European Union Bill

Lord Kinnock Excerpts

Tuesday 5th April 2011 Lords Chamber

[Lord Pearson of Rannoch]

My Lords, these are not examples of powers being returned to a country that enjoyed them before 1972.

[Lord Kinnock]

To assist the noble Lord, I point out to him the very explicit provision that ensures that powers are not transferred to the Union from member states. There is a provision in the treaty of Lisbon enabling states to leave the European Union. That rather contradicts the noble Lord’s view.

[Lord Pearson of Rannoch]

There is also, of course, the ability to repeal the 1972 Act, which means that we would probably not need to go down the tortuous route proposed by the Lisbon treaty. Noble Lords have not quite got the question I was asking. I was asking whether they can tell us of any treaty changes that have not transferred powers to Brussels. Can they tell us of any treaty changes, those powers once having been transferred, that have returned them to this Parliament? I can tell them that the present Government were unable to answer that question in a Question for Written Answer very recently.

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[Lord Pearson of Rannoch]

My Lords, I really do not mean to offend the noble Lord, Lord Grenfell, or any of the other 90 noble Lords who sit on those committees. I merely point out—for instance, on the scrutiny reserve—that successive British Governments have over many years given an undertaking, which unfortunately is not legally binding, that they will not agree to any new piece of Euro-power-grabbing in Brussels if either the Select Committee in your Lordships' House or in the other place is still considering it and if it has not been debated. The latest Written Answer to me on this—I may not have got the statistic quite right—indicates that the scrutiny reserve has been broken no fewer than 434 times in the past five years. That is 434 pieces of European legislation that were under scrutiny by our scrutiny committees when the Government went ahead and signed up to them, because there was not time or because Brussels had moved ahead—all sorts of excuses.

My final word on your Lordships’ European Union Select Committee should be that perhaps one committee and a couple of sub-committees would do the job very well, and the resources could be freed up to do the work in committee which your Lordships' House does extraordinarily well. That is pretty well everything else apart from its European work. I oppose the amendments.

[Lord Kinnock]

My Lords, when the noble Lord, Lord Pearson of Rannoch, says that he wants to stick to his guns, I am inclined to hope that he goes very near to the muzzle of those guns—indeed, just in front—because that would be a suitable location. However, his courtesy prevents me taking up such a stance. I cannot, however, avoid straying just a little bit into his assessment of the consequences of our membership of the European Union and that of 26 other democracies. His conclusion—indeed, his starting point—is always that we are subject to what he calls a power grab and that powers have been given up, taken, removed and transferred. No concession is made by the noble Lord or those who agree with him to the reality that, in the modern world—where so few significant decisions can be taken by single states, no matter how big, how strong or how rich—it is sensible, strictly and literally in the national interest, to pool some power in order to extend the power of a democratic state. The illustration was given perfectly by the noble Lord, Lord Gummer.

[Noble Lords]

Deben!

[Lord Kinnock]

I am terribly sorry. I am sure that the new name is at least as attractive as the first name. I hope that the noble Lord never uproots himself from his Welsh antecedents by failing to call himself Selwyn. I hope that that stays at least.

The illustration given by the newly-named noble Lord and the anciently-named noble Lord, Lord Grenfell, is perfectly apposite. The problem, as we have to acknowledge yet again in these proceedings on this European Union Bill, is that the noble Lord, Lord Pearson, no matter what the strength of the arguments or the number of illustrations, will always argue and insist that the European Union is a larcenous conspiracy that has now lasted since 1958—a conspiracy between civil servants and politicians of every stripe and political colour—in order to usurp the sovereign powers of countries, to no good purpose other than to aggrandise themselves and to act in contradiction of national interests. I know that that is what the noble Lord believes.

I hope that I will not have to return to this issue, because it is in many ways a distraction from the debates that we need to have in examining the Bill. As the noble Lord, Lord Pearson, sees evil in everything that is done by the Union and is fearful of every form of relationship that the United Kingdom has with the Union, let us satisfy ourselves that he has a political hypochondria which is beyond cure, and, therefore, that he will have to be shown the excessive tolerance by which this House distinguishes itself.

