanding Russia means understanding Russian. A new emphasis on Brazil and India is excellent, but if it is to mean anything it must mean not fewer resources but more.
So I urge the Foreign Secretary to prioritise knowledge. We must go for qualified people, not quantified objectives. We want Neil MacGregor diplomacy, and knowledge of a hundred subjects, not McKinsey diplomacy and a world view in a hundred objectives. Good, trained people are the bones, muscles and sinews of diplomacy. The fat of the Diplomatic Service has long gone, and you cannot wield the knife again without losing “global reach and influence”.
I have one more point. The Foreign Secretary this morning did not mention Korea. Korea is a key member of the G20 and one of the world’s top 10 economies. Its stimulus package was the greenest in the G20, and its growth rate beats all in Europe. It should be a key UK export market, particularly as the Koreans happen to like us. The last Foreign Secretary to visit Seoul was the noble Lord, Lord Hurd of Westwell, in 1993—17 years and six Foreign Secretaries ago. My point is not that that is insulting, although it is, but that it is counterproductive. Of course there have been meetings in the margins of multilateral meetings and in London, but would we honestly claim that we understood the French if we met them only in Brussels, New York and London?
The fact that the noble and learned Lord, Lord Howe, went out of his way when Chancellor to get to know his French colleague 30 years ago produced major dividends when Monsieur Delors went to Brussels and the noble and learned Lord, Lord Howe, went to the Foreign Office. The fact that the noble Lord, Lord Hurd, went out of his way 20 years ago to visit Rome for private meetings with his then Italian colleague paid major dividends straightaway for me as the UK negotiator in Brussels. I watched my Italian colleague’s instructions change overnight, to his chagrin. The Foreign Secretary should not take it amiss when the Foreign Office says to him, “Please, please go away”. The advice is good, and he should act on it. I hope he will make it a personal objective to visit all his colleagues in all 19 of the other G20 capitals in his first year in office.