Further Discussions with the European Union under Article 50 of the Treaty on European Union

Debate between Lord Kerr of Kinlochard and Lord Howell of Guildford

Wednesday 27th February 2019 Lords Chamber

[Lord Kerr of Kinlochard]

But what he brought down was graven on a tablet of stone, and what Mr Nick Timothy drafted for the Prime Minister in September 2016 was not, in my view, to be taken as graven on a tablet of stone. We know now that the Cabinet was not consulted about it. We knew at the time that the country and this Parliament were not consulted, but these four red lines have determined where we are now.

The European Union has said all along—it said it in the cover note of its first mandate—that if our red lines were to change, then it was happy to look again at its mandate and change it. However, we do not seem to listen to those across the House of Commons who propose something that would break one of the red lines. When Labour talks of customs union, and this House votes for customs union, it is dismissed because it breaches one of the four red lines.

By the logic of the Prophet Timothy, Switzerland, Turkey and Norway are not sovereign states independent of the EU, because in at least one respect each breaches at least one of the four red lines laid down by Mrs May in the party conference speech in September 2016. Yet the Swiss think that they are independent. They do not think they are in the EU, and are commonly regarded as not being in the EU. I do not know why the definition of Brexit that was laid down without consultation in September 2016 has to be accepted as the only definition, and why it is a denial of Brexit, flying in the face of democracy, to argue that there might be a better Brexit than the one defined by Mr Timothy and the Prime Minister in September 2016. That is why I am offended by the “my deal or no deal” choice.

As everyone has been saying and as the document published yesterday proves, no deal is an economic catastrophe for the country, but it cannot be right that the only alternative is the lineal descendant of the tablet brought down by Moses to the party conference in September 2016. There are at least two more options available. One is to try for a better Brexit, which I do not believe the Prime Minister is going to do with the short extension she says that she might be ready to foresee. She is not looking at anything other than the sort of declaration that could be fitted into the political declaration, or might be free-standing, in some way adding emollient words about the backstop. However, the backstop is not the only defect in this dreadful, humiliating package—this humiliating treaty and vacuous declaration.

If we were prepared to contemplate the Swiss approach to free movement of persons, the Turkish approach to a customs union or the Norwegian approach to the single market, or if we were prepared to envisage an EEA-type arrangement, we do not know what new prospects might open up—we have never tried, because No. 10 does not listen. It has never been tested. We have never discovered what the EU means when it says that, if we were to change our red lines, it would change its negotiating position. That makes the “my deal or no deal” position irresponsible.

Others have explained why no deal is extremely bad for our trade. There would be no preferential arrangement with the EU or with any of the countries with which it has preferential deals, which amounts to more than two-thirds of our trade. The non-EU countries I am talking about include some very big ones, such as Japan, South Korea and Turkey. We are told that we have rolled over six agreements, but these are with minnows—not Japan, not South Korea and not Turkey.

Quite apart from the question of our domestic tariff, which the noble Baroness, Lady Hayter, spoke about, we have to accept that our export market would be seriously damaged by no deal. Whether it happens in April, May or June, no deal is no better then than it would be on 29 March.

[Lord Howell of Guildford]

I apologise for interrupting the noble Lord—he said some very nice things about me and I have a lot of very nice things to say about him. However, he has presented me with a puzzle. He keeps talking about this business of “my deal or no deal”. In fact, the Government have now recognised that it is not “my deal or no deal”, but “my deal or postponement”—admittedly, in the words of the Prime Minister, a “short” postponement. We all know perfectly well that an overwhelming majority in the other place supports a delay in Article 50. If the Prime Minister fails on 12 March—I do not think she will—there will be a postponement. The concept of “my deal or no deal” is last week’s story. It is simply out of date, so why is the noble Lord worried about it?

[Lord Kerr of Kinlochard]

I am worried about it because I do not believe that the Prime Minister intends to use the short delay she says she is prepared to settle for—although she has not said that she would vote for it—to explore the possibilities of a better Brexit. As far as she is concerned, the only deal is that which she brought back in November, possibly titivated slightly in the declaration to try to deal with the objections of some to the backstop. I believe that is all she intends to do. The right thing to do is to have a long enough extension to go back and consult the people. This has turned out so differently from what we were told, and it is absolutely right that we would go back and consult the people.

