European Union Bill

Debate between Lord Kerr of Kinlochard and Lord Pearson of Rannoch

Wednesday 25th May 2011 Lords Chamber

[Lord Kerr of Kinlochard]

I support the amendments in the name of the noble Lords, Lord Taverne and Lord Richard, and in the name of the noble Lords, Lord Liddle and Lord Armstrong. The noble Lord, Lord Armstrong, is stern and unbending and I support his Gladstonian position. I will also speak to the amendment that stands in my name and those in the name of the noble and learned Lord, Lord Howe, the noble Baroness, Lady Williams, and the noble Lord, Lord Hurd of Westwell.

When Committee stage started—it seems a very long time ago—I attempted a feeble Shakespearian flourish, but I now realise that it was completely wrong. I had the wrong play; we are in A Midsummer Night’s Dream, or rather nightmare. We are a long way remote from the real world, but there is still perhaps in our debate a role for the rude mechanicals of the Cross Bench, who have a little experience in what actually happens in Brussels.

When we were last in Committee, the noble Lord, Lord Howell of Guildford, quoted from the then head of the Council Legal Service, Jean-Claude Piris. He did so in answer to the noble Lord, Lord Davies of Stamford, who had said that the Bill,

“will be seen by our partners on the continent of Europe and in Ireland as an example of terrible British negativity about the European Union”.

The noble Lord, Lord Howell, replied:

“We have clear indications that there are no difficulties. Jean-Claude Piris, the former head of the Council's legal service in Brussels, has commented that he sees no difficulties with … the thrust of the Bill. We have checked with people around the European Union and we are not getting the picture that the noble Lord talks about”.—[Official Report, 23/5/11; col. 1647.]

The noble Lord, Lord Taverne, quoting Vernon Bogdanor, spoke of Alice in Wonderland. This is what Jean-Claude Piris said in the letter of evidence that he sent to the House of Commons Scrutiny Committee, writing in a personal capacity as he was about to retire at the time. He said that if the other member states,

“were to consider that the national legal constraints of the UK were to lead to the practical impossibility of taking certain steps within the Union which would be perceived as necessary or desirable by many or all other Member States, it could not be ruled out that the compatibility of the referendum requirements with international and EU law might become an issue. Furthermore, if, in a specific case, the requirement to hold a referendum were to result in an impasse in the future, this might lead to the UK being sidelined on certain issues. This is because it could trigger a tendency among other Member States to circumvent this situation, either by engaging in enhanced cooperation among themselves without the participation of the UK, or by concluding intergovernmental agreements outside the framework of the European Union.”

That was the personal opinion of the then counsel to the Council—the legal adviser to the Council of the European Union—on this Bill.

I do not know whom the noble Lord, Lord Howell, talks to. He says that as he goes around Europe he meets nobody with concerns about this Bill. He should get out more. When the Bill is over, I have no doubt that he will be delighted to get out more.

I do not want to exaggerate my point but very few people across the European Union are aware of the extraordinary process that is taking place here, and the reason for that is that very few people in this country are aware. So far as I know, eight days of Committee on the Bill have not earned an inch of space anywhere in the British press, and therefore there has been nothing for the foreign journalists to pick up. As you go down the Champs-Élysées—

[Lord Pearson of Rannoch]

My Lords, perhaps I may refer the noble Lord to the Quentin Letts column in the Daily Mail and to copious inches in the Daily Express.

European Union Bill

Debate between Lord Kerr of Kinlochard and Lord Pearson of Rannoch

Monday 9th May 2011 Lords Chamber

[Lord Kerr of Kinlochard]

My Lords, I should like to start by offering an apology to the noble Lord, Lord Pearson of Rannoch, for something I misheard on our second day in Committee. I was not here on the third day and this is my first opportunity to correct that which I misheard. After I had spoken, the noble Lord, Lord Pearson, said:

“Is it not true that none”,

of the judges of the Court of Justice,

“would pass muster as a judge in even the lowest and least distinguished of British courts?”.

