European Union Bill

Lord Pearson of Rannoch Excerpts

Tuesday 5th April 2011 Lords Chamber

[Lord Deben]

Well, we could go into the referendum and opinion poll mechanism of running government, which of course means the Daily Mail running government—let us be clear what the purpose of this is. If we ran government by opinion poll, we would exempt from the Bill anything to do with the environment, because an overwhelming majority of people believe that the environment is better protected on a European basis. They understand that half the emissions we create we give to the rest of Europe, and half the pollution in this country comes from the rest of Europe. One cannot have an air pollution policy unless it is European, and that is true of most of the issues about which we talk.

I will give my noble friend Lord Howell the second reason why we need to be very careful about this; it is for his own protection. If this is in the Bill, the head-bangers, of whom there are some in both Houses, will say, every time there is any decision in the European Union, “What about this?”. We all know who they are; it would be quite wrong of me to mention any names, but they will rise to their feet again and again because they are utterly committed to doing anything to stop—I give way to the noble Lord, whom I have not named.

[Lord Pearson of Rannoch]

My Lords, I think we all know whom the noble Lord is talking about. Does he agree that the head-bangers now include a growing majority of the British people?

[Lord Deben]

I would say that a large number of people spend a great deal of time misleading as many people as possible on the European Union and it is not surprising that some of it has rubbed off. However, I named no names and I will not do so now. That intervention shows us exactly that what I have said is true. Any Government proposing anything in Europe will come to this part of Europe and present it to the House of Commons, and someone will say, “Why are you not moving for a referendum to be held under this part of the Bill?”. There is no subject which would not come under it. I say to the noble Lord that this is a serious issue for any future Government because, if this part of the Bill goes through, no Government will be free of it in any decision they make. What will be the result of that in the Council?

Of course, I yield to the experience of the noble Lord, Lord Kerr, in negotiations but I think that my experience as a Minister is at least as long as that of anyone else in the country. Sixteen years of that experience was spent in the European Union, much of it in agriculture dealing with the detail of tiny issues that really mattered and much of it in environmental matters. However, I do not see how I could have negotiated, because any bit of this part of the Bill could have been brought up. Therefore, I say to the noble Lord that, if there is something of an argument here, can we please present it in a different way which does not bring all this baggage with it? If there is nothing here, it should be his devout wish that the Committee divides and he loses on this amendment, because it will damage Governments of all kinds. However, what it will damage most is the country that I love—the United Kingdom. It will mean that no Minister will be able to negotiate with the freedom of any other Minister in the European Union. We will be like the Belgians, who, for any decision, have to go back to three Ministers, all of whom have different views, and, as a result, they decide and contribute to nothing.

Therefore, I simply say to the noble Lord that, if he can move on this, he will give me confidence in the claim of my Government that this provision is intended merely to prevent huge changes being carried out without the consent of the British people. If he can move on this, he will protect this and other Governments from the effect of the provision, and I think he will find much of the rest of the debate very much easier. However, if he does not, I fear that many of us will have to vote again and again against a Bill which, for me, is the Conservative version of the Hunting Bill. It has been brought forward to look after a particular group of atavistic individuals and it is not in any way sensible. Everyone else knows that it is not sensible and that it is there for a purpose, and I am ashamed of the Liberal Democrats for not making sure that it was never there at all.

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[Lord Foulkes of Cumnock]

My Lords, I support the amendment moved with such charming and disarming modesty by the noble Lord, Lord Kerr of Kinlochard. Only someone with a highland title could be so disarming and modest as well as eloquent in moving such an amendment.

I speak with reluctance because I was waiting to see who was going to spring up to defend the Bill and speak against the amendment. As my noble friend Lord Kinnock says from a sedentary position, “There won't be many of them”. I have been trying to find out over the past few days and weeks who is behind the Bill, who is the architect of it, who is the genesis of it, who is pushing it, who is keen to see it go through. I even had a conversation with the noble Lord, Lord Tebbit, and he certainly did not claim any responsibility for the Bill. At Second Reading, we had a number of contributions, almost none of them in favour of the Bill. Even those who were in favour were somewhat embarrassed and reluctant.

I wonder why we are taking up so much time in this House and in Parliament when there are so many other things that should be occupying our attention. The noble Lord, Lord Kerr, made a very eloquent Shakespearian beginning to his speech. If I can get a little bit of Shakespeare right, it made me think:

“Why should we, in the compass of a pale,

Keep law and form and due proportion …

When our sea-walled garden, the whole land,

Is full of weeds, her fairest flowers choked up,

Her fruit-trees all unpruned”.