The point I was trying to make was about trade. I would like to end on a warm and friendly note towards the noble Lord, Lord Callanan, who is in such sparkling form today—I shall try to sparkle back in what is, for me, an unusually friendly way. I congratulate him on his honesty in the last debate, when he put to rest the Legatum Institute theory that the answer to the problem of WTO terms and no preferential trade deals was Article 24. It was extremely straightforward and honest of him to say of Article 24:

“This provision refers to interim agreements. In order to use it, we would need to agree with the EU the shape of the future economic partnership, together with a plan and schedule for getting there. This would then need to be presented to all 164 WTO members and they would be able to scrutinise it, suggest changes and, ultimately, veto it”.—[Official Report, 13/2/19; col. 1935.]


That, I believe, is absolutely correct. I think it was generous and honest of a Minister to put it on record. Article 24 is absolutely no way out in the situation we would be in with no deal. It depends on a deal being struck. It depends on a process going on. It is possible that eight years into future negotiations this is what we might be able to do, although we would, as the Minister rightly said, be dependent on the agreement of 164 parties in GATT. Therefore, even that cannot be assumed.

Iran

Debate between Lord Kerr of Kinlochard and Lord Howell of Guildford

Tuesday 24th January 2012 Lords Chamber

[Lord Howell of Guildford]

We cannot yet to talk in terms of undertakings, but there have been indications. Obviously it is up to Saudi Arabia and other major oil producers in the region, such as Kuwait and the United Arab Emirates, to undertake to make up the shortfall. The indications are that this will be possible but we are not yet at the stage where I can say that undertakings have been officially agreed; they have not.

There is also a problem of matching the quality of oil concerned. As the noble Baroness knows, although the Iranian oil that Greece, for instance, has been heavily reliant on is slightly sour, the make-up oil from Saudi Arabia would be considerably sourer and would carry a much heavier sulphur content as well, so there would be difficulties for refiners. The usual complexities that arise when one moves oil flows around inside the oil market would occur, of the kind that I have just described. Therefore, I cannot say that there is a neat package of additional oil supplies ready to come into place. One has to realise that the Iranian oil does not necessarily disappear; it will not stop being produced and will probably continue to enter the market, although one imagines at a certain discount in relation to the major customers such as China.

[Lord Kerr of Kinlochard]

My Lords, the effect of sanctions may be to cause opinion in Iran to coalesce behind the Government, the risk to which noble Lords’ attention has been drawn by an expert. Will the Government do everything they can as imaginatively as possible to make clear that we have no quarrel with the Iranian people and that the quarrel is purely with the regime? Will the Government also urge their European partners to avoid unnecessary irritants in relations with Turkey, a country which has enormous experience of peaceful coexistence with Iran and a country whose expertise and experience is extremely important to us at this difficult time?

[Lord Howell of Guildford]

I give a most emphatic yes to both those propositions. Indeed, in relation to the second one, it is very important that we work very closely with Turkey, which has indicated very clearly that the idea of Iran becoming a fully weaponised nuclear power is extremely unwelcome to it and that it will combine with the necessary actions and strategies to prevent that. At present, the main strategy is pressure through sanctions, but there are other tracks of diplomacy to develop as well. One can pursue more than one track in these matters, but this is the one that we are now engaged on, which we hope will bring results.

European Union Bill

Debate between Lord Kerr of Kinlochard and Lord Howell of Guildford

Monday 13th June 2011 Lords Chamber

[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.

--- Later in debate ---

[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.

European Union Bill

Debate between Lord Kerr of Kinlochard and Lord Howell of Guildford

Wednesday 8th June 2011 Lords Chamber

[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

Debate between Lord Kerr of Kinlochard and Lord Howell of Guildford

Monday 23rd May 2011 Lords Chamber

[Lord Howell of Guildford]

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

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

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

[Lord Kerr of Kinlochard]

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

[Lord Howell of Guildford]

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

[Lord Kerr of Kinlochard]

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

[Lord Howell of Guildford]

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

[Lord Howell of Guildford]

Yes, of course I will.

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

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

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

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

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

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

[Lord Kerr of Kinlochard]

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

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

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

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

European Union Bill

Debate between Lord Kerr of Kinlochard and Lord Howell of Guildford

Monday 9th May 2011 Lords Chamber

[Lord Howell of Guildford]

I accept that. I note that I had already crossed out the words “Act of Parliament” in my notes in anticipating that comment. Unfortunately, in the excitement, I put those words in, so I take them out again. However, when we come to the minutiae, there may be some qualification even to what I am saying.