I thought that that was an assertion and I did not reply because I did not think that it deserved a reply. But on looking in Hansard I see that it was a question. I apologise for mishearing the noble Lord, Lord Pearson of Rannoch, and for not answering his question. Clearly, the ears of the noble Lord, Lord Wallace of Saltaire, are better than mine and he spotted that it was a question. He began his subsequent remarks by saying that,

“the noble Lord, Lord Kerr, is not going to answer”.—[Official Report, 26/4/11; col. 90.]

As a result of what the noble Lord, Lord Pearson, said and that reply, I feel that it is necessary for me to say that my silence did not in any way imply assent. I feel that it is important to put into the record what I think about the judges of the court, of whom I have known about 12 or 14. In this House, there will be some who remember with respect and affection Lord Mackenzie-Stuart. There will be many of us who would wish that Sir David Edward was here with us. The present judge from the UK, Judge Schiemann, is an immensely distinguished jurist with, behind him, I think, nine years in the High Court, eight years in the Appeal Court and seven in the Court of Justice. And all of us will remember the contributions that Lord Slynn of Hadley used to make from these Benches to our debate. These four men have been British justices in the Court of Justice and to none of them, by any stretch of the imagination, could the criticisms made by the noble Lord, Lord Pearson of Rannoch, apply.

I greatly admire the imaginative and irrepressible verve that the noble Lord brings to our debates but it is really important that we should not make absurd allegations about a serious institution and serious people. I thought that it was important to set the record straight and to say what I would have said had I not misheard the noble Lord at the time. I hope that the Government Front Bench will confirm now, as I am sure that it would have done had I not misheard, that it agrees with me and not with the noble Lord, Lord Pearson of Rannoch, on the quality of the judges of the Court of Justice.

[Lord Pearson of Rannoch]

I do not know how many of the legal luminaries to which the noble Lord has just referred are present members of the Luxembourg court. I would merely say that those of us of a Eurosceptic bent do not really regard the Luxembourg court as a court of law at all. We regard it as the engine of the treaties, endlessly pursuing, in its judgment, the ever closer union of the peoples of Europe.

I do not think it was the Luxembourg court, but we owe it to the Daily Express, which recently ran a two-page spread complete with colour photographs, to see a summary of the members of the Strasbourg court. I do not think that they pass muster either. Of course, if there is a judge in the Luxembourg court who would pass the muster which I have suggested he may not, then I am happy to apologise to him, or indeed to several of them. But that does not alter my strictures and the strictures of the Eurosceptic movement in this country regarding the Luxembourg court and its proposals over the years. One thinks again of Article 308 as it then was, and other flexibility clauses in the treaty, which it has used and adapted relentlessly to pursue the project of European integration.

Those are my comments and I am grateful to the noble Lord, Lord Kerr, for his apology.

[Lord Kerr of Kinlochard]

I thank the noble Lord, Lord Pearson. Unless I misheard again, the noble Lord did not end his remarks with a question, so I am not going to respond except to say that the Strasbourg court is, of course, elected by parliamentarians. I do not think that the Strasbourg court has anything to do with this discussion, which is about the European Court of Justice, but I am grateful for the words of apology from the noble Lord.

I turn to Amendment 30. Here in Clause 6 we are in a different part of the forest. We have abandoned treaty land and treaty amendment by any form, and now we are into decisions of various kinds and the mandatory referendum requirements for those decisions. By definition we have therefore left coalition agreement territory because we are not talking about treaties any more. We are now dealing with the 56 categories of decision on which a mandatory referendum could overturn an Act of Parliament. As the noble Lord, Lord Goodhart, pointed out at the start of the Committee, that would be unprecedented. These referenda are entirely unnecessary because a Government, if they wished, could always choose to say no in the Council. The law requiring referenda is particularly unnecessary because, as the noble Baroness, Lady Brinton, pointed out during the third day of debate, not having a reference in the Bill to a particular requirement for a referendum does not mean that a Government could not, on the day, choose to say that they wanted to have one. All this does is tie the Government’s hands, which of course some would want to do.