A lot of things are happening outside in our land, this sea-walled garden, that need our attention, but we are being asked to spend so much time on this, it is really quite unbelievable.

I did not speak on Second Reading because I was at my first meeting of the European Union Select Committee. Excellent work is being done there scrutinising legislation that comes from the European Union. It is generally acknowledged that this House, in this Parliament, in this country scrutinises European legislation better than any other house of any other parliament in the European Union, something of which we should be proud. That makes it even more ridiculous that we are being asked to consider this Bill.

[Lord Pearson of Rannoch]

My Lords, can I test the noble Lord’s pride? Can he give us any examples of any proposals or changes to European legislation, put forward either by your Lordships’ Select Committee or the Select Committee in the other place, that have been accepted in Brussels in, shall we say, the past 10 years?

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[Lord Foulkes of Cumnock]

I am really grateful to my noble friend. That is exactly the kind of thing that I was seeking. I know this House, and I have the greatest of respect for the noble Lord, Lord Howell, who I have known for many years and who has been very helpful to me on many occasions. I really feel sorry for him that he has been asked to pilot this Bill through the House. I think it says a great deal for his dedication and his commitment that he is willing and able to do so.

[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.

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[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 Lester of Herne Hill]

Another example is that, in the protocol to the treaty of Lisbon, there is a provision giving power to national parliaments to be able to refer to the Luxembourg court issues where the national parliament considers that the principle of proportionality is being breached by legislative proposals emanating from Brussels. That is an example of where the treaty of Lisbon enhances the powers of national parliaments.

[Lord Pearson of Rannoch]

My Lords, the noble and Europhile Lords are struggling to find examples.

[A noble Lord]

We are not struggling at all.

[Lord Pearson of Rannoch]

I am afraid that I do not find them very convincing. The drift of all treaty changes, starting in 1972, has been to remove power from the nation states and to pass it to Brussels. Therefore, when we assume that under this clause provisions will come forward that do not transfer power from this country to Brussels, that really is the triumph of hope over experience.

[Lord Grenfell]

The noble Lord keeps referring to removing powers. Would he not accept that there is a principle of pooling powers, which is very different? It means that we share authority so that we can find results for the common good of Europe. Of course, when you pool powers you are not simply saying, “I give up all authority”; you are saying, “Together we will use our individual powers to find a means of pooling it for the common good”.

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[Lord Pearson of Rannoch]

No. I am afraid that I am among those who regard sovereignty as being rather like virginity; you either have it or you do not. Certainly, in all those parts of the treaty that are now subject to qualified majority voting, where we have some 9 per cent of the votes, we have in effect given up power. I really do not think that there is any doubt about that.

[Lord Deben]

Perhaps I may talk about the question of virginity. In the matter of air pollution, we do not have sovereignty over half the air pollution that affects my former constituents and the noble Lord’s neighbours. By pooling our sovereignty, we now share the sovereignty over all the air pollution and we can do something about it. By doing that, we have increased our sovereignty. If I may say so, the noble Lord really misleads people when he talks about sovereignty as if it is something that in the modern world means keeping everything. I remind him of the biblical concept that if you want to gain something, you share it, which surely is the point of the European Union.

[Lord Taverne]

Perhaps I may put two further examples to the noble Lord. He is very conscientious and I am sure that he read carefully every word that was spoken at Second Reading. What about the examples that have been given? The noble Lord, Lord Kerr, previously referred to defence equipment, an area in which we would have an enormous amount to gain if we shared sovereignty. Presently, we do not.

My second example, patents, was given by the noble Lord, Lord Liddle. Are these not perfect examples of where we gain enormously from sharing a certain amount of authority instead of keeping it entirely in a narrow sense?

[Lord Pearson of Rannoch]

I cannot accept those points from the noble Lords, Lord Deben and Lord Taverne. Why could we not have done these great things by intergovernmental collaboration? Why did we need to pool our sovereignty to achieve them? On the environment, if the noble Lord, Lord Deben, as he did in his speech, is going to extol his 16 years in the Ministry of Agriculture, Fisheries and Food as an Agriculture Minister, is he really going to tell your Lordships that he is all that proud of that? What about the common agricultural policy and the common fisheries policy? These are also examples of the EU’s environmental control over what used to be our sovereign territory.