I want to try to explain why shortening the list is not the right thing to do, and to deal particularly with the passerelle provisions, on which the noble Lord, Lord Kerr, commented with his enormous expertise and hinterland of understanding of these things, having been in at the creation of not all the passerelles—some have existed for many years but never been used—but of those that we dealt with in the Lisbon treaty, which we had first seen given birth to in the constitution, which unfortunately came to a sticky end.

I say as a preliminary that all this discussion about referendum requirements against treaty changes and for certain decisions where no treaty change is required, and for giving up vetoes—in other words, allowing the right to be outvoted on certain issues—takes place against a background of huge areas of existing power and competence in the European Union. When one thinks of the enormous range of areas where the European Union can legislate, and where we can develop all kinds of positive ideas and initiatives to enable it to deal with entirely new global conditions of the 21st century, I am always left a little bewildered that we should come back again and again to the probably, I suspect, fairly marginal areas—these may be very small areas indeed—where there is supposed to be a tremendous yen for new treaties and extending the competences and powers of the European Union. These are areas in the margin of the real world of the European Union, where many of us have been involved over many years, and where enormous tasks have yet to be carried out which do not require yet a further extension of the powers and competences of the European Union. I say that just as background; I want to come back to that point in more detail a little later on.

I turn more specifically to the amendments. Of course I am very pleased that the signatories to the amendment have accepted the principle that a decision on whether to join the euro is of such fundamental importance that the people should decide. I have argued before—Ministers have argued, the Government have argued and the Bill argues—that the referendum requirement is a vital part of rebuilding trust with the British people. We perfectly accept the point made by the Constitution Committee of your Lordships’ House that referenda should not be used, as it put it, as a “tactical device”, and that referenda should, as we argue, be used for more critical issues of fundamental importance. We therefore come down to a central question running through all this debate—what are the critical issues? What are the fundamental problems and matters on which it would be right for people to be consulted before powers are pushed away or—whether through treaties, various procedures, the passerelle device or simply a decision of this Government—they decide to give away a certain power or move in a certain direction?

We begin with a puzzlement as to why the other one-way irreversible decisions in Clause 6 that we are talking about and I shall come to in detail are considered any less important in the minds of noble Lords than the euro. I find it difficult, as do a number of noble Lords who have spoken with great precision and accuracy, to conceive that the monetary independence of the UK should be considered essential to our national identity and economic interest—an argument apparently accepted by the supporters of the amendments—but not the UK’s military independence and commitments to NATO, if it were decided to establish a common EU defence that might well conflict with those commitments. We have held many debates in this House in the past four or five years about the dangers of that.

Why consider just the euro but not the impact that joining the European public prosecutor’s office could have on the UK’s judicial independence, as my noble friend Lord Faulks clearly emphasised. I want to refer to that in much more detail. I note that the previous Government opposed that. The present Government are against it. Many of the Nordic countries think that it is an extremely bad idea. There is very little support at all for the proposition. Yet the suggestion that there should be a safeguard against what would be a major incursion into the criminal justice system in this country is not seen as important. I cannot give all the details, because I know that there are different views on this. What about the UK’s ability to police its own borders? This is a red-hot issue, yet for some reason it is not included in the list.

Allow me to elaborate on some of my remarks. A decision on whether to join a common EU defence is fundamental, as it could result in a common EU army—the noble Lord, Lord Kerr, said that that may not happen immediately; but it could happen—and in giving the EU the power and legal right to decide on the deployment of UK civilian and military assets in a way that is not the case with NATO. It is of course perfectly true that operational command is under an American supreme commander, and that on the battlefield decisions and powers may be taken that can subordinate British forces to others. However, the suggestion that we should move in a new direction and be aligned with some of the European Union’s ideas is a new departure. These would be huge decisions on which the British people should decide that are discussed on the doorstep.

It is reasonable to suggest that Parliament and the people are entitled to ask what extra benefit would be bought by moves of that kind. The UK has long valued its NATO membership and key bilateral defence relationships within Europe, of which the treaty with France announced last summer is one. The UK also values existing mechanisms for security and defence co-operation within the EU. Bilateral and multilateral co-operation is an essential part of our approach in the UK and to wider international defence—as has recently been shown in Libya and earlier off the coast of Somalia, through Operation Atalanta. All that is going on; all that is thoroughly sensible; all that is within the operational activities of the European Union and I find it hard to see why an advance into a completely new area of power delegation and power transfer should be brushed aside. It would be a major development.