Why have we got into this curious mess in these extraordinarily detailed thickets—and we have not yet looked at Schedule 1 where mandatory requirements are to be imposed? I can think of only two rationales. The first was the one that the noble Lord, Lord Lamont of Lerwick, talked about in a different context during the third Committee day. It might be called the Odysseus rationale. We would have a British Minister, let us say the noble Lord, Lord Howell of Guildford, sailing past Brussels and insisting that he be tied to the mast so that he cannot be lured by the siren voices with their seductive song. He wants to be able to say, “Look, guys, I have nothing against what you are saying, but I can’t possibly agree with you. If I did, we would have to have a referendum back home”. It is the wax in the ears and tied to the mast provision—the Odysseus provision. I think that it is very pusillanimous. I would have found it very hard to brief Mrs Thatcher, as Prime Minister, on this point. Mrs Thatcher thought that if you disagreed with something, you disagreed with it. You said no. You did not say, “I am terribly sorry. There is nothing much we can do about this because we would have to have a referendum and we do not want one”.

It is insulting to our negotiating partners to turn up tied to the mast. They expect to do serious business, but the Brits cannot do so because of this Act on the statute book. The Brits therefore cannot take part in negotiations. It will feed the temptation and tendency for people to do things in smaller groups without consulting us because we are such a bore.

European Union Bill

Debate between Lord Kerr of Kinlochard and Lord Pearson of Rannoch

Tuesday 26th April 2011 Lords Chamber

[Lord Kerr of Kinlochard]

The number of judges in the court is defined in the treaty. So changing the number of judges in the court requires an amendment to the treaty. There is no doubt about that. Whether that would require a referendum—which is the point that the noble Lord, Lord Howell, was debating with me before dinner—is another question. He may well be right: it depends on whether you view an increase in the number of judges as an increase in the power of the court. If you did, then, under this Bill, you would require a referendum; if you did not, then, under this Bill, you would not. However, it is certainly a treaty amendment.

[Lord Pearson of Rannoch]

Before the Minister replies, can I ask the noble Lord, Lord Kerr, whether, with his great knowledge of these matters, anything can be done about the quality of these judges? Is it not true that none of them would pass muster as a judge in even the lowest and least distinguished of British courts? Is there anything we can do about that under the treaty? Who decides it?

European Union Bill

Debate between Lord Kerr of Kinlochard and Lord Pearson of Rannoch

Tuesday 26th April 2011 Lords Chamber

[Lord Kerr of Kinlochard]

My Lords, it is a pleasure to follow the noble Lord, Lord Waddington, and to welcome both him and the noble Lord, Lord Tomlinson, back to the debate. However, I intend to follow neither of their arguments and to set a dangerous and reprehensible precedent by speaking to Clause 3. I wish to speak in support of Amendments 16A and 16B, proposed by the noble Lord, Lord Liddle. It might be convenient if I were also to explain why I have given notice of my intention to oppose Clause 3.

I started our discussion in Committee by asking why we needed Clause 3.

[Lord Pearson of Rannoch]

My Lords, are we not still on Amendments 16A and 16B? We have not come to the Question whether Clause 3 should stand part of the Bill.

[Lord Kerr of Kinlochard]

I am open to correction. I thought that it might be convenient if I made now the points which I have on Clause 3. Most of them are in relation to Amendments 16A and 16B, but they are also on the general question of Clause 3. I will do as the Committee wishes.

European Union Bill

Debate between Lord Kerr of Kinlochard and Lord Pearson of Rannoch

Tuesday 5th April 2011 Lords Chamber

[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.

European Union Bill

Debate between Lord Kerr of Kinlochard and Lord Pearson of Rannoch

Tuesday 22nd March 2011 Lords Chamber

[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.