The amendment—so ably moved, characteristically, by the noble Lord, Lord Kerr—refers to Article 48(6) of the treaty of union, so I thought that it might be as well for the purposes of this part of the debate to remind ourselves of what Article 48(6) actually says. This is not to detain noble Lords; I know that there is encyclopaedic knowledge available in this House on the issue, but as not everyone will be preoccupied with the minutiae of the detail of the Lisbon treaty, I shall take this opportunity to remind them.

First, any member state or the European Parliament or the Commission may submit to the European Council proposals for revising all or part of the provisions of Part 3 of the Treaty on the Functioning of the Union—step one. Secondly, the European Council may adopt a decision amending all or part of the provisions of Part 3 of the treaty. However, the European Council shall act by unanimity after consulting on certain financial issues with the European Central Bank, but in all cases after consulting the European Parliament and the Commission. That decision, if reached by unanimity, shall not enter into force until it is approved by the member states in accordance with their respective constitutional requirements—a further example of the deference of the Union to the interests, conventions, constitutional requirements and habits of member states—and, most importantly, especially in the context of the Bill, the decision referred to, taken by unanimity, shall not increase the competences of the Union in the treaties.

Here is an enabling provision with so many sensible constraints upon it that it not only has a belt and braces, it even wears a boiler suit with a straitjacket on top of it. In those circumstances, I join other noble Lords in wondering why the coalition Government have found it necessary to seek to make this provision in an Act of Parliament.

[Lord Deben]

Does the noble Lord agree that the British Government would have had to vote as part of that unanimity, thereby accepting that this would not change the nature of powers, but would then have to come back to Britain and say, “We voted the wrong way. We will now need to have a referendum, after saying that this did not increase the powers”?

[Lord Kinnock]

I am grateful to the noble Lord, and I will show him this piece of paper afterwards.

[Lord Pearson of Rannoch]

That is the point that I was attempting to make. As unanimity applies in this clause, we could have a British Government who say that the change, whatever it was, met the terms of this clause, whereas in fact—as we have often seen in matters European—it did not. That is the point that I was trying to make.

[Lord Kinnock]

As the conduit between two noble Lords of polar opposite opinions—and, as usual, in my role of gentle arbitrator, dispassionate and non-partisan—I could show this piece of paper to the noble Lord opposite at the end of this discussion. He will see, foolishly written down by me, “Gummer”, because that is the very point that I was going not only to make but to attribute to the noble Lord.

Reference was made earlier to a great Shakespearean tragedy, “Othello”. We have quickly moved from Shakespearean references to tragedy to the Bill’s references to farce. It is farcical for a provision to be made which would ensure that this member state and 26 others unanimously have to adopt a position, make it subject—rightly—to the constitutional requirements of each member state and then, because they have introduced a particular additional constitutional requirement of making a judgment on the significance of what has been before the Council, come back and either take the risk of saying—in accordance with what the noble Lord, Lord Pearson, would prefer—that they do not think that this change should be subject to a referendum, or make complete fools of themselves nationally and internationally by saying that they think that it should be subject to a referendum despite the fact that they have not only voted for it in the Council but come back and proposed it to this sovereign Parliament. What could be more idiotic or inane than that? I wonder why sensible people in both parties in the Government have allowed themselves to be subjected to that.

[Lord Lea of Crondall]

There is another consideration that my noble friend might wish to add. Not only would they say, “Here we have a referendum”; they would be honour bound to campaign on the wrong side in that referendum.

[Lord Kinnock]

I am sure that they would fulfil that duty with alacrity. The problem then arises—attention has been drawn to this so I need not dwell on it—that, in the event of refusal to have a referendum on this issue, the Government would attract great odium from sections of the press and some people engaged in politics. As a consequence, odium might be mobilised— if you can do that with odium—among the general public.