I turn to the issue of the public prosecutor, because a good many comments were made on that. It is coalition policy that we will not participate in the establishment of any European public prosecutor. We know that it is a sensitive issue, as was recorded by the House of Lords Select Committee on the European Union in its 16th report seven years ago. It is perfectly true—the noble Lord, Lord Goodhart, spoke with great expertise on this—that Article 86(2) provides only for the European public prosecutor to combat crimes affecting the financial interests of the Union. Although that is so, the participation of the UK in a European public prosecutor would mean giving up control of a fundamental part of our judicial system: the decision on who can be brought for prosecution in this country. That is not a small matter. That is a vital principle. As Article 86(2) states, a European public prosecutor,

“shall exercise the functions of prosecutor in the competence courts of the member states”.

In other words, a European public prosecutor would have power to prosecute in those member states within the prosecutor’s jurisdiction.

In England and Wales, it is the responsibility of the Crown Prosecution Service to decide whether to prosecute and whether to take over any private prosecution, so powers granted to a European public prosecutor would cut across that well-established principle. As the noble Lord, Lord West of Spithead, when a Minister in the previous Government, informed this House:

“The Government have consistently opposed the creation of an EPP”.—[Official Report, 1/3/10; col. WA325.]

[Lord Kerr of Kinlochard]

I agree with everything that the noble Lord, Faulks, said on the European public prosecutor. It seems to me highly unlikely ever to be suitable to a common-law country such as us or the Irish. I am delighted to hear the Minister say that it is coalition policy is to play no part in that. It was precisely because of such considerations that the article in the treaty specifically provides for a group of nine or more to go off to do their own thing, so we are in a rather unlikely scenario here when we come to the point on which a referendum requirement is imposed. That is the question of whether the European public prosecutor’s office, set up to look after the financial interests of the Union and prosecute fraud against the Community budget—and unsuitable in this country as a vehicle for doing that—should extend its role to cross-border crime—human trafficking or whatever. That is a really unlikely contingency, because we will not be in the thing anyway. Surely, if we had an issue for a referendum, it should be: should we have common procedures for prosecuting people who traffick children? That issue is referendable. The issue of whether the European public prosecutor's office, in which we will be playing no part, should have its role extended into that area is a very rum one to choose to block. That is why the noble Lord, Lord Goodhart, was absolutely right to say that this provision in Clause 6 is completely inappropriate, although I agree with the noble Lord, Faulks, on the substance of the EPPO.

[Lord Howell of Guildford]

All these issues are interconnected. In Clause 6 there are two concerns about the surrender of our veto, and therefore the opportunity for others to outvote us on those matters and the agreement to go along with the public prosecutor proposal, which is, of course, already in the treaty. One is joining up with and adopting the European public prosecutor proposal; the other is the extension of the public prosecutor's competencies and the regime which might follow.

Therefore, those are both areas where, because successive Governments have set themselves against them, one hopes that the matter will not arise. However, it is one of the issues involving big decisions—and they are big decisions; there are five such issues and I shall come to them in due course—where there would not be a treaty change but where, as Clause 6 suggests, the British Government should put the matter to the people in a referendum, and the public prosecution proposal is certainly one of them. Perhaps I may mention the big five issues. I do not want to take an unlimited amount of time over them, difficult as it is to cover all the issues.

--- Later in debate ---

[Lord Kerr of Kinlochard]

I thank the Minister for his disarming response to the debate. It was an interesting debate. I am a little sorry that the Front Bench has not associated itself with the defence of the ECJ that I rather inadequately attempted.

[Lord Howell of Guildford]

Much of what the noble Lord said on that matter is correct. There is no question of challenging the integrity of the very senior legal figures who have served their country and Europe very well, and I associate myself with some of the noble Lord’s remarks, although some decisions coming out of the ECJ and the European Court of Human Rights are a different matter, and I would question them very strongly. However, I would not question that the personnel involved are men and women of integrity, uprightness and skill.

[Lord Kerr of Kinlochard]

I am grateful to the Minister. The most endearing feature of the debate was that it was the first of our debates in Committee where we all agreed on something. We all agreed that the grouping was insane. The Opposition Front Bench said that the grouping was insane, and the Minister said that the grouping was unfortunate. One wonders where the grouping comes from. Clearly nobody in the Chamber was in any way responsible for it. It came down from above. Perhaps it came out of Brussels or some dreadful place like that.