[Lord Deben]

I wonder whether the noble Lord, Lord Pearson, would like to say the same about the last 16 years of the Houses of Parliament. It would be quite possible to say that a lot of things were done here in a way that he does not like, but would he suggest that we should leave the parliamentary system because he does not like some of the things that are done? All we are saying to him is that sharing sovereignty gains and does not lose, and that this particular clause has nothing to do with sharing sovereignty because it actually excludes anything that does share sovereignty. Why is he talking about sharing sovereignty in relation to this particular amendment when it refers specifically to internal housekeeping decisions that have nothing to do with sharing or transferring sovereignty?

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[Lord Pearson of Rannoch]

The noble Lord brings me nicely on to my next point, which was also raised by the noble Lord, Lord Hannay, when he said that we ought to have confidence in the other member states. Of course I accept that under Article 48(6) the Government of the day have the power of veto, but as I understand it, that is not what we are envisaging here. We are envisaging a Government of the day that have not used the power of veto and something has come forward which the British people might not like. I would say to the noble Lord, Lord Kerr, that pretty much anything put in front of the British people on matters European will be voted down in a referendum, and that the supporters of these amendments seem to be very fearful of the judgment of the British people.

When I say that the other member states, Brussels and the whole machine simply cannot be trusted to follow the treaties, I speak with history behind me. I would mention, for instance, Article 308, about which I have regaled your Lordships over many years. This article was put into the treaty to allow the Council of Ministers, by unanimity, to make small adjustments to the original Common Market and so on. I could take noble Lords through the abuse of Article 308 and all the powers that have been passed to Brussels under it, but I will not do so.

Let us take the abuse of Article 122 as recently as June before last. That article, which clearly allows member states to help each other in times of natural disaster, was taken under qualified majority voting—the British Government did not have a hope of stopping it—to force us to sign up to some 14 per cent of £50 billion for the European financial stability mechanism.

I really do not think that those of us on the Eurosceptic spectrum, of whom there are a few in your Lordships’ House, can accept that all this is going to follow properly in the Council of Ministers. I will not respond now to the noble Baroness, Lady O’Cathain, about roaming charges, but I think there was another one that had something to do with audio-visual equipment. That was in response to a long line of Questions for Written Answer from my noble friends Lord Tebbit and Lord Vinson. I am afraid I have to stick to my guns. With all due respect to noble Lords who sit on our European Union committees, I really do not think that they have made enough difference over the years to justify their existence.

So there it is. I think that this part of the Bill is reasonable if we envisage a British Government after this Government are no longer with us—this Government can veto anything, and they have said that they are going to, so this is not going to happen for five years —who have agreed to something in the Council of Ministers that ought to be put in front of the British people. I simply do not accept that the treaty will be obeyed, as it has never been obeyed in the past.

[Lord Grenfell]

My Lords, the noble Lord said that the European Union Committee has never made any difference—I declare an interest as I was its chairman for some years. Perhaps I may quote to him one fact. Many years ago, when Mario Monti, the Commissioner, set about a big review of the competition regulation, we got off the mark very quickly. We got hold of the Green Paper and did an extensive inquiry into it. We interviewed the Commissioner and presented our conclusions to Her Majesty's Government before they went in to negotiate in the Council. They said that they thought that what we said was extremely useful. They advanced their arguments, and it had an impact on the final result. So it is a little unfair to say that those 90 Members of your Lordships' House who work week in, week out on those committees do not make an impact—they certainly do.

[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.

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[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.

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[Lord Davies of Stamford]

My Lords, I have a great many objections to this Bill under three broad headings. The first is the constitutional damage this Bill would do if it was enacted. I totally agree with what the noble Lord, Lord Garel-Jones, has said but, as he said himself, this is not the moment to go into that as we shall have other opportunities on amendments relating to referenda in Clause 18.

Secondly, I am concerned about the honesty of the Bill. I made the point at Second Reading that although it purports to offer referenda on a vast range of potential subjects, it seemed quite clear that there would in practice be no chance of referenda ever taking place on some of these secondary or tertiary issues and that the Bill is therefore something of a fraud on the public. I am quite concerned that there is another fraud going on here, which I will come to in a moment.