That would not be the only problem because this ministerial decision—the need for the Government to make a decision is made explicit in the Bill—could be subject to judicial review. We are in a situation where we have moved deeper into farce. Here is proposed a piece of legislation, boldly intended to put the referendum lock on any loss of sovereignty from this sovereign nation and from our sovereign Parliament, but which, in the very course of exerting that, subjects itself to the additional possibility that power could move in these circumstances from that sovereign Parliament to judges. It is just another illustration of the fact that the coalition does not lack a sense of humour. It would not be possible to get any film company to accept this as a serious documentary and I do not think many publishers would be willing to accept it as credible fiction.

My final point connects directly with that. The Government have defined the conditions that would trigger a referendum, not only in the case of treaty changes but also in the case of changes that could be produced under the provisions relating to Article 48(6) and therefore the Treaty on the Functioning of the European Union. The Minister for Europe, David Lidington, pointed out as long ago as September 2010 that the background note produced at the time by the Government said:

“The use of any major ratchet clause which amounts to the transferring of an area power to the EU would be subject to a referendum”.

I have a question on that which I have not seen answered satisfactorily anywhere given the interest that I have taken in this piece of legislation. What is “major” in the context of a major ratchet clause? If in this first examination of the Bill in Committee we can get from the Minister a definition of a major ratchet clause that could be required to be subject to a referendum, I am sure it will guide our deliberations commendably and illuminate all our discussions.

[Lord Garel-Jones]

My Lords, I can be very brief. My concern about this Bill centres on one issue alone: parliamentary sovereignty. I am opposed to referenda as a matter of principle, and many noble Lords have made that point. I know that giving the people a say has become the political equivalent of motherhood and apple pie but I will resist the temptation now of drawing to the Committee’s attention why this particular pie contains a poison that strikes at the very heart of our parliamentary democracy.

I hope I am sufficient of a realist to recognise that when a coalition is formed, concessions have to be made, not only between parties but between various factions within parties. My noble friend Lord Deben referred to them, rather generously, as head-bangers. My own view is that this has been and is a price worth paying as it has delivered a Government who are following, at the moment, a sensible and pragmatic approach within the European Union, always—as is Britain’s traditional role—with a degree of cautious, pragmatic scepticism. But if this Bill, as drafted, goes through, the kind of sensible approach to the European Union that we have seen from the coalition so far will be virtually impossible. As the noble Lord, Lord Kerr, pointed out, if referenda are to be introduced in matters that do not involve a treaty change and if, as the noble Lord, Lord Kinnock, has just pointed out, decisions taken by the Government are subject to judicial review, then the group of friends to whom my noble friend Lord Deben referred will for certain cash in on that, if I may put it that way, and the sensible and pragmatic policies that are now being pursued by the coalition will become impossible.

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[Lord Liddle]

The noble Baroness makes an interesting point. I am no lawyer and I do not think that she is a lawyer either. Eminent lawyers have made these points. I think that it is up to the Government to provide us with a clear explanation.

However, I am trying to make more than a legal point; there is also a moral argument here. The British Government are reneging on a compromise that they signed up for in the negotiations on the Lisbon treaty in 2007. They are overturning promises to our partners that they solemnly made. Of course the Government are entitled to say that for future treaties they can bring in new processes of ratification; they are perfectly entitled to say that and we can debate those processes. However, in relation to Article 48(6), the Bill proposes to introduce new procedures that place new obstacles to the use of treaty provisions to which Britain has already signed up. We signed up to that with the explicit purpose of not being subject to the cumbersome processes of ratification that the Government are now, retrospectively, trying to impose. That raises questions about the Government’s integrity.

[Lord Kinnock]

I am following my noble friend closely, and I am sorry to interrupt him, but does he accept that his declaration that the Government are entitled to make provision for the future is a moot point in the context of this Bill? The Government, as well as presenting this Bill, have repeatedly and solemnly declared that no use will be made of it in the lifetime of this Parliament—none whatever—because there will be no concession in the direction of competences or powers, however defined. That being the case, are not the Government seeking to do what no Government or Parliament can do, and that is to bind future Parliaments?