It was a difficult debate because of the amendments seeking to subtract, the amendments seeking to add and the amendments of very different weights. At the end of the previous short debate, there was, as the noble Lord, Lord Tomlinson, pointed out, a very significant move by the noble Lord, Lord Wallace of Saltaire, who indicated that he might be prepared to go away and think about something said in the debate. I urge the coalition to share this insight.

It would be extremely good if the Minister too would consider at the end of these debates whether there might not be something that he would be prepared to think about further. He has very kindly said that he would be happy to explain, meet informally and discuss, but that had slightly the ring of the schoolmaster: “If you guys only do your homework, you will in the end understand the wisdom of the Government’s Bill”. I am not sure that that is quite going to do the trick. I think it will be necessary to come back at a later stage to the scope of Clause 6, but for the moment, I withdraw the amendment.

European Union Bill

Debate between Lord Kerr of Kinlochard and Lord Howell of Guildford

Tuesday 26th April 2011 Lords Chamber

[Lord Howell of Guildford]

My Lords, perhaps your Lordships might find it useful if I were to intervene at this stage, because one or two noble Lords have had a bite at the cherry, as it were, and it might be helpful if I were to answer some of the many questions that have been put to this Bench and comment on all the amendments, although I should like first to address the two original amendments, Amendments 16A and 16B, which have a particular element to them which is very important and needs to be addressed. Then I will come to the broader issues raised by the broader amendments, of which the central theme is whether the significance condition should be enlarged or extended. It is interesting to note that in the other place, all the pressure was for them to be reduced, so there is a certain contrast between your Lordships’ views and those of the other place. Often that is healthy.

I say at the beginning that I strongly agree with the remark of the noble Lord, Lord Liddle, that proper leadership in Europe best comes through using the powers that the EU already has. That is a strong statement and highly relevant to what we are debating in the Bill. I ask noble Lords to reflect on it, because I think that many of the worries about what the effect of the Bill might be in checking the expansion, development, changes of treaty, new ideas and proposals for the EU stand in contrast to the wisdom of that remark. An enormous amount can be achieved in our neighbourhood, in relations with the rest of Europe and in the reform of the EU itself to make it suitable to meet the totally changed international landscape which we now all confront, by existing powers rather than further changes in the treaty or transfers of power from member states to the European institutions.

I turn to the first two amendments, which would insert into Clause 3 a new type of exemption from the referendum lock in respect of Article 48(6) decisions, otherwise known as the simplified revision procedure. Perhaps I can deal right at the beginning with the comments of the noble Lord, Lord Kerr of Kinlochard, whom I very much respect for his vast experience in this area. He asked me—he said that I did not answer him very well before, but I will try to do better now—why we needed Clause 3 as well as Clause 2. The answer is simple. Clause 2 deals with ordinary revision procedures for changing the treaties; Clause 3 deals with the special revision procedure for transferring powers from the nation state—the UK in this case—to the European Union. It is the desire of many, not just in this country—I shall give examples from other countries—that changes, whether of the treaty or in powers, should be dealt with in the same way, regardless of whether they are dealt with under the ordinary revision procedure for treaty change or under the special revision procedure, otherwise known as the passerelle procedure. That is why we need Clause 3. I hope that that clarifies that aspect. Of course I shall come to the detail much more extensively in a moment.

[Lord Kerr of Kinlochard]

I apologise to the noble Lord and am grateful to him for giving way. He does not agree, clearly, that the way we handle a treaty amendment should depend on the nature of the treaty amendment, not the process in Brussels which started it. I do not understand that. I do not know why treaty amendments should not be treated as treaty amendments whether they come under the procedure that we are now dealing with under Clause 2 or the procedure which we think appropriate to Clause 3. This is nothing to do with the passerelle. That comes later in a different clause. We are not talking about Article 48(7); we are talking about Article 48(6) here. I accept that the passerelle, on which I will disagree with the Minister on the substance, is a separate issue. I do not see why treaty amendments should not be handled by a single clause setting out a single procedure. In fact, I still think it would be better.

European Union Bill

Debate between Lord Kerr of Kinlochard and Lord Howell of Guildford

Tuesday 5th April 2011 Lords Chamber

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

European Union Bill

Debate between Lord Kerr of Kinlochard and Lord Howell of Guildford

Tuesday 22nd March 2011 Lords Chamber

[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.