Thirdly, I am concerned about the practical implications of the Bill and there I agree again with what the noble Lord, Lord Garel-Jones, just said. The noble Lord, Lord Kerr, made it absolutely clear in moving his amendment that there is a serious discrepancy between the way that the Bill was presented as protecting the British public against any further concessions of power to the European Union—the entire rhetoric was that there will now be this block with a referendum—and the inclusion of decisions made under Article 48(6), which quite clearly and explicitly excludes any extensions of the powers of the European Union.

In fact, we have been offered a Bill with so-called protection for the public against a threat but which includes a provision that, by definition, could not form part of that threat. One has to ask why that has been done. Is it a matter of drafting carelessness? Surely not; the references to Article 48(6) are absolutely clear and deliberate. There are several of them throughout the Bill. Indeed, the noble Lord, Lord Kerr, and his co-signatories to the amendment have gone through the Bill and addressed them wherever they arise. There is clearly a deliberate intention here to go beyond what is in my view—I know it is a value judgment, but it is my view—the already extreme rhetoric with which this Bill was presented. The reality is even more extreme and one has to ask: why is that? Why is there an intention to have a referendum on matters which, by definition, cannot involve increasing the powers of or conceding capabilities to the European Union? I hope that the Minister will address this issue, as I cannot imagine that we could have an honest debate on this subject without it being explicitly addressed.

I also hope that there might be more contributions from the Lib Dems in the course of debate on this set of amendments. I suspect that a lot of Lib Dems were dragged, kicking and screaming, into supporting the notion of the Bill on the basis that all it did was to provide for a referendum in the event that further powers were being conceded to the European Union. In fact, the Bill that has come up is much more restrictive and goes far further. I do not know whether every member of the Lib Dem party has appreciated the significance of explicitly including Article 48(6) as it is being done, or of what that means. It puts much more of a brake on the European Union’s day-to-day activities, which I will come on to in a moment, than was ever suggested in announcing the intention to move forward with this legislation. It is particularly important that the Lib Dems, both in this Committee and in the country as a whole, have an opportunity to think really carefully about Article 48(6) before they decide what their ultimate attitude is towards the Bill. It would be artificial if we did not hear from more Lib Dems in the course of our proceedings, including on this amendment.

The third issue that concerns me about the Bill in general—I come particularly to the issues covered by this amendment—is its practical consequences. Before we pass any legislation, it is terribly important for this House to think through what its practical consequences will be. If you are sitting on a board of directors at a business and deciding whether to take a particular decision, you think pretty carefully about its practical consequences. You may ask your support staff and so forth, or you may ask legal advisers or other outside advisers such as management consultants, “What would be the consequences of our doing X, Y and Z”? You ask people, come up with as many possible answers as you can and weigh them carefully before you decide on the balance of advantage or disadvantage in going forward or not. It is important to look at particular cases.

Since the Government have set out for us in Schedule 1 the sort of issues which would require a referendum under the Bill, at least by way of an illustration which is not exhaustive and does not exclude other issues, we should think through in the course of the Committee’s proceedings what would happen if this Bill became an Act and was now on the statute book, and practical decisions needed to be taken in any of these categories. I shall take a few at random, without taking up too much time. Take, for example, Article 77(3) on,

“provisions concerning passports, identity cards, residence permits etc.”.

Some people would say, “We’re not part of Schengen so that doesn’t concern us at all”. If that were the case, why would we need a referendum on the subject? It baffles me. One can well imagine a situation in which we could not cut ourselves off from, let us say, immigration issues in the Schengen area. We remember the problems that we had with Sangatte, with a large number of illegal immigrants from France concentrating themselves in Calais with a view to trying to steal through the Channel tunnel in one form or another or on to ferries and come into this country. It was a serious practical problem for us. There was no point in using philosophical arguments to deal with it; it needed to be dealt with in a practical way. There are many possible scenarios that one can imagine where we will need to sit around a table with our partners and come to a sensible agreed solution to deal with, let us say, a massive and difficult immigration issue or threat that has suddenly arisen.

[Lord Pearson of Rannoch]

Surely the noble Lord would agree that if we had not pooled our sovereignty, as noble Lords like to call it, in the matter of immigration, which he has raised, if we had kept control of our borders and if the previous Government had not deliberately lowered our borders and our immigration, particularly to people from the European Union, the problem would not have arisen. Surely the answer is simply not to have been in the EU, not to be in the EU in future and to control our own borders. It is a no-brainer, isn’t it?