[Lord Liddle]

My noble friend Lord Kinnock, for whom I have enormous respect, corrects me on this point. I was trying to make a point about whether our European partners were aware of the new constraints being imposed on the British Government’s flexibility in relation to provisions which the British Government have already signed up to. Has the Prime Minister written or otherwise communicated to his European Council colleagues to explain that the deal which Britain did in 2007 is now off the table? Can Parliament be informed of the reaction of our partners to the knowledge that the flexibility which they thought the British had signed up to is no longer available? If we have not got that from our European partners, there should be a pause—after yesterday, pauses in the legislative process are almost a formal part of our proceedings. There should be a pause while this communication with our partners takes place, because it is not right to go back on these promises.

I would like to talk briefly about what I regard as the impracticalities of the Government’s proposals, to which several noble Lords have referred. The most notable instance of the use of Article 48(6) is the way in which it is being used for the establishment of the European stability mechanism in the euro area. That is clearly not a decision that extends the EU's competence because the Maastricht treaty provided for the creation of a single currency and the establishment of an economic and monetary union, both objectives to which the previous Conservative Government subscribed. However, a gap emerged in the framework for managing the euro when the sovereign debt crisis came about. The stability mechanism was established to deal with the crisis, and the clauses of the treaty have been used for this purpose.

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[Lord Howell of Guildford]

I was in the midst of saying that I would do that. Article 48(6) can be used to amend Part 3 of the TFEU, which covers Union policies and internal actions, such as the internal market, agriculture, freedom, security and justice, competition, employment, the environment and public health. In the past, the Lisbon treaty agreed to move 51 vetoes from unanimity to QMV. Somewhere I even have a list, which I shall secure in a moment, of the kind of vetoes, emergency brakes or moves to compel the United Kingdom to do something new or a new power or sanction on the UK involving a treaty change that might or might not qualify under paragraphs (i) and (j) of Clause 4(1) as significant, might or might not be exemptions if they did not affect this country and might or might not therefore become one of the items that might lead to a legislative treaty ratification process that might require a referendum. That is the situation.

[Lord Kinnock]

I hesitate to interrupt the Minister, because this is an issue to which we must perforce return. When he refers to the 51 vetoes that are alleged to have been sacrificed in the context of the Lisbon treaty, I am sure that he will acknowledge that a large number of them suited the purpose of the United Kingdom’s national interest and that there was no argument about them. Nine of them referred exclusively to transitional arrangements being made for the purposes of the unification of the Federal Republic of Germany, while many others—I will give instances one by one in the course of this Committee—had absolutely no effect whatsoever on any loss of sovereign power by the Parliament or people of this United Kingdom. I hope that the Minister, who is an honourable man, is not going to take the risk of distracting us from discussion of what is actually provided for in Article 48(6) by making references that are at best redundant.

[Lord Howell of Guildford]

I understand the feeling of the noble Lord on this, but I want to come in a moment to the reasons why a number of these things would not trigger a referendum. Some things will; some things will not. Most of the items that the noble Lord just mentioned sound to me—I do not know what specific items he is mentioning, but I have already mentioned a list—like items under paragraphs (i) and (j) of Clause 4(1) that would not pass the significance test, so there would be no referendum. I shall explain later that many of the pictures that have been presented of tiny items triggering a single referendum are completely unrealistic in the context of past experience, of which the noble Lords, Lord Kerr and Lord Hannay, have huge amounts. There is the idea that the pattern will be that little bits would dribble out, but let me explain why it will not work in that way.

As far as the simplified revision procedure is concerned, I have explained that Clause 3 would extend the requirements that we are proposing for treaty changes under the ordinary revision procedure, which is a vast and cumbersome thing, in Clause 2 to those transfers of power under the simplified revision procedure. We think that our consistent approach is logical and will help to garner the trust of the British public that we are not seeking all the time to expand the EU’s powers through the back door of the famous competence creep or, in this case, power creep, which has worried so many people who feel that Parliament is not being a sufficient safeguard of the interests of this country.