[Lord Davies of Stamford]

I think that by a “no-brainer” the noble Lord means giving the same answer to any question that is asked in any context whatsoever: that we should never have gone into the European Union. The noble Lord is fundamentally flawed in his analysis of the national interest in this area, but if I actually addressed his comments I should be making a speech about the reasons why we are in the EU. All I will say is that we have kept control of our borders. We have not joined Schengen although—and we should never forget this—we have a common travel zone with the Republic of Ireland, so we have a mini-Schengen. That is another reason why we cannot simply suppose that we can draw up the moat here and do what the devil we like; we need to discuss with the Republic of Ireland what it is doing in relation to Schengen at any one time, otherwise we should have to set up a border between Northern Ireland and the Republic or something of that sort, which would have all kinds of consequences that we would not want to contemplate.

I mention this to the noble Lord merely because, while I was not very optimistic that I would persuade him about anything, these matters are extremely complex and we cannot act as if we are in isolation in this world. There is a whole range of interdependencies—I was going to say “interdependabilities”—that we have with countries that surround us. That is a natural part of things and we should not reject it. We should be prepared to come to sensible, common-sensical, mutually advantageous arrangements with our partners on a pragmatic basis and we should not cut ourselves off from the possibility of reaching agreement with them—but that is exactly what the Bill does.

What would happen if there were a pragmatic, sensible solution of this kind dealing with, say, provisions concerning passports, identity cards, residence permits and so forth? The British Minister would be paralysed and would not be able to take part in the discussion at all. If the British Minister even started entering the discussion, he would immediately be guilty of bad faith. Everyone around the table would say, “This guy’s not serious; he’s not for real. Il n’est pas sérieux. He’s not going to have a referendum on this but he can’t agree it without a referendum, so why’s he sitting in the room at all? What’s this guy doing wasting our time?”. No one would be so rude and undiplomatic as to say that out loud, but that would be the effect. We would be sending Ministers to Brussels to find themselves in that extremely embarrassing situation. Do we really want to conduct our international relations, let alone those with such important partners and neighbours as our fellow members of the EU, on that basis? It is extraordinary.

Let us look at police co-operation, covered by Article 87(3). It does not need very much imagination, for people who have had some experience of public life like ourselves, to know that out of the blue you can suddenly have a very nasty threat. It can be something to do with terrorism, and clearly we are all concerned about that; there is a Bill going through the House at the moment. I sit on a Joint Committee with the House of Commons examining the contingent terrorist detention Bill, as noble Lords will know. We are rightly concerned that something will happen out of the blue. I will give way to the noble Baroness; I am just finishing my sentence.

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These amendments are extremely important. We on this side of the House believe that the provisions of the Bill are not at all realistic or practical. They are from the world of Eurosceptic fantasies. They raise difficult legal issues and difficult political issues. Worst of all, they just do not make practical sense.

[Lord Pearson of Rannoch]

My Lords, I wonder whether I could press the noble Lord to give an answer to a question that I put to other noble Lords but which they did not answer. Why does he think that the European Union, Brussels and so on, will stay within the legal confines of the treaty? Of course, Article 48(6) says that it shall not be used to increase the competences conferred on the Union in the treaties. The two examples that I gave, to which I would like the noble Lord to reply, are the European Union’s abuse of what was Article 308, which is now Article 352. I did not weary your Lordships with all the examples of where that abuse was manifest, but I shall give the reference if anybody wants to find it. In future, students of these matters may want to consult Hansard for 18 June 2008 at col. 1074. That is a clear example of where a clause designed to allow the Council to take action,

“in the course of the operation of the Common Market”,

was used to do all sorts of other things. When it came before the Luxembourg Court for judgment in 1996, those words were simply ignored by the Court. I gave noble Lords the example of Article 308 in the past. I also give noble Lords the example of Article 122, which was used in the interregnum between one Government and another. Can the noble Lord answer those points and set your Lordships’ mind at rest that Article 48(6) will be followed, unlike the way in which those articles—and there are more flexibility clauses—have not been obeyed in the past?

[Lord Liddle]

With the greatest respect, I think that the noble Lord is confusing two things. I am looking in the direction of the noble Lord, Lord Kerr. I think that Article 48(6) deals with cases where there is a clear competence—for instance, in the case that I was talking about of the single market in financial services and in the previous case about the euro, the establishment of economic and monetary union and of a single currency. I think that the noble Lord is talking about the general clauses which are now subject, under the Lisbon treaty, to considerable constraints. I will look into that and perhaps we can have a discussion.